Full opinion text
RULING ON PETITION FOR WRIT OF HABEAS CORPUS JAMES J. BRADY, District Judge. Before the Court is Kevan Brumfield’s petition for a writ of habeas corpus filed against Burl Cain, the warden of the Louisiana State Penitentiary in Angola, Louisiana. Brumfield asks this Court to declare him mentally retarded and ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). (Docs. 111, 121). His petition is opposed by the State of Louisiana. (Doc. 118). The Court held an Atkins evidentiary hearing on the issue of petitioner’s mental retardation on July 12-16 and August 3-4, 2010. I. Petitioner Kevan Brumfield was convicted in Louisiana state court of the 1993 murder of a Baton Rouge police officer and sentenced to death by a jury in 1995. State v. Brumfield, No. 1-93-865 (19th Judicial District Court, East Baton Rouge Parish, Louisiana) (Tyson, J.). The Louisiana Supreme Court affirmed his conviction on direct appeal. State v. Brumfield, 737 So.2d 660 (La.1998). The United States Supreme Court denied his petition for a writ of certiorari. Brumfield v. Louisiana, 526 U.S. 1025, 119 S.Ct. 1267, 143 L.Ed.2d 362 (1999). Brumfield is in the custody of the State of Louisiana by virtue of his incarceration at the Louisiana State Penitentiary in Angola. In 2000, he filed for post-conviction relief in Louisiana state court, alleging among other things that he has was ineligible for execution by reason of insanity and mental incompetency. State of Louisiana ex rel. Brumfield v. Cain, No. 1-93-865 (19th Judicial District Court, East Baton Rouge Parish, Louisiana). Brumfield’s petition relied on evidence submitted at his sentencing hearing. (See Post-Conviction Petition, Vol. PC). On June 16, 2003, within a year of the date the Supreme Court barred executing mentally retarded persons in its 2002 Atkins decision, Brumfield amended his state post-conviction petition, asserting an Atkins claim for the first time. (Amended PosNConviction Petition, Vol. PC). The State filed an answer, arguing that the evidence from the penalty phase of the trial on which Brumfield relied was insufficient to state a prima facie case necessary to trigger an Atkins evidentiary hearing. (Answer to Amended Petition, Vol. PC, pp. 1-6). On September 23, 2003, Brumfield replied to the State’s answer, contending the State’s response for denying an evidentiary hearing did not comport with precedent. (Brumfield’s Reply to State’s Answer to Amended Petition, Vol. PC, pp. 1-2). The state habeas court tasked with assessing Brumfield’s post-conviction petition denied him an evidentiary hearing on the Atkins issue. (Transcript of State Post-Conviction Hearing on October 23, 2003, Vol. PC, p. 2) (Anderson, J.). In so doing, the state habeas court mooted Brumfield’s pending requests for funding to develop his Atkins claim. (See Initial State Court Petition for PosNConviction Relief, Vol. PC, 1ffl32(p), 36-37) (describing lack of funds to retain experts to conduct neurological examinations of Brumfield); Expedited Motion for Order on Petition for Posb-Conviction Relief, Vol. PC, ¶¶ 3-7; (Amended State Court Petition for Post-Conviction Relief, Vol. PC, ¶¶ 104-05) (seeking funds to retain experts for evaluating Brumfield in variety of areas); Reply to State’s Answer to Amended Petition, Vol. PC, ¶ 10 (reiterating need for expert funding). At the same hearing, the state trial court summarily denied Brumfield’s petition in its entirety. (Transcript of State PosNConviction Hearing on Oct. 23, 2003, Vol. PC, pp. 1-16). The Louisiana Supreme Court likewise denied review of the state habeas judge’s rulings. Brumfield v. State, 885 So.2d 580 (La.2004). On November 4, 2004, petitioner timely filed his petition for a writ of habeas corpus in this Court. (Doc. 1). On November 1, 2007, petitioner amended his petition after finally receiving funding to develop certain of his habeas claims for relief, including his Atkins claim. (See Doc. 30, pp. 1-6) (recounting the various failures of the Louisiana Indigent Defense Assistance Board, Brumfield’s previous counsel, to provide adequate funding, as recognized by the Louisiana Supreme Court in State ex rel. Williams v. State, 888 So.2d 792 (La.2004)). Following answers by the State, the magistrate judge issued a report and recommendation that Brumfield’s habeas petition be denied in full except to the extent that Brumfield was entitled to an evidentiary hearing on his Atkins claim. (Doc. 37). Following objection by the State and oral argument on the issue, this Court approved and adopted the magistrate judge’s report and recommendation in full. (Doc. 43). The Court then held its Atkins evidentiary hearing from July 12-16 and August 3-4, 2010. Petitioner filed his post-hearing brief (Doc. Ill), the State filed its opposition brief (Doc. 118), and petitioner filed a reply brief (Doc. 121) on November 21, 2011, which submitted the matter to this Court. II. Despite having already held an evidentiary hearing on petitioner’s Atkins claim, the State asserts newly-decided cases of the Supreme Court of the United States and the United States Court of Appeals for the Fifth Circuit have changed the law and altered the propriety of that action. Because such a claim, if true, would preclude reaching the merits of petitioner’s Atkins claim, the Court proceeds to address this matter. The Court will treat the State’s briefing on the issue as a motion for reconsideration in light of the newly-issued decisions. A. The Magistrate Judge’s Report and Recommendation Adopted by This Court The magistrate judge’s report and recommendation (Doc. 37) outlined the reasons for granting petitioner an Atkins hearing. Because Brumfield’s sentence pre-dated Atkins and his post-conviction application in state court relied on evidence introduced at Brumfield’s sentencing hearing, the magistrate judge assessed that evidence and agreed with the state habeas judge that Brumfield failed to meet his burden of presenting sufficient facts to put his mental retardation at issue. (Doc. 37, p. 20). Furthermore, the magistrate judge, citing Morris v. Dretke, 413 F.3d 484 (5th Cir.2005), raised but did not decide whether the newly-presented evidence of mental retardation in