Jackson v. Norris

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1229
___________

Alvin Bernal Jackson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Larry Norris, Director, *
Arkansas Department of Correction, *
*
Appellee. *
___________

Submitted: February 10, 2010
Filed: August 11, 2010
___________

Before RILEY, Chief Judge,1 SMITH and SHEPHERD, Circuit Judges.
___________

SHEPHERD, Circuit Judge.

This is a petition for habeas corpus relief under 28 U.S.C. § 2254 brought by
Alvin Jackson, an Arkansas prisoner facing execution. Jackson’s petition, before us
for the second time, asserts, as relevant here, that he is mentally retarded and,
therefore, his execution would violate the Eighth Amendment under Atkins v.
Virginia, 536 U.S. 304 (2002) (the “Atkins claim”). In his first appeal, we reversed
the district court’s dismissal of the Atkins claim on the basis of procedural default.

1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
See Jackson v. Norris (Jackson I), 256 F. App’x 12 (8th Cir. 2007) (unpublished per
curiam), cert. denied, 128 S. Ct. 2907 (2008). On remand, the district court granted
summary judgment to Norris, dismissing the Atkins claim on the merits, without an
evidentiary hearing (an “Atkins hearing”). Jackson appeals. Because Jackson has
made the requisite showing for an Atkins hearing, we reverse the district court’s
denial of such a hearing, vacate the district court’s grant of summary judgment to
Norris on the Atkins claim, and remand to the district court for an Atkins hearing.

I.

Jackson has been sentenced to death for the capital murder of Arkansas
Department of Correction’s prison guard, Scott Grimes, while serving a life sentence
for the capital murder of Charles Colclasure, see Jackson v. State, 811 S.W.2d 299
(Ark. 1991). His conviction and sentence were affirmed by the Arkansas Supreme
Court, Jackson v. State, 954 S.W.2d 894 (Ark. 1997); and his request for state
postconviction relief was denied, Jackson v. State, 105 S.W.3d 352 (Ark. 2003).

On October 27, 2003, Jackson filed his habeas petition, raising the Atkins
claim2 and asserting that:

Jackson is retarded as that concept is defined in Atkins: Subaverage
intellectual functioning and also significant limitations in adaptive skills
such as communication, self-care, and self-direction that became
manifest before age 18. The facts and diagnoses delineated in [Jackson’s
ineffective assistance claim] demonstrate that Jackson has both the

2
Jackson alleged six other grounds for habeas relief. Each of the claims had
been raised in state court, and the district court granted summary judgment to Norris
on all of the claims because Jackson had failed to meet the standard for habeas relief.
See 28 U.S.C § 2254(d). The district court and this court denied Jackson a certificate
of appealability on these claims.

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 functioning and adaptive problems required for the finding, as well as it
being clear that this was established before age 18.

(Pet. 32 (quotation omitted).) Norris filed a motion for summary judgment,
contending, as relevant here, that the Atkins claim failed because it was
(1) procedurally defaulted as Jackson did not invoke Arkansas Code Annotated § 5-4-
618(d), which provides a procedure by which a defendant can show that he is mentally
retarded and avoid the death penalty, and (2) without merit. On January 4, 2007, the
district court dismissed the Atkins claim as procedurally defaulted because Jackson
had not presented a mental retardation defense to the death penalty available to him
under Arkansas law. See Ark. Code Ann. § 5-4-618 (precluding the execution of the
mentally retarded). The court denied Jackson’s motion for a certificate of
appealability.

We granted Jackson a certificate of appealability solely on the Atkins claim and,
in Jackson I, reversed the district court’s dismissal of the claim in light of Simpson v.
Norris, 490 F.3d 1029 (8th Cir. 2007), cert. denied, 552 U.S. 1224 (2008),3 and
remanded the matter to the district court for “further proceedings.” Jackson I, 256 F.
App’x at 12. On remand, the district court issued an order directing Jackson to
respond to Norris’s pre-appeal summary judgment motion on the merits of the Atkins
claim. Jackson filed a response and a motion for discovery and funds to retain
experts.

