Eugene Milton Clemons, II v. Commissioner, Alabama Department of Corrections

967 F.3d 1231

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 30, 2020
• Docket: 16-13020
• Status: Published

Opinion

Case: 16-13020 Date Filed: 07/30/2020 Page: 1 of 39

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-13020 ________________________

D.C. Docket No. 2:10-cv-02218-LSC

EUGENE MILTON CLEMONS, II,

Petitioner - Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, WARDEN, HOLMAN CF,

Respondents - Appellees.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(July 30, 2020)

Before WILSON, JILL PRYOR and MARCUS, Circuit Judges.

MARCUS, Circuit Judge: Case: 16-13020 Date Filed: 07/30/2020 Page: 2 of 39

In 1994, an Alabama jury convicted Eugene Clemons for the capital murder

of Drug Enforcement Administration Special Agent George Douglas Althouse.

Thereafter, a unanimous jury recommended that Clemons be sentenced to death;

the state trial court followed the jury’s recommendation and sentenced the

petitioner to die. Nearly a decade later, the Supreme Court held it unconstitutional

to execute intellectually disabled people. See Atkins v. Virginia, 536 U.S. 304

(2002). After Atkins, Clemons timely brought a claim of intellectual disability in

Alabama state court. The Alabama courts concluded that Clemons had failed to

demonstrate either significant subaverage intellectual functioning or significant

deficits in adaptive functioning, as required by Atkins and Alabama case law, and

denied the petition. Because the state court’s decision was neither contrary to nor

an unreasonable application of clearly established Supreme Court law, nor was it

based on an unreasonable determination of the facts in light of the evidence

presented, we are obliged to deny his federal habeas petition.

Clemons also attempts to bring thirty-one other claims in his federal habeas

petition, but those claims are untimely. The Antiterrorism and Effective Death

Penalty Act (“AEDPA”) requires most claims to be brought within one year of a

conviction becoming final on direct review. A “properly filed” state-court petition

tolls the one-year federal limitations period. But Clemons’s state petition was not

“properly filed” -- because his attorneys neither paid the filing fee nor filed a

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motion to proceed without paying the fee -- until more than one year after his

conviction had become final. Clemons now says his lawyer received

misinformation from the state court clerk’s office, so the federal limitations period

should be equitably tolled. But the extraordinary remedy of equitable tolling

cannot excuse the simple negligence of an attorney. We affirm the district court’s

determination that those thirty-one claims are untimely and must be dismissed.

I. Background

On May 28, 1992, Eugene Milton Clemons II shot and killed DEA Special

Agent George Douglas Althouse during a carjacking. That evening, Althouse and

Naylor Braswell, a Jefferson County Sheriff’s Department officer with whom

Althouse was working and sharing an apartment, drove a black Camaro to meet

another narcotics officer. On the way, they pulled into a service station. Braswell

went inside to borrow a telephone book while Althouse remained in the

passenger’s seat of the car. Braswell looked outside and saw a man get into the

driver’s seat of the car, armed with a revolver. At trial, he identified Clemons as

looking like the man he saw behind the steering wheel. He then heard two shots

and saw Althouse dive out of the car. Althouse had been shot, and although he

initially returned fire, he eventually succumbed to his injuries and died. Braswell

added that a bulletproof vest and a shotgun had been in the Camaro’s trunk.

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One of Clemons’s accomplices, Kenny Reed, also testified at trial. Clemons

called him at their mutual friend Herman Shannon’s house and asked Reed to pick

him up to get “a car.” Reed said they drove to an area near a service station and

Clemons got out of the car. Reed later heard two gunshots, followed a short time

later by several more shots. Clemons then drove off in a black Camaro. When

Reed returned to Shannon’s house, Clemons was there and said that “no one better

open their mouths” because he had killed a DEA agent. Clemons had previously

told Reed that Clemons’s car needed a new motor.

The following day, on May 29, 1992, the black Camaro was recovered near

Shannon’s house and the shotgun that had been in the trunk of the car was

discovered near Clemons’s home. Shortly thereafter, Clemons was arrested in

Cleveland, Ohio. His uncle who lived there testified that Clemons’s sister had

called to say Clemons was coming to Cleveland. Clemons told his uncle that he

shot a police officer because the officer was trying to kill him and that he stole the

car to get away.

Because Althouse was a federal narcotics officer, Clemons was first tried for

murder in federal district court. He was convicted in April 1993 and sentenced to

life without parole. The federal conviction was upheld on direct appeal. United

States v. Clemons, 32 F.3d 1504 (11th Cir. 1994), cert. denied, 514 U.S. 1086

(1995). In a parallel proceeding, Alabama indicted Clemons for capital murder in

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March 1993. He was tried and convicted on September 25, 1994, and sentenced to

death soon thereafter. Clemons’s direct appeals from his state-court conviction

and death sentence became final when the United States Supreme Court denied his

petition for certiorari on January 25, 1999. Clemons v. Alabama, 525 U.S. 1124

(1999).

On December 27, 1999, Clemons submitted his petition for post-conviction

relief, pursuant to Rule 32 of the Alabama Rules of Criminal Procedure, in Shelby

County Circuit Court. At that time, however, he neither paid a filing fee, nor

moved to proceed in forma pauperis, nor finally did he include a certified copy of

his prison account showing his indigency. Clemons says the clerk of the court

advised his counsel that there was no filing fee required for a Rule 32 petition. On

January 28, 2000, Clemons refiled his Rule 32 petition, only this time along with a

request to proceed in forma pauperis and a certified copy of his prison account and

a completed nine-page form that is contained in the Rule 32 appendix. After

allowing Clemons to amend his petition twice, the circuit court held a limited

evidentiary hearing, allowing each party to depose only one witness. The circuit

court denied relief on all claims.

At the time of Clemons’s trial and the initial filing of his Rule 32 petition,

Supreme Court precedent had held that the execution of intellectually disabled

persons was not per se unconstitutional. See Penry v. Lynaugh, 492 U.S. 302, 340

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(1989) (plurality opinion). But on June 20, 2002, the Court decided Atkins v.

Virginia, holding that it is categorically unconstitutional to execute someone who

is intellectually disabled.1 536 U.S. at 321. The substantive constitutional rule

announced in Atkins applies retroactively on collateral review. See, e.g., In re

Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (“At this point, there is no

question that the new constitutional rule . . . formally articulated in Atkins is

retroactively applicable to cases on collateral review.”).