Brumfield’s federal habeas petition “merely supplemented” rather than “fundamentally altered” his mental retardation claim under the exhaustion requirement. (Id. pp. 22-31). Instead, the report concluded that petitioner’s failure to adequately develop his claims in state court resulted from the state court’s refusal to grant him funds to develop expert testimony necessary to substantiate his Atkins claim. (Id. pp. 30-32). The magistrate judge found that Brumfield’s diligence in consistently pressing his Atkins claim in the state habeas court, coupled with the state court ignoring his multiple requests for funding for expert assistance in developing his claim, satisfied the cause and prejudice test. (Id.). Moreover, because the magistrate judge found the additional evidence contained in Brumfield’s amended federal habeas petition constituted a prima facie showing under Atkins, the report recommended this Court conduct an evidentiary hearing. (Id. p. 32). The State objected to the report’s conclusion that an evidentiary hearing was warranted. (Doc. 38). It first argued that under Moore v. Quarterman, 491 F.3d 213 (5th Cir.2007), Brumfield’s newly-presented evidence of mental retardation “fundamentally altered” his Atkins claim, rendering it unexhausted. The State also argued that since Brumfield failed to make a reasonable showing of mental retardation to the state habeas court, it correctly found he failed to present a prima facie case as required by Louisiana law, which is entitled to a presumption of correctness. The Court held oral argument on the matter, agreed with the magistrate judge (Minute Entry for June 30, 2008, Doc. 42), and issued a ruling adopting the report as its decision (Doc. 43). B. Legal Prerequisites to a Federal Habeas Hearing Federal habeas law precludes federal courts from re-adjudicating a claim that was adjudicated on the merits in state court unless the state court decision was either (1) “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.” 28 U.S.C. § 2254(d). Even a state court adjudication found incorrect under federal standards does not necessarily suffice in meeting this statutory standard; the state court action must also be objectively unreasonable such that fair-minded jurists would agree on the impropriety of the state court decision. Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 785-86, 178 L.Ed.2d 624 (2011). In all inquiries under § 2254(d), federal review is confined to the record before the state court. Cullen v. Pinholster,— U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011); Richter, 131 S.Ct. at 785. State court factual determinations are presumed correct unless a petitioner overcomes that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The interplay between § 2254(d)(2) and (e)(1) has been the subject of much spilled ink, but the Supreme Court has not definitely decided the issue. It has, however, made clear that the two inquiries do not merge. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A habeas applicant who “failed to develop the factual basis of a claim in State court” may nevertheless obtain an evidentiary hearing on the claim if “a factual predicate [ ] could not have been previously discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A)(ii). This factual proffer, as a pre-requisite to a hearing, must “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.” 28 U.S.C. § 2254(e)(2)(B); see also Michael Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (“Under ... § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”). Thus, the “cause and prejudice” inquiry of § 2254(e)(2) only attaches to claims that have been procedurally defaulted, not claims decided on the merits. Michael Williams, 529 U.S. at 434, 120 S.Ct. 1479 (rejecting a reading of § 2254(e)(2) that would encompass diligently-pursued claims that remained factually undeveloped due to the fault of another party or the court). The fundamental “distinction between a prisoner who is at fault and one who is not,” id. at 435, 120 S.Ct. 1479, is the line which determines whether a “cause and prejudice” inquiry is necessary under § 2254(e)(2), and diligence marks the touchstone for determining whether an undeveloped factual record stands attributable to the prisoner’s “failure” to pursue it, id. at 434, 120 S.Ct. 1479 (“[T]he opening clause of § 2254(e)(2) codifies [the previously recognized] threshold standard of diligence____”). Traditional analysis in the Fifth Circuit found that a person who neither had their claims decided on the merits nor who procedurally defaulted through their own lack of diligence needed only to satisfy Rule 8 of the Federal Rules Governing Section 2254 Cases, see, e.g., Guidry v. Dretke, 397 F.3d 306, 323 (5th Cir.2005), and pre-AEDPA case law, see, e.g., Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to receive a federal hearing. However, the Guidry decision has been abrogated by the Supreme Court’s recent clarification of the interplay of §§ 2254(d) and 2254(e)(2) in Pinholster as recognized in McCamey v. Epps, 658 F.3d 491, 497, n. 1 (5th Cir.2011). The precise contours of when an evidentiary hearing may be granted have become less clear, but the general trend has diminished the vitality of the pre-AEDPA Townsend factors and emphasized the rarity in which federal hearings should occur. See, e.g., McCamey, 658 F.3d 491. While Michael Williams has not been overruled, its explicit holding that § 2254(e)(2) only applies to petitioners who did not diligently attempt to factually develop their claims in state court must be evaluated in light of Pinholster’s murky statements regarding the interaction of § 2254(d) and § 2254(e)(2). Textually, the provisions seem to apply only in mutually exclusive situations, as Michael Williams pointed out, but lately the Supreme Court seems to have implied that the “cause and prejudice” standard codified in § 2254(e)(2) nonetheless may apply even to claims that have already met one of the § 2254(d) standards. See Pinholster, 131 S.Ct. at 1401 (“Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar federal habeas relief.... At a minimum, therefore, § 2254(e)(2) still restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court.” (citation