On January 6, 2009, the district court granted summary judgment to Norris,
dismissing the Atkins claim on the merits. The court correctly observed that there is
no uniform federal standard for mental retardation, see Sasser v. Norris, 553 F.3d

3
In Simpson v. Norris, 490 F.3d 1029 (8th Cir. 2007), cert. denied, 552 U.S.
1224 (2008), we concluded that failing to bring a claim under Arkansas Code
Annotated § 5-4-618 did not prevent a habeas petitioner from bringing an Atkins
claim. Simpson, 490 F.3d at 1034-36.

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1121, 1125 n.3 (8th Cir.), cert. denied, 130 S. Ct. 397 (2009) (“Atkins actually does
not define mental retardation, leaving the development of the new constitutional
restriction to the states.” (citing Atkins, 536 U.S. at 317)), and purported to apply
Arkansas’s definition of mental retardation, see Ark. Code Ann. § 5-4-618(a)(1).

The Arkansas standard for mental retardation has three prongs: (1)
“[s]ignificantly subaverage general intellectual functioning . . . manifest[ing] . . . no
later than . . . eighteen (18) years of age,” (2) “a significant deficit or impairment in
adaptive functioning manifest[ing] . . . no later than age eighteen (18) years of age[,]”
and (3) “[a] deficit in adaptive behavior.” Id. § 5-4-618(a)(1). The defendant bears
the burden of proving each prong by a preponderance of the evidence. Id.
§ 5-4-618(c). The district court determined that Jackson had arguably presented
allegations sufficient to create a fact question as to the first prong. However, the court
concluded that Jackson had failed to show a fact question on the second prong.
The court did not mention or address the third prong.

In addressing the second prong, the court correctly defined adaptive functioning
according to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. text
revision 2000) (hereinafter “DSM-IV-TR”).4 “Adaptive functioning refers to how
effectively individuals cope with common life demands and how well they meet the
standards of personal independence expected of someone in their particular age group,
sociocultural background, and community setting.” DSM-IV-TR at 42. The second
prong is met if an individual has “significant limitations in at least two of the

4
The Supreme Court has acknowledged the two generally accepted clinical
definitions for mental retardation set forth by the American Psychiatric Association
(APA) and the American Association on Mental Retardation. Atkins v. Virginia, 536
U.S. 304, 308 n.3 (2002). The Court noted, “The statutory definitions of mental
retardation are not identical, but generally conform to the[se] clinical definitions . . . .”
Id. at 317 n.22. The current version of the APA model is contained in the Diagnostic
and Statistical Manual of Mental Disorders (4th ed. text revision 2000).

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following skill areas: communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional academic skills, work,
leisure, health, and safety.” Id. at 41. The district court determined that Jackson’s
allegations only demonstrated a significant impairment in one skill area—functional
academic skills. The court further observed that Jackson could drive, maintained a
neat appearance, took the necessary steps to effect a legal name change, and made use
of available resources (such as administrative grievance procedures and federal laws)
to seek relief when he believes his rights have been violated. The court further noted
that the transcript of Jackson’s custodial interview relating to the 1989 Colclasure
murder as well as his deposition testimony in his 42 U.S.C. § 1983 litigation
established that he was not mentally retarded within the meaning of Atkins.

The district court determined that an Atkins hearing was not warranted,
concluding that, even if Jackson’s factual allegations were true, he had failed to
demonstrate that he was entitled to habeas relief. In addition, the court denied
Jackson’s motion for discovery and funds for investigation and testing, determining
that further evidentiary development was unnecessary because, in light of the
undisputed record, additional testing and investigation would not enable Jackson to
prevail. The district court granted Jackson’s motion for a certificate of appealability.

II.

In this appeal, Jackson argues that the district court erred by denying him an
Atkins hearing because: (1) under Sasser, he is entitled to such a hearing as a matter
of law, and (2) even if he is not entitled to an Atkins hearing as a matter of law, he has
made the requisite showing for such a hearing. Alternatively, Jackson contends that,
even if he was not entitled to an Atkins hearing, the district court erred in granting
summary judgment to Norris on the Atkins claim because he had presented sufficient
evidence to generate a genuine issue of fact as to whether he is mentally retarded
within the meaning of Atkins.

