Hall v. Quarterman

REVISED JULY 9, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 30, 2008
No. 06-70041
Charles R. Fulbruge III
Clerk

MICHAEL WAYNE HALL

Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CV-00436

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:
Michael Wayne Hall was convicted of capital murder in state court. He
sought state and federal habeas relief, requesting in each forum a live
evidentiary hearing on his claim of mental retardation. Each court denied his
request. We granted a Certificate of Appealability.
I
Michael Wayne Hall was tried in Texas state court for the murder of Amy
Robinson and convicted of capital murder by the jury. Although he was
convicted prior to the Supreme Court’s decision in Atkins v. Virginia, which held
 No. 06-70041

that the execution of mentally retarded defendants is unconstitutional,1 there
was evidence regarding his mental abilities presented at trial in mitigation. On
direct appeal, the Texas Court of Criminal Appeals (the “CCA”) affirmed the
conviction, rejecting his Penry claim and his claim that the Constitution barred
the execution of mentally retarded persons. Hall filed a state petition for writ
of habeas corpus and a petition for certiorari with the United States Supreme
Court. In his state habeas petition, Hall asserted his claim of a constitutional
bar to execution of the mentally retarded and requested a “full and fair hearing,”
urging, “There has never been a fact finding rendered by either the trial court
or a jury as to the issue of whether Applicant is, in fact, mentally retarded.”
While his state habeas claim was pending, the Supreme Court decided Atkins.
Hall requested a live hearing on the mental retardation issue, urging, “Because
the issue of whether or not Applicant is ‘mentally retarded’ has never been fully
and fairly litigated and resolved by a fact-finder, this Court cannot rely solely on
. . . [its] recollection of the testimony from the trial which was conducted over
two (2) years ago. This Court should, at a bare minimum, conduct a live hearing
on this matter.” Hall also objected to the state court’s “conducting a hearing on
Applicant’s Atkins claim via affidavit rather than via live hearing.” Despite
Atkins, the trial court conducted a “hearing” by affidavit without awaiting the
disposition of Hall’s pending certiorari petition, and the CCA, relying on the
paper results, denied Hall’s state habeas claim.
The Supreme Court granted Hall’s petition for certiorari from his direct
appeal to the state court, vacating and remanding to the CCA to reconsider its
initial affirmance of Hall’s conviction in light of Atkins. The CCA, relying on the
state habeas and direct appeal records and a “re-review[] [of] the evidence” from

1
536 U.S. 304, 321 (2002).

2
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the records, held that Hall was not mentally retarded.2 Hall appealed again to
the Supreme Court, which denied certiorari, and he then filed a federal habeas
petition, again arguing, “Mr. Hall has a right under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to a full and fair hearing in a court of law on the issue
of his mental retardation.” The federal district court relied on the state record
to conclude that Hall was not retarded, and denied Hall’s Atkins claim. We
granted a COA.
II
In applying the deferential standard under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), we are mindful of the unique facts of this case,
in that Atkins was decided after Hall’s conviction, and the state’s paper hearing
on the Atkins mental retardation issue was completed before Texas had defined
mental retardation under the Atkins standard. We review the federal district
court’s refusal to grant an evidentiary hearing on the Atkins issue for an abuse
of discretion.3
Section 2254(e)(2) of United States Code Title 28 does not constrain the
district court’s discretion here because Hall diligently developed the factual basis
of his claim in state court.4 In the state habeas proceedings, Hall consistently
raised his claim that he was mentally retarded and that execution of a mentally

2
Hall v. State, 160 S.W.3d 24, 38-40 (Tex. Crim. App. 2004).
3
Schriro v. Landrigan, 127 S. Ct. 1933, 1937 (2007) (“In cases where an applicant for
federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. §
2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court.”);
McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998) (citing United States v. Cervantes,
132 F.3d 1106, 1110 (5th Cir.1998)) (“Denials of an evidentiary hearing are reviewed for abuse
of discretion.”).
4
See 28 U.S.C. § 2254(e)(2) (requiring an applicant to show, inter alia, that “the facts
underlying the claim would be sufficient to establish by clear and convincing evidence that but
for constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying offense” only if “the applicant has failed to develop the factual basis of a claim in
State court proceedings”).

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retarded individual is unconstitutional.5 He also provided affidavits of experts,
affidavits of former teachers and other individuals who were familiar with Hall’s
capabilities,6 and evidence of mental limitations, such as medical records, grade
reports and special education screening results from school, and the results of
Hall’s examination for competency to stand trial. These were more than
adequate to establish a factual basis for his mental retardation claim.
Once a district court determines that a petitioner may be entitled to an
evidentiary hearing, this is not the end of the inquiry, since “[i]n cases where an
applicant for federal habeas relief is not barred from obtaining an evidentiary
hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in
the discretion of the district court.”7 In determining whether to grant a hearing,
under Rule 8(a) of the habeas Court Rules “‘the judge must review the answer
[and] any transcripts and records of state-court proceedings . . . to determine
whether an evidentiary hearing is warranted.’”8 And the Supreme Court has
held since AEDPA that the court must also “consider whether such a hearing
could enable an applicant to prove the petition’s factual allegations, which, if
true, would entitle the applicant to federal habeas relief. Because the

5
In his first state habeas petition, Hall prayed that the court would grant relief “after
a full and fair hearing” and argued:

The right to argue mental retardation in mitigation on a case-by-case
basis under article 37.071, section 2(e)(1), Texas Code of Criminal
Procedure (the so-called Penry instruction) is insufficient to prevent the
risk that retarded persons will be sentenced to death despite their lack
of the requisite culpability . . . .
6
As the CCA put it, Hall provided “testimony of three psychologists, his mother, his
brother, his trial attorneys, two private investigators, four teachers, and a fellow death row
inmate.” Hall, 160 S.W.3d at 39-40.
7
Schriro, 127 S. Ct. at 1937.
8
Id. at 1939 (quoting 28 U.S.C. § 2254, Rule 8(a) and finding that post-AEDPA, the
“basic rule has not changed”).

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deferential standards prescribed by § 2254 control whether to grant habeas
relief, a federal court must take into account those standards in deciding
whether an evidentiary hearing is appropriate.”9 And finally, a district court
abuses its discretion in not holding an evidentiary hearing only if the state court
failed to provide a full and fair hearing.10
The facts before us are a core manifestation of a case where the state failed
to provide a full and fair hearing and where such a hearing would bring out facts
which, if proven true, support habeas relief. Hall alleges that he is mentally

9
Id. at 1940 (internal citation omitted) (citing Mayes v. Gibson, 210 F.3d 1284, 1287-88
(10th Cir. 2000)). Section 2254 provides in relevant part:

(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.

(e)(1) In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing
evidence.

28 U.S.C. §§ 2254(d), (e)(1).
10
Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000) (citing Moawad v. Anderson, 143
F.3d 942, 948 (5th Cir. 1998)) (“To find an abuse of discretion which would entitle . . .
[petitioner] to discovery and an evidentiary hearing to prove his contentions, we would
necessarily have to find that the state did not provide him with a full and fair hearing. . . .”).

5
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retarded under Texas’ Atkins test for mental retardation announced in Ex Parte
Briseno: under Briseno a defendant must prove that he has “(1) significantly
subaverage general intellectual functioning [‘defined as an IQ of about 70 or
below’]; (2) accompanied by related limitations in adaptive functioning; (3) the
onset of which occurs prior to the age of 18.”11 Because neither Atkins nor the
Briseno test had been established at his original trial, and Briseno was not
decided until approximately two years after the state court’s paper hearing on
mental retardation,12 upon which the CCA and the district court relied, Hall
never had the opportunity to present a full range of evidence on this technical
issue.13
The federal district court discussed the Briseno factors but did not conduct
a hearing, relying instead on the state court’s findings of mental retardation –
findings that were made prior to the Briseno test. The district court explained,
“In his petition, Hall thoroughly reviews the voluminous evidence as to his
mental capacity. The state does the same in its response. There is no reason for
the court to do so again here.”14 The court examined the paper evidence and
held, “Having independently reviewed all of the evidence, the court concludes”

11
135 S.W.3d 1, 7 (Tex. Crim. App. 2004) (internal citations and quotations omitted).
12
The parties in the state habeas case filed their affidavits for the paper Atkins hearing
with the trial court in September 2002. Briseno was decided on February 11, 2004.
13
Hall emphasized in a motion to stay the paper proceeding in the state court,

Despite Atkins’ prohibition against the imposition of a death sentence
against mentally retarded capital defendants, the Supreme Court’s
opinion leaves it to the individual States to develop the appropriate
method to enforce this restriction. There is currently no statutory
procedure set out in Texas to govern the determination of whether or not
Applicant (or any other capital defendant) is mentally retarded as
contemplated by Atkins.
14
Hall v. Quarterman, 443 F. Supp. 2d 815, 821 (N.D. Tex. 2006) (internal citations
omitted).

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that “the state court’s finding that Hall is not mentally retarded was not
unreasonable.”15
The district court also addressed Hall’s claim for a jury determination of
mental retardation or, in the alternative, a live hearing. The district court found
that Hall “failed to raise this issue in the state proceedings” and that it was
procedurally defaulted.16 This conclusion is incorrect; Hall consistently raised
this issue in his state and federal habeas petitions. The district court went on
to hold that “[e]ven if not procedurally defaulted, Hall’s claim that he was
entitled to a jury determination on mental retardation is without substantive
merit. Nowhere in Atkins does the Supreme Court hold that a jury
determination on this issue is required.”17 This conclusion is correct, but it
misses a central element of Hall’s claim – namely, that Hall requested a jury
trial or at minimum a live hearing.18
In reviewing the paper evidence, the district court failed to account for
several clearly erroneous findings of the CCA which, if addressed in an
evidentiary hearing, might have highlighted the unreasonableness of the state
court’s determination of the facts and entitled Hall to habeas relief. The CCA’s
habeas determinations rested on the state court’s findings from the paper
hearing, as the CCA fully adopted those findings.19 In other words, errors in the

15
Id. (citing 28 U.S.C. § 2254(d)(2)).
16
Id. at 822.
17
Id.
18
Hall argued in his federal habeas petition, “At the very least, this court should order
an evidentiary hearing on this issue [of mental retardation] so that Mr. Hall finally has an
opportunity through counsel to present testimony on his behalf and to confront and cross-
examine the state’s witnesses on mental retardation. The evidence already in the record that
demonstrates Mr. Hall’s mental retardation is summarized below.”
19
On direct appeal, the CCA likewise relied on the state habeas findings and
conclusions. Specifically, it took judicial notice of the prior state habeas proceeding and its
outcome and stated that its “conclusion on direct appeal [was] necessarily the same as [its]
conclusion in the habeas proceedings.” Hall,160 S.W.3d at 39. And, even in re-reviewing the

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state court’s factual findings were not corrected when they reached the CCA. In
assessing the affidavits of experts, which address Hall’s IQ, the state court
misread an IQ score of 67 reported in Dr. Church’s sworn affidavit, replacing a
Wechsler Adult Intelligence Scale, third edition, exam (“WAIS-III”) score of 67
with 72. The state’s expert, Dr. Price, also erroneously relied on an IQ score of
72 in making his assessment, stating, “[I]f an individual is being assessed for the
presence or absence of mental retardation and receives and [sic] IQ score of 72,
then his or her actual IQ is 95% likely to fall between 67 and 77– a range of
scores that may indicate mild mental retardation or borderline intelligence.”20
Relying at least partially on this error, the state trial court concluded that Hall’s
intelligence level was “either in the borderline range of intellectual functioning
or in the upper end of mild mental retardation.”21 A hearing would clarify
whether Dr. Price’s conclusions with respect to Hall’s IQ, which influenced the
state court’s finding, were premised on factual error.

evidence in “an abundance of caution,” the CCA still deferred to the trial judge’s habeas
findings. Id. at 40 (“While there was significant evidence in favor of a finding of mental
retardation, there was also significant evidence against such a finding. The trial judge, who
presided over the trial and the habeas proceedings, was in the best position to evaluate the
conflicting evidence. Her findings, which we have judicially noticed in the current direct
appeal, deserve great deference.”).
20
The state notes that it was Hall’s expert, Dr. Denkowski, who initially misstated
Hall’s final IQ score as 72 rather than 67. The state submits that this error was harmless
because the state court discounted his affidavit, and the CCA on direct appeal noted correctly
that Dr. Church’s examination established an IQ of 67. Cf. Ylst v. Nunnemaker, 501 U.S. 797,
801–05 (1991) (explaining that courts look to the “last reasoned decision” of the state court in
determining whether a state procedural bar precludes federal-court review). However, Hall’s
claim is that this erroneous recitation affected Dr. Price’s overall characterization of Hall’s
general intellectual functioning. Consequently, neither Denkowski’s affidavit nor the CCA’s
recitation of the correct post-conviction IQ score would render the error harmless.
21
The state trial court never indicated which of Hall’s IQ scores was most reliable.
Instead, it only stated that the scores revealed that Hall was of borderline intelligence or
mildly mentally retarded.