omitted)); id. at 1412 (Breyer, J., concurring in part and dissenting in part) (“[Section] 2254(d)(1) does not leave AEDPA’s hearing section, § 2254(e), without work to do.... If the federal habeas court finds that the state-court decision fails (d)’s test (or if (d) does not apply), then an (e) hearing may be needed.”). See also Schriro v. Landrigan, 550 U.S. 465, 468, 127 S.Ct. 1933, 167 L.Ed.2d 836 (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.”) and Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir.2000) (holding that cases which do not present procedural defaults do not fall under § 2254(e)(2) and thus the propriety of granting a federal hearing is governed by pre-AEDPA jurisprudence). While Michael Williams is still good law and thus it appears that §§ 2254(d) and (e)(2) govern different situations, even in Pinholster’s wake, a federal hearing may in any event be granted under § 2254(e) when the traditional “cause and prejudice” factors have been met. Either way, the first level of inquiry requires a determination of whether the state court’s disposition of Brumfield’s Atkins claim rested on a state procedural ground — which would then trigger the “cause and prejudice” inquiry of § 2254(e)(2) that the State does not contest Brumfield satisfies — or was made on the merits, which would present a straightforward assessment under § 2254(d). The totality of the state habeas court’s analysis of Brumfield’s Atkins claim is as follows: [T]here are several issues we need to take up. I guess the biggest one we need to address is the claims of mental retardation and Atkins and whether or not the defendant is entitled to a hearing to determine that issue, and I’ve read the cases that were cited and also both sides’ arguments, and even in Atkins it is clear that everybody that’s facing the death penalty is not entitled to an Atkins hearing. The cases say that that’s to be taken up on a case-by-case method, and the burden of proving that that is an issue that needs to be addressed is on the defendant here. I’ve looked at the application, the response, the record, portions of the transcript on that issue, and the evidence presented, including Dr. Bolter’s testimony, Dr. Guinn’s testimony, which refers to and discusses Dr. Jordan’s report, and based on those, since this issue — there was a lot of testimony by all of those in Dr. Jordan’s report. Dr. Bolter in particular found he had an IQ of over — or 75. Dr. Jordan actually came up with a little bit higher IQ. I do not think that the defendant has demonstrated impairment based on the record in adaptive skills. The doctor testified that he did have an anti-social personality or sociopath, and explained it as someone with no conscience, and the defendant hasn’t carried his burden placing the claim of mental retardation at issue. Therefore, I find he is not entitled to that hearing based on all of those things that I just set out. Transcript of PosNConviction Hearing of Oct. 23, 2003, Vol. PC, pp. 3-4. In the absence of any cited procedural grounds, the Supreme Court has directed federal habeas courts to presume the issue was resolved on the merits. Richter, 131 S.Ct. at 784-85. Clearly, there is no reason to conclude this was merely a procedural default. The state habeas judge’s discussion hinges on Brumfield’s lack of evidence to establish a prima facie case of mental retardation on the adaptive skills prong of the test defined in Louisiana law. The denial of the Atkins hearing by the state post-conviction court was a determination on the merits which is reviewed under § 2254(d). C. The State Court Made a Merits Decision on Brumfield’s Atkins Claim by Unreasonably Applying Clearly Established Supreme Court Precedent, Thereby Violating Section 2254(d)(1). Normally, federal habeas courts owe substantial deference under AEDPA to state court factual findings. 28 U.S.C. § 2254(e)(1). However, when a state court unreasonably applies federal law as an antecedent to a factual determination of a defendant’s claim, no AEDPA deference is due the state court’s factual determination. Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (holding that a state court’s failure to hold an evidentiary hearing when presented with a substantial showing of incompetency deprived defendant of due process and thus unreasonably applied clearly established federal law). In this case, the state habeas judge’s refusal to grant an evidentiary hearing based on Brumfield’s failure to present a prima facie claim of mental retardation (which on the whole may be a mixed question of fact and law but, for purposes of this case, will be presumed a purely factual inquiry) rested on an unreasonable application of clearly established Supreme Court law, which deprives the state habeas court’s determination of AEDPA deference. See Wiley v. Epps, 625 F.3d 199, 207 (5th Cir.2010). In Wiley, the Fifth Circuit found that when a petitioner presents a prima facie case of mental retardation but is nevertheless denied a state court hearing on the issue, the state court’s determination of the mental retardation issue does not deserve deference under the AEDPA. 625 F.3d at 207. The Fifth Circuit noted that Atkins “was decided against the backdrop of the Supreme Court’s and lower court’s due process jurisprudence.” Id. (quoting Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir.2007)). This jurisprudence included Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), which required a hearing in accord with fundamental fairness and procedural due process for defendants making a showing of insanity. Id. Rivera held that a prima facie showing of mental retardation in state court requires it to provide a full and fair evidentiary hearing. 505 F.3d at 357-58. Using these teachings, Wiley set out a framework for analysis: a federal habeas court must decide if a prima facie case of mental retardation under state law (pursuant to Atkins) was presented to the state court, which triggers the requirement for a full evidentiary hearing. 