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 We first address whether Jackson was entitled to an Atkins hearing. Where, as
here, an Atkins hearing is not barred by 28 U.S.C. § 2254(e)(2),5 we review a district
court’s denial of an Atkins hearing for abuse of discretion. See Johnston v. Luebbers,
288 F.3d 1048, 1059 (8th Cir. 2002). A district court does not abuse its discretion
where “such a hearing would not assist in the resolution of [the Atkins] claim.” Id.
(quotation omitted).

Jackson asserts that he is entitled to an Atkins hearing, as a matter of law, under
Sasser. Because Sasser relies heavily on our decision in Simpson, we begin our
analysis with Simpson. In Simpson, the petitioner, “a prisoner under sentence of
death in the State of Arkansas,” sought habeas relief on “an eighth amendment claim
under Atkins that his mental retardation made him ineligible for the death penalty.”
490 F.3d at 1031, 1034. After reversing the district court’s decision that Simpson had
procedurally defaulted his Atkins claim, we remanded the matter for an Atkins
hearing, explaining:

“Where the facts are in dispute, the federal court in habeas corpus must
hold an evidentiary hearing if the habeas applicant did not receive a full
and fair evidentiary hearing in a state court.” Townsend v. Sain, 372
U.S. 293, 312 (1963), overruled on other grounds, Keeney v.
Tamayo-Reyes, 504 U.S. 1, 5-6 (1992). Mr. Simpson has alleged that he
is mentally retarded as Atkins defines that condition, which would entitle
him to relief, and that matter remains in dispute. Since his inability to

5
Generally, section 2254(e)(2) bars an evidentiary hearing unless a habeas
petitioner “has failed to develop the factual basis of a claim in State court
proceedings.” 28 U.S.C. § 2254(e)(2). Section 2254(e)(2)’s proscription does not
apply here because “Atkins created a previously unavailable claim based on the
unconstitutionality of executing the mentally retarded, [Jackson] can hardly be said
to have lacked diligence in developing the factual basis of that claim in state court[,]”
Simpson, 409 F.3d at 1035. Atkins was decided June 20, 2002, after the Arkansas
Supreme Court had affirmed Jackson’s conviction and sentence, see Jackson v. State,
954 S.W.2d 894 (Ark. 1997), and while his appeal from the trial court’s denial of
post-conviction relief was pending, see Jackson v. State, 105 S.W.3d 352 (Ark. 2003).

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 present his Atkins claim in state court precluded him from receiving “a
full and fair evidentiary hearing” there, he satisfies the conditions
outlined in Townsend.

Simpson, 490 F.3d at 1035. However, Simpson did not specify the allegations of
mental retardation that had been raised by the petitioner.

In Sasser, the petitioner, “an Arkansas state prisoner sentenced to death”
asserted that “he [was] mentally retarded and ineligible for the death penalty” under
Atkins. Sasser, 553 F.3d at 1123. The district court determined that the Atkins claim
was procedurally defaulted “because Sasser did not raise the issue in state court” and
that “Sasser did not satisfy the ‘actual innocence’ exception to procedural default
because he failed to present sufficient evidence of his mental retardation.”6 Id. at
1124. The petitioner appealed, contending that Simpson “require[d] the district court
[to] hold an evidentiary hearing on the merits of [Sasser’s] mental retardation claim.”
Sasser, 553 F.3d at 1124-25.

In Sasser, we noted that “Simpson may not mandate an evidentiary hearing in
every conceivable set of circumstances,” expressly reserving the question that Jackson
claims Sasser answers. Sasser, 553 F.3d at 1126. However, we determined that the
district court’s denial of an Atkins hearing was “contrary to Simpson,” as Simpson
provided that an Atkins hearing was warranted where a petitioner “‘alleged that he
[was] mentally retarded as Atkins defines that condition.’” Sasser, 553 F.3d at 1125
(quoting Simpson, 490 F.3d at 1035). The Sasser Court then identified the allegations
in Sasser’s habeas petition that required the district court to conduct an Atkins
hearing:

6
“A petitioner is ‘actually innocent’ of the death penalty where he is ineligible
for the death penalty.” Sasser v. Norris, 553 F.3d 1121, 1126 (8th Cir. 2009) (citing
Sawyer v. Whitley, 505 U.S. 333, 345 (1992)).