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The state trial court also made erroneous findings with respect to the
credibility of at least one of Hall’s experts22 – an expert whose testimony was
central to Hall’s allegations of limited adaptive functioning.23 The state
concluded that Dr. Church’s submission should “not be given weight” because
Texas law does not permit individuals with Dr. Church’s credentials to make
mental health determinations. Texas’ Persons with Mental Retardation Act only
permits physicians or psychologists licensed in Texas or certified by the Texas
Department of Mental Health and Mental Retardation to make such
determinations.24 Yet this Act is inapplicable in the Atkins context, and the
state court’s conclusion to the contrary was clearly erroneous. “The PMRA, by
its own terms, is irrelevant to the application of Atkins. For Eighth Amendment
purposes, it neither defines mental retardation nor–more relevantly–establishes
who may diagnose mental retardation.”25
The issue of mental retardation, defined by Atkins only after Hall was
tried and defined by Texas only after Hall’s paper “hearing” on mental
retardation, is fact-intensive and rests on nuanced determinations under broadly
stated concepts such as “limitations in adaptive functioning.” If Hall can prove

22
State credibility determinations also receive AEDPA deference on habeas review, but
not when overcome by clear and convincing evidence. See Summers v. Dretke, 431 F.3d 861,
871 (5th Cir. 2005); 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340
(2003) (“A federal court can disagree with a state court’s credibility determination and, when
guided by AEDPA, conclude the decision was unreasonable or that the factual premise was
incorrect by clear and convincing evidence.”).
23
Dr. Church, a licensed psychologist in Oklahoma, testified in her affidavit that it is
“highly doubtful that [Hall] alone could meet the needs of his day to day life.”
24
TEX. HEALTH & SAFETY CODE § 591.003(16).
25
In re Hearn, 418 F.3d 444, 447 (5th Cir. 2005); see also Ex parte Lewis, 223 S.W.3d
372, 374 (Tex. Crim. App. 2006) (Cochran, J., concurring) (joining the majority in declining to
adopt the trial court’s fact findings based on TEX. HEALTH & SAFETY CODE § 591.003(16) and
explaining that whether a physician or psychologist is licensed in Texas is of no “legal
significance in deciding whether [an] applicant is mentally retarded for purposes of eligibility
for the death penalty under Atkins v. Virginia or Ex parte Briseno”).

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the facts that he has consistently alleged on appeal, he will be entitled to habeas
relief.26
Furthermore, the state court’s erroneous factfinding and its refusal to
accept more than paper submissions despite the development of a new
constitutional standard and a lack of guidance from the state on that standard,
deprived Hall of a full and fair hearing at the state level. Although we have
found paper hearings adequate where “the trial court and the state habeas court
were one in the same,” as was the case here, there is a crucial distinction.
Following trial, the state trial judge on habeas review faced a new constitutional
rule categorically barring the execution of mentally retarded persons. Atkins
was so new that Texas had not had time to establish a definition of mental
retardation or the associated burdens of proof.
Nor were the district court’s findings of “facts” from the disputed
assertions of affidavits below adequate. As we have discussed, some of these
accepted “facts” were both critical and incorrect.27 These errors would have been
drawn out in a hearing with an opportunity of counsel to examine the witnesses.
Other of the district court’s conclusions rely heavily on the conflicting expert
opinions of psychologists, asserted in affidavits unaired in court and shielded
from cross examination. Given the material errors in credibility determinations
and factfinding at the state level, we are persuaded that the determination of
Hall’s claim, caught in the immediate uncertainty following Atkins, was so

26
See Schriro, 127 S. Ct. at 1940.
27
Dr. Denkowski’s affidavit, upon which the trial court relied in finding that Hall was
not mentally retarded, indicated incorrectly that Dr. Church’s examination of Hall produced
an IQ score of 72; the score was in fact a 67. Additionally, the state posited in its reply to
Hall’s state habeas petition that Hall, while in prison, wrote a note that said, “You have to get
me out of here because there’s no call button. The sink is stopped up. Also there are roaches
and a small ass bed. My feet go all the way to the wall because I’m six feet four.” The
document actually reads, as Hall’s attorneys point out in their briefing: “you half to get out of
here because there is No call button, the senk is stopd up also rauch’s and small ass bed by feet
go all the way to the wall because I am 6f4.”

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freighted with a risk of error in fact finding that the failure of the district court
below to conduct a meaningful hearing was an abuse of discretion in these
unusual and unique circumstances.
III
Accordingly, we VACATE the judgment of the federal district court and
REMAND to that court for further proceedings including an evidentiary hearing.
PATRICK E. HIGGINBOTHAM, Circuit Judge, Concurring in part and
dissenting in part:
The Supreme Court left implementation of Atkins to the states, a license
that implicitly insists upon faithfulness to its core holding and the constitutional
constraints of due process. I am persuaded that because the state denied Hall
the right to confront and cross examine state witnesses in the adjudication of his
claim of retardation, Hall’s death sentence was contrary to and involved an
unreasonable application of the clearly-established federal law of due process as
determined by the Supreme Court of the United States.
Michael Wayne Hall was convicted of capital murder by a Texas jury and
sentenced to death in 2000. Much of his mitigation case rested on the claim that
Hall suffered from a learning disability. The Texas Court of Criminal Appeals
affirmed the conviction and sentence, rejecting Hall’s Penry argument that the
jury could not give expression to his mitigation evidence and his claim that
execution of mentally retarded persons is unconstitutional. Hall filed a petition
for certiorari with the Supreme Court and sought collateral habeas review with
the state court.28 There he continued his contention that it was unconstitutional
to execute a mentally retarded individual – the issue presented in the Atkins
case – which was then sub judice in the Supreme Court. Before the state
answered his state habeas petition, the Supreme Court held in Atkins that

28
He filed his petition for certiorari in June of 2002 and his state application for writ
of habeas corpus in January of 2002.

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 No. 06-70041
executing mentally retarded individuals violates the Eighth Amendment.
Despite Atkins, the trial court on habeas refused over Hall’s objection to conduct
an evidentiary hearing29 to determine whether Hall was mentally retarded,
refusing Hall the opportunity to cross examine witnesses. Rather, it
recommended that the CCA reject Hall’s state habeas claim, relying upon the
record from his original trial and affidavits submitted by order of the trial court.
No live testimony was taken, and Hall was not allowed to cross examine any of
the affiants despite the introduction of many new affiants and claims that had
not been tested at trial. In May of 2004, addressing the Supreme Court’s opinion
vacating and remanding the judgment of the CCA,30 which had rejected the
Atkins claim on Hall’s direct appeal, a divided CCA repaired to the same record
and again concluded that Hall was not mentally retarded. Hall again petitioned
the Supreme Court for certiorari, which the Supreme Court denied in June of
2005. Hall then filed his federal habeas claim, again requesting a hearing on the
Atkins issue. Without holding a federal evidentiary hearing, the U.S. district
court deferred to the state adjudication.
I
Michael Wayne Hall was 18 years old when he killed Amy Robinson, a
mentally retarded co-worker at a grocery store.31 Hall had low intelligence and
lived in a chaotic family environment. He had never been incarcerated, although

29
Of course a proceeding before a state or appellate court where the parties may argue
an issue is a “hearing.” See Sumner v. Mata, 449 U.S. 539, 546 (1981). But Sumner addressed
28 U.S.C. § 2254(d) and the deference due findings of fact by a state court in federal habeas,
and did not address the elements of a hearing the state was constitutionally compelled to
provide to sustain a criminal conviction.
30
The Supreme Court’s opinion granting certiorari and vacating and remanding the
CCA’s judgment was decided on October 7, 2002, but the CCA decided Hall’s state habeas
claim first, in February of 2003, not addressing the remand from the Supreme Court until
2004.
31
To provide context, much of this account of the case history will repeat the recitation
of the panel opinion.

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he had participated in minor shoplifting incidents with other individuals. Hall
often associated with people younger than his age but he met an older friend,
Robert Neville, in 1997. He appreciated Neville’s friendship and attention and
spent many hours with him, accepting his offers of gifts, rides, and places to
stay, and imitating his style of dress. Neville persuaded Hall to quit his job so
they could work together at a grocery store. They decided to kill someone. With
purchased weapons, they killed Amy, an easy target. Police arrested them
attempting to walk to Mexico several hundred miles away.
The trial commenced in February of 2000. The state presented, inter alia,
a videotape that the media had taken of Hall, Hall’s written statement to the
police, the arrest warrant, the weapons, photographs of the area where the
victim was found, and testimony of the agents and detectives who questioned
Hall and took his statement. There were vague references to Hall’s acuity
throughout this portion of the trial, but they were not drawn out. At one point,
an agent indicated that detectives had asked Hall to take a polygraph test, but
he said that “he couldn’t take it, his mind was kind of messed up.” The attorney
cross examining the agent asked if Hall had expanded on this statement, but the
agent replied in the negative. The attorney also inquired about the competency
of the writing – grammar and spelling, for example – in Hall’s statement, as well
as Hall’s ability to communicate with the agent (whether there was anything
“unusual about his understanding of events or how he told them” to the agent).
The defense asked a detective involved in the case whether Hall’s family
members had indicated that Hall had any mental disabilities and if this was
consistent with the detective’s impressions of Hall. The detective replied briefly
that, “[i]f I recall, [Hall’s stepbrother] said he was slow,” and that according to
the detective, “he was not the most intelligent person I had ever seen, but he’s
also not the dumbest person I had ever seen, either.” On the third day of trial,
the jury found Hall guilty.