Because Atkins was decided after the circuit court’s denial of his Rule 32

petition, but before his appeal to the Alabama Court of Criminal Appeals, Clemons

argued for the first time on appeal that his death sentence was unconstitutional

because of his intellectual disability. However, Clemons had advanced a related

argument, based on the same underlying facts, in his initial Rule 32 petition,

claiming that his counsel was ineffective at trial for having failed to present

mitigating evidence of his limited mental capacity.

On August 29, 2003, the Alabama Court of Criminal Appeals remanded

Clemons’s case to the circuit court with instructions to conduct an evidentiary

hearing and make written findings on both his Atkins claim and the ineffective-

1 Although Atkins uses the term “mentally retarded,” the Supreme Court has since adopted the term “intellectually disabled” to describe the same condition. See Hall v. Florida, 572 U.S. 701, 704 (2014) (“Previous opinions of this Court have employed the term ‘mental retardation.’ This opinion uses the term ‘intellectual disability’ to describe the identical phenomenon.”). We too now use the term “intellectually disabled.” Kilgore v. Sec’y, Fla. Dep’t of Corr., 805 F.3d 1301, 1303 n.1 (11th Cir. 2015). 6 Case: 16-13020 Date Filed: 07/30/2020 Page: 7 of 39

assistance-of-counsel claim based on his trial attorneys’ failure to present

mitigating evidence of his intellectual disability. See Clemons v. State, 55 So. 3d

314, 322 (Ala. Crim. App. 2003).

The circuit court conducted an extensive evidentiary hearing on Clemons’s

Rule 32 petition from June 15 to June 18, 2004. Over the four-day hearing, the

court heard testimony from four witnesses: Dr. Charles Golden (Clemons’s

medical psychological expert); Joseph Chong-Sang Wu (Clemons’s PET brain

scan expert); Dr. Helen Mayberg (Alabama’s PET brain scan expert); and Dr.

David Glen King (Alabama’s medical psychological expert).

The evidence pertinent to Clemons’s Atkins claim included seven

intelligence quotient (“IQ”) tests. His scores on those tests, discussed in more

detail in section III.B.1 of this opinion, varied widely from a score of 84 to a score

of 51, and in several instances the administrators of the tests opined that the scores

were invalid because Clemons was “malingering,” that is, he intentionally

frustrated the efficacy of the IQ test. As for adaptive functioning, only Clemons’s

medical expert testified. He had administered a test of adaptive functioning -- the

Adaptive Behavior Assessment System test -- and found Clemons severely

deficient in six of the ten behavioral areas the test covers.

On October 28, 2004, the Shelby County Circuit Court denied Clemons’s

petition, adopting nearly verbatim a 90-page proposed order submitted by the state.

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On June 24, 2005, the Alabama Court of Criminal Appeals affirmed. See Clemons

v. State, 55 So. 3d 314, 322–32 (Ala. Crim. App. 2005). The Court of Criminal

Appeals laid out the circuit court’s findings and analysis on the Atkins claim

verbatim, and adopted them:

We have reviewed the record in light of [relevant Alabama precedents], and we conclude that it supports the circuit court’s findings. Therefore, we adopt those findings as part of this opinion. Based on the record before us, we conclude that, even under the broadest definition of mental retardation, the appellant is not mentally retarded and that imposition of the death penalty in this case would not be unconstitutional.

Id. at 332.

Intervening appeals relating to procedural bar on the ineffective-assistance-

of-counsel claim (which are not relevant here) took the case back and forth

between the Court of Criminal Appeals and the Alabama Supreme Court for

several years. Finally, on August 13, 2010, the Alabama Supreme Court denied

Clemons’s petition for certiorari without opinion. Ex parte Clemons, No. 1070535

(Ala. Aug. 13, 2010) (per curiam).

Three days later, on August 16, 2010, Clemons set his sights on the federal

district court, filing the instant habeas petition in the United States District Court

for the Northern District of Alabama, pursuant to 28 U.S.C. § 2254. On the same

day, he filed a successive Rule 32 petition in Alabama circuit court. See Clemons

v. State, 123 So. 3d 1, 3 (Ala. Crim. App. 2012). The federal petition was stayed

and held in abeyance while Clemons exhausted his successive state petition. The 8 Case: 16-13020 Date Filed: 07/30/2020 Page: 9 of 39

Court of Criminal Appeals rejected Clemons’s successive petition and found that

the claim he raised -- the jury must be allowed to consider his low IQ as part of

mitigation evidence -- was procedurally defaulted. Id. at 12. That petition was

resolved on March 22, 2013, when the Alabama Supreme Court denied certiorari.

Ex parte Clemons, No. 1120150 (Ala. Mar. 22, 2013). Thus, the only reasoned

state court opinion relevant to this appeal is the Alabama Court of Criminal

Appeals’s June 24, 2005 ruling, affirming the state court’s determination that

Clemons was not intellectually disabled, and thus that the imposition of the death

penalty was not unconstitutional.

With the federal habeas action no longer stayed, Alabama moved to dismiss

it, arguing that it had been filed untimely because it was past AEDPA’s one-year

limitations period. The district court denied the motion as to Clemons’s Atkins

claim, but granted it as to all the other claims he made because they were untimely

and equitable tolling was not warranted. The court reached this conclusion

because Clemons had established nothing more than negligence on the part of his

counsel. In a subsequent order, the district court denied relief on the Atkins claim,

concluding that the state court’s determinations were neither contrary to nor an

unreasonable application of clearly established law, nor were they based on an

unreasonable determination of the facts in light of the evidence presented. The

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district court highlighted the credibility determinations made by the state circuit

court and found that those determinations were not objectively unreasonable.

II. Standard of Review

“We review de novo a district court’s grant or denial of a habeas corpus

petition.” McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Because

Clemons filed his federal habeas petition after April 24, 1996, this case is governed

by AEDPA. “Under AEDPA, if a state court has adjudicated the merits of a claim

-- as the state court did here -- we cannot grant habeas relief unless the state court’s

decision ‘was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,’

or ‘was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.’” Kilgore v. Sec’y, Fla. Dep’t of

Corr., 805 F.3d 1301, 1309 (11th Cir. 2015) (quoting 28 U.S.C. § 2254(d)).2

2 Pursuant to § 2254(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.

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“Under § 2254(d)(1)’s ‘contrary to’ clause, we grant relief only ‘if the state

court arrives at a conclusion opposite to that reached by [the Supreme] Court on a

question of law or if the state court decides a case differently than [the Supreme

Court] has on a set of materially indistinguishable facts.’” Jones v. GDCP

Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (alterations in original) (quoting

Williams v. Taylor, 529 U.S. 362, 413 (2000)). “Under § 2254(d)(1)’s

‘unreasonable application’ clause, we grant relief only ‘if the state court identifies

the correct governing legal principle from [the Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.’” Id.

