Walton v. Johnson

Rehearing en banc granted, July 14, 2005

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

PERCY LEVAR WALTON, 
Petitioner-Appellant,
v.
 No. 04-19
GENE M. JOHNSON, Director,
Virginia Department of Corrections,
Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, District Judge.
(CA-03-347-7)

Argued: December 1, 2004

Decided: April 28, 2005

Before WILKINS, Chief Judge, and MOTZ
and SHEDD, Circuit Judges.

Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Chief Judge Wilkins joined. Judge Shedd wrote a
dissenting opinion.

COUNSEL

ARGUED: Jennifer Leigh Givens, VIRGINIA CAPITAL REPRE-
SENTATION RESOURCE CENTER, Charlottesville, Virginia, for
Appellant. Robert Quentin Harris, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich-
2 WALTON v. JOHNSON
mond, Virginia, for Appellee. ON BRIEF: F. Nash Bilisoly,
VANDEVENTER BLACK, L.L.P., Norfolk, Virginia, for Appellant.
Jerry W. Kilgore, Attorney General of Virginia, Richmond, Virginia,
for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Percy Levar Walton appeals the denial of his second federal habeas
petition, contending that his execution would violate the Eighth
Amendment. Specifically, he asserts that to execute him would vio-
late both the prohibition against execution of the insane, see Ford v.
Wainwright, 477 U.S. 399 (1986), and the prohibition against execu-
tion of the mentally retarded, see Atkins v. Virginia, 536 U.S. 304
(2002) ("Atkins I").1 In his first federal habeas petition, Walton
attacked his convictions and death sentences on numerous grounds.
The district court denied that petition, and we affirmed. Walton v.
Angelone, 321 F.3d 442 (4th Cir. 2003) ("Walton I"). Subsequently,
however, in the wake of the Supreme Court’s decision in Atkins I,
Walton moved for authorization to file a successive § 2254 petition.
We granted such authorization to consider both his Atkins claim and
his Ford claim, which was premature at the time of his original fed-
eral habeas petition. The district court denied both claims. For the rea-
sons that follow, we vacate that judgment and remand for further
proceedings.

I.

On October 7, 1997, Walton pleaded guilty to murdering Archie
Moore, Elizabeth Kendrick, and Jessie Kendrick in Danville, Vir-
ginia. Walton I, 321 F.3d at 449. The state trial court sentenced Wal-
1
Incompetence to be executed, or insanity, and mental retardation
overlap, of course, but retarded individuals may be competent to stand
trial, and, unlike incompetence to be executed, mental retardation must
manifest by age 18 to satisfy its clinical definition. See Atkins I, 536 U.S.
at 318.
 WALTON v. JOHNSON 3
ton to death; the Supreme Court of Virginia affirmed, id. at 450; and,
on December 7, 1998, the United States Supreme Court denied Wal-
ton’s petition for writ of certiorari. Walton v. Virginia, 525 U.S. 1046
(1998). The state supreme court ultimately denied Walton collateral
relief, Walton I, 321 F.3d at 451, and the United States Supreme
Court again denied Walton’s petition for writ of certiorari. Walton v.
Taylor, 529 U.S. 1076 (2000).

In March of 2000, Walton filed his first federal habeas petition,
which the district court denied. Walton I, 321 F.3d at 452. This court,
in turn, denied Walton a certificate of appealability as to the claims
raised in that petition and dismissed his appeal. Id. at 467. We noted,
however, as the district court had, that under the Supreme Court’s
decision in Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), Wal-
ton’s Ford claim was at that time premature and he would therefore
not be barred from raising it again in a subsequent petition. See Wal-
ton I, 321 F.3d at 452, 467 n.21.2

Following our decision, the Commonwealth scheduled Walton’s
execution for May 28, 2003. Five days before that date, on May 23,
2003, we authorized Walton to file a successive habeas petition to
raise his Atkins claim, and two days later the district court granted a
stay of Walton’s execution. In a July 2, 2003 order, the district court
dismissed Walton’s Atkins claim on the pleadings, ruling that "Walton
has not satisfied the statutory definition of mental retardation under
Virginia law." Walton v. Johnson, 269 F. Supp. 2d 692, 700-01 (W.D.
Va. 2003) ("Walton II"). In the same order, finding "sufficient con-
flicting evidence," id. at 701, regarding Walton’s competence to be
executed, the court scheduled an evidentiary hearing on Walton’s
Ford claim, noting that under Martinez-Villareal that claim was ripe
for review. See id. at 696, 702.
2
Nevertheless, Virginia now argues that Walton procedurally defaulted
his Ford claim because he failed to raise it in state court. Brief of
Respondent at 49-51. We find the Commonwealth’s argument rather dis-
ingenuous given that it admitted to the district court that there is no pro-
cedure in Virginia for raising a Ford claim, itself a troubling admission.
See Ford, 477 U.S. at 416-17 (plurality opinion) ("[W]e leave to the
State[s] the task of developing appropriate ways to enforce the constitu-
tional restriction upon [their] execution of sentences.").
4 WALTON v. JOHNSON
Subsequently, the district court held two evidentiary hearings on
Walton’s Ford claim. On March 4, 2004, the district court denied that
claim, concluding that "Walton understands that he is sentenced to die
by execution and that he is to be executed for murdering three peo-
ple." Walton v. Johnson, 306 F. Supp. 2d 597, 601 (W.D. Va. 2004)
("Walton III").

II.

We first address Walton’s Ford claim.

A.

At the July 2003 Ford hearing, six witnesses testified on Walton’s
behalf, including four mental health professionals who had previously
treated Walton. Sherri Ann Hopkins, a psychologist charged with
monitoring death row inmates at Sussex I State Prison, where Walton
is incarcerated, opined that Walton does not understand that he is
going to be executed or why he might be executed. "Most people pre-
pare when they’re . . . going to Greensville," she said. "He hasn’t pre-
pared whatsoever. I don’t think he knows what’s going to happen to
him." Similarly, Dr. Patricia General, a prison psychiatrist who exam-
ined Walton several times in April and May 2003, testified that Wal-
ton is "floridly psychotic" and does not know what it means that he
is going to be executed.

Dr. Anand Pandurangi, director of the schizophrenia program and
chairman of inpatient psychiatry at the Medical College of Virginia,
also testified on Walton’s behalf. Dr. Pandurangi, who had seen Wal-
ton several times since 1999, stated that Walton’s thinking on the sub-
ject of death is delusional, as evidenced in part by his desire to have
a telephone, a motorcycle, and a job at Burger King, and to look good
for a visit to the shopping mall — all after his execution. Dr. Pandu-
rangi also testified that Walton does not understand "[i]n any sus-
tained sort of way" the fact that he is going to be executed and die
or why Virginia has sentenced him to death. Finally, Dr. Pandurangi
testified that he does not think Walton is competent to assist in his
own defense.
 WALTON v. JOHNSON 5
Dr. Ruben Gur, director of the brain behavior center at the Univer-
sity of Pennsylvania, corroborated Dr. Pandurangi’s testimony, stating
that Walton expressed a desire to "get a Burger King" after his execu-
tion. Dr. Gur also testified that Walton does not understand what his
execution means. "He does not comprehend what is going on right
now as we speak."

Walton’s testimony seemingly confirmed Dr. Gur’s assessment. In
response to repeated questions, Walton failed to communicate sensi-
bly about his sentence or the meaning of his execution:

ATTORNEY: Do you know what your sentence is now,
since you’re at Sussex?

WALTON: Nah.

ATTORNEY: Can you take a guess?

WALTON: I got — I got a paper saying that I got a hear-
ing May 28th, 2003.

ATTORNEY: May the 28th, 2003, you have a hearing?

WALTON: Yeah.

....

ATTORNEY: If you have an execution date, does that
mean that you have been sentenced to death?

WALTON: Umm, nah. I don’t think — I don’t think so.

ATTORNEY: What does it mean?

WALTON: I believe — I believe — I believe so, but I
don’t know. You know what I’m saying? I don’t know.

ATTORNEY: You believe it does mean you’ve been sen-
tenced to death?
6 WALTON v. JOHNSON
WALTON: No.

....

ATTORNEY: If I told you, or reminded you, that May
28th, 2003, has already passed . . . can you tell me why you
weren’t executed on that date?