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In the sentencing phase of the trial, the defense offered evidence of Hall’s
learning disability. Hall’s mother and brother testified about mental problems
and learning disabilities in the family, Hall’s struggles to perform typical
childhood tasks, childhood injuries to his head, and later difficulties when he
started work and attempted to socialize with colleagues.32 In addition to
testimony from Hall’s family, Hall’s teachers and psychologists discussed his
mental capacity at school.33 The school psychologist and experts discussed
various results from Hall’s IQ tests, ranging from 67 to 71 for full-scale IQ tests34

32
Mrs. Hall discussed mentally retarded cousins, Hall’s grandfather who was mentally
ill and hospitalized, and three of Hall’s father’s siblings who were “learning disabled and
received special education assistance.” As a child, Hall had trouble doing simple tasks such
as stacking blocks, and when he got older, he often associated with younger children because
children of his own age would “call him stupid and retarded.” When Hall was a child, a pickup
truck converted to a trailer fell on Hall’s head, another child struck him on the head with a
baseball bat, Hall once struck his head when he fell out of a car, and he received stitches over
his eye after an incident in a rocking chair. As an adult, he is unable to tell time from an
analog clock, he drools when he eats, and tears his food apart with his hands rather than
cutting it with a knife. He was demoted from his job as stocker at the grocery store to the
position of “bagger,” since he was unable to properly stack small boxes of food on the shelves.
Although he had a driver’s license, he had initially failed the written test and only passed after
his mother worked with him closely for three days. Hall’s brother testified that Hall became
lost and disoriented when his brother drove him several blocks from his house and dropped him
off at a friend’s mother’s house.
33
His wood shop instructor indicated that Hall had difficulty with “simple tasks.” While
most of his special education students were able to complete an assignment within three
weeks, it took Michael approximately eight weeks. Dr. Conner, the school psychologist,
indicated that although Hall tried to talk in class, he would often only repeat phrases that he
had heard students say in the hallway. Hall read at approximately a third-grade level and had
a comprehension level of a first grader. When Dr. Conner recommended additional
psychological testing, Hall’s mother resisted the testing. A special education teacher testified
that Hall did subtraction using “stick figures.” This teacher “guessed” that Hall’s IQ was in
the upper 60’s.
34
Dr. Conner, Hall’s school psychologist, testified that the school had classified Hall first
as mentally retarded and later as learning disabled, and that his IQ was 84 on the Test of Non-
verbal Intelligence (a non-full scale IQ test, which she testified is usually ten points higher
than a nonverbal intelligence test) and a 71 on the Weschsler Intelligence Scale for Children
Revised test in 1991. Dr. Cunningham, Hall’s expert witness, administered a WAIS-III IQ
Test when Hall was 20 years old and shared the test with Dr. Price, the state’s expert
psychologist. The test indicated that Hall’s IQ score was 67, and with standard error, fell
within a range of 64 to 70.

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but differed as to their significance, reliability, relevance, and margin of error.35
Several experts also testified generally as to Hall’s adaptive functioning and
knowledge, and his academic abilities. Dr. Cunningham assessed Hall’s
adaptive functioning,36 concluding that the tests indicated that Hall was
learning disabled, with “significant academic deficiency.” Dr. Price assessed
Hall’s adaptive knowledge (not adaptive functioning, which is the applicable
issue under the Briseno37 test for Atkins mental retardation) using a Street
Survival Skills Questionnaire,38 indicating that Hall was “slow on a lot” of the
questions but that his intelligence was “either borderline, right at the level of
mild mental retardation, or he’s mildly mentally retarded.” Dr. Price concluded,
“it’s sort of a judgment call.”
Finally, the state presented lay witnesses who had some past contact with
Hall. A fellow grocery store employee of Hall’s testified that Hall taught him
how to bag groceries, said that he had worked with mentally challenged
children, and indicated that he did not notice anything slow about Hall. A
waitress who had once served food to Hall and Neville in a restaurant after the
murder testified that Hall ordered food for himself and that she did not notice

35
Dr. Cunningham indicated that the school’s initial classification of Hall as mentally
retarded in 1988, followed by a re-classification to learning disabled in 1991 – when he received
an IQ score of 71 (with a 90 percent likelihood that the score ranged from 66 to 76) – may have
resulted from the school’s erroneous interpretation of the margin of error for the 1991 test. He
also discussed the danger of relying on the TONI test as an IQ score. Dr. Price, the state’s
expert, testified that the confidence range for the school’s WAIS-III test from 1991 was,
assuming a 90 percent confidence interval, approximately 68 to 74 for the full-scale IQ (not 66
to 76, as Dr. Cunningham had described the score results), and that Dr. Cunningham’s IQ test
results for Hall at age 20, in a “fuzzy” range, could have been “a 70” “[o]r a 71.”
36
Dr. Cunningham assessed adaptive functioning based on interviews with three
informants and concluded that his composite standard score for the test was a 59 – lower than
the IQ of 67 that he assessed when Hall was 20.
37
Ex Parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004).

38
On cross examination, he admitted that “adaptive functioning,” as assessed by Dr.
Cunningham, and “adaptive knowledge,” which he tested, are distinct types of evaluation.

15
 No. 06-70041
him picking up food with his hands, although she did not discuss whether or not
he was able to use a knife.
In their closing arguments to the jury, the state and the defense focused
exclusively on Hall’s mental capacity as it related to mitigation. The state
argued that Hall was “at worst mildly retarded” and that this was not
mitigating, since he was “smart enough” to choose a trusting victim. Hall’s
attorney only discussed his IQ in the broad sense (discussing one teacher’s
estimation that it was “somewhere in the 60s,” and how the experts could not
agree on a “precise” IQ number) and emphasized Hall’s mental capacity in light
of his inability to understand the wrongness or “grasp the horribleness” of his
crime. The state, in its final rebuttal, argued: “does it really matter to us, other
than for labeling purposes, whether he’s labeled as mild mentally retarded or
low normal? Does that really tell us anything that we need to know or help us
in determining is this a mitigating factor?”
The jury answered “no” to the question of whether there were mitigating
circumstances to spare Hall’s life. On automatic appeal, the CCA affirmed the
trial court’s conviction and sentence on January 16, 2002,39 rejecting Hall’s
contention that it is unconstitutional to execute mentally retarded persons. On
January 17, 2002, Hall filed a state application for a habeas writ, re-
emphasizing his argument that “[t]o inflict a death sentence on a person
suffering from mental retardation” violates Article 1, § 12 of the Texas
Constitution and Eighth Amendment of the U.S. Constitution, an issue that was
then before the Supreme Court in Atkins. He requested a full and fair hearing,
a “live” hearing.40

39
Hall v. State, 67 S.W.3d 870, 872 (Tex. Crim. App. 2002).
40
Specifically, Hall requested an “evidentiary hearing” in his original state habeas
petition and a “live hearing” in his objection to the state trial court’s writ hearing procedure.

16
 No. 06-70041
On June 10, 2002, Hall petitioned the Supreme Court for a writ of
certiorari on the mental retardation issue, seeking review of the CCA’s judgment
on direct appeal affirming his conviction and sentence. On June 20, 2002, the
U.S. Supreme Court in Atkins held that the “[Eighth Amendment of the]
Constitution ‘places a substantive restriction on the State’s power to take the
life’ of a mentally retarded offender,”41 thus setting a constitutional bar against
the execution of mentally retarded individuals.42
The state filed its reply to Hall’s state habeas application on July 16, 2002,
acknowledging the Atkins decision but maintaining that the trial court’s
procedure for determining mental retardation was adequate.43 The habeas trial
judge, who had also presided over the original trial, refused to order a hearing
or to allow cross examination of experts on the new Atkins issue, announcing
that the issue would be submitted based on affidavits and the trial record. Hall
again objected, urging that the court conduct a live hearing. The parties
submitted affidavits from Dr. Price and Dr. Cunningham, as well as affidavits
from many individuals who had not testified at trial, including psychologists Dr.
Denkowski and Dr. Church, an advocate for mentally retarded death row
inmates, prison guards, a mitigation specialist, investigators who assisted Hall
with his habeas claim, an inmate who resided next to Hall on death row, more
of Hall’s teachers, and Hall’s trial counsel.

41
Atkins v. Virginia, 536 U.S. 304, 321 (2002) (quoting Ford v. Wainwright, 477 U.S.
399, 405 (1986)).
42
The Supreme Court granted Hall’s petition on October 7, 2002.
43
In its original reply to Hall’s habeas petition, the state urged that “[t]he Court
expressly left to the states the task of developing appropriate ways to enforce the constitutional
restriction . . . and offered no guidance for determining which capital offenders fall within its
purview.” In response to Hall’s motion to stay the state proceeding, the state continued, “The
mitigation special issue allowed the jury to consider whether Applicant’s mental retardation,
if any, was of such a degree to avoid imposition of the death penalty . . . .”

17
 No. 06-70041
Free of cross examination, experts presented new evidence of Hall’s IQ and
further disputed the margin of error associated with the various IQ scores.
These IQ scores included the school’s WISC-R result of 71 with a measurement
error of 2.6, when Hall was 12 ½ years old; Dr. Cunningham’s WAIS-III test,
which resulted in Hall’s score of 67 at age 20; Dr. Church’s WAIS-III test at age
22, which again showed a score of 67 (wrongly reported by Dr. Denkowski as a
72); and TONI-2 and TONI-3 scores of 84 and 77 at ages 16 and 20, respectively
(with associated information that the TONI “yields a 7-point higher score than
the WISC-R Full Scale IQ” and does not measure general intellectual
functioning). Dr. Price’s affidavit discussed the IQ findings from the original
trial but presented new testimony regarding the proper standard for
determining mental retardation under Atkins, and how his testing related to this
standard. He criticized Dr. Denkowski for basing his affidavit on records rather
than a personal examination of Hall but indicated that he and Dr. Denkowski
“basically agree on the current working definition of mental retardation that is
used by the psychological community (i.e., IQ below approximately 70 with
measurement error considered, significant adaptive behavior deficits in 2 or 3
skill areas, and origination of these factors in the developmental period.)” Dr.
Price also described the results of his adaptive knowledge testing of Hall. He
alleged that “Mr. Hall’s knowledge of adaptive behavior ranged from the
borderline level (16th percentile) in several areas (understanding and telling
time, handling money, and using common measurements) to the average level
(8th to 63rd percentile) in other areas (“recognizing and understanding basic
spatial/quantitative concepts, functional signs, tools, kitchen utensils, hygiene,
safety skills, and the use of public services”). He did not indicate whether any
of the tests demonstrated that Hall was below borderline. Dr. Price also alleged:
“It is very important to note that Michael Hall was placed in special education
due to having been classified as having a learning disability – not mental
retardation . . . . [M]y review of this case does not clearly indicate that Michael

18
 No. 06-70041
Hall is mentally retarded.” Yet he concluded elsewhere that “[i]t is obvious that
the issue of the diagnosis of mild mental retardation is controversial and
determining whether or not someone receives that diagnosis can literally turn
on a word or a number.”44
Dr. Denkowski’s affidavit explained that he did not interview Hall
because a meeting in a high security prison would “not provide reliable
information for gauging [Hall’s] functional status.” He contested Dr. Price’s IQ
data, indicating that “Dr. Price . . . misrepresented Mr. Hall’s SSSQ [adaptive
behavior] data through tacit implication that they were contrasted with those
of typical adults,” whereas in reality the test derives “adult norms” from “two
secondary school prevocational programs in Indiana and Texas.” Dr. Denkowski
concluded that “how Dr. Price presents SSSQ data is unacceptable for any
diagnostic purpose, even outside the courtroom” and that Dr. Price’s other
adaptive skills test, the K-FAR, showed that Hall’s math skills were “less
competent than those of 99% of typical same-aged persons” and that his reading
skills were “less proficient than 95% of people of his age.” Dr. Denkowski also
examined relevant authorities that determine mental retardation under Atkins
in Texas, concluding that the relevant numbers required for a finding of mental
retardation of a defendant in Texas are a “WAIS–III full scale IQ” below 75,45
“significant adaptive behavior deficits must exist in three skills areas and the
measurement error adjusted standard score for the overall instrument must be
below 71,” and “[t]hese impairments must have originated prior to the 18-22 age
range.” Further, he found that “[s]ince Mr. Hall’s IQ and adaptive behavior
quality plainly fall within the area that the DSM-IV and Texas law consider to
define mental retardation, it seems reasonable to express confidence in his
diagnosis of mental retardation.” Hall’s adaptive behavior tests indicated that