(alteration in original) (quoting Williams, 529 U.S. at 413). Here, there is no

dispute that the state court identified the correct legal principle applicable to the

only timely claim before us (Atkins itself), so this case implicates the

“unreasonable application” clause of § 2254(d)(1).

Section 2254(d)(2) requires that we afford a state trial court’s fact-finding

substantial deference. Brumfield v. Cain, 576 U.S. 305, 314 (2015). “If

‘[r]easonable minds reviewing the record might disagree about the finding in

question, on habeas review that does not suffice to supersede the trial court’s . . .

determination.’” Id. (alteration and ellipsis in original) (quoting Wood v. Allen,

558 U.S. 290, 301 (2010)).

III. Analysis

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A. Thirty-One of Clemons’s Claims are Untimely

The district court dismissed thirty-one of Clemons’s federal habeas claims as

untimely pursuant to AEDPA’s one-year statute of limitations. 28 U.S.C.

§ 2244(d)(1). The one-year limitations period ran out when Clemons failed to

properly file his state habeas petition, which would have tolled the federal

limitations period under AEDPA, within one year of his judgment of conviction

becoming final on direct review. Although Clemons filed his state petition within

one year, he failed to either pay a filing fee or move to proceed in forma pauperis

(“IFP”). Thus, his petition was not “properly filed” in accordance with Alabama

law. By the time he properly filed the petition with the required motion to proceed

IFP, the one-year federal limitations period had run.

Clemons concedes that all of the claims in his habeas petition, but for his

Atkins claim, are barred from consideration under AEDPA’s one-year limitation.

He argues, however, that the federal limitations period should be equitably tolled

because his counsel received misinformation from an unnamed person working in

the state court clerk’s office. That employee allegedly told Clemons’s counsel he

was neither required to pay a filing fee nor required to file a motion to proceed IFP.

But because Clemons was represented by counsel, and because a petitioner is

bound by the negligence of his attorney, Clemons is not entitled to equitable

tolling. Thus, we affirm the district court’s dismissal of those thirty-one claims.

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Under § 2244(d), “[a] 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court.” 28 U.S.C. § 2244(d)(1). For claims that could have

been brought immediately -- because the constitutional right existed at the time and

the factual predicate was discoverable through the exercise of due diligence -- the

limitations period runs from the date the conviction becomes final on direct review.

See id. § 2244(d)(1)(A)–(D). Clemons’s conviction became final on January 25,

1999, when the United States Supreme Court denied certiorari.

However, “[t]he time during which a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment or

claim is pending shall not be counted toward any period of limitation under this

subsection.” Id. § 2244(d)(2). Put more plainly, a “properly filed” state habeas

petition pauses the clock on the one-year limitations period until that state petition

is resolved. If, for example, a petitioner properly files a state habeas petition six

months after his conviction becomes final on direct review, he still has six months

to file his federal habeas petition after the state courts finally resolve the petition.

But Clemons’s state petition was not “properly filed” until after the federal

habeas limitations period had expired. Rule 32.6 of the Alabama Rules of

Criminal Procedure sets forth the requirements for properly filing a postconviction

petition, including these:

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“[The petition] shall . . . be accompanied by the filing fee prescribed by law or rule in civil cases in the circuit court unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis. If the petitioner desires to prosecute the petition in forma pauperis, he or she shall file the “In Forma Pauperis Declaration” at the end of the form. In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined, stating the amount of money or securities on deposit to the petitioner’s credit in any account in the institution for the previous twelve (12) months, which certificate may be considered by the court in acting upon the petitioner’s application for leave to proceed in forma pauperis. If the application to proceed in forma pauperis is granted, the filing fee shall initially be waived, but may be assessed as provided in Rule 32.7(e). Upon receipt of the petition and the filing fee, or an order granting leave to the petitioner to proceed in forma pauperis, the clerk shall file the petition and promptly send a copy to the district attorney (or, in the case of a petition filed in the municipal court, to the municipal prosecutor).

Ala. R. Crim. P. 32.6(a) (emphases added). In 1999, there was a $140 filing fee for

civil cases filed in circuit court in Alabama. See 1999 Ala. Laws Act 99-427 (H.B.

53), Ala. Code § 12-19-71 (1999); see also Ex parte Hurth, 764 So. 2d 1272, 1274

(Ala. 2000) (“The docket fee for the filing of a petition for post-conviction relief is

$140.00.”).

Clemons admits that he attempted to file his Rule 32 petition on December

27, 1999 without either a filing fee or a motion to proceed IFP. The initial filing

contained the following request for relief: “Provide Mr. Clemons, who is indigent

and incarcerated, funds sufficient to present witnesses, experts, and other evidence

in support of the allegations in this Petition and any amendments thereto.” But this

request did not mention a filing fee or request any kind of waiver of the fee, and

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though it did reference Clemons’s indigent status, it did not provide the required

certified copy of his prison account necessary for an IFP request. Notably, the

omission was not remedied by counsel until the following month, when Clemons

filed another copy of the Rule 32 petition with an explicit request to proceed IFP

on January 28, 2000, accompanied by a certified copy of his prison account -- three

days after the federal limitations period had expired. The circuit court noted in its

case action summary that Clemons’s petition was “filed” on January 28, 2000. On

March 14, 2000, Clemons filed a motion in state court to correct what he termed a

“clerical error” in the notation, asking the court to direct the clerk to docket his

Rule 32 petition as having been filed on December 27, 1999, obviously

anticipating the timeliness issues in federal habeas proceedings. Alabama at the

time had a two-year statute of limitations, so the petition was timely in the

Alabama courts.

In an accompanying affidavit and at a state court hearing on the motion,

local counsel for Clemons at the time, James S. Christie, Jr., associated with the

law firm of Bradley Arant, explained that he was prepared to file the petition on

December 23, 1999. Because it was proving difficult to have the prison process

the paperwork to execute Clemons’s IFP motion, he told Clemons’s out-of-state

counsel at the law firm of Winston & Strawn, that he would pay the fee and file the

petition. Christie’s secretary could not determine the amount of the fee, so Christie

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called the circuit court clerk’s office to ask. He thought it was reasonable to call

the clerk’s office because filing fees differ from county to county, in part because

of a library tax that is assessed differently in each court, making it impossible to

determine the exact amount of the fee from statute alone. When he called, he

spoke to a woman in the clerk’s office, though he could not remember her name or

the precise words of their conversation. Christie said at the hearing that he was

familiar with the people in the clerk’s office and that his understanding was that

“nobody down there remembers talking to” him. He claimed, however, that he

“understood” from their conversation that a fee was not necessary to file the

petition, so he had his firm’s runner file it without a fee. It “made sense” to him

because Clemons had already been granted IFP status in the underlying case. In

early January, he saw a copy of the petition stamped “Dec 1999 received & filed,”

so he believed it had been properly filed.

