concurring in the judgment:
I concur in the judgment and most of the majority opinion. I cannot join Part III B or portions of Part III C, which hold that the district court erred in not deferring to the opinion of the Supreme Court of Virginia, as required by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), (e) (2000). Although not entirely clear, and notwithstanding the district court’s somewhat misleading statement that the magistrate judge (whose report the district judge adopted) conducted a “de novo review,” it seems to me that the magistrate judge actually did defer to the state court. Green v. Johnson, No. 2:05CV340, 2007 WL 951686, at *11 (E.D.Va. Mar. 26, 2007). The magistrate judge properly granted an evidentiary hearing under § 2254(e)(2) of AEDPA, recognized that the state court’s factual findings were entitled to a “presumption of correctness,” but found them rebutted “by clear and convincing evidence” in accord with § 2254(e)(1) of AEDPA. This conclusion required the magistrate judge then to address additional requirements of Virginia’s *306statutory definition of mental retardation that the state court had not been required to reach. Only for that reason and in that sense did the magistrate judge conduct a “de novo review.” This phrase should not hide the fact that the magistrate judge did properly defer to the state court in full conformity with AEDPA.
Specifically, prior to granting any evi-dentiary hearing, the magistrate judge made extensive findings, as required by AEDPA, that (1) under Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), Green had diligently developed the factual basis of his claim to the extent practicable in the state habeas proceeding — -by repeatedly requesting an evidentiary hearing to develop his Atkins claim — so that § 2254(e)(2) did not prevent the grant of an evidentiary hearing; (2) Green presented sufficient additional factual allegations in his habeas petition, which, if true, would entitle him to relief; and (3) Green satisfied the requirements of Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), as to when an evidentiary hearing may properly be granted to a habeas petitioner. See Green v. Johnson, 431 F.Supp.2d 601, 608-17 (E.D.Va.2006); see also Conaway v. Polk, 453 F.3d 567, 582 (4th Cir.2006) (summarizing the requirements for granting an evi-dentiary hearing after AEDPA). The magistrate judge’s approach in granting the evidentiary hearing fully accorded with our past holdings regarding the appropriate deference due to state courts under AEDPA.
The magistrate judge’s report recommending that the district court deny Green’s habeas petition similarly accords the state court opinion the required deference. In making his recommendation, the magistrate judge initially and correctly recognized that, under § 2254(e)(1), the factual determinations of the state court were presumed to be correct unless Green “rebutt[ed] the presumption of correctness by clear and convincing evidence.” See Green v. Johnson, No. 2:05CV340, 2006 WL 3746138, at *39 (E.D.Va. Dec. 15, 2006); see also Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); Lenz v. Washington, 444 F.3d 295, 300-01 (4th Cir.2006). The magistrate judge then rejected the state court’s finding on the “significantly subaverage intellectual functioning” prong of the definition of mental retardation. It is not completely clear whether the magistrate judge based this determination solely on the arguments presented by Green in his state court pleadings, but what is entirely clear is that the magistrate judge was not restricted to these pleadings by AEDPA, especially after having properly conducted the evidentiary hearing under § 2254(e). Certainly the extensive evidence presented during the three-day evidentiary hearing offered a “clear and convincing” rebuttal to the presumption of correctness afforded the state court’s findings and provided the proper basis for the magistrate judge’s decision. 2006 WL 3746138 at **38-49.
The magistrate judge then considered whether Green satisfied the second prong of Virginia’s statutory definition of mental retardation, namely, that Green possess “significant limitations in adaptive behavior.” Va.Code Ann. § 19.2-264.3:1.1(A) (2007). Because the Supreme Court, of Virginia had not addressed whether Green satisfied this prong, the magistrate judge was forced to address the issue in the first instance (and so in this respect “de novo ”). For the reasons stated by the majority in Part III C, the magistrate judge properly held that Green had not met his burden on this prong and so the state court had properly determined that Green did not meet the definition of mental retardation.