44
Emphasis added.
45
This is, of course, not the Atkins standard that Briseno later established.

19
 No. 06-70041
his behavior was “of the quality of higher-level mentally retarded adults.” Dr.
Denkowski also emphasized that Texas’s definition of mental retardation
recognized only a WAIS test for IQ determination, since only that test “yield[s]
a ‘full scale intelligence quotient’ ” and that the TONI test (which had been
discussed at trial) does not yield an actual IQ or assess general intellectual
function, thus making it useless for diagnosing mental retardation in Texas.
Most significantly, Denkowski’s affidavit, upon which the trial court relied in
finding that Hall was not mentally retarded, indicated incorrectly that Dr.
Church’s examination of Hall produced an IQ score of 72; the score was in fact
a 67. Dr. Denkowski’s affidavit, in addition to commenting on other experts’
evaluations of Hall, discussed the weaknesses of the state’s lay witness affidavits
as well as some of the state’s claims regarding mental retardation.
There were gaps and inconsistencies throughout the record; we mention
only a small sample here. The state posited in its reply to Hall’s state habeas
petition that Hall, while in prison, wrote a note that said, “You have to get me
out of here because there’s no call button. The sink is stopped up. Also there are
roaches and a small ass bed. My feet go all the way to the wall because I’m six
feet four.” The document actually reads, as Hall’s attorneys point out in their
briefing: “you half to get out of here because there is No call button, the senk is
stopd up also rauch’s and small ass bed by feet go all the way to the wall because
I am 6f4".” This cleaning up of a statement lies buried in the paper records but
would have been brought to light by any trial lawyer given the opportunity to
cross examine the opposing party. Mr. Harris, one of Hall’s trial attorneys,
indicated in an affidavit that Hall’s defense team had chosen not to reveal the
victim’s IQ score, since she was clearly an innocent victim. However, the state
at trial had focused strongly on how Amy was mentally impaired and was clearly

20
 No. 06-70041
more mentally impaired than Hall.46 In fact, as Mr. Harris’ affidavit reveals, her
IQ of approximately 83 (the exact number remains unclear, as it was only put
forth on paper) was meaningfully higher than Hall’s.
Hall’s affidavits from teachers alleged that he drooled in class, that he had
“extreme difficulty speaking complete sentences,” and that he had trouble
spelling his own name. An affidavit of a mitigation specialist appointed to Hall’s
case indicated that Hall did not understand the appeal or how the attorney
would help him with the appeal. He could only communicate basic information
about himself, such as his name and his mother’s name, and that, during the
interview, “Hall would agree with or go along with whatever he thought [the
mitigation specialist] wanted him to say.” Finally, he indicated that Hall
mispronounced words or used them out of context and appeared to use words
that he did not understand “in an attempt to mask or hide his disabilities.”
The state filed “affidavits” of prison staff, all of which appeared to have
been similar “fillable forms” employed by a state investigator. The affidavits
alleged that Hall appeared “normal” to the guards and that he could follow
instructions. To demonstrate experience with mental illness, one guard wrote
that he “knew some kids in school with Down’s syndrome,” while another said
that he had an uncle who was mentally retarded. Dr. Denkowski pointed out
that the observations of teachers and prison guards, indicating that Hall was
able to obey, follow rules, and function and cope, were painted by the state as
indications of Hall’s mental capacity but in fact simply affirm that “Hall has long

46
The state asked a fellow grocery store worker if Amy had the “same capabilities” as
Mr. Hall, in terms of bagging groceries and carrying them to customers’ cars and asked, “So
when you compare the two of them, who was slower?” and “Mentally, what kinds of things did
you see about her that were slow?” The state asked the jury in its closing arguments, “[I]sn’t
it interesting that the very quality, the very quality that made Amy Robinson the perfect
target, the very quality that enabled this Defendant to deceive . . . someone who truly was
mentally challenged, that very quality is now the quality he wants to cling to . . . . That he
chooses someone who was more mentally challenged by everyone’s account, by everyone’s
account, but himself . . . .”

21
 No. 06-70041
demonstrated the capacity to learn and abide by institutional rules and
expectations,” as many mildly mentally retarded persons are capable of doing.
Additional papers presented by affidavit included Hall’s medical records
(showing various incidents such as a fall on the sidewalk resulting in an
abrasion to his mouth and cuts that resulted from glass falling on Hall), grade
reports and special education/disability documents from school, prison medical
and other records, the results of a psychiatric examination to determine Hall’s
competency to stand trial (indicating that Mr. Hall “presented his charge very
well” but that “[h]e could perform only two of the four basic elementary
mathematical functions”), and psychology texts, such as the American
Association on Mental Retardation’s book entitled, Mental Retardation:
Definition, Classification, and Systems of Supports.
The CCA relied entirely upon these affidavits and the original trial court
record in reviewing Hall’s habeas claim of mental retardation,47 which was now
controlled by the decision of the Supreme Court in Atkins. The CCA adopted the
trial court’s paper findings in full – at least one of which was based on an
erroneous conclusion of law48 – on February 26, 2003, and denied Hall’s habeas

47
See Hall v. State, 160 S.W.3d 24, 27-8 (Tex. Crim. App. 2004) (“On August 5, 2002,
in the habeas action, the trial court designated the issue of whether appellant was mentally
retarded as a previously unresolved fact issue and ordered a hearing by way of affidavits. . .
. [A]fter reviewing the trial record and the affidavits submitted by the parties, and relying
upon personal recollection of the events occurring at trial, the habeas trial court adopted the
State’s proposed findings of facts and conclusions of law, concluding that appellant is not, in
fact, mentally retarded . . . . [W]e denied relief in the habeas application in an order adopting
the trial court’s findings.”).
48
The state findings, which the trial court adopted, had held that Dr. Church’s
submission should be disregarded, since Dr. Church was licensed in Oklahoma and not Texas.
This finding erroneously confused the licensing requirements for persons testifying about
mental retardation in civil commitment hearings with those of experts testifying on mental
retardation. The only time that any judge of this court has implied that a Texas license may
be required for an expert to testify on an Atkins claim was in dissent, which relied on the Texas
Health and Safety Code’s definition of mental retardation based on a Texas licensed physician’s
or psychologist’s determination of mental retardation – a code which is meant to protect
persons in civil commitment hearings. See Hearn v. Dretke, 376 F.3d 447, 468 (5th Cir. 2004)
(Smith, J., dissenting).

22
 No. 06-70041
49
application. The CCA then rejected the mental retardation claim a second
time on the Supreme Court remand of Hall’s direct appeal case50 but once again
it simply adopted the trial court’s findings based on the paper record and relied
solely on its habeas findings and portions of its original case affirming Hall’s
conviction, as well as a “re-review[]” of the record evidence, to conclude that Hall
was not mentally retarded.51 The court considered no new evidence in these
trials and ordered no hearing on the Atkins issue. It justified its actions by
arguing that the process was sufficient:
[T]he trial court and this Court did have the benefit of Atkins during
the habeas proceedings. The parties had ample opportunity to
present evidence at that time on the specific issue of mental
retardation. And we can consider the habeas proceedings and
evidence in the current posture of this appeal . . . we are faced in a
direct appeal with an issue that has already been presented to us on
habeas corpus. Consequently, we address appellant’s mental
retardation in light of both the direct appeal and the habeas records
. . . we believe that taking judicial notice of the habeas proceeding
and its outcome satisfies the Supreme Court’s remand order in the
present case.52

The dissenting justices disagreed with the “unique” precedent the court
elected to follow to determine the Atkins claims on remand of the direct appeal,
emphasizing that “[n]o trier of fact in this case has ever heard live testimony,
subject to testing on cross examination, on the specific issue of whether
appellant is mentally retarded.”53 The dissent concluded, “[W]e will never know
[whether Hall is mentally retarded] unless we order [a] full hearing and have

49
Ex parte Hall, No. 53,668-01, slip. op. at 1-2 (Tex. Crim. App. 2003).
50
Hall v. Texas, 537 U.S. 802 (2002).
51
Hall, 160 S.W.3d at 39-40.
52
Id. at 37-8. The statement that the parties had “ample opportunity to present
evidence at that time” ignored the state trial court’s rejection of Hall’s request for a hearing.
53
Id. at 41 (Johnson, J., joined by Holcomb, J., dissenting).

23
 No. 06-70041
before us both the tested testimony of persons who are knowledgeable in the
mental-health field and relevant lay testimony about his adaptive behavior.”54
In June of 2006, Hall filed a federal habeas petition after the Supreme
Court had denied his petition for certiorari.55 He again specifically argued that
the denial of a full evidentiary hearing denied him due process rights, stating,
“Mr. Hall has a right under the Fifth, Sixth, Eighth, and Fourteenth
Amendments to a full and fair hearing in a court of law on the issue of his
mental retardation.” The federal district court, like the state trial court and
court of appeals, refused to conduct an evidentiary hearing or to allow cross
examination of the state experts on the Atkins claims, denying the claims,
deferring to the state adjudication under AEDPA, and conducting its own
examination of the paper record.56 We granted a certificate of appealability on
the Atkins claim.
II
Our decisions have accorded deference to state adjudications of claims for
habeas relief from state criminal convictions under AEDPA even if made without
a live hearing.57 Under AEDPA there is a presumption that the state court’s
findings of fact are accurate “unless the petitioner can rebut the findings of fact
through clear and convincing evidence.”58 Following this line of deference, in
May59 and similar cases both before and after AEDPA, we have found that where
the trial judge who presided over the initial case later considers the habeas

54
Id. at 44 (Johnson, J., joined by Holcomb, J., dissenting).
55
Hall v. Texas, 545 U.S. 1141 (2005).
56
Hall v. Quarterman, 443 F. Supp. 2d 815 (N.D. Tex. 2006).
57
Valdez v. Cockrell, 274 F.3d 941, 950 (5th Cir. 2001).
58
Id. at 949.
59
May v. Collins, 955 F.2d 299, 314 (5th Cir. 1992).

24
 No. 06-70041
claim, we presume that reliance upon the completed record is acceptable.60 This
is sensible in many cases, at least those in which the trial judge experienced
first-hand evidence directly relevant to the habeas issue. Due process requires
a hearing, not two. Despite the deference that we give the adjudication of state
courts under AEDPA, this court has highlighted – post-AEDPA – that “‘[t]he
fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’”61 This said, allowing the original
trial judge to proceed without an evidentiary hearing or live cross examination
finds trouble when a central constitutional principle changes between the initial
trial court decision and that same court’s decision of a habeas claim – acutely so
where the claim turns on sharply contested issues of fact and witness credibility.
AEDPA provides,
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim–

(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.62

60
See, e.g., Clark v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000) (“[W]e have repeatedly
found that a paper hearing is sufficient to afford a petitioner a full and fair fearing on the
factual issues underlying the petitioner’s claims, especially where, as here, the trial court and
the state habeas court were one in the same.”).
61
Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir. 2001) (quoting Mathews v. Eldridge, 424
U.S. 319, 333 (1976)).
62
28 U.S.C. § 2254(d).

25
 No. 06-70041
The Supreme Court has explained that AEDPA does not “require the
federal courts, including this Court, to defer to state judges’ interpretations of
federal law.”63 Rather, our duty is to make an “‘independent evaluation’” of
“whether or not a rule is clearly established at the time a state court renders its
final judgment of conviction.”64 A state court decision is contrary to clearly
established federal law in two instances – first, where it is “diametrically
different, opposite in character or nature, and mutually opposed to [the Supreme
Court’s] clearly established precedent,”65 and second, where a “state court
confronts a set of facts that are materially indistinguishable from a decision of
[the Supreme Court] and nevertheless arrives at a result different from our
precedent.”66 Under AEDPA, “state-court judgments must be upheld unless,
after the closest examination of the state-court judgment, a federal court is
firmly convinced that a federal constitutional right has been violated.”67
We must decide whether the state court’s decision to deny Hall the right
of confrontation and cross examination in determining whether he was mentally
retarded under Atkins was contrary to federal law. Looking to federal law of due
process and the right of cross examination and confrontation as announced by
the Supreme Court, I am persuaded that the relevant law is clear, and dictates
the conclusion that the state court’s decisional process was contrary to this
clearly-established law. The life or death of a defendant, determined without
hearing cross examination to resolve disputed material facts, here violates the

63
Williams v. Taylor, 529 U.S. 362, 377 (2000).
64
Id. at 382 (quoting Wright v. West, 505 U.S. 277, 305 (1992) (O’Connor, J., concurring
in judgment)).
65
Id. at 406 (quotations omitted).
66
Id.
67
Id. at 388.