WALTON: No, I don’t know why. I don’t even know
why.

ATTORNEY: Do you have any idea? Can you take a
guess?

WALTON: Huh?

ATTORNEY: Can you take a guess? Do you have any
idea?

WALTON: Umm, no. I don’t know.

....

ATTORNEY: Are you concerned about dying?

WALTON: No.

ATTORNEY: Why not?

WALTON: I don’t know.

ATTORNEY: Do you know what happens when you die?

WALTON: Umm, no, not really. I don’t know. I don’t
even know what’s what. You know, I don’t know.

ATTORNEY: Can you take a guess?

WALTON: Umm, I don’t know. You know what I’m say-
ing? I really don’t know, you know that? That’s hard. You
 WALTON v. JOHNSON 7
know what I’m saying? You know what I’m saying? I don’t
know. I don’t even know.

ATTORNEY: What’s hard? You said something was
hard.

WALTON: Umm, I don’t know. I really — I really don’t
know. You know what I’m saying? I really — really don’t
know, you know. I’ve been through a lot. You know what
I’m saying? You know, I really don’t know, you know,
what’s what and stuff. You know what I’m saying? You
know what I’m saying?

Also at the July 2003 Ford hearing, Dr. Alan J. Arikian, a prison
psychiatrist who saw Walton numerous times in 1999 and 2003, testi-
fied on behalf of the Commonwealth. Dr. Arikian opined that Walton
is "a mature young man who elected a lifestyle which has been a dis-
appointment to him and has not fulfilled his expectations." He further
testified that Walton "has a full understanding of what’s going on."

After consideration of all of this testimony, the district court did
not feel it could resolve the question of Walton’s competence to be
executed. Accordingly, the court held a second hearing on March 3,
2004, at which Dr. Mark Mills, a forensic psychiatrist whom the par-
ties’ experts selected as a neutral expert, testified. Walton III, 306 F.
Supp. 2d at 599. Prior to that hearing, the court directed Dr. Mills to
address two questions: "(1) whether Walton understands that he is to
be punished by execution; and (2) whether Walton understands why
he is being punished." At the hearing, the court reiterated: "Any . . .
questions" other than "whether the petitioner understands that he’s
being punished by execution" and "whether the petitioner understands
why he is being punished" are "extraneous . . . . Anything further is
simply irrelevant or immaterial."

In response to this direction, Dr. Mills opined that, given the "fo-
cused and . . . circumscribed and . . . limited" standard the district
court had asked him to apply, he believed that Walton was competent
to be executed. "[M]y sense is that the standard for execution is suffi-
ciently low that, sadly, Mr. Walton meets that standard. He knows
enough to meet the judge’s questions to him." Dr. Mills also testified,
8 WALTON v. JOHNSON
however, that Walton’s condition made it unlikely that Walton would
prepare for his death. The district court then concluded, largely on the
basis of Dr. Mills’ testimony, that Walton is competent to be executed
because he "understands that he is sentenced to die by execution and
that he is to be executed for murdering three people." Walton III, 306
F. Supp. 2d at 601.

B.

In Ford, drawing on long-established common law principles, the
Supreme Court held that the Eighth Amendment prohibits execution
of the insane. 477 U.S. at 406-10. Although the Ford Court identified
some of the components necessary to demonstrate a constitutionally
minimum definition of insanity, application of Ford presents chal-
lenges because the Court did not define insanity or mandate proce-
dures that courts must follow in determining whether a defendant is
insane. The Court left those tasks to the states, and Virginia has yet
to enact any definition or procedures of its own. See supra note 2.

Furthermore, the precise legal standard for incompetence under
Ford is complicated by the fact that Justice Powell, who cast the fifth
and deciding vote in the case, joined only part of the Court’s opinion
and wrote separately to explain his view of the "meaning of insanity
in this context." Ford, 477 U.S. at 418 (Powell, J., concurring). Thus,
the Justices in the majority in Ford issued three opinions: (1) an opin-
ion for the Court joined by the entire majority, including Justice Pow-
ell, id. at 401-10, (2) a plurality opinion not joined by Justice Powell,
id. at 410-18, and (3) Justice Powell’s concurrence, id. at 418-27.

Based on his reading of these opinions, Walton maintains that the
district court misapplied Ford in two respects. Initially, he argues
that, contrary to the district court’s determination, for a defendant to
be competent to be executed under Ford, he must have an "ability to
assist counsel in his own defense." Brief of Petitioner at 35, 47. In
addition, Walton maintains that a necessary component of the Ford
inquiry, not undertaken by the district court, is a determination of
whether the defendant is capable of preparing for his own death. Id.
at 48-50.
 WALTON v. JOHNSON 9
1.

With respect to his first argument — that Ford competence
requires an "ability to assist counsel in [one’s] own defense" — Wal-
ton cites neither the opinion of the Court in Ford nor even the plurali-
ty’s opinion. He merely asserts that support for this argument "can be
rationally formulated from inferences found in the Ford plurality
opinion." Id. at 35.

We, of course, must look to the opinion of the Court to determine
the Ford requirements. That opinion is silent as to whether a defen-
dant must be able to assist his counsel in order to be found competent
to be executed. See Ford, 477 U.S. at 401-10. Moreover, Justice Pow-
ell, the fifth vote necessary for a majority, expressly rejected this
position in his concurrence. It has "slight merit," he reasoned, because
in modern times, unlike at common law, "the defendant has access to
counsel, by constitutional right at trial, and by employment or
appointment at other stages of the process whenever the defendant
raises substantial claims." Id. at 420 (Powell, J., concurring). Because
"a defendant must be competent to stand trial, . . . the notion that a
defendant must be able to assist in his defense is largely provided
for." Id. at 421 (Powell, J., concurring); see also id. at 421 n.2 (Pow-
ell, J., concurring).

Thus, even though Justice Powell’s assurance that it is "unlikely
indeed that a defendant today could go to his death with knowledge
of undiscovered trial error that might set him free," id. at 420
(Powell, J., concurring), has since been called into question, see, e.g.,
2002 Ill. Governor’s Commission on Capital Punishment
Rep., available at http://www.idoc.state.il.us/ccp/ccp/reports/
commission_report/complete_report.pdf, it is clear that Walton’s
argument has never garnered a majority of the Court. Indeed, without
indicating whether any Member of the Court accepted that position,
all that Ford instructs is that one Member decisively rejected it.

Nevertheless, Walton argues that we should hold as a condition of
Ford competence that the defendant have a present ability to assist his
counsel. Walton relies on, among other authorities, Justice Frankfurt-
er’s dissent in Solesbee v. Balkcom, 339 U.S. 9 (1950), Justice Mar-
shall’s dissent from the Court’s denial of a writ of certiorari in Rector
10 WALTON v. JOHNSON
v. Bryant, 501 U.S. 1239 (1991), and the American Bar Association
standard, which states: "A convict is . . . incompetent if, as a result
of mental illness or mental retardation, the convict lacks sufficient
capacity to recognize or understand any fact which might exist which
would make the punishment unjust or unlawful, or lacks the ability
to convey such information to counsel or the court." ABA Criminal
Justice Mental Health Standards Standard 7-5.6 (1989).

Despite this venerable authority, and the fact that several states
embrace Walton’s view, e.g., Miss. Code Ann. § 99-19-57 (2000), in
the face of the total silence of the Ford Court as to the necessity of
the defendant’s "ability to assist counsel in his own defense" and Jus-
tice Powell’s decisive concurrence rejecting consideration of this fac-
tor, we decline to hold that in order to find a defendant competent
under Ford, a court must find that he has the present ability to assist
counsel. We note that every circuit to have considered this argument
has similarly rejected it. See Rohan ex rel. v. Gates, 334 F.3d 803,
809-10 & n.3, 812 (9th Cir. 2003); Coe v. Bell, 209 F.3d 815, 826
(6th Cir. 2000); Barnard v. Collins, 13 F.3d 871, 877 & n.4 (5th Cir.
1994).

2.