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 (1) [Sasser] meets the diagnostic criteria for mental retardation
promulgated by the American Association on Mental Retardation and the
American Psychiatric Association; (2) his IQ is 79 (which Sasser asserts
places him in the mentally retarded range, taking into account the margin
of error); (3) he was incapable of graduating from high school despite
being enrolled in school for twelve years; (4) he was never able to live
independently and was 29 at the time of [the] murder [for which he
received the death penalty] and still living with his mother . . . ; (5) he
was incapable of paying bills or maintaining a checking account; (6) he
was capable of only the simplest, manual-labor jobs; and (7) he
manifests significant deficits in intellectual and adaptive functioning.

Sasser, 553 F.3d at 1125-26. The court further explained that

there [was] no question the allegations in Sasser’s petition are as
adequate as Simpson’s pleading threshold where the petitioner “alleged
that he is mentally retarded as Atkins defines that condition” in order to
obtain an evidentiary hearing on his mental retardation claim. Nothing
in Sasser’s case precludes the need for an Atkins evidentiary hearing.

Sasser, 553 F.3d at 1126 (quoting Simpson, 490 F.3d at 1035).

The Sasser Court also rejected the government’s attempt to distinguish Simpson
on the basis that the district court had afforded Sasser a “remand procedure,” unlike
the district court in Simpson, providing Sasser with the opportunity to present
additional evidence regarding his mental retardation. Sasser, 553 F.3d at 1126-27.
The court concluded,

Sasser was not obligated to expand the record with additional evidence
showing he was entitled to a hearing, nor was he obligated to file another
motion requesting a hearing—Sasser already requested a hearing in his
[petition]. Simpson explains Sasser [was] entitled to a hearing simply by
virtue of “alleg[ing] that he [was] mentally retarded as Atkins defines
that condition.” Given the circumstances and factual allegations in

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 Sasser’s case, Simpson expressly requires an Atkins evidentiary hearing,
not some other type of “remand procedure” crafted by the district court.
We therefore reverse and remand to the district court for an evidentiary
hearing to adjudicate the merits of Sasser’s mental retardation claim.

Sasser, 553 F.3d at 1126-27 (quoting Simpson, 490 F.3d at 1035).

We conclude that Jackson’s petition has satisfied the pleading standard of
Simpson and Sasser, by expressly incorporating the following evidence from the trial
record for the Colclasure murder. (Pet. at 14-15, 32.)

(1) Dr. Patricia Kohler, the director of the Division of Special Education of the
Little Rock School District, testified that “at almost seven years of age Jackson was
referred for analysis because of poor schoolwork, emotional outcries, and disruptive
behavior. He was tested at the borderline range of mental ability.” (Id. at 16.)

(2) Jackson’s 1978 evaluation by the Elizabeth Mitchell Children’s Center
concluded that he “was unable to function physically or emotionally in a classroom
setting at the present time. His verbal IQ was 60, his performance IQ was 90,
rendering his full scale IQ as 70. The thirty point discrepancy indicated some
organicity as well as the severeness of his learning problems.” (Id. (quotation
omitted).)

(3) When Jackson was eight years old, his school principal wrote his mother a note,
stating:

It will be necessary for you to keep Alvin out of school until something
is worked out about his further education. It is almost impossible to get
him into or keep him in a classroom. He wanders over the building
upsetting furniture, yelling into other classrooms, and hitting or kicking
anyone who is within reach. Yesterday he kicked a supervising aide
bruising her leg. Today he has choked two children and kicked or hit a

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 number of others. Last week he announced that he was going to walk
home and dashed out of the building. He did not leave, but there is no
assurance that he will not leave the next time.

(Id. (quotation omitted).)

(4) At age 11, Jackson had “a mental age of seven years eight months, an IQ of
70[,] and classifi[ed] [as a] very slow learner [with] poor receptive language
development. A 23 point discrepancy at that time between his verbal and performance
scores rendered the full scale score irrelevant. He was deemed to have mental
retardation.” (Id. at 16-17.)