26
 No. 06-70041
core principles of due process and Hall’s right of confrontation as announced by
the Court.
It is helpful to lift up the questions that either are not presented or have
otherwise been dispositively decided. I accept here the state’s refusal to grant
a jury trial on the issue of mental retardation. Hall asked for a jury trial, but he
also maintained that given the posture of the case, due process assured him
more than a submission “on the papers.” I also give full force to the Supreme
Court’s holding in Atkins and in Ford v. Wainwright leaving “‘to the State[s] the
task of developing appropriate ways to enforce the constitutional restriction
upon [their] execution of sentences,’”68 while addressing the constitutional
minimum required of the state proceeding. The relevant question to my eyes is
the process required by federal law for the death eligibility determination made
here, and whether the state court’s process directly conflicts with this law.69
The inquiry could begin and end with Ford, but it is helpful to ground this
case in its place within the larger stream of due process precedent. Atkins holds
that “the mentally retarded should be categorically excluded from execution”70
and that “death is not a suitable punishment for a mentally retarded criminal”;71

68
Atkins, 536 U.S. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17
(1986)).
69
See Williams, 529 U.S. at 382 (holding that “rules of law may be sufficiently clear for
habeas purposes even when they are expressed in terms of a generalized standard rather than
as a bright-line rule. . . . ‘If the rule in question is one which of necessity requires a
case-by-case examination of the evidence, then we can tolerate a number of specific
applications without saying that those applications themselves create a new rule. . . . Where
the beginning point is a rule of this general application, a rule designed for the specific purpose
of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so
novel that it forges a new rule, one not dictated by precedent.’” (quoting Wright, 505 U.S. at
308-09 (Kennedy, J., concurring in judgment))).
70
536 U.S. at 318.
71
Id. at 321.

27
 No. 06-70041
Ford establishes a “bar against executing a prisoner who has lost his sanity.”72
While the factors establishing insanity and mental retardation differ and, under
each case, are established by the state,73 the result of the constitutional
determinations required by Ford and Atkins is identical: both determinations,
if established in the affirmative, render a defendant ineligible for a death
sentence.
Ford was convicted of murder and sentenced to death in Florida.74
Following trial and sentencing, Ford began to exhibit strange behavior and
eventually became incomprehensible, speaking in a code known only to him. A
psychiatrist diagnosed him with paranoid schizophrenia.75 His counsel
requested that the state determine Ford’s competency. The Governor appointed
a panel of three psychiatrists to make this determination. Ford had one, thirty-
minute meeting with the psychiatrists who collectively questioned him. Each
then wrote a short report concluding that he had some form of psychosis but was
competent to understand the death penalty and its consequences. Armed with
these reports, the Governor decided that Ford was not insane and signed Ford’s
death warrant.76 The state court denied Ford’s request for a hearing on his
insanity. A district court, on habeas review, denied Ford’s petition for an
evidentiary hearing on insanity.77

72
477 U.S. at 406.
73
The Florida standard for insanity in Ford, for example, was whether “‘the convicted
person has the mental capacity to understand the nature of the death penalty and the reasons
why it was imposed on him.’” Id. at 412 (quoting FLA.STAT. § 922.07 (1985 and Supp.1986)).
74
477 U.S. at 401.
75
Id. at 402-03.
76
Id. at 403-04.
77
Id. at 404.

28
 No. 06-70041
The Supreme Court found that since “the Eighth Amendment has been
recognized to affect significantly both the procedural and the substantive aspects
of the death penalty,” the adequacy of the procedures for determining Ford’s
insanity rested on whether or not the Constitution barred the execution of an
insane prisoner.78 In other words, a determination that the Constitution
substantively bars the execution of certain types of people brings due process
concerns to the forefront – with the substantive guarantee came assured
procedures.79 Having determined that the Eighth Amendment was a
constitutional bar to the execution of insane prisoners, the court turned to
“whether the [court] was under an obligation to hold an evidentiary hearing on
the question of Ford’s sanity.”80 The plurality held,
The adequacy of a state-court procedure . . . is largely a function of
the circumstances and the interests at stake. In capital proceedings
generally, this Court has demanded that factfinding procedures
aspire to a heightened standard of reliability. This especial concern
is a natural consequence of the knowledge that execution is the most
irremediable and unfathomable of penalties; that death is different.

Although the condemned prisoner does not enjoy the same
presumptions accorded a defendant who has yet to be convicted or
sentenced, he has not lost the protection of the Constitution
altogether; if the Constitution renders the fact or timing of his
execution contingent upon establishment of a further fact, then that
fact must be determined with the high regard for truth that befits a
decision affecting the life or death of a human being. Thus, the

78
Id. at 405 (emphasis added) (“The adequacy of the procedures chosen by a State to
determine sanity . . . will depend upon an issue that this Court has never addressed: whether
the Constitution places a substantive restriction on the State’s power to take the life of an
insane prisoner.”).
79
See id. at 410 (plurality opinion) (“Once a substantive right or restriction is recognized
in the Constitution, therefore, its enforcement is in no way confined to the rudimentary process
deemed adequate in ages past.”).
80
The Ford Court asked whether the “District Court” was required to hold an
evidentiary hearing. Id. (plurality opinion). Guided by AEDPA, we look to the state court’s
failure to hold such a hearing.

29
 No. 06-70041
ascertainment of a prisoner’s sanity as a predicate to lawful
execution calls for no less stringent standards than those demanded
in any other aspect of a capital proceeding. Indeed, a particularly
acute need for guarding against error inheres in a determination
that in the present state of the mental sciences is at best a
hazardous guess however conscientious.81

Justice Powell, concurring in Ford in the narrowest opinion,82 rejected the
need for a full “sanity trial” but required procedural protections and a “fair
hearing,” holding that
At least in the context of competency determinations prior to
execution, the [due process] standard is no different from the
protection afforded by procedural due process. It is clear that an
insane defendant’s Eighth Amendment interest in forestalling his
execution unless or until he recovers his sanity cannot be deprived
without a “fair hearing.” Indeed, fundamental fairness is the
hallmark of the procedural protections afforded by the Due Process
Clause.83

I am persuaded that the state court acted contrary to this clearly-established
Supreme Court precedent. Like Ford, Hall challenged the adequacy of the
process afforded to determine the crucial fact underlying a substantive
constitutional right, the right against cruel and unusual punishment. Just as
the state and district courts denied Ford an evidentiary hearing when he
requested one, both the state court and the district court denied Hall a
meaningful hearing. Neither Ford nor Hall received a determination of insanity
or mental retardation at trial – in Ford, this was denied because insanity is a

81
Id. at 411-12 (plurality opinion) (quotations and citations omitted, emphasis added).
82
Panetti v. Quarterman, 127 S. Ct. 2842, 2856 (2007) (“Justice Powell’s concurrence,
which also addressed the question of procedure, offered a more limited holding. When there is
no majority opinion, the narrower holding controls. Under this rule Justice Powell’s opinion
constitutes ‘clearly established’ law for purposes of § 2254 and sets the minimum procedures
a State must provide to a prisoner raising a Ford-based competency claim.” (citations omitted)).
83
Ford, 477 U.S. at 424 (Powell, J., concurring).

30
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pre-trial question, or a post-trial question for condemned prisoners; here,
because mental retardation at the time of his trial was solely a mitigating factor
and yet to be defined by the constitutional strictures of Atkins. Both Ford and
Hall were denied the minimal due process afforded for the determination of a
substantive constitutional right, process with a “high regard for truth that befits
a decision affecting the life or death of a human being.”84 Instead, they were
afforded only a minimal process void of any guarantees afforded by an
adversarial hearing, such as confronting and cross examining witnesses to
question their credibility. Ford lacked even the guarantees of the judicial system
and received only a “cursory form of procedural review” in an executive forum.
Hall had the benefit of a judicial system but received the same administrative-
style review.
Cases defining due process, while not treating eligibility, bear on the
clarity of Supreme Court precedent. Sentencing decisions on the elements of an
offense and aggravating factors of course affect whether a death sentence is
“appropriate,” but they do not reach the determinative question of whether the
defendant is eligible for the death penalty. While sentencing decisions with
respect to the underlying offense and accompanying factors involve a range of
gradation and substantial discretion, the question of eligibility as determined by
mental retardation or insanity is not a sentencing “factor.” As the Court
determined in Atkins and Ford, the determination of eligibility is itself a
substantive, constitutional guarantee governed by higher standards. The Ford
Court alluded to this distinction between elements of death penalty offenses and
sentencing factors on the one hand, and the determination of death eligibility
based on a defendant’s mental abilities on the other, holding that heightened
constitutional protections apply to the determination of insanity where the

84
Id. at 411 (plurality opinion).

31
 No. 06-70041
“ultimate decision will turn on the finding of a single fact, not on a range of
equitable considerations.”85
In Enmund v. Florida, the Court held that under the Eighth Amendment,
a defendant could not be sentenced to death for aiding and abetting a felony
murder if there was no determination that the defendant himself killed or
attempted to kill the victim.86 The circuits differed over the constitutionally
secured process for making this determination. The Fifth Circuit held that the
guilt-innocence or sentencing phase of the trial must establish whether a
defendant participated in murder or attempted murder, and the Eleventh
Circuit held that a judge could make the finding.87 The Court in Cabana v.
Bullock resolved the split, agreeing with the Eleventh Circuit and holding that
“the Eighth Amendment is satisfied so long as the death penalty is not imposed
upon a person ineligible under Enmund for such punishment. . . . The Eighth
Amendment is not violated . . . regardless of who makes the determination of the
requisite culpability.”88 Cabana addressed only whether a jury trial was
necessary for a finding of an element of a death-eligible offense and did not
address the level of factfinding necessary for due process, holding,
[T]he question whether the defendant killed, attempted to kill, or
intended to kill might in a given case turn on credibility
determinations that could not be accurately made by an appellate
court on the basis of a paper record. . . . We shall not now attempt
to determine what factfinding procedures would be adequate in the
particular case before us, for, as we shall see, the state courts have
not yet purported to engage in the requisite factfinding, and we

85
Id. at 412 (plurality opinion) (emphasis added).
86
458 U.S. 782, 798 (1982).
87
Cabana v. Bullock, 474 U.S. 376, 382, 382 n.1. (1986).
88
Id. at 386.

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 No. 06-70041
decline to decide the hypothetical question of the adequacy of that
which has not yet occurred.89

...

The State argues that the Mississippi Supreme Court itself made a
finding sufficient to satisfy Enmund in the course of its direct review
of [defendant’s] conviction and sentence. . . . We are very doubtful,
however, that these assessments of the record were sufficient in
themselves to constitute a finding that Bullock killed, attempted to
kill, or intended to kill Dickson. The Mississippi Supreme Court
obviously was not addressing the specific requirements set forth in
Enmund, for that case had not yet been decided.90

Cabana’s core holding that an element of a death-eligible offense may be
determined by a judge has since been eroded. Walton v. Arizona relied on
Cabana and similar cases in holding that a jury need not determine the
“aggravating circumstances ‘elements’ of . . . [a death-eligible] offense.”91 The
Court in Ring v. Arizona compared Walton’s holding to Apprendi v. New Jersey,
which held that a sentencing judge’s determination that a crime had been
committed because of racial animus – a determination that triggered the
application of the Hate Crimes Statute – violated the requirement that “a jury
determin[e] that [defendant] is guilty of every element of the crime with which
he is charged, beyond a reasonable doubt.”92 Ring found the two cases
irreconcilable and “overrule[d] Walton to the extent that it allows a sentencing
judge, sitting without a jury, to find an aggravating circumstance necessary for
imposition of the death penalty.”93 The primary distinction between Cabana and

89
Id. at 388 n.5 (internal citations omitted).
90
Id. at 389 (emphasis added).
91
497 U.S. 639, 649 (1990).
92
530 U.S. 466, 477 (2000) (quotations omitted).
93
536 U.S. 584, 609 (2002).