In contrast to his first argument, however, Walton’s second conten-
tion — that Ford demands inquiry into whether the defendant can
prepare for his death — is firmly grounded in both the opinion of the
Court in Ford and Justice Powell’s concurrence.3

In the opinion of the Court, which Justice Powell joined, the
Supreme Court explained:
3
The dissent refuses to recognize that Parts I and II of Ford are the
opinion of the Court, in which Justice Powell joined. See Ford, 477 U.S.
at 401 ("Marshall, J., announced the judgment of the Court and delivered
an opinion of the Court with respect to Parts I and II, in which Brennan,
Blackmun, Powell, and Stevens, JJ., joined . . . ."). Thus, the dissent erro-
neously references the "four-member plurality" and the "Ford plurality"
when citing the Court’s opinion. Post at 29, 31. In fact we rely on the
opinion of the Court, in which Justice Powell joined, and never on any
portion of the Ford plurality opinion — i.e., Parts III, IV, and V.
 WALTON v. JOHNSON 11
[T]oday, no less than before, we may seriously question the
retributive value of executing a person who has no compre-
hension of why he has been singled out and stripped of his
fundamental right to life. Similarly, the natural abhorrence
civilized societies feel at killing one who has no capacity to
come to grips with his own conscience or deity is still vivid
today.

Ford, 477 U.S. at 409 (citation omitted). In concurrence, Justice Pow-
ell emphasized this point:

If the defendant perceives the connection between his crime
and his punishment, the retributive goal of the criminal law
is satisfied. And only if the defendant is aware that his death
is approaching can he prepare himself for his passing.
Accordingly, I would hold that the Eighth Amendment for-
bids the execution only of those who are unaware of the
punishment they are about to suffer and why they are to suf-
fer it.

Id. at 422 (Powell, J., concurring).

Thus, unlike Walton’s first argument, which the Ford Court did not
address and Justice Powell, in concurrence, expressly rejected, his
second argument finds support in both the opinion of the Ford Court
and Justice Powell’s concurrence. Both agree that it is not enough for
a court to determine only that a defendant can recognize the cause and
effect between his crime and his punishment. Rather, when deciding
whether insanity bars a person’s execution, a court must determine
whether that person can, in the language of the Ford Court, "compre-
hen[d] . . . why he has been singled out." Id. at 409. Or, using Justice
Powell’s formulation, in order to determine whether a person sen-
tenced to death is "unaware of the punishment [he is] about to suffer
and why [he is] to suffer it," a court must consider whether that per-
son is able to "prepare for his passing." Id. at 422 (Powell, J., concur-
ring). See also Garrett v. Collins, 951 F.2d 57, 59 (5th Cir. 1992)
(suggesting that for a defendant’s Ford claim to survive, he must be
able to "prepar[e] for his passing," but upholding state court’s rejec-
tion of Collins’ claim).
12 WALTON v. JOHNSON
Tellingly, although the Commonwealth vigorously urges us to
affirm the dismissal of Walton’s Ford claim, it does not contend that
Ford requires no consideration of a defendant’s ability to prepare for
his death. Rather, Virginia merely argues that "Walton’s counsel’s
belief that Walton must . . . ‘prepare’ for his execution as counsel
thinks he should ‘prepare’ . . . cannot constitute grounds for finding
Walton incompetent." Brief of Respondent at 47. We agree. However,
in this case, it is clear from the record that the district court deter-
mined that no consideration of an ability to "prepare" for one’s "pass-
ing" is necessary under Ford.

In reaching its conclusion that Walton is competent to be executed,
the district court believed that Walton’s ability to prepare for his own
death was irrelevant. Thus, the district court told Walton’s attorney at
the March 2004 evidentiary hearing, "Any . . . questions" other than
"whether the petitioner understands that he’s being punished by exe-
cution" and "whether the petitioner understands why he is being pun-
ished" are "extraneous . . . . Anything further is simply irrelevant or
immaterial." The expert on which the district court relied, Dr. Mills,
clearly felt constrained by the limits of the inquiry imposed by the
court. Hence Dr. Mills testified, "The problem for me . . . is the issues
that the judge asked me to consider I think are so focused and so cir-
cumscribed and so limited that I have opined . . . he meets those lim-
ited criteria."

As demonstrated above, Ford requires more. A person who can
only acknowledge, amidst a barrage of incoherent responses, the bare
facts that he will be executed and that his crime is the reason why
does not meet the standard for competence contemplated either in the
opinion of the Ford Court or in Justice Powell’s concurrence.4
4
We note that, contrary to the dissent’s suggestion, our holding is not
at odds with Justice Powell’s concurrence or the Florida statute, which
requires an inmate to be able to "understand" the nature of the death pen-
alty if he is to be executed. See Fla. Stat. Ann. § 922.07(3) (West 2001).
As Justice Powell said when explaining his view that the Eighth Amend-
ment prohibits execution of the insane: "It is as true today as when Coke
lived that most men and women value the opportunity to prepare, men-
tally and spiritually, for their death." Ford, 477 U.S. at 421 (Powell, J.,
concurring). Furthermore, when formulating his proposed test, he stated:
 WALTON v. JOHNSON 13
Undoubtedly, determining whether a person is competent to be exe-
cuted is not an exact science. And in light of the high stakes of such
a determination, the impulse of the district court to confine the inquiry
to the most precise possible standard is understandable, particularly
since Virginia has yet to adopt procedures for bringing a Ford claim.
But the inquiry required by Ford, "[w]hether its aim be to protect the
condemned from fear and pain without comfort of understanding, or
to protect the dignity of society itself from the barbarity of exacting
mindless vengeance," 477 U.S. at 410, is broader than the inquiry the
district court conducted in this case.5

Accordingly, we vacate the district court’s judgment on Walton’s
Ford claim and remand for further proceedings.

III.

We next address Walton’s Atkins claim.

A.

In Atkins I, the Supreme Court held that the Eighth Amendment
prohibits execution of the mentally retarded. Atkins I, 536 U.S. at 321.
As in Ford, the Court "‘le[ft] to the State[s] the task of developing
appropriate ways to enforce the constitutional restriction upon [their]

"[O]nly if the defendant is aware that his death is approaching can he
prepare himself for his passing." Id. at 422 (Powell, J., concurring). Simi-
larly, none of the cases relied on by the dissent, see post at 32, has held
that "the Ford test does not require" a determination of whether an
inmate is able to prepare for his passing. See id. at 46-47.
5
The dissent’s concern that our holding will "preclude[ ] capital pun-
ishment" for any inmate who claims incompetence to be executed,
because the issue of whether an inmate can prepare for his passing is
"controlled by the inmate," post at 33, is misplaced. We are confident
that mental health experts will continue to exercise their professional
judgment as to whether particular defendants are malingering. Cf. Ford,
477 U.S. at 403 (noting doctor’s conclusion that "there was ‘no reason-
able possibility’" of "‘dissembling, malingering or otherwise putting on
a performance’").
14 WALTON v. JOHNSON
execution of sentences.’" Id. at 317 (quoting Ford, 477 U.S. at 416-
17) (second and third alterations in original).

Unlike in the case of insanity, however, see supra note 2, the Vir-
ginia legislature moved quickly in the wake of the Supreme Court’s
decision in Atkins I to establish procedures for regulating execution
of the mentally retarded. See Atkins v. Commonwealth, 581 S.E.2d
514 (Va. 2003) ("Atkins II"). Among the newly enacted Virginia pro-
visions is a definition of mental retardation:

"Mentally retarded" means a disability, originating before
the age of 18 years, characterized concurrently by (i) signifi-
cantly subaverage intellectual functioning as demonstrated
by performance on a standardized measure of intellectual
functioning administered in conformity with accepted pro-
fessional practice, that is at least two standard deviations
below the mean and (ii) significant limitations in adaptive
behavior as expressed in conceptual, social and practical
adaptive skills.

Va. Code Ann. § 19.2-264.3:1.1(A) (Michie 2004); cf. Atkins I, 536
U.S. at 308 n.3, 318 (noting that "clinical definitions of mental retar-
dation require" both "subaverage intellectual functioning" and "signif-
icant limitations in adaptive skills").