According to Clemons’s counsel, later investigation revealed not only that

the petition was not filed by the clerk, but also that the clerk’s office apparently

lost it for approximately four months, and the petition was never docketed. On

January 24, 2000, one day before the AEDPA one-year limitation period would

expire, Clemons’s counsel mailed to the state court an IFP motion in anticipation

of other fees expected in the litigation. He also submitted an amended Rule 32

petition, which contained no substantive changes but merely inserted the identical

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petition into the state court’s Rule 32 template. Clemons says the petition was

mailed rather than hand-delivered because counsel had no notice of any filing

deficiencies in the December 1999 petition. The clerk of court received the IFP

petition and the amended Rule 32 petition on January 28, 2000 and docketed them

on that date. Months later, in April 2000, the original filing was found, and it was

docketed as though it had also been filed on January 28, 2000. The Shelby County

Circuit Court issued a minute order on the docket in May 2000 that read:

“Petitioner’s Motion to Correct Clerical Error: Denied, as the Court finds the

Defendant’s Rule 32 petition was properly filed on January 28, 2000.” The

Alabama Court of Criminal Appeals affirmed the denial of the motion.

Clemons’s counsel does not dispute that Alabama law required his Rule 32

petition to be accompanied by a filing fee or a motion to proceed IFP -- that is, he

does not dispute that the petition was not “properly filed” until January 28, 2000.

Thus, it is crystal clear that statutory tolling pursuant to § 2244 is unavailable to

Clemons. Rather, Clemons says he is entitled to equitable tolling because of the

misinformation his attorney allegedly received when he called the clerk’s office.

Equitable tolling “is an extraordinary remedy limited to rare and exceptional

circumstances” and typically should be “applied sparingly.” Cadet v. Fla. Dep’t of

Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (quotations omitted); see also Holland

v. Florida, 560 U.S. 631, 649 (2010); Lawrence v. Florida, 549 U.S. 327, 336

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(2007); Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (per curiam); Steed

v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). Indeed, equitable tolling may only

be applied where there are “extraordinary circumstances that are both beyond [the

petitioner’s] control and unavoidable even with diligence.” Lawrence v. Florida,

421 F.3d 1221, 1226 (11th Cir. 2005) (quoting Sandvik v. United States, 177 F.3d

1269, 1271 (11th Cir. 1999)), aff’d, 549 U.S. 327. Moreover, the petitioner

seeking equitable tolling bears the burden of demonstrating that he is entitled to it.

Drew v. Dep’t of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002), overruled on other

grounds as recognized by Jones v. Sec’y, Fla. Dep’t of Corr., 906 F.3d 1339, 1351

(11th Cir. 2018). Under Supreme Court law, “a petitioner is entitled to equitable

tolling only if he shows (1) that he has been pursuing his rights diligently, and (2)

that some extraordinary circumstance stood in his way and prevented timely

filing.” Holland, 560 U.S. at 649 (quotations omitted); see also Helton v. Sec’y for

Dep’t of Corr., 259 F.3d 1310, 1312 (11th Cir. 2001) (per curiam) (“Equitable

tolling can be applied to prevent the application of the AEDPA’s statutory deadline

when extraordinary circumstances have worked to prevent an otherwise diligent

petitioner from timely filing his petition.” (quotation omitted)). Clemons has not

met his burden.

We begin with the critical fact that Clemons was represented by counsel

when he failed to properly file his Rule 32 petition within the one-year AEDPA

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statute of limitations. Put another way, this is a case in which an attorney made a

mistake. As we have held, “attorney negligence, even gross or egregious

negligence, does not by itself qualify as an ‘extraordinary circumstance’ for

purposes of equitable tolling; either abandonment of the attorney-client

relationship, such as may have occurred in Holland, or some other professional

misconduct or some other extraordinary circumstance is required.” Cadet, 853

F.3d at 1226–27 (emphases omitted)); see Maples v. Thomas, 565 U.S. 266, 281

(2012). Whatever can be said about the negligence of Clemons’s attorney, it is

clear it was just that, negligence. Clemons nonetheless argues that the negligence

of his counsel should be excused and the limitations period equitably tolled

because he received misinformation from an unnamed clerk. While we have

extended the extraordinary remedy of equitable tolling in limited cases where

misinformation from the state causes a pro se petitioner to miss a filing deadline,

Clemons was not a pro se petitioner. He had counsel. And although his counsel

negligently relied on the advice of an unnamed person in the clerk’s office in the

face of clear statutory filing requirements, this brings us to the end of the analysis:

Clemons is bound by the negligence of his counsel and thus, he is not entitled to

equitable tolling.

The cases implicating attorney negligence or mistake are clear: negligence is

not enough to warrant equitable tolling. The Supreme Court has repeatedly held

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“that ‘a garden variety claim of excusable neglect,’ such as a simple

‘miscalculation’ that leads a lawyer to miss a filing deadline, does not warrant

equitable tolling.” Holland, 560 U.S. at 651–52 (quoting Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 96 (1990) and Lawrence, 549 U.S. at 336); see also

Smith v. Comm’r, Ala. Dep’t of Corr., 703 F.3d 1266, 1271 (11th Cir. 2012) (per

curiam) (“As to exceptional circumstances, the general rule is that ‘when a

petitioner’s postconviction attorney misses a filing deadline, the petitioner is bound

by the oversight and cannot rely on it to establish cause.’” (quoting Maples, 565

U.S. at 281)).

“[T]here are circumstances where ‘an attorney’s unprofessional conduct can

. . . count as an “extraordinary circumstance” justifying equitable tolling.’” Smith,

703 F.3d at 1271–72 (quoting Maples, 565 U.S. at 281); see also Holland, 560 U.S.

at 649–52 (rejecting a per se rule that “grossly negligent” attorney conduct can

never amount to a showing of extraordinary circumstances). But the controlling

case law is clear on this point: attorney mistakes are generally attributable to a

client by agency principles; because the attorney acts as his client’s agent, the

client is bound by the mistakes of the attorney.