33
 No. 06-70041
Walton was that Cabana permitted a judge to determine a requisite element of
a capital offense, whereas Walton found the same for the determination of an
aggravating circumstance leading to a capital offense determination. Little
remains of Cabana after Ring.
In Williams v. New York, the Court upheld judicial discretion to impose
a death sentence where a jury found first-degree murder but recommended a life
sentence.94 The Court denied the invitation to “draw a constitutional distinction
as to the procedure for obtaining information where the death sentence is
imposed.”95 Much has changed since 1949. The Court in Woodson v. North
Carolina, striking down North Carolina’s mandatory death penalty statute, held,
[T]he penalty of death is qualitatively different from a sentence of
imprisonment, however long. Death, in its finality, differs more
from life imprisonment than a 100-year prison term differs from one
of only a year or two. Because of that qualitative difference, there
is a corresponding difference in the need for reliability in the
determination that death is the appropriate punishment in a
specific case.96

The Court also held,

[W]e believe that in capital cases the fundamental respect for
humanity underlying the Eighth Amendment . . . requires
consideration of the character and record of the individual offender
and the circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of death.”97

Regardless of what remains of Cabana, Walton, and Williams after Ring’s
holding, Apprendi, Woodson, Cabana, and Walton all addressed the question of

94
337 U.S. 241, 243-44 (1949).
95
Id. at 251.
96
428 U.S. 280, 305 (1976).
97
Id. at 304.

34
 No. 06-70041
whether a jury must determine a necessary element or aggravating
circumstance of a capital offense, a question that I do not here ask or answer.
This brings me to other cases that do not speak to the due process afforded
a determination of mental retardation or insanity but set heightened due process
requirements for similar determinations. In Specht v. Patterson the Supreme
Court held that a defendant who was convicted under the Sex Offenders Act but
not sentenced under the Act could not be sentenced without a hearing or the
“right of confrontation and so on.”98 That Act allowed a district court to order
punishment for “one day to life,” including life imprisonment, if the defendant
had been convicted of a sex offense, if the court received a written report arising
from a full psychiatric examination of the patient, and if the court determined
that the defendant “constitutes a threat of bodily harm to members of the public,
or is an habitual offender and mentally ill.”99 The court that sentenced Specht
did not afford him a hearing, and the Court held that this violated due process,
stating,
[The Act] makes one conviction the basis for commencing another
proceeding under another Act to determine whether a person
constitutes a threat of bodily harm to the public, or is an habitual
offender and mentally ill. That is a new finding of fact that was not
an ingredient of the offense charged.100

Similarly, Atkins came after Hall’s trial, and demanded a new finding of
fact. Of course, Almendarez-Torres v. United States101 and McMillan v.
Pennsylvania102 have, since Specht, held that certain sentencing factors are not

98
386 U.S. 605, 608 (1967).
99
Id. at 607 (quoting COLO. REV. STAT. ANN. §§ 39-19-1 to 2 (1963)).
100
Id. at 608 (citations omitted).
101
523 U.S. 224 (1998).
102
477 U.S. 79 (1986).

35
 No. 06-70041
to be treated as elements of an offense and thus do not require a jury
determination; and that “a sentencing factor that comes into play only after the
defendant has been found guilty . . . of [a] crime[] beyond a reasonable doubt”103
does not prevent a state court from “pursuing its chosen course in the area of
defining crimes and prescribing penalties.”104 But those cases both recognized
that the “defendant in Specht was ‘confronted with a radically different situation
from the usual sentencing proceeding.’”105 In McMillan, for example, a judge
could increase a defendant’s sentence if the judge found visible possession of a
firearm. The Court held, “The finding of visible possession of a firearm of course
‘ups the ante’ for a defendant . . . but it does so only in the way that we have
previously mentioned, by raising the minimum sentence that may be imposed
by the trial court.”106 Similarly, in Almendarez-Torres, where a penalty provision
authorized an enhanced sentence for a recidivist, the sentence was “up to, but
no more than, 20 years.”107 Neither of these cases rise to the level of life
imprisonment, as in Specht, or to the potential for a life sentence. Nor do they
undermine Specht’s holding, as they expressly distinguish their facts as
“radically different” from Specht’s.
Other Supreme Court cases, like Specht, require an evidentiary hearing
or similarly strict due process safeguards for findings far less weighty than
mental retardation. Kennedy v. Mendoza-Martinez requires a full trial to “strip
an American of his citizenship.”108 Mendoza-Martinez was convicted of draft

103
Id. at 86.
104
Id.
105
Almendarez-Torres, 523 U.S. at 241-42 (quoting McMillan, 477 U.S. at 89).
106
477 U.S. at 89.
107
523 U.S. at 226.
108
372 U.S. 144, 166 (1963).

36
 No. 06-70041
evasion prior to the deportation proceedings that deprived him of citizenship.109
This did not change the Court’s due process conclusions. Mendoza-Martinez was
“never tried for any crime the elements of which are identical with or totally
inclusory of those” that led to his loss of citizenship,110 just as Hall never had the
chance to address the question of mental retardation – the very question
determining his life or death – in a live hearing. In Oyler v. Boles, the Court
held that “[e]ven though an habitual criminal charge [under a recidivist
sentencing statute] does not state a separate offense, the determination of
whether one is an habitual criminal is ‘essentially independent’ of the
determination of guilt on the underlying substantive offense.”111 Thus, “a
defendant must receive reasonable notice and an opportunity to be heard relative
to the recidivist charge.”112 As in Oyler, the determination of mental retardation
in Hall is not a separate offense; it is a separate fact, and it determines whether
or not Hall is a certain type of criminal – in Hall’s case, a death-eligible criminal.
When Atkins prohibited the execution of mentally retarded defendants, it
did not add an element to a death-eligible offense or change a sentencing factor
that could increase a defendant’s punishment from imprisonment to death. It
established a core and freestanding constitutional principle, that determined
whether a defendant would face life or death. A determination of mental
retardation under Atkins implicates the due process principles established by
Ford. “‘If there is one ‘fundamental requisite’ of due process, it is that an
individual is entitled to an ‘opportunity to be heard.’”113 The question before that

109
Id. at 167 n. 21.
110
Id.
111
368 U.S. 448, 452 (1962) (emphasis added).
112
Id. (emphasis added).
113
477 U.S. at 424 (Powell, J., concurring) (quoting O’Connor, J., concurring in the
result in part and dissenting in part).

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Court was whether a lower court – in that case the district court – “was under
an obligation to hold an evidentiary hearing on the question”114 that determined
Ford’s life or death, and it concluded that it was. I find no dearth of clarity in
these basic principles of due process.
III
In applying the Supreme Court’s due process precedent in Ford and
subsequent cases to the process here, it bears explaining that the CCA was not
itself willing to decide the factual question of retardation on the trial record
alone – that is, it conceded that it needed the written, and, I note, untested,
statements “supplementing” the trial record.
Just as we must give deference to a lower court when it has appropriately
addressed a habeas issue, the Court left to the states “the task of developing
appropriate ways to enforce the constitutional restriction” in sentencing.115
Under Briseno,116 decided after the CCA concluded that Hall was not retarded,
Texas elected to follow the American Association on Mental Retardation
definition, which requires: “(1) significantly subaverage general intellectual
functioning [‘defined as an IQ of about 70 or below’117]; (2) accompanied by
related limitations in adaptive functioning; (3) the onset of which occurs prior to
the age of 18.”118 The process for determination of these three elements must of
course meet constitutional standards. Evidence of mental retardation presented
outside this framework as a mitigating factor of a capital sentence at trial,
viewed retrospectively without a hearing, was contrary to the minimum due

114
Id. at 410 (plurality opinion).
115
Atkins, 536 U.S. at 317.
116
Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004).
117
Id. at 7 n. 24.
118
Id. at 7 (internal quotations and citations omitted).

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 No. 06-70041
process required by federal law to determine Hall’s mental capacity under
Atkins, as Texas has defined it.
It bears accenting that Hall’s claim was decided on the fly,119 and was
decided before Briseno and subsequent cases that consistently allowed
defendants to present live Atkins evidence at various stages of trial. The
difference in process deployed in Hall as compared to Briseno and later Atkins
cases says a great deal: Texas courts quickly found their footing post-Atkins,
proceeding in a strikingly different way than they had with Hall’s claim of
retardation. Briseno was also convicted before Atkins but, unlike Hall, received
a five-day evidentiary hearing on his post-Atkins habeas claim of mental
retardation.120 Similarly, in Morris v. Dretke, we remanded a defendant’s federal
habeas claim to the district court for an evidentiary hearing to address his
Atkins claim.121 In Briseno, when Texas set forth the Atkins test, the CCA’s
language implied that an oral evidentiary hearing was necessary for a
determination of mental retardation, finding that factors “which factfinders in
the criminal trial context might . . . focus upon in weighing evidence as indicative
of mental retardation” included evidence such as whether the defendant
responds “coherently, rationally, and on point to oral or written questions or do
his responses wander from subject to subject” and whether “those who knew the
person best during the developmental stage – his family, friends, teachers,
employers, authorities – think he was mentally retarded at that time, and, if so,
act in accordance with that determination.”122 Although these evidentiary
standards could be ascertained to a limited degree on paper, the factfinder’s

119
The Supreme Court had not ruled on Hall’s direct appeal when the parties submitted
their habeas affidavits on mental retardation in the state trial court.
120
Briseno, 135 S.W.3d at 4.
121
413 F.3d 484, 499 (5th Cir. 2005).
122
Briseno, 135 S.W.3d at 8 (emphasis added).

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 No. 06-70041
burden of making the final determination “based upon all of the evidence and
determinations of credibility”123 cannot be met by a judge’s credibility
assessment of conflicting affidavits. And in the Atkins case itself, the Virginia
court on remand, considering “what type of proceeding is necessary and
consistent with the Supreme Court’s opinion”124 and the fact that “the question
of Atkins’ mental retardation has never been answered,”125 determined that the
case should be sent to the county court “for a hearing on the sole issue of
whether Atkins is mentally retarded”126 as defined by the Virginia Code.
Further, the court explicitly found that in a trial where the jury was “required
to consider evidence of mental retardation in mitigation of capital murder but
. . . not required to make a definitive determination whether [defendant] suffers
from mental retardation,” the issue of mental retardation has not been fully
addressed.127
Atkins both clarified the definition of mental retardation and moved it
from a mitigating circumstance to a complete bar to execution after a hearing.
And while that may not require another hearing where “[t]he question whether
[defendant] is mentally retarded” was “highly contested” at trial,128 suggesting
both that the defendant had ample opportunity for confrontation and cross
examination, it is not this case. Here, mental retardation was solely a
mitigating factor at trial, and the trial did not afford adequate process for
reaching mental retardation, a technical, three-part test in Texas. In Louisiana,

123
Id. at 9.
124
Atkins v. Commonwealth, 266 Va. 73, 79 (2003).
125
Id.
126
Id. (emphasis added).
127
Id. at 77.
128
United States v. Webster, 421 F.3d 308, 314 (5th Cir. 2005).

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 No. 06-70041
the courts have recognized their inability to rely upon mental retardation
evidence presented for mitigation as evidence of Atkins mental retardation,
stating, “Atkins changed what would be considered relevant. Prior to the trial,
mental retardation was merely a factor in mitigation. Post Atkins, mental
retardation is a complete prohibition against imposition of the death penalty .
. . .”129
The reality is that determining mental retardation in general and
certainly under Atkins engages assessments of testifying witnesses as well as
relevant records. As the CCA stated in Briseno when establishing the Atkins
mental retardation standard for Texas:
[A]lthough experts may offer insightful opinions on the question of
whether a particular person meets the psychological diagnostic
criteria for mental retardation, the ultimate issue of whether this
person is, in fact, mentally retarded for purposes of the Eighth
Amendment ban on excessive punishment is one for the finder of
fact, based upon all of the evidence and determinations of
credibility.130

There is nothing new here. The Supreme Court has consistently held that
evidentiary hearings are essential for determinations of credibility.131 The
Advisory Committee to the Standing Committee on Federal Rules has agreed,
stating: “When the issue is one of credibility, resolution on the basis of affidavits
can rarely be conclusive, but that is not to say that they may not be helpful.”132

129
State v. Williams, 831 So.2d 835, 856-57 (La. 2002).
130
Briseno, 135 S.W. 3d at 9 (emphasis added).
131
See, e.g., United States v. Nixon, 881 F.2d 1305, 1310 (5th Cir. 1989) (“If the district
court’s factual findings rest upon credibility determinations after an evidentiary hearing, this
court will not substitute its reading of the evidence for that of the district court.”); see also
Richardson v. Wright, 405 U.S. 208, 219 (1972) (Brennan, J., dissenting) (citing Goldberg v.
Kelly, 397 U.S. 254 (1970)) (the right to cross examination rests largely on “credibility and
veracity,” i.e., where “facts are at issue”).
132
Advisory Committee note to Rule 7, Rules Governing Habeas Corpus Cases (quoting
Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970)).