The Supreme Court of Virginia has held that "[p]erformance on a
standardized measure of intellectual functioning . . . at least two stan-
dard deviations below the mean" corresponds to an IQ score of 70 or
below. See Johnson v. Commonwealth, 591 S.E.2d 47, 59 (Va. 2004);
see also American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 39 (4th ed. 1994) (hereinafter "DSM IV").6
6
Under the Virginia statute, the Commissioner of Mental Health, Men-
tal Retardation and Substance Abuse Services "shall maintain an exclu-
sive list of standardized measures of intellectual functioning generally
accepted by the field of psychological testing." Va. Code Ann. § 19.2-
264.3:1.1(B)(1). Significantly, at all relevant times in this case, the Com-
missioner’s list has included the Wechsler Adult Intelligence Scale-
Revised ("WAIS-R"), which has been updated as the Wechsler Adult
Intelligence Scale-Third Edition, see Walton II, 269 F. Supp. 2d at 695
 WALTON v. JOHNSON 15
The defendant bears the burden of proving that he is mentally
retarded by a preponderance of the evidence. Va. Code Ann. § 19.2-
264.3:1.1(C).

Thus, for a defendant to be considered mentally retarded under Vir-
ginia law, he must have "significantly subaverage intellectual func-
tioning" and "significant limitations in adaptive behavior" (as
statutorily defined), and both must originate before age 18.

B.

The procedural posture of Walton’s Atkins claim is very similar to
the one we recently addressed in Walker v. True, 399 F.3d 315 (4th
Cir. 2005). Like Walker, Walton’s conviction and sentence became
final before the Supreme Court issued its opinion in Atkins I. Like
Walker, because Walton completed his direct appeal and state habeas
proceedings before he could raise his Atkins claim, "his sole remedy"
under Virginia law "lie[s] in federal court." Va. Code Ann. § 8.01-
654.2 (Michie 2000 & Supp. 2004). Therefore, as in Walker, when
considering Walton’s habeas petition, the district court faced no state
factual findings owed deference and, accordingly, "was obliged to
assume all facts pleaded by [Walton] to be true" in resolving the Gov-
ernment’s motion to dismiss the Atkins claim. Walker, 399 F.3d at
319 (internal quotation marks and citation omitted). But, as in Walker,
the district court in the case at hand failed to do so.

Rather than assume the truth of the facts alleged in Walton’s peti-
tion, the district court rejected Walton’s Atkins claim because it found
that Walton had "not forecast sufficient evidence to show that his
alleged subaverage intellectual functioning originated before he was
18 years of age." Walton II, 269 F. Supp. 2d at 700. On appeal in this
case, echoing its words in Walker, the Commonwealth acknowledges
that the district court’s order "dismissing" Walton’s claim was actu-
ally "in the nature of a grant of summary judgment." Compare Brief

n.1; and the list now includes the General Ability Measure for Adults
("GAMA"), though it did not include it at the time of the district court’s
July 2, 2003 order dismissing Walton’s claim of mental retardation. See
Walton II, 269 F. Supp. 2d at 700 n.7.
16 WALTON v. JOHNSON
of Respondent in Walker at 14 with Brief of Respondent in Walton
at 22. But even if summary judgment was the correct procedure,
which it was not, see Walker, 399 F.3d at 319 & n.1, the district
court’s ruling cannot stand because, as in Walker, the court resolved
a factual dispute in favor of the Government. See id. at 319.

In rejecting Walton’s Atkins claim, the district court relied on the
results of two IQ tests administered to Walton around the time of his
eighteenth birthday. The first, a WAIS-R administered to Walton at
age seventeen years and eight months, purportedly gave him a full-
scale IQ of 90, Walton II, 269 F. Supp. 2d at 694-95; the second, a
WAIS-R administered to Walton at age eighteen years and five
months, gave him a full-scale IQ of 77. Id. at 695. Walton alleges that
neither score bars his claim, and that the score of 77 in fact supports
it.

Specifically, with respect to the first IQ test, Walton maintains that
there is "no way to determine the validity of that test" since Virginia
has put forth no "raw data" from it. He contends that this first test "is
not a test at all," but rather:

a juvenile intake report which refers to scores on a purported
test. There is no information about who administered the
test, when it was administered, or what the testing condi-
tions were when the test was given. There is no raw data for
the test and no indication what protocols were to be fol-
lowed and whether the standardized format of the test was
adhered to in full or what accommodations or adjustments
were made.

Brief of Petitioner at 61; cf. Walker, 399 F.3d at 323 (discussing peti-
tioner’s allegation that one of his IQ tests is "‘highly unreliable for
multiple reasons’"). If Walton can show that the IQ test he took when
he was seventeen was not "administered in conformity with accepted
professional practice," then, under Virginia law, it cannot be used to
refute his alleged mental retardation. See Va. Code Ann. § 19.2-
264.3:1.1(A).

Regarding the second test, Walton argues (much as Walker did
with respect to an IQ score of 76) that when adjusted for the "Flynn
 WALTON v. JOHNSON 17
Effect" and the standard margin of error, his score of 77 actually sup-
ports his claim of mental retardation. Pursuant to the Flynn Effect,
according to Walton, "as the age of an intelligence test moves farther
from the date on which it is normed, the mean score of the population
as a whole on that test increases." Reply Brief at 25. And, adjusted
for the Flynn Effect, he contends, his IQ score of 77 "indicates a full-
scale score of 74." Brief of Petitioner at 61. Ordinarily, of course, a
score of 74 would not put Walton within the legal range of mental
retardation in Virginia. But, like Walker, he further maintains that,
after accounting for the standard five-point margin of error, his score
of 74 falls within the required range. See Reply Brief at 21, 25-26 &
n.11; see also DSM IV at 39 ("It should be noted that there is a mea-
surement error of approximately 5 points in assessing IQ . . . .").7

Because the district court failed to consider Walton’s contention as
to the inadequacy of the first IQ test and the impact of the Flynn
Effect or the standard margin of error on the second test, we must, as
in Walker, vacate and remand for further proceedings.8 On remand,
7
At the June 16, 2003 hearing on the Commonwealth’s motion to dis-
miss, Walton specifically represented to the court that, when adjusted for
the Flynn Effect, and "with a standard error of measurement," his score
of 77 "would be" as low as "69." In addition, in his reply in support of
his habeas petition, filed before the June 16 hearing, Walton maintained
that his score of 77 could support his claim: "Considering both the stan-
dard error of measurement ("SEM") and the impact of the date on which
the particular test was normed to the general population, th[is] score[ ]
support[s] Walton’s claim that he has significantly subaverage intellec-
tual functioning." The dissent questions the sufficiency of this allegation,
asserting that "Walton never alleged, however, in his papers to the dis-
trict court that the measurement error was five points." Post at 24. Given
the extensive authority on the subject, it is of no consequence that Wal-
ton did not also state in his reply that the "standard error of measure-
ment" is five points. See, e.g., Atkins, 536 U.S. at 309 n.5 (noting that IQ
score "between 70 and 75 or lower . . . is typically considered the cut-
off"); DSM IV at 39 (noting that measurement error is "approximately
5 points in assessing IQ").
8
Because the district court did not resolve Walton’s contention that the
first IQ test could not be used to evaluate his mental retardation because
it was unreliable, the court did not determine the persuasiveness of the
Flynn Effect evidence regarding Walton’s second IQ test. Instead the
court simply noted that the application of the Flynn Effect to the first test
"would yield an IQ of 85, still substantially above the threshold of mental
retardation." Walton II, 269 F. Supp.2d at 699 n.5.
18 WALTON v. JOHNSON
the district court should determine the adequacy of the first test and
the persuasiveness of Walton’s Flynn Effect evidence as to the second
test; if the court finds the Flynn Effect evidence persuasive, it should
then determine whether the Virginia statute permits "consideration of
measurement error in order to determine whether" Walton’s purported
score of 74 is "‘two standard deviations below the mean.’" Walker,
399 F.3d at 323.