625 F.3d at 207. If the petitioner did so but did not receive a hearing, the state court acted unreasonably in light of clearly established federal law and consequently loses AEDPA deference. Id. at 207-08. Brumfield presents an even stronger case for denying AEDPA deference than was found in Rivera or Wiley. Here, the state court denied Brumfield even the opportunity to develop his prima facie case. The state habeas court ignored at least four clear pleas for funding to retain experts to evaluate Brumfield and develop his then-pending claims. If Rivera, Panetti, and Wiley deny AEDPA deference based on the state court erroneously failing to grant a hearing to assess a properly made prima facie case, then a fortiori a petitioner who is denied even the chance to make such a case deserves the same treatment. Accordingly, the state court violated Brumfield’s due process guarantees when it failed to allow him adequate funding to retain experts to address his claim. Cf. Coleman v. Zant, 708 F.2d 541, 548 (11th Cir.1983) (holding that when a state court denies an indigent petitioner with the funds necessary to develop adequate evidence to support a habeas claim, that denial fails to accord a “full and fair” hearing under Townsend v. Sam). This denial came in the face of clearly established federal law as determined by the Supreme Court circa October 23, 2003, the date the state habeas court denied Brumfield’s Atkins claim and, in so doing, essentially ignored and mooted his pending requests for expert funding. Specifically, both Atkins and Ford had been decided and clearly established before that date. This jurisprudential backdrop should not have been ignored by the state habeas court, and failure to grant the expert funding (or allow counsel time to obtain such funding from another source) constituted not just a violation of general federal due process law, but also a stark departure from clearly established state law as determined by the Louisiana Supreme Court. As noted above, the Louisiana Supreme Court in State ex rel. Williams v. State, 888 So.2d 792 (La.2004), eventually recognized the frustrating situation petitioners such as Brumfield found themselves in when represented by pro bono counsel. The Louisiana Indigent Defense Assistance Board (LIDAB) has been delegated statutory authority to provide Louisiana state habeas petitioners with counsel, and they contracted with the Capital Post-Conviction Project of Louisiana (CPCPL) to provide such services. LIDAB had a rule prohibiting pro bono counsel handling capital post-conviction cases from getting funds for expert witnesses from LIDAB, which drew the interest of the Court. 888 So.2d at 797. LIDAB immediately changed its rule and permitted pro bono counsel to acquire funds to retain expert assistance in capital post-conviction cases. While the state habeas court did not have the benefit of that guidance, there existed a litany of Louisiana Supreme Court cases addressing the necessity of giving post-conviction petitioners time and funding to develop claims. See, e.g., State ex rel. Cage v. Butler, 593 So.2d 375 (La.1992); State ex rel. Deboue v. Whitley, 592 So.2d 1287 (La.1992); State v. Brown, 566 So.2d 967 (La.1990). These Louisiana cases do not establish a § 2254(d)(1) violation, of course, but they do illustrate the gravity of the due process violation. This Court remains keenly aware of Atkins’ admonition that “[n]ot all people who claim to be mentally retarded will be so impaired,” 536 U.S. at 317, 122 S.Ct. 2242, as to fall within the class of persons for whom a hearing must be held. Clearly, because the Court left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction,” id., it also left to the States the ability to perform a meaningful screening of such claims. Having a prima facie prerequisite to obtaining a full hearing makes eminent sense, lest every death row inmate bring an Atkins claim simply to delay their execution. See Corey Williams, 831 So.2d at 858, n. 33 (“There is no automatic right to a hearing on the issue of mental retardation....”). Likewise, requiring some rudimentary, preliminary showing of a colorable mental retardation claim in order to obtain expert funds to more fully explore the issue also seems reasonable. Cf. id. (holding that the “reasonable grounds” test to show a prima facie case and trigger an Atkins evidentiary hearing requires a defendant to come forward “with some evidence to put his mental condition at issue”); see also State v. Campbell, 983 So.2d 810, 826, n. 9 (La.2008) (refusing to allow hearing on mental retardation issue despite an IQ test of 67 because “the defendant refused point-black to participate in evaluations [by State experts] designed to determine whether he is mentally retarded”). But as this case illustrates, wholly ignoring clear requests for funding to retain experts — based presumably, though the Court cannot know because the state court never supplied a reason, on the same reasons why the state court denied the claim in its entirety — shows this silent denial to be a particularly cruel and unreasonable catch-22: without expert funding, no prima facie showing is likely possible, yet without a prima facie showing, no expert funding is forthcoming. The state habeas court’s imposition of this catch-22 finds no support in any precedent and sharply diverges from clearly established rules for the provision of due process of law. Thus, this Court is convinced that the denial of Brumfield’s Atkins claim in the state habeas court, coupled with its silent denial of his request for funding to retain experts to factually develop his claim, was based on the state habeas court’s unreasonable application of clearly established federal due process law as determined by the Supreme Court in Atkins and Ford v. Wainwright (and later confirmed by Panetti) at the time the state habeas court rendered its decision, in violation of § 2254(d)(1). Its decision was not only incorrect, but unreasonable, meaning that fair-minded jurists would agree the state court’s determination was incorrect. Richter, 131 S.Ct. at 785-86. Moreover, in this instance, the due process rules that were clearly established, both then and now, were not broad. The due process rules violated here were tailored to address specific situations in which habeas petitioners proffered, or claimed an ability to proffer once given the