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 No. 06-70041
Indeed, affidavits can be helpful, but the credibility of the writer of an affidavit
can be fairly tested only in a hearing.
Reciting the rote that oral hearings test credibility is an anemic and
inadequate statement of their force. It is the hearing in open court which offers
the opportunity to expose the very core of the evidence, its accuracy, and its
weight. Our faith in live hearings is a judgment made at least two centuries ago,
reaffirmed for so long as to become a central part of this country’s democratic
tradition and of a piece with its sense of fairness, and its defining of the
relationship of citizen and state. The examples are many. I pause only to
remind of a few. The Supreme Court’s extensive examination of the role of
magistrate judges in holding fact-finding hearings, which the trial judge then
accepts on paper, demonstrates well the limits of the paper record. In holding
that a magistrate under the Federal Magistrate Act cannot preside over jury voir
dire, and reserving that function for a trial judge, the Supreme Court in Gomez
v. United States spoke to the importance of the judicial function and the trial
judge’s responsibility, which rises far above simple document review:
Like motions to suppress evidence, petitions for writs of habeas
corpus, and other dispositive matters entailing evidentiary
hearings, jury selection requires the adjudicator to observe
witnesses, make credibility determinations, and weigh contradictory
evidence. Clearly it is more difficult to review the correctness of a
magistrate’s decisions on these matters than on pretrial matters,
such as discovery motions, decided solely by reference to
documents.133

As the Gomez Court further explained, the nature of voir dire requires the
court to “scrutinize not only spoken words but also gestures and attitudes of all
participants . . . But only words can be preserved for review; no transcript can
recapture the atmosphere of the voir dire, which may persist throughout the

133
490 U.S. 858, 874 n. 27 (1989) (emphasis added, internal citation omitted).

42
 No. 06-70041
134
trial.” Peretz’s holding after Gomez – allowing a magistrate to preside over
voir dire when the defendant waives his right to voir dire in the trial court – does
not diminish Gomez’s findings. When the Court upheld this waiver for felony
trials, it emphasized that “the duties that a magistrate may perform over the
parties’ objections are generally subsidiary matters not comparable to
supervision of jury selection. However, with the parties’ consent, a district judge
may delegate to a magistrate supervision of entire civil and misdemeanor
trials.”135 The Court in United States v. Raddatz, in examining the ability of the
magistrate to conduct a hearing on suppression of evidence, discussed this
country’s deep-rooted belief in the value of live trials:
More than 100 years ago, Lord Coleridge stated the view of the
Privy Council that a retrial should not be conducted by reading the
notes of the witnesses’ prior testimony: “The most careful note must
often fail to convey the evidence fully in some of its most important
elements. . . . It cannot give the look or manner of the witness: his
hesitation, his doubts, his variations of language, his confidence or
precipitancy, his calmness or consideration; . . . the dead body of the
evidence, without its spirit; which is supplied, when given openly
and orally, by the ear and eye of those who receive it.”136

And as English scholars have aptly commented, “an artful or careless
scribe may make a witness speak what he never meant, by dressing up the
depositions in his own form at language; but the witness is here at liberty to
correct and explain his meaning, if misunderstood, which he can never do after
a written deposition is once taken.”137 There are markers of the need for live

134
Id. at 874-75 (emphasis added).
135
Peretz v. United States, 501 U.S. 923, 933 (1992).
136
447 U.S. 667, 679 (1980) (quoting Queen v. Bertrand, 4 Moo. P. C. N. S. 460, 481, 16
Eng. Rep. 391, 399 (1867)).
137
Henry John Stephen and James Stephen, New Commentaries on the Laws of
England (partly founded on Blackstone) (1863).

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 No. 06-70041
hearings along the way of this country’s entire history. In discussing the
importance of jury voir dire and deference to a trial court’s findings on
challenges to members of a venire during voir dire, the Supreme Court one
hundred twenty-eight years ago highlighted the types of findings that cannot be
simply drawn from written evidence:
The reading of the evidence leaves the impression that the juror had
some hypothetical opinion about the case, but it falls far short of
raising a manifest presumption of partiality. In considering such
questions in a reviewing court, we ought not to be unmindful of the
fact we have so often observed in our experience, that jurors not
unfrequently seek to excuse themselves on the ground of having
formed an opinion, when, on examination, it turns out that no real
disqualification exists. In such cases the manner of the juror while
testifying is oftentimes more indicative of the real character of his
opinion than his words. That is seen below, but cannot always be
spread upon the record.138

More recently, the Court has focused on the importance of deference to the
findings of a trial judge, since the parties at trial are “forced to concentrate their
energies and resources on persuading the trial judge that their account of the
facts is the correct one,” and “only the trial judge can be aware of the variations
in demeanor and tone of voice that bear so heavily on the listener’s
understanding and belief in what is said.”139 Justice Powell in Ford discussed
how the “competency determination depends substantially on expert analysis in
a discipline fraught with subtleties and nuances.”140 And although Justice
Powell’s opinion did not conclude that this determination required a full trial,
just as I do not maintain that a formal trial would be necessary for an Atkins

138
Reynolds v. United States, 98 U.S. 145, 156-57 (1878).
139
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).
140
Ford, 477 U.S. at 426 (Powell, J., concurring) (quoting Addington v. Texas, 441 U.S.
418, 430 (1979)).

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determination, he recognized the basic need for the parties to introduce
arguments before an impartial decisionmaker.141
Courts’ emphasis, both historical and modern, on the need for a trial judge
or an impartial decisionmaker to hear the most important issues in a case
speaks directly to the necessity of a hearing to determine mental retardation
under Atkins, a hearing that tolerates confrontation and cross examination.
Without such a hearing, the judge lacks the most essential aspects of a mental
retardation determination – observation of the witnesses, with the credibility of
experts’ motivations and the confidence of the affiants exposed to cross
examination in an open courtroom.
IV
Blind deference to the state’s decision in this case would deprive Hall of
his most basic due process rights. The trial court’s examination of the mental
retardation claim as one potential mitigating factor to a capital sentence, before
Atkins was decided, tells us little about the evidence that is relevant to an Atkins
claim. Nor do the criminal and district courts’ re-examinations of the mental
retardation evidence presented for mitigation, as well as post-conviction
affidavits which presented new and important evidence of mental retardation,
serve as “hearings” on the Atkins claim to which we must apply a presumption
of correctness and give deference. There is a backdrop to this deficient hearing
that cannot be ignored and that is the state trial courts’ consistent and complete
adoption of all of the state’s findings throughout this process:142 this creates a

141
Id. (Powell, J., concurring).
142
This practice is by no means uncommon and is, in fact, the overwhelming norm. See,
e.g., Texas Defender Service, A State of Denial: Texas Justice and the Death Penalty at 125
(observing that “the ‘paper hearing’ is especially questionable when combined with the
pervasive practice, followed by the vast majority of Texas trial courts reviewing capital cases
in state habeas proceedings, of resolving the disputed facts by adopting the prosecutor’s legal
arguments and characterizations of the evidence wholesale”). The authors reviewed “over one
hundred post-1995 state habeas proceedings” and found “that the trial court’s findings were
identical or virtually identical to those submitted by the prosecutor in 83.7% of the cases

45
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black hole of deference and assumption that is not defensible. Both courts
attempted to weigh the mitigation evidence themselves, guessing as to the
credibility, reliability, and accuracy of the purveyors of that evidence and the
Atkins affidavits, and finally deciding who to believe by reading works not
necessarily and likely not crafted by the “witness.”143 But in doing so, they
demonstrated the very flaws that render its paper determination of mental
retardation, made without a hearing, an inadequate purveyor of due process.
The only mental retardation evidence heard live in this case is the limited
testimony and cross examination on mitigation from Hall’s trial, which occurred
before the Supreme Court’s Atkins decision. Many of the affiants have only been
“heard” on paper – including two new experts (Dr. Church and Dr. Denkowski)
who have never been cross examined. And none of the witnesses, expert or lay,
have been cross examined on the issue of mental retardation as defined by
Atkins. The CCA relied wholly on the paper evidence from this trial court record
and additional affidavits submitted by both parties in rejecting Hall’s Atkins
claims. In the initial hearing, Hall and the state addressed mental retardation
as a potential mitigating factor in Hall’s death sentence and not in light of the
three specific Briseno factors that define Atkins mental retardation in Texas.
Much of the testimony focused on Hall’s family life, emotional abuse, and the

examined.” Id. at 127. For capital cases, the authors are not aware of any case where “a
Texas trial court has ever adopted the findings proposed by the defendant seeking a new trial.”
Id. at 126 n. 30.
143
The affidavits are repetitive and phrased similarly (stating, for example, “Michael
Hall is just a normal inmate to me,” “Michael Hall acts . . . as normal as anyone in his pod,”
“Michael Hall’s behavior is normal and does [sic] what he is supposed to do”), suggesting that
one individual asked guards identical questions, wrote down their responses, and then
requested the guards to verify the accuracy of the written responses. The end of each prison
guard affidavit reads: “I have read each of the [applicable number of] sections of this document
and I find it to be a true and correct account of what I have told Investigator David
Whisenhunt of the Tarrant County District Attorney’s Office . . . .”). This method of affidavit
preparation is of course acceptable, but it suggests the deficiency of a court’s relying solely
upon affidavits and barring cross examination based on the affidavits.

46
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question of Hall’s understanding of culpability and the “wrongness” of his acts,
rather than on whether or not he was in fact mentally retarded according to
Briseno’s “scientific” definition of that term. The question to which all of this
evidence was directed did not even mention the word “mental retardation.”
Rather, the question on mitigation (Special Issue Number 3) asked:
Whether, taking into consideration all of the evidence, including the
circumstances of the offense, the Defendant’s character and
background, and the personal moral culpability of the Defendant,
there is a sufficient mitigating circumstance or circumstances to
warrant that a sentence of life imprisonment rather than a death
sentence be imposed.

The testimony and cross examination addressing Hall’s IQ showed that
the issue was controversial and muddled,144 and the state’s only expert discussed
Hall’s adaptive knowledge, not functioning. The closing arguments from the
trial record most strongly illuminate the dearth of sufficient Atkins evidence in
the trial court’s paper hearing, as shown by the state’s sweeping assertion that
mental retardation was only for “labeling purposes” and had little relevance to
the question of mitigation.
Ironically, the CCA, in finding that Hall was not mentally retarded for a
second time and relying upon the paper trial record and habeas affidavits,
stated: “At no point did appellant [during trial] request that the trial judge or
the jury make a specific fact-finding as to whether appellant was in fact mentally
retarded.”145 Had Hall and his attorneys possessed extrasensory abilities – and
had they known that Hall’s initial trial would be their only opportunity to
present live evidence of the very issue of Atkins mental retardation that would
determine Hall’s fate – they would have of course seized the opportunity to
present their proof of mental retardation in open court and not by mail. The

144
The experts addressed the confusion over the IQ tests’ standard error but did not
resolve or fully clarify the issue.
145
Hall, 160 S.W.3d at 26.