Walton also submitted evidence of two more recent IQ tests, both
reporting scores below the cutoff for mental retardation. See Walton
II, 269 F. Supp. 2d at 695 (noting August 9, 1999 WAIS-R reporting
full-scale IQ of 69 and May 2003 GAMA reporting full-scale IQ of
66). We note that under the Virginia statute, "[a]ssessment of devel-
opmental origin shall be based on multiple sources of information
generally accepted by the field of psychological testing and appropri-
ate for the particular defendant being assessed, including, whenever
available, educational, social service, medical records, prior disability
assessments, parental or caregiver reports, and other collateral data."
Va. Code Ann. § 19.2-264.3:1.1(B)(3). Thus, on remand, the district
court may properly consider the scores from these tests, even though
they were administered well after Walton’s eighteenth birthday. Cf.
Walker, 399 F.3d at 323 n.7.9
9
The dissent makes much of the fact that Walton’s petition, unlike
Walker’s, was "without the benefit of an expert assessment." Post at 25.
This may factually distinguish Walker, but its holding controls here.
Walker holds that the Flynn Effect, combined with the standard error of
measurement, could render an IQ score "two standard deviations below
the mean," and that allegations that rely on these scientific phenomena
to bring a petitioner’s IQ score within Virginia’s standard for mental
retardation (where there are no relevant state court findings of fact) suf-
fice to entitle him to an evidentiary hearing. Walker, 399 F.3d at 322-23.
Moreover, there is no requirement in Virginia law or elsewhere that
expert testimony accompany a petition at this stage of the proceedings
(although such testimony would no doubt be important in proving a
claim of mental retardation). Rather, at this stage of the proceedings,
Walton is required only to allege "facts that, if true, would entitle[ ] him
to relief and establish[ ] one of six factors set out by the Supreme Court
in Townsend v. Sain, 372 U.S. 293 (1963)." Walker, 399 F.3d at 327
(internal quotation marks and citation omitted).
 WALTON v. JOHNSON 19
On remand the district court may have to consider Walton’s "limi-
tations in adaptive behavior" before age eighteen — another essential
element of his claim. Because the court rejected Walton’s Atkins
claim due to his asserted failure to proffer sufficient evidence of men-
tal retardation, the district court did not reach any conclusions as to
this element. We note only that, as required by statute, Walton has set
out a number of facts, which, if credited, tend to indicate significant
limitations in adaptive behavior.

Walton would ordinarily not be entitled to an evidentiary hearing
on remand because he has "failed to develop the factual basis of [his
Atkins] claim in State court." 28 U.S.C. § 2254(e)(2)(2000). But
because Atkins was decided after the denial of his direct appeal and
state habeas petition became final, he cannot be held accountable for
failure to raise this claim in state court. See Va. Code Ann. § 8.01-
654.2 (providing that the "sole remedy" for people in Walton’s posi-
tion, who have "completed both a direct appeal and a habeas corpus
proceeding" under Virginia law, "lie[s] in federal court"); Walker, 399
F.3d at 319, 326-27.

At the evidentiary hearing held on remand, the parties will have the
opportunity to demonstrate the reliability vel non of Walton’s first IQ
test and the persuasiveness of other possible mental retardation evi-
dence, including evidence as to the Flynn Effect, measurement error,
other IQ tests, and adaptive behavior. We make no determination as
to the validity of Walton’s arguments on any of these points; we hold
merely that Walton is entitled to be heard on them.

IV.

For the reasons set forth above, we vacate the judgment of the dis-
trict court and remand for further proceedings consistent with this
opinion.

VACATED AND REMANDED

SHEDD, Circuit Judge, dissenting:

I respectfully dissent. The district court’s denial of habeas relief on
Walton’s mental retardation and insanity claims should be affirmed.
20 WALTON v. JOHNSON
The district court properly dismissed Walton’s mental retardation
claim because Walton’s habeas petition fails to state sufficient facts
demonstrating that he is mentally retarded under Virginia law. More-
over, in deciding that Walton is competent to be executed, the district
court applied the proper legal standard, and its findings of fact are not
clearly erroneous.

I.

More than eight years ago, Walton murdered three people in the
same neighborhood in Danville, Virginia, in two separate incidents.1
Two of the victims were an elderly couple. While burglarizing their
home, Walton shot both of them at close range in the top of the head.
Walton murdered the other victim, a young man, in his home by
shooting him above his left eye. Although the physical evidence alone
overwhelmingly established Walton’s guilt, Walton also admitted to
several other jail inmates that he committed the murders and
described the graphic details of the murders to his cellmate.

With the assistance of counsel, Walton pled guilty to all three mur-
ders, three counts of robbery, one count of burglary, and six counts
of using a firearm in the commission of a felony. After determining
that Walton would likely commit additional criminal acts and would
be a continuing serious threat to society, the Danville Circuit Court
sentenced Walton to death for the three murders.

Walton challenged his convictions on direct appeal, claiming,
among other things, that the photographs of the victims as they were
discovered should not have been admitted in the sentencing phase
because they were too gruesome and that his sentence of death was
excessive or disproportionate. The Virginia Supreme Court affirmed
Walton’s conviction and sentence. Walton v. Commonwealth, 501
S.E.2d 134 (Va. 1998). The United States Supreme Court denied Wal-
ton’s petition for a writ of certiorari. Walton v. Virginia, 525 U.S.
1046 (1998).
1
Walton was no stranger to crime before he murdered these three peo-
ple. His prior convictions include burglary, grand larceny, resisting
arrest, assault and battery on a police officer, juvenile possession of a
firearm, and assault and battery.
 WALTON v. JOHNSON 21
Walton then filed a state habeas petition. Among the nine issues he
raised, Walton claimed that he was incompetent to stand trial and
plead guilty and that his lawyer was ineffective for failing to ade-
quately raise his incompetency to the trial court. The Virginia
Supreme Court denied Walton’s habeas petition, Walton v. Warden of
Sussex I State Prison (Aug. 9, 1999), and the United States Supreme
Court denied Walton’s petition for a writ of certiorari, Walton v. Tay-
lor, 529 U.S. 1076 (2000).

The Danville Circuit Court scheduled Walton’s execution for
December 16, 1999. Three days before the scheduled execution, the
district court stayed Walton’s execution to allow him to file his first
federal habeas petition. The district court held an evidentiary hearing
on several of the claims, including Walton’s assertion that his trial
counsel was ineffective for failing to adequately raise his incompe-
tency to the trial court. The district court denied this claim on the mer-
its and denied Walton’s habeas petition in its entirety. Walton v.
Angelone, 2002 WL 467142 (W.D. Va. 2002) (unpublished).

Walton then sought a certificate of appealability from this court. As
to Walton’s claim that his counsel was ineffective for failing to ade-
quately assert that he was mentally incompetent to stand trial or plead
guilty during the trial court proceedings, we reviewed the extensive
evidence regarding what Walton’s counsel knew about Walton’s men-
tal state during the state trial court proceedings. In the trial court,
Walton’s counsel sought the appointment of a mental health profes-
sional to analyze Walton. The trial court appointed Dr. Stanton Same-
now, a clinical psychologist. When Dr. Samenow raised concerns
about Walton’s intermittent odd behavior, the trial court appointed a
second mental health professional, a forensic psychiatrist. Ultimately,
both mental health professionals determined that Walton was compe-
tent to stand trial, i.e. that Walton understood precisely the charges
against him, he knew that evidence was required to convict him, he
was able to assist his lawyers in his own defense, and he realized that
he could get the death penalty for his crimes. Based on this evidence
and the fact that Walton had told at least two of his fellow inmates
that he intended to "play crazy," Walton’s counsel ultimately decided
not to pursue further a claim that Walton was incompetent to stand
trial or plead guilty. After reviewing this evidence, we denied Wal-
ton’s certificate of appealability, concluding that reasonable jurists
22 WALTON v. JOHNSON
would not "find the question of whether Walton was competent at the
time of his guilty pleas and/or at the sentencing phase of the case
‘debatable.’" Walton v. Angelone, 321 F.3d 442, 460 (4th Cir. 2003).
The United States Supreme Court denied Walton’s petition for a writ
of certiorari. Walton v. Johnson, 539 U.S. 950 (2003).

Thereafter, the Danville Circuit Court rescheduled Walton’s execu-
tion date for May 28, 2003. Just three days before this execution date,
the district court granted Walton’s second request for a stay of execu-
tion. A panel of this court granted Walton’s request to file a succes-
sive habeas petition to allow him to claim for the first time that
Virginia may not execute him because he is mentally retarded. In this
second federal petition, Walton makes no further attack on his convic-
tion. Walton’s only remaining claims are that he cannot be executed
because (1) he is mentally retarded and (2) he is insane. The district
court dismissed Walton’s mental retardation claim on the pleadings,
Walton v. Johnson, 269 F. Supp. 2d 692 (W.D. Va. 2003), and denied
relief on Walton’s insanity claim after an extensive evidentiary hear-
ing, Walton v. Johnson, 306 F. Supp. 2d 597 (W.D. Va. 2004). Wal-
ton now appeals.