opportunity, substantial showings of ineligibility for the death penalty based on clearly delineated requirements for prima facie showings. The state habeas court’s two-fold denial on the merits of Brumfield’s Atkins claim and silent denial of his request for funding to develop that claim represented an unreasonable application of then-existing due process law as determined by the Supreme Court, which thus deprives that decision of AEDPA deference. This Court was convinced at that point that petitioner’s Atkins claim showed a reasonable likelihood of success, permitting an adjudication of Brumfield’s Atkins claim on the merits by virtue of § 2254(d)(1). D. The State Court Made a Merits Decision on Brumfield’s Atkins Claim That Was an Unreasonable Determination of the Facts in Light of the Evidence Presented to the State Court, Thereby Violating Section 2254(d)(2). For similar reasons, the state habeas court’s decision on the merits of Brumfield’s Atkins claim suffered from an unreasonable determination of the facts in light of the evidence presented in the state habeas proceedings in violation of § 2254(d)(2). Review is limited to the record before the state court. Richter, 131 S.Ct. at 785. Federal courts must give deference to state court determinations of historical fact under § 2254(e)(1). Valdez v. Cockrell, 274 F.3d 941, 948, n. 12 (5th Cir.2001) (noting that conclusions of law and mixed questions of law and fact are examined under § 2254(d)(1)). When evaluating the different prongs of a mental retardation inquiry, it appears that state court determinations of each prong are considered historical fact determinations that are reviewed for clear error and thus receive the full benefit of § 2254(e)(1). See, e.g., Williams v. Quarterman, 293 Fed.Appx. 298, 308 (5th Cir.2008) (construing a Texas state court’s evaluation of the mental retardation prongs under the [Ex parte] Briseno[, 135 S.W.3d 1 (2004) ] decision to be purely factual determinations reviewable for clear error); Rivera v. Quarterman, 505 F.3d 349, 361 (5th Cir.2007) (same). Because the state habeas court in this instance clearly pinned its decision on the adaptive skills prong, Brumfield must show by clear and convincing evidence that this determination was wrong. At least one circuit court has explicitly held that a state habeas court is objectively unreasonable under § 2254(d) when dis-positively crediting evidence of mental retardation, received only as a mitigating factor during sentencing in the pre-Atkins era, when resolving a full Atkins claim in a state habeas court without benefit of a full evidentiary hearing. Allen v. Buss, 558 F.3d 657, 661-65 (7th Cir.2009) (citing Hall v. Quarterman, 534 F.3d 365, 371-72 (5th Cir.2008)). The Fifth Circuit in Hall v. Quarterman further noted that paper hearings may deprive a petitioner of a full and fair hearing, mentioning that they are particularly inappropriate when the state habeas judge faces a different constitutional standard than the sentencing judge did. 534 F.3d at 371-72. Similarly, Perillo v. Johnson, 79 F.3d 441, 446-47 (5th Cir.1996) discussed the adequacy of paper hearings in satisfying the pre-AEDPA constitutional standard for a “full and fair hearing,” the existence of which determines whether the state court’s determination receives the presumption of correctness in the first place. But see Valdez v. Cockrell, 274 F.3d 941, 949-51 (5th Cir.2001) (holding that a full and fair hearing is not a precondition to giving state courts AEDPA deference). Regardless of Perillo’s current standing in light of AEDPA, it appears the law still treats the sufficiency of paper hearings on a case-by-case basis. One important benchmark is whether the state habeas judge is the same judge who presided over the petitioner’s trial. Perillo, 79 F.3d at 446. See also Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir.2000) (discussing how summary denial by a state court may entitle a petitioner to an evidentiary hearing in federal court). In this case, the state habeas judge, Judge Anderson, did not conduct Brumfield’s capital trial in state district court, which was handled by the late Ralph Tyson-a beloved, recently-departed colleague on this Court. Under Hall and Perillo, because the state habeas judge was both a different person than the state trial judge and had to apply a new constitutional standard which was not previously available at trial, no presumption of sufficiency attaches to the paper hearing. Of course, while a change in judicial identity does not on its own alter the reasonability analysis or diminish the presumption of correctness accorded the factual findings, it nonetheless does inform the Court’s view of the state habeas court’s actions. The Supreme Court’s decision in Richter is not to the contrary insofar as it does not discuss whether summary dispositions must be viewed through the same lens based on the identity of the state trial and habeas judges. As the state habeas court itself explained, its review of the Atkins claim was limited to the record developed in the sentencing phase of Brumfield’s trial, which included the following specific pieces of evidence: the testimony of Dr. John Bolter, the testimony of Dr. Cecile Guin, and a report issued by a Dr. Jordan. Reliance on these pieces of evidence alone, regardless of their intrinsic value, renders the state habeas court decision dubious in and of itself, for several reasons. And when the evidence is actually examined, it is clear that the state habeas court transgressed the bounds of reasonableness in denying Brumfield an evidentiary hearing. First, the state sentencing took place in 1995, several years before the Atkins decision in 2002. During the sentencing phase, neither defense counsel nor the trial court had the benefit of the Atkins decision, which may have altered the strategic choices of the defense in deciding not to present mitigating evidence that Brumfield was mentally retarded. See Atkins, 536 U.S. at 320, 122 S.Ct. 2242 (holding that as a mitigating factor, mental retardation often serves as a “two-edged sword that may enhance the likelihood” of wrongful execution because jurors may be more inclined to find that individual