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state, in turn, would have offered rebuttal evidence and cross examined
defendants’ witnesses and experts on their credibility as it specifically related
to the three Briseno factors of mental retardation in Texas. But neither side did
so, because neither could have known that the Court would declare a new
constitutional standard in Atkins. Further, neither side could have predicted
that the state and district courts would have refused the parties an opportunity
to confront and cross examine the expert witnesses who offered conflicting
opinions. And the brief opportunity afforded to present Atkins evidence on paper
failed to remedy the absence of genuine adversarial contest. Between Hall’s
state application for habeas, which claimed that it was unconstitutional to
execute a mentally retarded defendant in light of the pending Atkins case, and
the state’s reply, the Supreme Court decided Atkins. Therefore, both the habeas
application and the reply contained Atkins-type arguments, and both Hall and
the state relied upon the Texas Health and Safety Code’s definition of mental
retardation, which is similar but not identical to the AAMR test for mental
retardation under Atkins that the Briseno court later adopted. The Code’s
definition of a mental retardation is “significantly subaverage general
intellectual functioning that is concurrent with deficits in adaptive behavior
146
and originates during the developmental period.” Briseno’s AAMR test
requires “limitations” in adaptive functioning that are “related” to the
subaverage intellectual functioning, with onset before age 18. Although the trial
court’s paper habeas hearing, which occurred just after Atkins was decided,
ostensibly allowed the parties to “argue” the issue of mental retardation under
a definition similar to the Briseno standards, the arguments put forth on paper
left gaps in the focus demanded by Atkins. At best, the experts reiterated prior
arguments over IQ and failed to resolve them, bickering over standard error and
citing incorrect IQ results. Two new experts presented affidavits and neither of

146
TEX. HEALTH & SAFETY CODE § 591.003(13) (West 2008).

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these experts were ever cross examined as to their competency. They asserted
their own views on the proper means for testing IQ and adaptive functioning, as
well as the proper measurement of margins of error and application of test
results to the Atkins factors, yet they never debated these views live.
Significantly, Dr. Denkowski pointed out potentially major flaws in some of the
analyses relied upon by Dr. Price and others (that the TONI test, for example,
does not even technically measure IQ), yet most of these flaws have not been
tested in a courtroom. And the lay affiants presented broad claims that would
have likely been pierced, or substantially altered in strength, upon cross
examination. The judges in each step of Hall’s case and collateral review
decided they could sort through the complicated scientific evidence and
conflicting lay opinions themselves, without the aid of adversarial truthseeking.
This occurred despite the failure of the trial record or the supplemental
affidavits to sufficiently address any of the Briseno factors. Regarding the
question of onset before the age of 18, the state’s only argument directly
addressing this issue covered less than one page of its reply to Hall’s habeas
application and relied upon the controversial school IQ scores of 71 on the WISC-
R and 84 on the TONI, the faults of which Dr. Cunningham had raised in trial
and Dr. Denkowski further explored on paper.147 In alleging that Hall did not
have significant limitations in adaptive functioning, the state relied wholly on
descriptions of Hall’s participation in the murder (alleging that this
demonstrated his ability to function competently), the testimony of his family
from the trial testimony, lay affidavits from prison guards, and on Dr. Price’s
description of the Street Survival Skills Questionnaire that he administered on
Hall – a test for adaptive knowledge, not functioning. We expect a reasonable
level of detail in determining whether a defendant meets the Briseno factors. As

147
The state’s attorney also suggested in trial that the multiple head injuries suffered
by Hall as a child were insignificant, as demonstrated by his mother’s failure to take him to
the hospital for some of the incidents.

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the Court in Atkins explained, “To the extent there is serious disagreement
about the execution of mentally retarded offenders, it is in determining which
offenders are in fact retarded.”148 This type of controversial determination
requires a careful and reasoned investigation of relevant facts, and the general
allegations of parties on paper fail to come close to the level of relevance required
for an Atkins determination.
In mental retardation cases, the CCA has specifically found that when a
trial court determines an Atkins claim, “the trial court must not rely so
extensively upon . . . expert testimony as to commit the ultimate decision of
mental retardation to the experts.”149 The state’s post-Atkins argument that
Hall is not retarded rests in part on the affidavits of prison guards. These
witnesses, given the nature of their job and its accompanying dangers, may not
be inclined to volunteer evidence of mental retardation to state prosecutors.
Additionally, as the dissent to the opinion of the CCA observes, the guards
demonstrated only vague and largely irrelevant understandings of mental
retardation150 while simultaneously asserting that Hall appeared normal. The
Supreme Court has observed – in civil cases – that an individual’s knowledge of
the nature of the Government’s argument, protected by “the requirements of
confrontation and cross-examination,” is “important in the case of documentary
evidence,” but “even more important where the evidence consists of the
testimony of individuals whose memory might be faulty or who, in fact, might
be . . . persons motivated by malice, vindictiveness, intolerance, prejudice, or

148
Atkins, 536 U.S. at 317.
149
Briseno, 135 S.W.3d at 13 n. 30 (citing State v. Williams, 831 So.2d 835, 859 (La.
2002)).
150
One prison guard “knew some kids in school with Down’s syndrome,” while another
had one uncle who was mentally retarded. Some of the guards only observed Hall sporadically,
when they happened to be assigned to his prison unit.

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151
jealousy.” While the right to cross examination rests largely on questions of
“credibility and veracity,” “[a]n individual has those rights because facts are in
issue.”152 And we know little about how the other lay witnesses actually
“understood” mental retardation, or whether they observed Hall for a sufficiently
long period of time to accurately observe his mental capacity. Many statements
in affidavits from both the state and the defense indicate precisely how these
issues begged for oral hearing. The affidavit of a waitress who served him once,
for example, would not likely carry much weight in an Atkins hearing. Prison
guards repeatedly made broad, sweeping allegations, such as “Michael Hall is
just a normal inmate to me,” “I have never heard Michael Hall referred to as
‘Half Deck’ by anyone,” and “I had the usual contacts and conversations with
Hall and observed nothing unusual,” while teachers claimed that Michael
“demonstrated behaviors similar to those of a child with a diagnosis of Mental
Retardation” and his trial counsel indicated that “Michael tried to mask his
retardation . . . he bitterly did not want people to think him ‘dumb’. . . .”
As Hall argued in his habeas application:
For any fact-finder to make a determination as to whether Applicant
is mentally retarded, it will be necessary to hear the testimony [of]
people such as teachers, counselors, and mental health providers
who had contact with Applicant before and after his incarceration
concerning Applicant's adaptive functioning. Additionally . . . the
fact-finder will be required to weigh the testimony of witnesses from
both sides – psychologists who had interviewed Applicant . . . The
fact-finder will also have to hear from experts in the field of mental
retardation so that the fact-finder [will] be able to gain an
understanding of exactly what mental retardation is, and the
variety of ways that it is manifested in those afflicted with it. It will
be impossible for any fact-finder to make an informed and
intelligent decision about which experts are most qualified and most
credible in making their respective conclusion without hearing from

151
Richardson, 405 U.S. at 218 (Brennan, J., dissenting) (quoting Goldberg, 397 U.S.
254, 270 (1970), emphasis added).
152
Id. at 219.

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the experts in court and subjecting them to the rigors of a
Daubert/Rule 702 hearing and cross-examination.

A judge presiding in court at an oral hearing has “the superior opportunity
of an observer of witnesses to comprehend their testimony,”153 an advantage in
“essaying the truth of a matter when the facts are caught up with a witness’s
manner of expression.”154 Our principles of deference to trial courts are clear,
and we follow these principles because of the trust that we place in the trial
process to do justice to the evidence placed before it.
Returning to basics, an oral hearing with cross examination of experts
allows the trier to evaluate not only the raw contents of that evidence but the
way in which the evidence plays out as presented live: the inconsistencies that
arise, the phrases that went unnoticed yet carry great weight, and the responses
to cross examination that may bring out weaknesses in an assertion that
appears bullet proof on paper. It is sometimes the silences in the courtroom that
confess a realization of truth but are not preserved for reading by judges at
another place and another time. Hearings in open court, or “little” trials, are
not perfect but they are the best that we do in a system that remains as fair as
any in the world. And they must not be jettisoned in the elusive and illusive
pursuit of “efficiency.” Of course efficiency is an important component of a fair
system, at least as much as the system can stand. The reality is that far less
time would have been taken by a hearing than the time consumed in the
struggle over its absence. Submissions on paper are the staple of the
administrative state. I do not gainsay the role of our administrative state in
saying that whether a man lives or dies at the hand of his government for his
conduct is not to be decided by administrative agencies. Nor, I say, with all
respect, by courts who unwittingly ape them by accepting the adequacy of

153
O’Bryan v. Estelle, 714 F.2d 365, 392 (5th Cir. 1983) (Higginbotham, J., concurring).
154
Id. at 393 (Higginbotham, J., concurring).

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administrative manners not prescribed for courts of law but as an alternative to
them.
Here, judges distant from any live testimony or cross examination
attempted to decipher the evidence for themselves, despite differing accounts of
the accuracy of IQ tests and standard error, despite conflicting lay opinions on
Hall’s mental abilities, and, most importantly, despite the state expert’s
admission that the determination of mental retardation is a “judgment call” in
this case and can “literally turn on a word or a number.” When a constitutional
issue turns on a word or number – particularly here, where the first prong of
Briseno’s mental retardation test requires an IQ of 70 or below for a finding of
mental retardation – a judge’s analysis of paper arguments over the accuracy of
IQ tests and complicated standard of error ranges cannot do justice to a
defendant’s right to a determination of mental retardation. I have little doubt
that the state trial judge would have never relied upon the erroneous
misstatement of Hall’s IQ made in an affidavit of one of Hall’s expert witnesses
had there been a hearing in more than name. It is the risk of just such errors
that underpins the assurances of the procedural protections of due process. That
a state is free to allocate the adjudicatory responsibility to trial or appellate
courts does not reduce the constitutionally secured minimum for deciding a
substantial claim of retardation under Atkins, bristling with sharply contested
facts.
I have not invoked the familiar and reminded of primer rules and common
understandings that came with the founding and have clung to our national
psyche, powerfully informing our present elaboration because they have not been
learned, but because in the daily mix of affairs they are occasionally forgotten.
This panel has unanimously concluded that the state did not afford Hall’s
claim of retardation a full and fair hearing. It follows that we vacate the
decision of the federal district court and remand for an evidentiary hearing.
Here I would chart a different path. We should also make clear that because the

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finding that the state denied Hall a full and fair hearing on a claim of
retardation is constitutionally footed, the state’s adjudication is constitutionally
flawed and has resulted in a decision that was contrary to and an unreasonable
application of federal law as determined by the Supreme Court. Refusing to
allow confrontation and cross examination was an error of law, one that violated
the federal law as established by the Supreme Court. We should vacate the
decision of the district court with instructions to that court to enter an order that
unless the state shall provide a constitutionally adequate evidentiary hearing
on Hall’s claim within 120 days of the issuing of the mandate, Hall shall not be
eligible for death.155 To do otherwise does not give Hall his due – a hearing that
not only affords the opportunity to confront and cross examine the state
witnesses but also a hearing free of the deference the federal district court must
give to the state adjudication of retardation – and passes over the reality that
the state adjudication here was constitutionally flawed.

155
Indeed, Texas allows the Texas Court of Criminal Appeals to utilize the state trial
courts for hearings requiring evidentiary presentations. See TEX. CODE CRIM. PROC. art.
11.071 § 8 (“If the convicting court determines that controverted, previously unresolved factual
issues material to the legality of the applicant’s confinement exist, the court shall enter an
order, not later than the 20th day after the last date the state answers the application,
designating the issues of fact to be resolved and the manner in which the issues shall be
resolved. To resolve the issues, the court may require affidavits, depositions, interrogatories,
and evidentiary hearings and may use personal recollection. . . . (f) The clerk of the convicting
court shall immediately transmit to: (1) the court of criminal appeals a copy of: (A) the
application; (B) the answers and motions filed; (C) the court reporter’s transcript; . . . (2) (C)
findings of fact and conclusions of law entered by the court.”).

54