II.

The majority vacates the district court’s dismissal of Walton’s
mental retardation claim by concluding that the court failed to assume
as true all the facts pleaded by Walton and instead resolved facts in
favor of Virginia. By contrast, I would affirm because Walton fails to
allege facts in his habeas petition demonstrating that he is mentally
retarded under Virginia law.

As the majority correctly notes, the Supreme Court in Atkins v. Vir-
ginia, 536 U.S. 304, 317 (2002), left to the states the task of "develop-
ing appropriate ways to enforce the constitutional restriction" on
executing the mentally retarded. Virginia responded by enacting its
definition of "mental retardation" requiring, among other things, that
the capital defendant’s disability originate before the age of 18 and be
characterized by "significantly subaverage intellectual functioning as
demonstrated by performance on a standardized measure of intellec-
tual functioning administered in conformity with accepted profes-
sional practice, that is at least two standard deviations below the
 WALTON v. JOHNSON 23
mean." VA. CODE ANN. § 19.2-264.3:1.1(A). The Virginia Supreme
Court, consistent with the standards of the American Psychiatric
Association, has determined that this standardized measure corre-
sponds to an IQ score of 70 or less. Johnson v. Commonwealth, 591
S.E.2d 47, 59 (Va. 2004), vacated on other grounds, No. 03-10877,
2005 WL 516756 (U.S. Mar. 7, 2005). Thus, Walton is mentally
retarded under Virginia law only if he establishes, among other
requirements, that his intellectual functioning would have corre-
sponded to an IQ score of 70 or less before he turned 18.2

A close review of Walton’s habeas petition reveals that he fails to
allege facts demonstrating that he is mentally retarded under Virginia
law. Walton alleges that his IQ score in 1996, shortly before he turned
18, was 90. Although he claims that "[l]ittle is known" about how this
testing was conducted and whether it can be considered reliable, Wal-
ton does not allege that this testing somehow tends to prove that he
is mentally retarded, i.e, that his score on this test actually would have
been 70 or less. Walton has the burden to allege facts entitling him
to relief, and he cannot meet his burden simply by attempting to dis-
credit the opposing evidence that shows that he is not mentally
retarded. Walton also alleges that he received an IQ score of 77 when
his trial expert, Dr. Samenow, tested him a few months after he turned
18. Although Dr. Samenow did not administer all of the verbal and
performance tests available, Walton nevertheless admits that this
shortcoming does not "invalidate" the final IQ score. Walton does
allege, however, that this score of 77 should be reduced to a "true"
score of 72 because it is possible that the "Flynn Effect" affected his
2
This does not mean that a condemned inmate must submit a score of
70 or less from an IQ test taken before he turned 18. Walker v. True, 399
F.3d 315, 323 n.7 (4th Cir. 2005). Nevertheless, there must be some alle-
gation that the inmate’s intellectual functioning would have fallen below
this standard before he turned 18. See VA. CODE ANN. § 19.2-
264.3:1.1(A),(B)(3). For instance, evidence of an IQ test score below 70
taken after a condemned inmate reaches 18 may be sufficient if a mental
health expert verifies that the inmate’s intellectual functioning before he
turned 18 would have been consistent with this qualifying test score. See
Atkins, 536 U.S. at 309 n.5. In this case, however, none of the experts
who assessed Walton opined that he is mentally retarded under Virgin-
ia’s statutory definition.
24 WALTON v. JOHNSON
3
score. Accepting these allegations as true, Walton still does not state
a claim that he is mentally retarded, because Virginia law requires a
score of 70 or less before age 18.4

After Virginia filed its motion to dismiss Walton’s habeas petition,
Walton alleged for the first time in a separate filing that his test score
of 77 supports his claim of mental retardation once the "standard error
of measurement" is taken into account. Even assuming that the district
court could consider this representation, which is not in his petition,
Walton does not explain what this "standard error of measurement"
is, much less how it could reduce his score to 70 or less. Walton can
only speculate that the standard measurement error (which a mental
health expert can invoke in some cases to either raise or lower a
given IQ test score, see id. at 322) actually lowered his given score
of 77 enough to meet Virginia’s mental retardation standard. Such
conclusory, speculative allegations do not preclude the court’s dis-
missal of Walton’s claim. See United States v. Roane, 378 F.3d 382,
400 (4th Cir. 2004) (concluding that speculative allegations in a
habeas petition do not warrant giving the petitioner an evidentiary
hearing to further pursue his claim). Accordingly, because Walton
failed to specifically allege facts in his habeas petition demonstrating
that his intellectual functioning was below the required level before
he turned 18, the district court properly dismissed Walton’s mental
retardation claim.

The majority, nevertheless, concludes that Walton alleges suffi-
cient facts that, if true, would entitle him to relief. Remarkably, the
majority cites to representations in Walton’s appellate briefs, not in
3
On appeal, Walton indicates, without explanation, that the "Flynn
Effect" would reduce his score of 77 to 74, not 72.
4
Walton also alleges that he was tested two other times well after he
turned 18 and that both test results are below 70. Although these test
results are relevant to Walton’s more current intellectual functioning, see
Walker, 399 F.3d at 323 n.7, Walton does not allege that these scores
demonstrate his intellectual functioning before he turned 18. In fact, the
expert who gave the test on which Walton received his lowest score
stated that she does not consider Walton to be mentally retarded. Thus,
these two scores do not meet the developmental origin requirement of
Virginia’s mental retardation standard.
 WALTON v. JOHNSON 25
his filings to the district court, to find what it deems to be sufficient
allegations of mental retardation. For instance, the majority credits
Walton’s representation on appeal that his test score of 77 qualifies
based on the "Flynn Effect" and "the standard five-point margin of
error." Walton never alleged, however, in his papers to the district
court that the measurement error was five points.5

Even accepting as true Walton’s conclusory allegations in his
appellate briefs, upon which the majority improperly relies, these
assertions do not satisfy Walton’s burden of alleging that he is men-
tally retarded under Virginia law. Walton argues in his appellate brief
that "it is possible to diagnose Mental Retardation in individuals with
IQs between 70 and 75." Reply Brief at 21 (emphasis added). He also
asserts that "[e]xpert analysis of the specific data is important." Id.
What these arguments acknowledge is that a person with a score
between 70 and 75 is at least as likely not to be mentally retarded as
to be mentally retarded and that an expert must determine whether a
5
In response, the majority states that a hearing transcript excerpt shows
that Walton’s counsel represented to the district court that his IQ score
of 77 would be as low as 69. A review of this transcript, however,
reveals that this statement by counsel is not sufficient to entitle Walton
to relief. Counsel states that Walton’s score of 77 would result in a score
of 69 after fully taking into account the "Flynn Effect" and the five-point
standard measurement error. As explained above, the standard measure-
ment error does not automatically reduce a test score by five points.
Instead, it is a plus or minus range that a mental health expert can use
to either reduce or increase a test score after assessing a particular per-
son. Although I agree that we can take judicial notice of the existence of
the plus or minus five-point standard measurement error range, we can-
not take judicial notice that a particular person is automatically entitled
to a full five-point reduction. Without a proper basis for asserting that
Walton’s test score should be reduced by the full five points possible, the
best Walton’s counsel can competently represent is that Walton’s score
is somewhere between 69 and 79. Accordingly, for Walton’s counsel to
suggest that Walton’s score would be 69 rather than 79 or some other
number in between is nothing more than speculative opinion, not an alle-
gation of fact. See Roane, 378 F.3d at 400. In fact, the only mental health
expert who has specifically addressed whether the test score of 77 should
be adjusted is Walton’s trial expert, Dr. Samenow, who testified that
Walton’s score should probably be higher than 77.
26 WALTON v. JOHNSON
test score between 70 and 75 should be adjusted downward or upward
in any particular case. For Walton to allege, without the benefit of an
expert assessment, that this score should be adjusted downward is
mere speculation.6 Thus, even had Walton made these allegations and
arguments to the district court, the court properly would have dis-
missed his claim.

The majority suggests that this case is controlled by our recent
opinion in Walker v. True, 399 F.3d 315 (4th Cir. 2005). In my view,
there are significant differences between this case and Walker, and
these differences reveal why the district court properly dismissed this
case.