dangerous); State v. Corey Williams, 831 So.2d 835, 856, n. 31 (La.2002) (pointing out why counsel may avoid introducing mental retardation as a mitigating factor); see also id. at 856-57 (“[M]ost significantly, 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 according to the United States Supreme Court.”). At least one member of the Fifth Circuit has concluded that, based upon this language, Louisiana courts cannot rely upon mental retardation evidence presented for mitigation as evidence of Atkins mental retardation. Hall, 534 F.3d at 392 (Higginbotham, J., concurring in part and dissenting in part) (citing Corey Williams, 831 So.2d at 856-57). While that conclusion may not be treated as a per se rule in the Louisiana courts on direct review, see State v. Manning, 885 So.2d 1044 (La.2004) (declining on direct review to remand for Atkins hearing based on State’s evidence introduced during pre-Aikins sentencing), this case comes before the Court on federal collateral review following state collateral review. And as the cases discussed below will demonstrate, Manning at the very least is limited to factual scenarios where the mental retardation issue was actually presented to a jury, even if as mitigating evidence instead of Atkins evidence, because Louisiana courts do not tolerate mere mitigation evidence presented on another issue to be used to decide an Atkins issue. Second, the state habeas court had adequate notice that its determination was factually unreasonable in light of the multiple funding requests for the development of expert testimony on Brumfield’s habeas claims. The inexplicable decision to ignore these requests — either because the state habeas judge thought them meritless or unimportant or simply failed to realize they had been made, this Court can only guess — on its face makes the denial of Brumfield’s Atkins claim unreasonable. The record before the state court on October 23, 2003 demonstrates that Brumfield had not made out a prima facie case of mental retardation, (see Magistrate Judge’s Report, Doc. 37), but that in itself is both unremarkable and predictable. Finding that Brumfield failed to establish his prima facie case was not the unreasonable factual determination; rather, it was the state court’s failure to realize Brumfield had no chance to do so, based on its denial of funds, that comprises the unreasonable determination here. Third, the state habeas judge hinged his conclusion that Brumfield was not entitled to a hearing on the adaptive skills prong of the mental retardation test that Louisiana law spells out. Not only is this the murkiest and most subjective part of the mental retardation test, as will be made clear below in Part III, but it requires exhaustive factual specificity since so many factors can influence “adaptive behavior as expressed in conceptual, social, and practical adaptive skills.” La.C.Cr.P. art. 905.5.1(H)(1). As mentioned above, reliance on record evidence from a pr e-Atkins sentencing already makes this determination somewhat dubious. When a Louisiana state court relies on record evidence from a pr e-Atkins sentencing that, on its own terms, does not even relate to mental retardation, it cannot be deemed to have made a reasonable factual determination as a matter of law. The case coming closest to validating the State’s position, State v. Manning, 885 So.2d 1044 (La.2004), simply does not stand for the blanket proposition that “where the record provides sufficient evidence negating a contention that a defendant is mentally retarded, an evidentiary hearing is unnecessary to further litigate [sic] is already established.” (State’s Objection to Magistrate Judge’s Report, Doc. 38, p. 6). In Manning, the Louisiana Supreme Court affirmed on direct review a murder conviction and capital sentence. 885 So.2d at 1057. In the Manning Court’s discussion of the defendant’s Atkins claim, 885 So.2d at 1106-07, the Court simply notes that conflicting testimony was presented at sentencing, with one expert opining that defendant was “mildly retarded or at least slow learner level” and another stating that “he functioned in the ‘just below average’ range.” Id. at 1107. In reviewing the defendant’s conduct during the investigation, the Court found on the record before it that he failed to demonstrate a reasonable likelihood of mental retardation. Id. Manning thus dealt with a situation where, at the very least, evidence of mental retardation was squarely put before the state trial court at sentencing. While the State correctly points out that the defendant in Manning had been sentenced prior to Atkins, it fails to note the crucial difference: the Manning defendant actually presented evidence of mental retardation to the jury, whereas here Brumfield did not. Moreover, Manning came to the Louisiana Supreme Court by way of direct review, which necessarily limited its scope to matters directly litigated, whereas post-conviction review is the proper forum for raising a broader array of claims, including mental retardation issues not submitted to the jury at trial. Cf. State v. Holmes, 5 So.3d 42, 99 (La.2008) (Calogero, C.J., dissenting) (arguing that an adequately developed record regarding mental retardation, even if not submitted to the jury under La.C.Cr.P. art. 905.5.1, should be reviewable on direct appeal instead of relegating that determination to a post-conviction proceeding, the course the Holmes majority required the defendant to pursue). Fourth, even assuming for the sake of argument that it was not clear legal error to extrapolate Atkins evidence on mental retardation from pr e-Atkins mitigating evidence on competency (the impropriety of which is shown below), the actual evidence elucidated at the sentencing hearing simply does not dovetail with the factors Louisiana courts use to assess mental retardation. The Louisiana legislature enacted La.C.Cr.P. art. 905.5.1 during the 2003 regular session as Act No. 698 (House Bill No. 1017), which it approved on June 27, 2003. Because no effective date was provided in that Act, the Court assumes its provisions were effective immediately. See Central Freight Lines, Inc. v. United States, 669 F.2d 1063, 1069 (5th Cir.1982) (“As a