In Holland, for example, the petitioner’s attorney waited until there were

twelve days remaining of the one-year limitations period to file the state petition;

he failed to communicate with his client despite his client’s repeated attempts to

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address the timing problem; and he failed to inform his client of the state court’s

ultimate denial of his state petition, despite the client having written repeatedly to

plead for information, including citing AEDPA in his correspondence and

expressing specific concerns about timeliness. See Holland, 560 U.S. at 635–43.

The attorney in Holland finally responded to his client but only weeks after the

limitations period had expired telling him -- incorrectly -- that the AEDPA

limitations period had expired before the attorney’s appointment. Id. at 641. And,

in Maples, the petitioner’s pro bono counsel left their New York law firm while the

state petition was pending, were unable to represent Maples under the terms of

their new employment, and failed to either inform Maples or seek leave of court to

withdraw. 565 U.S. at 270–71. The state court clerk sent notice of the denial of

Maples’s state petition to those attorneys, but it was returned as undeliverable, and

Maples consequently failed to timely appeal the denial. Id. at 271. There, the

Supreme Court concluded that Maples had been “left without any functioning

attorney of record.” Id. at 288. In other words, he had been abandoned.

Applying this standard, we have refused to equitably toll statutes of

limitations where there was even gross negligence on the part of counsel. In

Cadet, we refused to equitably toll a limitations period where the petitioner’s

lawyer had misinterpreted the language of § 2244 and failed to do even

rudimentary research after his client repeatedly questioned his calculation. 853

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F.3d at 1219–20. We explained that while the attorney’s conduct was grossly

negligent, “he did not withdraw from representing Cadet, renounce his role as

counsel, utterly shirk all of his professional responsibilities to Cadet, or walk away

from their attorney-client relationship.” Id. at 1234; see also Thomas v. Att’y

Gen., Fla., 795 F.3d 1286, 1293–94 (11th Cir. 2015) (noting that the relevant

inquiry “is not whether an attorney’s mistake or oversight was egregious,” but

rather “whether the attorney, through her conduct, effectively abandoned the

client,” and remanding for the district court to apply the correct standard).

In this case, it was clearly negligent for Clemons’s attorneys to fail to

investigate the statutory filing fee and rely simply on the representations of an

unnamed person in the clerk’s office. For starters, the requirements set forth in

Rule 32.6(a) of the Alabama Rules of Criminal Procedure are clear and

unambiguous. The petition “shall . . . be accompanied by the filing fee prescribed

by law or rule in civil cases in the circuit court unless the petitioner applies for and

is given leave to prosecute the petition in forma pauperis.” Ala. R. Crim. P.

32.6(a) (emphases added). And if the petitioner seeks to prosecute the petition in

forma pauperis, he is required to file the “In Forma Pauperis Declaration” at the

end of the form, along with a statement concerning his prison account. Id.

Counsel for Clemons easily could have paid the filing fee or could have filed an in

forma pauperis motion along with a certified copy of the petitioner’s prison

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account when he filed the Rule 32 petition on December 27, 1999. In fact, he filed

these same documents on January 28, 2000. While it may be true that filing fees

differ from county to county because the Alabama Code authorizes local courts to

assess local fees above the statutory filing fee, a diligent lawyer could plainly see

that the filing fee was at minimum $140, as set forth in the Alabama Code, and that

the only way to avoid paying the fee was to file a properly supported motion to

proceed IFP.

What’s more, even a rudimentary inquiry would have revealed that the

duties of the circuit clerk’s office in Alabama as defined in Rule 4 of the Judicial

Administration Rules and in sections 12-17-93 and -94 of the Code of Alabama do

not include the requirement that the clerk inform counsel how to file a document

that complies with Alabama’s rules of procedure. Alabama’s case law has made

that point crystal clear. See Smith v. Cowart, 68 So. 3d 802, 812 (Ala. 2011); Ex

parte Strickland, 172 So. 3d 857, 859–60 (Ala. Civ. App. 2014).

Clemons nevertheless urges us to apply our law equitably tolling statutes of

limitations for pro se litigants who rely on misinformation from court or state

officials. See Spottsville v. Terry, 476 F.3d 1241, 1245–46 (11th Cir. 2007)

(equitably tolling AEDPA’s statute of limitations where the state habeas court

advised a pro se petitioner to file his appeal in the wrong state court, and the

petitioner followed the state court’s misleading advice); Knight v. Schofield, 292

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F.3d 709, 710–11 (11th Cir. 2002) (per curiam) (equitably tolling AEDPA’s statute

of limitations where a pro se petitioner did not receive notice of the Georgia

Supreme Court’s denial of his habeas petition for eighteen months after the court’s

clerk inadvertently sent notice to the wrong person).

But these cases take Clemons no further because they are limited to pro se

litigants, and Clemons was represented by counsel. Clemons has pointed us to no

case that extended equitable tolling to a represented party based on his attorney’s

receipt of misinformation from the state, and our research has turned up none.

Indeed, it is not unusual for us to treat pro se litigants leniently while holding

represented parties to a higher standard. See, e.g., Erickson v. Pardus, 551 U.S. 89,

94 (2007) (per curiam) (“A document filed pro se is ‘to be liberally construed,’ and

‘a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.’” (quoting Estelle v. Gamble,

429 U.S. 97, 106 (1976))). Here, the misinformation purportedly provided by

someone in the clerk’s office was plainly contradicted by the Alabama Code,

which, as we have noted, Clemons’s attorney should have consulted. We can

discern no sound basis to apply the extraordinary remedy of equitable tolling to

excuse the negligent conduct of Clemons’s attorneys.

B. The State Court Properly Denied Clemons’s Atkins Claim

24 Case: 16-13020 Date Filed: 07/30/2020 Page: 25 of 39

Unlike his other thirty-one claims, Clemons’s claim based on Atkins v.

Virginia was timely. At the time of Clemons’s trial and the initial filing of his

Rule 32 petition, Supreme Court precedent had held that it was not per se

unconstitutional to execute intellectually disabled persons. See Penry, 492 U.S. at

340. But on June 20, 2002, the Court decided Atkins v. Virginia, holding for the

first time that the execution of an intellectually disabled person categorically

violates the Eighth Amendment’s guarantee against cruel and unusual punishment.