The condemned inmate in Walker scored 76 on an IQ test before
he turned 18. Walker alleged that this score actually satisfied the
intellectual functioning requirement of the Virginia mental retardation
definition, because it actually represented a score of 70 or less after
certain factors were taken into account. Id. at 320-22. Importantly,
Walker supported these allegations in his petition with affidavits from
mental health experts. These experts stated that Walker’s score of 76
should be reduced to 72 based on the "Flynn Effect" and that it should
be further reduced (rather than increased) below 70 based on the stan-
dard five-point measurement error. Based on their review of Walker’s
intellectual functioning and background, the experts opined that
Walker was mentally retarded under Virginia law — his intellectual
functioning measured below an IQ score of 70 before he turned 18.
Id. at 322.
6
It is implicit in the Virginia statute that mental retardation ordinarily
cannot be diagnosed in a particular person without the assessment and
opinion of a mental health expert. For example, the Virginia statute
requires that "[a]ssessment of intellectual functioning shall include
administration of at least one standardized measure generally accepted
by the field of psychological testing." VA. CODE ANN. § 19.2-
264.3:1.1(B)(1) (emphasis added). Also, determining whether the dis-
ability originated before 18 "shall be based on multiple sources of infor-
mation generally accepted by the field of psychological testing and
appropriate for the particular defendant being assessed." VA. CODE ANN.
§ 19.2-264.3:1.1(B)(3) (emphasis added).
 WALTON v. JOHNSON 27
Unlike the condemned inmate in Walker, Walton does not allege
in his petition that his IQ test score of 77 should be reduced to 70 or
less. Moreover, in his post-petition filings, Walton advances only
speculative assertions. Walton has never supported any of his mental
retardation allegations, as he is allowed to do in a habeas petition, see
Rule 4, Rules Governing Section 2254 Cases in the United States Dis-
trict Courts (2003), with opinions from mental health experts.7
Despite the fact that Walton has retained several highly qualified psy-
chologists and psychiatrists, none of them has ever opined that this
particular IQ test score of 77 supports his mental retardation claim.
To the contrary, Walton’s trial expert, Dr. Samenow, testified that
Walton’s test score of 77 "most likely is an underestimate of his intel-
ligence." (Emphasis added). Moreover, while no mental health expert
has ever opined that Walton is mentally retarded, Dr. Samenow testi-
fied that Walton is "certainly not retarded." Without some verification
by an expert that Walton is mentally retarded, Walton’s self-serving
and speculative assertions fail to sufficiently allege that Walton is
mentally retarded under Virginia law. Accordingly, the district court
properly dismissed Walton’s mental retardation claim.

III.

The majority vacates the district court’s dismissal of Walton’s
insanity claim by creating a new constitutional test for determining
competence to be executed. I would affirm because the district court
followed the proper test, and its findings of fact are not clearly errone-
ous.

The district court held two hearings on Walton’s insanity claim. In
the first hearing, the district court heard extensive testimony offered
by both Walton and Virginia. Following this hearing, the district court
decided to appoint Dr. Mark Mills, a forensic psychiatrist, to provide
additional evidence relating to Walton’s competence to be executed.
After interviewing and assessing Walton, Dr. Mills testified at length
at the second hearing. He explained that Walton was cooperative and
able to volunteer important information at the beginning of the inter-
7
Walton attached to his petition affidavits and reports from his mental
health experts in support of his insanity claim but not his mental retarda-
tion claim.
28 WALTON v. JOHNSON
view. For instance, Walton volunteered that he is in prison because
he was convicted of killing three people. Walton also knows that he
is going to be executed, but he prefers to live in prison the rest of his
life rather than be executed. He considers death to be some kind of
an end and believes that he will go to heaven and then return to earth.
As the interview continued, Walton began responding to questions by
immediately and repeatedly stating "I don’t know, I just don’t know."
Dr. Mills explained that this response — which the majority suggests
shows that Walton is not competent to be executed — is a sort of
defense that Walton uses when he starts to lose focus or becomes irri-
tated at continued questioning. Dr. Mills was able to get beyond this
defense by asking Walton more structured questions. Based on his
assessment, Dr. Mills testified that Walton understands that he is
going to be executed and understands that he is going to be executed
as punishment for murdering three individuals. In a thorough order,
the district court determined that "Walton both understands that he is
to be executed and that his execution is punishment for his conviction
for murder." Walton v. Johnson, 306 F. Supp. 2d 597, 598 (W.D. Va.
2004).

Despite the district court’s extensive hearings and careful findings,
the majority concludes that Ford v. Wainwright, 477 U.S. 399 (1986)
requires more. In my view, Ford necessitates that we affirm the dis-
trict court’s judgment.

The petitioner in Ford, a convicted murderer on Florida’s death
row, began exhibiting peculiar behavior after he had exhausted all of
his direct and collateral appeals. Ford’s lawyers retained a mental
health expert to assess him. Ford told the expert that he was free to
leave the prison whenever he wanted and that he could not be exe-
cuted because he had won a landmark case invalidating the death pen-
alty — representations that were obviously incorrect. That expert
opined that Ford "had no understanding of why he was being exe-
cuted [and] made no connection between the homicide of which he
had been convicted and the death penalty." Id. at 403. Based on their
expert’s opinion, Ford’s lawyers sought a reprieve from the death
penalty based on his incompetence. Florida law prohibited — as it
still does today — the execution of an inmate if he "does not have the
mental capacity to understand the nature of the death penalty and why
it was imposed on him." Fla. Stat. Ann. § 922.07(3) (1985 & 2005).
 WALTON v. JOHNSON 29
The governor, who has sole authority to determine whether a death
row inmate is competent to be executed, appointed three psychiatrists
to assess Ford in the same 30-minute interview. All three of these
state-appointed psychiatrists concluded that Ford was able "to under-
stand the nature of the death penalty and the reasons why it was
imposed upon him." Ford, 477 U.S. at 403-04. Although Ford’s law-
yers submitted the report of their psychiatrist who believed that Ford
was incompetent, the governor did not accept that report for review.
Id. at 413, 424. The governor denied Ford’s request for relief without
explanation and instead signed a death warrant. Ford filed a federal
habeas petition, but the district court denied the petition without a
hearing. Id. at 404.

In a fractured opinion, the five-member majority of the Supreme
Court could agree on only three holdings: (1) the Eighth Amendment
forbids the states from executing the insane, id. at 409-10, 419; (2)
Florida’s failure to consider the opposing view of Ford’s psychiatrist
violated his due process rights, id. at 413, 424; and (3) on remand, the
district court was required to hold a hearing to consider all the evi-
dence to determine whether Ford was competent to be executed, id.
at 418, 424-25. It is important for purposes of our review to determine
what the Ford majority did not decide. The majority did not decide
that Florida’s standard for determining incompetence to be executed,
i.e., whether the condemned inmate "does not have the mental capac-
ity to understand the nature of the death penalty and why it was
imposed on him," was an inadequate legal standard. Instead, the five-
member majority decided that the Florida governor and the district
court failed to give Ford a fair hearing by refusing to consider all the
evidence that bore on the question of whether he was competent. The
majority did not establish a new legal standard by which the district
court on remand was to judge whether Ford was competent to be exe-
cuted. To the contrary, the four-member plurality recognized that
Florida’s statute properly did not permit the execution of the insane.
Id. at 408-09 n.2. Its concern was not with the incompetency standard
established in the Florida statute but rather with the district court’s
failure to consider Ford’s evidence demonstrating his alleged insanity.
In concurrence, Justice Powell agreed, stating:

[Ford’s] claim of insanity plainly fits within [the proper]
standard. According to [Ford’s] proffered psychiatric exami-
30 WALTON v. JOHNSON
nation, [Ford] does not know that he is to be executed, but
rather believes that the death penalty has been invalidated.
If this assessment is correct, [Ford] cannot connect his exe-
cution to the crime for which he was convicted. Thus, the
question is whether [Ford’s] evidence entitles him to a
hearing in Federal District Court on his claim.

Id. at 422-23 (emphasis added) (internal citations omitted).