(5) At age 12, Jackson was “placed on Ritalin; the medication was found to be
helpful but the dosage level was apparently insufficient to control his hyperactivity.
His academic skills were at the second and third grade levels. In December of that
year he was placed in a home schooling program.” (Id. at 17.)

(6) At age 15, Jackson had “some difficulty in the visual motor area and expressive
and receptive language skills” and that concerns with regard to his behavior were
“significant.” (Id. (quotation omitted).)

(7) Dr. Lee Archer, a neurologist at the University of Arkansas for Medical
Sciences, testified that he had examined Jackson and concluded that he had attention
deficit hyperactivity disorder (ADHD) and an antisocial personality disorder. “Dr.
Archer observed that attention deficit hyperactivity disorder is thought to predispose
people to antisocial personality.” (Id.) Dr. Archer determined that Jackson abused
alcohol and drugs and had “borderline intellectual functioning.” (Id.)

(8) Dr. Sam Clemens, a child and adolescent psychiatrist at the University of
Arkansas, testified about the characteristics of ADHD. Dr. Clemens

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 testified that [ADHD] is a mental disorder that first begins in childhood
and can continue through a lifetime, that the more severe forms influence
almost everything a person does, that some persons afflicted with it
exhibit antisocial behavior as they mature, and that if they have
borderline mental retardation it makes their lives more difficult. He
testified that the researchers in the field felt that it is some kind of
organic condition or brain dysfunction that the person simply cannot
help.

(Id. at 17-18.)

(9) Jackson’s older brother testified that Jackson (1) “had a difficult time growing
up, having been picked on a lot,” and (2) “witnessed a number of confrontations
between [his] mother and . . . stepfather[.]” (Id. at 18.)

Under the first prong of Arkansas’s definition of mental retardation, Jackson
must show that, before age 18, he had “[s]ignificantly subaverage general intellectual
functioning.” Ark. Code Ann. § 5-4-618(a)(1)(A). “Significantly subaverage
intellectual functioning is defined as an IQ of about 70 or below . . . .” DSM-IV-TR
at 41. “There is a rebuttable presumption of mental retardation when a defendant has
an intelligence quotient of sixty-five (65) or below.” Ark. Code Ann. § 5-4-618(a)(2).
Per Jackson’s habeas petition, the results of two IQ tests administered before his 18th
birthday indicated an IQ of 70.7 Therefore, there is a genuine issue of fact as to the
first prong.

Next, Jackson must allege “a significant deficit or impairment in adaptive
functioning manifest[ing] . . . no later than age [18].” Ark. Code Ann. § 5-4-

7
We note that an IQ score may involve “a measurement error of approximately
5 points,” depending on the testing instrument. DSM-IV-TR at 41. “Thus, it is
possible to diagnose Mental Retardation in individuals with IQs between 70 and 75
who exhibit significant deficits in adaptive behavior.” Id. at 41-42.

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618(a)(1)(A). We have already noted that the district court properly defined this term
and the requisite showing a petitioner must make in order to show a significant deficit
or impairment in adaptive functioning. However, we disagree with the district court’s
conclusion that Jackson did not allege limitations in two skill areas as required. See
DSM-IV-TR at 41. Rather, we conclude that Jackson has offered evidence of
significant limitations in two skill areas prior to age 18, specifically,
social/interpersonal skills and functional academic skills. See id.

First, with regard to social/interpersonal skills, Jackson has alleged a significant
impairment in that: (1) at age 7, he was referred to Elizabeth Mitchell Children’s
Center for evaluation and was deemed “unable to function physically or emotionally
in a classroom setting at the present time,” (Pet. 16); (2) at age 8, he was expelled
from school indefinitely because he was, essentially, uncontrollable in the school
environment, including being violent toward other children and adults; (3) at age 15,
he had “significant” behavioral issues, (id. at 17); and (4) his diagnoses of antisocial
personality disorder and ADHD. Second, in terms of functional academic skills,
Jackson has alleged a significant impairment in that: (1) at almost age 7, he was
referred for analysis because of poor schoolwork, emotional outcries, and disruptive
behavior; (2) at age 11, he was again tested and received a mental age of seven years
eight months, and classification of very slow learner or poor receptive language
development; and (3) at age 12, his academic skills were at the second and third grade
levels. Therefore, there is a genuine issue of fact as to the second prong.