536 U.S. at 321. And as we’ve said, the substantive constitutional rule announced

in Atkins applies retroactively to cases on collateral review. See, e.g., Holladay,

331 F.3d at 1173. Because Clemons properly raised his Atkins claim in the state

courts in a timely manner after the decision and pursued it in this timely federal

habeas petition thereafter, Clemons’s Atkins claim is properly before us.

1. The State-Court Proceedings

Clemons first argued his Atkins claim before the Alabama Court of Criminal

Appeals, which remanded the matter to the state trial court for an evidentiary

hearing. After conducting an extensive hearing, the state court denied the claim.

Clemons now says the state courts’ denial of his claim was either contrary to or an

unreasonable application of Atkins, or was based on an unreasonable determination

of the facts in light of the evidence presented. We are unpersuaded.

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Although the Court suggested in Atkins that an evaluation of intellectual

disability should conform to current medical standards -- and embraced two

clinical definitions, that of the American Association on Mental Retardation and

the American Psychiatric Association, which both set forth the three-part test we

use today -- it expressly left “to the State[s] the task of developing appropriate

ways to enforce the constitutional restriction upon [their] execution of sentences.”

536 U.S. at 317 (quotation omitted and alterations in original). The Alabama

Supreme Court took up this task in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002).

To show intellectual disability under Alabama law, the petitioner is required to

prove three things: “(1) significantly subaverage intellectual functioning (i.e., an

IQ of 70 or below); (2) significant or substantial deficits in adaptive behavior; and

(3) the manifestation of these problems during the defendant’s developmental

period (i.e., before the defendant reached age 18).” Smith v. State, 213 So. 3d 239,

248 (Ala. 2007) (emphasis in original) (citing Perkins, 851 So. 2d at 456).

The evidence adduced in the state court on Clemons’s intellectual

functioning included seven IQ tests Clemons received over the course of his life,

beginning at age six. The scores varied widely, from suggesting that he is highly

disabled (51) to suggesting that he has a functioning ability falling within the range

of ordinary (84). In two of the seven, the test administrators explicitly found

evidence of Clemons’s “malingering,” a term psychologists use to describe an

26 Case: 16-13020 Date Filed: 07/30/2020 Page: 27 of 39

examinee’s intentional frustration of a test, further complicating the state court’s

task of determining Clemons’s level of intellectual functioning.

When Clemons was six years old, a school psychologist administered the

Stanford-Binet intelligence test, and although school records following the test

labeled Clemons “educable mentally retarded,” his full-scale score on the test was

a 77. In 1991, while in prison on unrelated charges at the age of 19, one year

before the Althouse murder, Clemons took the BETA-II intelligence test and

received a full-scale score of 84. This was the highest score Clemons would

receive on any intelligence test. The state court’s order referred to this test, but

because it was not introduced at the evidentiary hearing, Clemons argues it should

be disregarded.

Five additional intelligence tests were administered following Clemons’s

arrest for the Althouse murder. In 1992, Drs. Mark Hazelrigg and Bruce Berger

administered the Wechsler Adult Intelligence Scale-Revised (“WAIS-R”) at the

federal prison where Clemons was then held. Clemons obtained a full-scale IQ

score of 51, which was by far the lowest score he would receive on any

intelligence test. The doctors noted that people in the low-50s IQ range are “often

in need of structured living and may be institutionalized” and are typically unable

to care for themselves. They also observed that it would be virtually impossible to

validly score an 84 on BETA-II and one year later validly score a 51 on WAIS-R,

27 Case: 16-13020 Date Filed: 07/30/2020 Page: 28 of 39

in the absence of some intervening traumatic injury. Because Clemons could care

for himself before his arrest and had scored an 84 on the BETA-II test

administered the year before, Hazelrigg and Berger concluded that the score was

invalid because Clemons was malingering.

In 2000, Dr. Kimberly Ackerson, who had been retained by defense counsel,

again administered the WAIS-R. Clemons received a full-scale score of 73 this

time, and Dr. Ackerson said this score placed Clemons in the “borderline” range

for intellectual disability. In contrast to the previous administration of WAIS-R,

Dr. Ackerson opined that Clemons did not appear to be malingering; rather, he

“appeared motivated,” was “cooperative,” “deliberate in responding,” and

“interested in performance.” Then, in 2001, the state’s expert, Dr. King,

administered the Wechsler Adult Intelligence Scale-Third Edition (“WAIS-III”).

Clemons obtained a full-scale score of 77.

In 2003, the defense expert, Dr. Golden, administered the Stanford-Binet

Intelligence Scale-Fourth Edition. Clemons obtained a full-scale score of 58. Dr.

Golden testified that because Stanford-Binet uses a slightly different scoring

system, the full-scale score should be adjusted to be comparable with other tests

such as the WAIS. Thus, he said the full-scale score of 58 should be adjusted to

61. Then he testified that even 61 was too low and the “better estimate of the Binet

28 Case: 16-13020 Date Filed: 07/30/2020 Page: 29 of 39

IQ is to average [the] four scores” on the different portions of the exam, which in

Clemons’s case would yield a total score of 66.

Finally, in 2004, the state’s expert, Dr. King, administered the original,

unrevised WAIS, on which Clemons obtained a full-scale score of 67. King

testified that WAIS is considered an easier test than WAIS-III, and he adjusted the

score to 60 to bring it in line with the contemporary test scores. Dr. King also

testified that he suspected Clemons was malingering on this test. He explained that

Clemons appeared more indifferent than when he had evaluated him in 2001 (pre-

Atkins), and that Clemons gave incorrect answers on several questions that he had

previously gotten right. King opined that without an intervening medical event,

such as a stroke, a 17-point drop in a three-year period would be difficult to

explain. Thus, King concluded that Clemons must have been malingering on the

2004 test. To substantiate this hypothesis, King administered a Test of Memory

Malingering (“TOMM”), which is a 50-item recognition test intended to assess

malingering in psychological examinations. King testified that Clemons’s score of

44 indicated that he was, in fact, malingering.

Moreover, the record contained additional evidence suggesting that Clemons

was malingering when he was psychologically evaluated. Thus, for instance, Dr.

Wilburn Rivenbark examined Clemons in 1992 and 1994 for his competency to

stand trial. In the 1992 test, Rivenbark suspected that Clemons was malingering

29 Case: 16-13020 Date Filed: 07/30/2020 Page: 30 of 39

for psychosis, because Clemons reported “seeing and hearing a ‘little green

friend,’” and several times smiled or laughed inappropriately but stopped acting

this way when confronted. Moreover, Clemons insisted that he had a history of

mental illness despite the absence of any documentation supporting the claim.