general rule, a new statute should apply to cases pending on the date of its enactment ... unless manifest injustice would result, or there is a statutory directive or legislative history to the contrary.” (quotation marks and citations omitted)). Since La.C.Cr.P. art. 905.5.1(H)(1) simply defines adaptive behavior as “expressed in conceptual, social, and practical adaptive skills,” Louisiana courts have looked to the AAIDD’s clinical definitions for guidance in determining which skills are relevant. See Corey Williams, 831 So.2d 835, 852-54 (noting the U.S. Supreme Court adopted the AAMR’s (now the AAIDD’s) clinical definition and finding Louisiana’s then-existing statutory definition comported with the consensus definition of mental retardation exhibited in the AAMR’s definition). A review of the sentencing phase transcript from Brumfield’s trial shows that several factors relevant to the adaptive skills prong — including but not limited to (1) his ability to sustain interpersonal relationships, (2) his ability to maintain self-esteem, (3) whether he is gullible or naive, and (4) whether he has any practical skills — are simply lacking in discussion or even mention. (Transcript of Sentencing Phase, Vol. XVI, pp. 3857-3910). Based on what testimony the state trial court actually heard, it was unreasonable and unfair for the state habeas judge to conclude Brumfield lacked deficits in adaptive skills when entire areas of adaptive skills were not discussed. Finally, and fatally for the state habeas court’s determination, the Louisiana Supreme Court has conclusively determined the impropriety of collapsing a competency inquiry with a mental retardation inquiry. In State v. Holmes, 5 So.3d 42, 58 (La.2008), the Court stated: Equating competency, which addresses a defendant’s ability to understand the proceedings and to assist in her own defense, see La.Code Crim. Proc. art. 641, with mental retardation, which acts as a mitigating circumstance exempting a defendant from the death penalty, constitutes an hyperbole and does not accord with this state’s well-accepted jurisprudence. (emphasis added). The Holmes Court went on to cite several cases from the late 1970s and early 1980s to support its conclusion, thus showing that that jurisprudence had sufficiently developed by the time the state habeas judge made his decision. Holmes repeats the same admonition the Louisiana Supreme Court has previously given on conflating the two separate inquiries. See State v. Turner, 936 So.2d 89, 96 (La.2006) (“[EJquating competency to stand trial with mental retardation as an absolute bar to subjection to the death penalty is a stretch at best.”) (emphasis added). These holdings irrefutably establish the error of the state habeas court and therefore prove, at the very least, that using preAtkins sentencing evidence related to competency cannot be permitted when deciding an Atkins issue. Thus, because the state habeas court reached the merits of Brumfield’s Atkins claim by relying exclusively on testimony and neuropsychological reports on the issue of competency while knowing Brumfield never had an opportunity to gain funding to hire experts to help support his claim of mental retardation, Brumfield has furnished clear and convincing evidence the state habeas court made an unreasonable determination of the facts in light of the record evidence (or lack thereof) before it in violation of § 2254(d)(2). As the preceding discussion illustrates, the issues of factual unreasonableness under § 2254(d)(2) and legal unreasonableness as measured by then-existing Supreme Court law under § 2254(d)(1) inextricably intertwine in this case. Whichever way the state court’s determination is sliced, though, the result the law compels this Court to reach remains the same. If the Court’s inquiry looks only at the facts in evidence which the state habeas court reviewed, a common sense appraisal of that evidence convincingly shows that the standards relevant to a competency inquiry simply do not equate with the standards relevant to a mental retardation inquiry. That alone makes it a convincing case for an unreasonable factual determination, a conclusion simply bolstered by reviewing Louisiana law, see State v. Holmes, 5 So.3d at 58, and federal law, see, e.g., Atkins, 536 U.S. at 320-21, 122 S.Ct. 2242; Allen v. Buss, 558 F.3d 657, 661-65 (7th Cir.2009); Hall v. Quarterman, 534 F.3d 365, 371-72 (5th Cir.2008). The facial unreasonableness of the state court’s factual determination under § 2254(d)(2)— non-retardation based on the ill-suited proxy of competency — is further compounded when taking into account the repeated requests Brumfield lodged with the state court seeking funding for expert evaluation. On the other hand, when looking only at the legal standards used and/or complied with by the state court, it is clear that due process was denied Brumfield. Whether viewed as an action which (1) simply ignored Atkins’s admonition not to use mitigating evidence as determinative (made even more egregious because the mitigating evidence related to competency, not mental retardation), or (2) failed to follow due process law as established by Ford v. Wainwright to grant an evidentiary hearing when a prima facie case was presented it (and thus eviscerated due process by preventing Brumfield the opportunity to develop such a prima facie case), the state court unreasonably applied those established Supreme Court standards and violated § 2254(d)(1). The State therefore cannot show that newly-decided cases which constitute binding precedent on this Court make its previous determination to hold an evidentiary hearing improper. Its converted motion for reconsideration is therefore DENIED, and the Court reaffirms its finding that the evidentiary hearing was properly held as detailed in magistrate judge’s report and recommendation and supplemented by this ruling. III. Having rejected the State’s converted motion to reconsider the propriety of the evidentiary hearing the Court already conducted, the Court now deals with the merits of Brumfield’s Atkins claim. A. Louisiana Law Has Adopted the Definition of Mental Retardation Contained in the AAIDD’s 10th Edition. In Atkins v. Virginia, the United States Supreme Court concluded that capital punishment of a mentally retarded person violates the Eight Amendment’s prohibition against cruel and unusual punishment. 