Finally, the third prong, which the district court did not address, requires a
showing of “[a] deficit in adaptive behavior” with no age requirement. Ark. Code.
Ann. § 5-4-618(a)(1)(B). The third prong does not appear in the DSM-IV-TR’s
criteria for mental retardation, see DSM-IV-TR at 41; however, the DSM-IV-TR does
use the term “adaptive behavior” interchangeably with the term “adaptive
functioning,” see id. at 42 (“Several scales have . . . been designed to measure
adaptive functioning or behavior.”). Similarly, the definition of mental retardation in

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a number of states does not contain a requirement equivalent to Arkansas’s third
prong. See Ala. Code § 15-24-2(3); Cal. Penal Code § 1376(a); Conn. Gen. Stat. § 1-
1g; Fla. Stat. § 921.137(1); Ky. Rev. Stat. § 532.130(2); Neb. Stat. § 28-105.01(3);
Tenn. Code Ann. § 39-13-203; Tex. Health & Safety Code § 591.003(13).

Arkansas case law does not shed much light on what the third prong
encompasses. In Miller v. State, No. CR 08-1297, 2010 Ark. 1 (2010), the only case
to address the term in any significant way, the Arkansas Supreme Court first addresses
the second prong—the defendant’s adaptive functioning:

We continue our review with the evidence presented from the experts as
to Miller’s adaptive functioning. Dr. Deyoub observed that Miller had
held a steady job for fourteen years, had been married, and had two
children of his own; he opined that this level of adaptive functioning was
not consistent with an intelligence quotient of 59. Dr. Price, however,
observed that while on the job Miller was supervised and protected by
various family members, including Miller’s grandfather and uncle, and
that he was disciplined on the job numerous times. Dr. Price also
pointed out that Miller’s marriage had ended in divorce and that he had
permanently lost custody of his children. Dr. Mallory commented that
Miller’s behavior on the job was a concern to other employees and that
Miller had been fired for sexual harassment. However, Dr. Mallory also
commented on Miller’s behavior while incarcerated, noting that he kept
up with financial transactions, wrote letters, and held telephone
conversations. Dr. Johnson did not express any opinion as to Miller’s
adaptive behavior, although he did opine that Miller could not separate
reality from fantasy and diagnosed Miller with paranoid schizophrenia.

Miller, No. CR 08-1297, slip op. at 18-19. The court then addressed the third
prong—the defendant’s adaptive behavior:

With respect to his adaptive-behavior problems, [Miller’s mother]
testified that her son was extremely withdrawn in school, did not make
friends easily, and could not connect with other people. She stated that

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 from about age twelve to fourteen years, Miller went through periods
where he dressed and acted like various characters such as a professional
basketball player and a bull rider. She also testified that Miller was
unable to keep a checkbook.

Id. at 19-20.

Although Miller does not expressly address the definition of the term “adaptive
behavior,” its discussion of the defendant’s adaptive behavior problems indicates that
the term encompasses the same skill areas as adaptive functioning, see DSM-IV-TR
at 41, but that there is no age requirement on the evidence used to establish limitations
in adaptive behavior, see Ark. Code. Ann. § 5-4-618(a)(1)(B). Thus, we conclude that
the same evidence that satisfied Jackson’s burden of demonstrating a fact issue on the
second prong also does so with respect to third prong.

In sum, the allegations contained in Jackson’s habeas petition mandate an
Atkins hearing under Simpson and Sasser. Accordingly, we vacate the district court’s
grant of summary judgment to Norris on the Atkins claim and remand to the district
court for an Atkins hearing.

III.

For the reasons stated above, we reverse the district court’s determination that
Jackson was not entitled to an Atkins hearing, vacate the district court’s grant of
summary judgment to Norris on the Atkins claim, and remand to the district court for
an Atkins hearing.
______________________________

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