When Rivenbark evaluated Clemons again in 1994, Clemons refused to speak with

him or make eye contact, leading Rivenbark again to opine that Clemons was

malingering. In both evaluations, Rivenbark concluded that Clemons was

competent to stand trial.

In 1993, Clemons was evaluated for competency by Dr. William Grant at the

request of defense counsel. Dr. Grant similarly believed Clemons to be

malingering. Like Rivenbark, Grant noted that Clemons would laugh

inappropriately but stop when confronted. Grant also said that Clemons asked for

Valium, and that Grant told him that the drug was unlikely to be available to

inmates. Grant did mention twice that a different anti-depressant, Sinequan, was

sometimes available. He was later informed that Clemons then asked prison staff

for Sinequan by name on multiple occasions. Grant added this: “I mention these

events because they are discordant with the Defendant’s inability to repeat” simple

phrases on the test. Thus, the record evidence on Clemons’s intellectual

functioning was contradictory but shadowed by a pattern of malingering on

psychological examinations.

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As for adaptive functioning, the second prong of Perkins, the only evidence

of Clemons’s deficits came from the testimony of Dr. Golden. Dr. Golden

administered the Adaptive Behavior Assessment System test (“ABAS-II”). The

ABAS-II assesses adaptive functioning in ten areas: communication, use of

community resources, functional academics, health and safety, home living,

leisure, self-care, self-direction, social skills, and work skills. Dr. Golden

concluded that Clemons was severely deficient in self-direction, social skills, work

skills, home living, health and safety, and leisure.

Ultimately, the state court concluded that Clemons had not carried his

burden to show that he is intellectually disabled under Perkins or Atkins because

he had shown neither that his intellectual functioning was significantly subaverage,

nor that he had substantial deficits in adaptive functioning. The state trial court

thoroughly recounted the testimony of Dr. King and Dr. Golden at the evidentiary

hearing, as well as the intelligence tests submitted into the record. The court

discounted those scores for which the test administrators noted evidence of

malingering -- that is, the 1992 score of 51 on the WAIS-R and the 2004 score of

67 (adjusted to 60) on the WAIS. It further discounted the Stanford-Binet test

administered by Dr. Golden, where Clemons received a full-scale score of 58,

which Dr. Golden adjusted to a 66. The state court noted that Dr. Golden did not

satisfactorily explain why the additional calculations were necessary to accurately

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assess Clemons’s score, nor why the Stanford-Binet test was a better measure of

intellectual functioning for those with intellectual disabilities. Ultimately, the

court discounted this score -- originally a full-scale score of 58, which was at least

15 points lower than Clemons’s remaining test scores -- because of his extensive

history of malingering. Having discounted the very low scores, the state court was

left with four IQ scores: a 77 on the Stanford-Binet when Clemons was a child; an

84 when the BETA-II was administered in 1991; a 73 on the WAIS-R in 2000; and

a 77 on the WAIS-III in 2001. The state court concluded, based on the tests, the

evidence of malingering, and the fact that, of all of the doctors who evaluated

Clemons over the years, only Dr. Golden ever opined that Clemons was

intellectually disabled, that Clemons had failed to establish significant subaverage

intellectual functioning. The court explained its finding this way: “when Clemons

puts forward some effort he consistently scores in the 70-80 range on intelligence

tests” and “when Clemons malingers he consistently scores in the 50-60 range.”

The state trial court likewise found insufficient evidence of adaptive

functioning deficits to support a finding of intellectual disability. The state court

did not discuss Dr. Golden’s testimony or the ABAS-II test. Instead, it relied on

evidence of Clemons’s adaptive strengths, including his employment history, his

ability to form intimate relationships, his extensive involvement in criminal

activity, his “post-crime craftiness,” and his ability to use community resources.

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Clemons, 55 So. 3d at 329. In particular, the state court discussed Clemons’s job

as a pizza delivery worker and his relationships with women, including the fact

that he had fathered two children. The court also highlighted Clemons’s efforts to

evade law enforcement and his false statements following the Althouse murder.

The court found that this established a certain degree of criminal sophistication.

Finally, it noted Clemons’s ability to use community resources, as evidenced by

his ability to take a bus to Cleveland in order to elude capture. Id. at 331.

The Alabama Court of Criminal Appeals affirmed, adopting the state trial

court’s findings and decision as its own. See Clemons, 55 So. 3d at 322–32.

Finally, on August 13, 2010, the Alabama Supreme Court denied Clemons’s

petition for certiorari without an opinion. Ex parte Clemons, No. 1070535 (Ala.

Aug. 13, 2010) (per curiam). Clemons claims that the Alabama Court of Criminal

Appeals unreasonably applied Atkins and unreasonably determined the facts in

light of the evidence.

2. Intellectual Functioning

Clemons says that the state court unreasonably discounted certain valid IQ

scores and unreasonably credited other invalid scores. As we’ve elaborated, there

are seven IQ scores in the record: 77 in childhood; 84 in 1991; 51 in 1992; 73 in

2000; 77 in 2001; 58 (adjusted to 66) in 2003; and 67 (adjusted to 60) in 2004.

33 Case: 16-13020 Date Filed: 07/30/2020 Page: 34 of 39

The parties dispute several of these scores. But regardless of those specific

disputes, the state court’s factual determinations were not unreasonable.

First, it is abundantly clear that a state court may discount IQ scores where

there is evidence of malingering. See Carroll v. Sec’y, DOC, 574 F.3d 1354, 1359,

1367–68 (11th Cir. 2009) (holding that it was not objectively unreasonable to

discount low IQ scores in the face of evidence of malingering). It was not

unreasonable for the state court to discount an IQ score of 51 obtained in 1992 and

a score of 67 (adjusted to 60) obtained in 2004. Both tests were rendered infirm

because, the state court found, Clemons was malingering. Moreover, there was a

substantial body of additional evidence suggesting that Clemons had engaged in a

pattern of malingering, including the reports of several other doctors who had

evaluated Clemons over the years.

Second, as the trier of fact considering the Rule 32 petition, the state court

was entitled to make credibility determinations. There was nothing objectively

unreasonable about the state court having discounted the testimony of Dr. Golden

and the 2003 Stanford-Binet test he administered. In that one, Clemons received a

full-scale score of 58, but Dr. Golden adjusted it to a 66. Golden’s testimony about

the reliability of the Stanford-Binet test and the need to adjust Clemons’s score was

contradicted by the testimony of the state’s expert, Dr. King. The state court was

entitled to believe Dr. King and discount Dr. Golden’s opinion.