In this case, it is clear that the district court provided Walton all the
process he was due under Ford. Whereas in Ford the petitioner was
provided no hearing and the governor and the district court failed to
consider Ford’s evidence demonstrating his alleged incompetence, the
district court in this case held two hearings and considered all the evi-
dence presented by Walton. Not content with the extent of the evi-
dence before it, the district court appointed a neutral expert, Dr. Mills,
to further assess Walton’s competence. Dr. Mills corroborated the
opinion of Virginia’s expert that Walton is indeed competent to be
executed. After its thorough review, the district court found Dr. Mills’
testimony to be particularly persuasive and determined that Walton is
competent to be executed. Walton, 306 F. Supp. 2d at 601.8 Because
8
The majority suggests that the district court in the March 2004 hear-
ing improperly limited Walton’s counsel to asking the expert witnesses
specifically whether Walton understood that he was to be executed for
killing three people. Contrary to what the majority suggests, the district
court prevented Walton’s counsel only from asking Dr. Mills his impres-
sions of the district court’s interpretation of the Ford legal standard, a
clearly improper line of questioning. The district court otherwise permit-
ted Walton’s counsel to question the experts on a wide range of factual
topics, including whether they believe Walton is able to prepare for his
death. Although Dr. Mills testified that he did not believe that Walton
would prepare for his passing, that belief did not affect his firm opinion
that Walton understood that he was going to be executed for killing three
people. Walton’s counsel was also allowed to ask his retained expert
whether he thought Walton could prepare for his death. The expert could
only manage that he "would have some difficulty answering" that ques-
tion but thought that Walton would probably not be able to say goodbye
to people, turn off emotional relations, or make arrangements to dispose
of his property. Thus, the district court did not improperly limit the evi-
dence at the hearing.
 WALTON v. JOHNSON 31
the district court’s findings of fact are not clearly erroneous, I would
affirm its judgment. See Mickens v. Taylor, 240 F.3d 348, 360 (4th
Cir. 2001) (stating that the district court’s findings of fact in a § 2255
proceeding are subject to the clearly erroneous standard set forth in
Fed. R. Civ. P. 52(a)).

The majority in this case, nevertheless, insists that Ford requires
still more. According to the majority, Ford pronounces the substan-
tive test that states must use to determine whether a condemned
inmate is competent to be executed. This holding is at odds with the
majority’s earlier correct acknowledgment that the Court in Ford "did
not define insanity or mandate procedures that courts must follow in
determining whether a defendant is insane [but instead] left those
tasks to the states." Even more remarkably, the majority in this case
insists that Ford’s purported substantive legal test includes a prong
that no other court interpreting Ford has ever required. According to
the majority’s new test, a condemned inmate cannot be executed
unless he is able to "prepare for his passing."9

This new prong is simply not part of the Ford holding. Ford’s four-
member plurality did not create a new definition of insanity different
from the test required in the Florida statute. Instead, the plurality
focused primarily on the process necessary to make an insanity deter-
mination. The Ford plurality explained that the reason it was deciding
the substantive Eighth Amendment issue was to determine whether
the procedures Florida followed in Ford’s case were adequate. Ford,
477 U.S. at 405 (stating that the "adequacy of the procedures chosen
by a State to determine sanity, therefore, will depend upon . . .
whether the Constitution places a substantive restriction on the State’s
power to take the life of an insane prisoner" (emphasis added)). To
underscore this point, Justice Powell in his concurrence correctly rec-
ognized that the plurality did not address the "meaning of insanity"
in the context of competence to be executed. Id. at 418.

The majority in this case, nevertheless, cobbles together stray dicta
from Ford to suggest that the Court held that the proper substantive
9
Although I disagree with the majority’s creating this new prong, I
agree with its separate holding that Ford does not require a condemned
inmate to be able to assist his counsel to be competent to be executed.
32 WALTON v. JOHNSON
test for determining competence to be executed requires consideration
of whether the condemned inmate is able to prepare for his passing.
This holding is not mandated by the plurality opinion, nor is it fairly
implied by Justice Powell’s concurrence.10 In fact, the Ford plurality
does not establish a standard for insanity, and Justice Powell’s con-
currence — the only place the proper legal standard is explicitly
addressed — adopted a two-prong test comparable to the Florida stat-
utory standard. Justice Powell plainly stated: "Accordingly, I would
hold that the Eighth Amendment forbids the execution only of those
who are unaware of the punishment they are about to suffer and why
they are to suffer it." Id. at 422 (emphasis added).11

None of the four other circuits that have addressed the issue of
competency to be executed has held that Ford requires states to deter-
mine whether a condemned inmate is able to "prepare for his pass-
ing." To the contrary, all these circuits have recognized Justice
Powell’s proffered holding — which is essentially the same test Flor-
ida followed in 1985 and continues to follow today — as an appropri-
ate standard by which to determine competence. See Massie v.
Woodford, 244 F.3d 1192, 1195 n.1 (9th Cir. 2001) (citing Ford for
the proposition that "the Eighth Amendment forbids the execution
only of those who are unaware of the punishment they are about to
suffer and why they are to suffer it"); Coe v. Bell, 209 F.3d 815, 826
(6th Cir. 2000) (concluding that "Justice Powell’s standard, that ‘only
those who are unaware of the punishment they are about to suffer and
the reason they are to suffer it are entitled to a reprieve,’ satisfies due
10
The majority complains that I refuse to recognize which parts of
Ford make up the opinion of the Court. The majority is simply mistaken.
We do not disagree over which parts of Ford are agreed to by five mem-
bers of the Court. Instead, we disagree over how to interpret the holding
of the Court’s opinion. As explained below, my interpretation of the
holding of Ford is consistent with the four other circuits that have
addressed the issue. The majority’s interpretation, which creates a new
prong of the incompetence test, stands alone.
11
After proffering this precise standard, Justice Powell acknowledged
that it is the same as Florida’s standard: "[Ford] concedes that the Gover-
nor of Florida has determined that he is not insane under the standard
prescribed by Florida’s statute, which is the same as the standard just
described." Id. at 423 (emphasis added).
 WALTON v. JOHNSON 33
process"); Barnard v. Collins, 13 F.3d 871, 876 (5th Cir. 1994) (rec-
ognizing the "Ford standard, i.e., that a prisoner must understand the
fact of his impending execution and the reason for it"); Rector v.
Clark, 923 F.2d 570, 572 (8th Cir. 1991) (stating that "according to
Ford, we must examine two factors in assessing petitioner’s compe-
tency to be executed: (1) whether petitioner understands that he is to
be punished by execution; and (2) whether petitioner understands why
he is being punished"). I agree with these circuits that the Ford test
does not require a state to determine whether an inmate is able to
"prepare for his passing" when deciding his competence to be executed.12

The majority’s new competence test suffers not only from a faulty
legal basis but also from vagueness. The majority seems to recognize
this problem by its failure to provide any sort of guidance as to what
a state or court must do or consider in deciding whether an inmate is
able to prepare for his passing. Moreover, even if Ford could be read
to add this new requirement (which it cannot), this third prong is so
open-ended and controlled by the inmate that courts might never find
that it is met. Requiring this new prong effectively precludes capital
punishment for any condemned inmate who even raises a claim of
insanity.

In this case, the district court followed the proper test to determine
whether Walton is competent to be executed.13 The court considered
all the evidence presented by both sides and also appointed an addi-
tional psychiatrist to assess Walton. Based on its review of the evi-
dence, the district court determined that Walton understands that he
is to be executed for murdering three individuals. The district court
12
Importantly, the Supreme Court — albeit in dicta — has also recog-
nized Justice Powell’s two-part test in Ford as a proper standard by
which to determine whether a person is competent to be executed. Penry
v. Lynaugh, 492 U.S. 302, 333 (1989), overruled on other grounds by
Atkins v. Virginia, 536 U.S. 304 (2002).
13
The issue before this court is not whether it would be wise to expand
the Ford test to include new factors, including whether a condemned
inmate must be able to prepare for his passing. The issue that we must
decide is what Ford mandates. The Supreme Court is, of course, free to
expand the test if it decides that a different standard is constitutionally
required.
34 WALTON v. JOHNSON
afforded Walton all the protections constitutionally required, and I
would affirm the district court’s judgment that Walton is competent
to be executed.

IV.

I would affirm the district court’s judgment denying Walton’s
habeas corpus petition on both his mental retardation and insanity
claims.