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Discounting three scores on account of malingering left the state trial judge

with four to consider: a 77 in childhood; an 84 in 1991; a 73 in 2000; and a 77 in

2001. Based on all the evidence it heard, the court found that “when Clemons puts

forward some effort he consistently scores in the 70-80 range on intelligence tests”

but that “when Clemons malingers he consistently scores in the 50-60 range.” The

valid scores placed Clemons in the 70–80 IQ range; therefore, the state court

determined that Clemons failed to show significantly subaverage intellectual

functioning.

At the time the state court denied Clemons’s petition, no clearly established

federal law prohibited state courts from using a bright-line cutoff for IQ scores

above 70. IQ scores at 70 and below indicate intellectual disability, while typically

those above 70 do not. The state court tellingly cited Alabama precedent which, at

the time, explained that a full-scale score of 72 “seriously undermines any

conclusion that [a petitioner] suffers from significantly subaverage intellectual

functioning as contemplated under even the broadest definitions.” Ex parte Smith,

213 So. 3d 214, 225 (Ala. 2003).

Years after Alabama’s denial of Clemons’s Atkins claim, however, the

Supreme Court decided Hall v. Florida, 572 U.S. 701 (2014). There, the Court

held for the first time that “when a defendant’s IQ test score falls within the test’s

acknowledged and inherent margin of error [+/- 5], the defendant must be able to

35 Case: 16-13020 Date Filed: 07/30/2020 Page: 36 of 39

present additional evidence of intellectual disability, including testimony regarding

adaptive deficits.” Id. at 723; see also Kilgore, 805 F.3d at 1308. “Hall explained

that a state’s assessment of a defendant’s intellectual disability should focus on

whether he has evidenced, beginning ‘during the developmental period,’ both (1)

‘significantly subaverage intellectual functioning,’ and (2) ‘deficits in adaptive

functioning (the ability to learn basic skills and adjust behavior to changing

circumstances).’” Kilgore, 805 F.3d at 1308 (quoting Hall, 572 U.S. at 710).

Because these criteria are “interrelated” and no “single factor [is] dispositive,” “an

individual with an IQ test score between 70 and 75 or lower may show intellectual

disability by presenting additional evidence regarding difficulties in adaptive

functioning.” Hall, 572 U.S. at 722–23 (quotation omitted). However, we

subsequently held that Hall’s procedural constitutional rule was not retroactive.

See Kilgore, 805 F.3d at 1314, cert. denied, 138 S. Ct. 446 (2017) (mem.); In re

Henry, 757 F.3d 1151, 1161 (11th Cir. 2014).

Clemons relies heavily on Hall because the scores he argues are valid and

should be considered -- 73 in 2000, 75 in 2001 (adjusted down to credit Clemons’s

claim that Dr. King made a scoring error that produced the score of 77), 66 in

2003, and 67 in 2004 -- average to 70.25. After Hall, this would place Clemons in

the standard error range of 70 to 75, and the intelligence prong would not be

dispositive on its own, but rather must be considered in conjunction with adaptive

36 Case: 16-13020 Date Filed: 07/30/2020 Page: 37 of 39

functioning. But we have already held that before Hall was decided “[n]othing in

Atkins suggested that a bright-line IQ cutoff of 70 ran afoul of the prohibition on

executing the intellectually disabled.” Kilgore, 805 F.3d at 1312. And thus, before

Hall, a state court could conclude that a petitioner failed to satisfy the intellectual

functioning prong of Atkins when his scores were above 70 but below 75.

In short, it was neither contrary to nor an unreasonable application of Atkins

for the state court to conclude, as it did, that “when Clemons puts forward some

effort he consistently scores in the 70-80 range on intelligence tests,” and thus that

he had failed to demonstrate significantly subaverage intellectual functioning.

The state court’s conclusion was bolstered by the fact that of the seven

experts who evaluated Clemons in his adult years -- five of whom administered

tests of intellectual functioning -- only one, Dr. Golden, ever opined that Clemons

was intellectually disabled. Indeed, five out of the seven who examined him

(Hazelrigg, Berger, King, Rivenbark, and Grant) opined that Clemons was

malingering psychological symptoms. In the face of this body of evidence, we

cannot say that the state court’s determination that Clemons had failed to show

significantly subaverage intellectual functioning was based on an unreasonable

determination of the facts, or that it was an unreasonable application of clearly

established Supreme Court law.

3. Adaptive Functioning

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Finally, Clemons argues that the state court unreasonably applied Atkins

because it focused on his adaptive strengths, rather than on his weaknesses, and

because it failed to account for Dr. Golden’s testimony regarding adaptive deficits

and the ABAS-II test. Clemons relies on Moore v. Texas, 137 S. Ct. 1039 (2017),

a Supreme Court case that long post-dates the state court’s denial of his Rule 32

petition and thus could not have been “clearly established” at the time the state

courts decided this matter. 3 In Moore, the Supreme Court held that the Texas

Court of Criminal Appeals had erred in “overemphasiz[ing] [petitioner’s]

perceived adaptive strengths,” despite the medical community’s focus on “adaptive

deficits.” Id. at 1050 (emphasis in original). Moreover, the Supreme Court heard

Moore on direct review, rather than on collateral review, where AEDPA requires

substantial deference. And in a more recent decision -- Shoop v. Hill, 139 S. Ct.

504 (2019) (per curiam) -- the Supreme Court, this time on collateral review,

rejected the argument that a pre-Moore state court decision unreasonably applied

Atkins by focusing on adaptive strengths over adaptive deficits. The Court

reasoned that because “Atkins did not definitively resolve how [the adaptive

functioning prong] was to be evaluated but instead left its application in the first

instance to the States,” it was not an unreasonable application of Atkins to focus on

3 This Court also has held that Moore cannot be applied retroactively under Teague v. Lane, 489 U.S. 288 (1989). See Smith v. Comm’r, Ala. Dep’t of Corr., 924 F.3d 1330, 1338–40 (11th Cir. 2019), cert. denied sub nom., Smith v. Dunn, 2020 WL 3578738 (July 2, 2020). 38 Case: 16-13020 Date Filed: 07/30/2020 Page: 39 of 39

adaptive strengths. Id. at 508. While that approach today would be contrary to

clearly established federal law -- that is, contrary to Moore v. Texas -- it was

neither contrary to nor an unreasonable application of clearly established Supreme

Court law when the state court denied Clemons’s petition.

***

At the end of the day, we hold that the district court properly denied

Clemons’s habeas petition and AFFIRM its judgment.