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). However, the Atkins Court left to the States the task of defining mental retardation. Id. at 317, 122 S.Ct. 2242. The Court did discuss with approval the clinical standards used by the American Association on Mental Retardation (AAMR, hereinafter “AAIDD”) and the American Psychiatric Association (APA). Id. at 308-09, n. 3, 122 S.Ct. 2242. Because there appears to be a dearth of Fifth Circuit cases which apply Louisiana law to an Atkins claim, the Court pauses to detail Louisiana statutory and case law, which provide an explanation of the legal framework Louisiana has elected to use pursuant to the Atkins mandate. In confirming its compliance with the Atkins decision, the legislature ensured that, “[n]otwithstanding any other provisions of law to the contrary, no person who is mentally retarded shall be subjected to a sentence of death.” La.C.Cr.P. art. 905.5.1(A). Article 905.5.1(H) of the Louisiana Code of Criminal Procedure provides the operative definition the Court must apply: (1) “Mental retardation” means a disability characterized by significant limitations in both intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical adaptive skills. The onset must occur before the age of eighteen years. (2) A diagnosis of one or more of the following conditions does not necessarily constitute mental retardation: (a) Autism. (b) Behavioral disorders. (c) Cerebral palsy and other motor deficits. (d) Difficulty in adjusting to school. (e) Emotional disturbance. (f) Emotional stress in home or school. (g) Environmental, cultural, or economic disadvantage. (h) Epilepsy and other seizure disorders. (i) Lack of educational opportunities. (j) Learning disabilities. (k) Mental illness. (l) Neurological disorders. (m) Organic brain damage occurring after age eighteen. (n) Other handicapping conditions. (o) Personality disorders. (p) Sensory impairments. (q) Speech and language disorders. (r) A temporary crisis situation. (s) Traumatic brain damage occurring after age eighteen. La.C.Cr.P. art. 905.5.1(H). Brumfield bears the burden of proving by a preponderance of the evidence that he meets the statutory definition. Id., art. 905.5.1(C)(1). Louisiana law tracks the clinical definition provided by the AAIDD in Mental Retardation: Definition, Classification, and Systems of Support (10th ed.2002) (hereinafter, “10th Edition”). The 10th Edition provides: Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This disability originates before age 18. (10th Edition, Petitioner’s Ex. 11, at p. 1). But the AAIDD also presents five assumptions that guide application of the clinical definition. Crucially, it notes that individual “limitations often coexist with strengths” and counsels that with appropriate supports, a mentally retarded person’s functioning can generally improve. (Id.). The 10th Edition, published in 2002, contains the current, consensus definition of mental retardation, which the Louisiana legislature adopted. (See Swanson Testimony, Doc. 106, p. 26 (detailing the drafting history of La.C.Cr.P. art. 905.5.1)). Therefore, reference by the Court to the AAIDD’s definition is an appropriate means of discerning what personal characteristics are involved in assessing petitioner’s “intellectual functioning and ... conceptual, social, and practical adaptive skills” as defined in art. 905.5.1. The Court finds ample support for adopting the AAIDD’s definition in the seminal cases of Atkins and Corey Williams, and therefore the AAIDD’s definition as contained in its 10th Edition will provide the authoritative definition used by this Court in assessing Brumfield. Cf. Moore v. Quarterman, 342 Fed.Appx. 65, 74 (5th Cir.2009) (finding no abuse of discretion under Texas law in strictly applying the AAIDD 10th Edition’s clinical definition). Because the Court receives substantial guidance from the experts involved, a brief introduction to their qualifications and the basis for and summary of their testimony and conclusions is in order. Testifying for Brumfield were Stephen Greenspan, Ph. D., Ricardo Weinstein, Ph.D., Victoria Swanson, Ph.D., and James Merikangas, M.D. Testifying for the State were Robert Blanche, M.D., Donald Hoppe, Psy.D., and John Bolter, Ph.D. Dr. Greenspan is a licensed psychologist who obtained his Ph.D. in 1976. (Greenspan Curriculum Vitae, Ex. P-1). At the time of the hearing, he served as a visiting professor at the University of Colorado Medical School. (Greenspan Testimony, Doc. 101, p. 5). He is one of the foremost mental retardation experts in the country, and his work is cited in the 10th Edition numerous times. (Id., pp. 10-11). He was accepted by the Court as an expert in mental retardation and adaptive behavior. (Id., pp. 24-25). His testimony generally concerned proper use of the AAIDD’s clinical standards in making diagnoses of mental retardation. (See generally Greenspan Testimony, Doc. 101, pp. 4-218). Dr. Weinstein is a licensed psychologist who obtained his Ph.D. in 1981. (Weinstein Curriculum Vitae, Doc. 30-1, p. 20). At the time of the hearing, Dr. Weinstein had a forensic practice and also testified as an Atkins expert in various courts. (Weinstein Testimony, Doc. 101, pp. 219-230). He was accepted by the Court as an expert in mental retardation and forensic neuropsychology. (Id., p. 234). He made a diagnostic evaluation of Brumfield after: personally meeting with Brumfield on two occasions for 5-6 hours; speaking with him for another 7 hours; reviewing Brumfield’s social history; school records; medical records; institutional records; prison records; previous expert reports, evaluations, and depositions; Brumfield’s prior statements to police; and interviews with at least 14 individuals. (Weinstein Testimony, Doc. 102, pp. 19-37). He also administered the ABAS-II adaptive behavior scales to several individuals. His testimony concerned his methodology and reasoning for reaching the conclusion that Brumfield is mentally retarded. (See generally Weinstein Testimony, Docs. 101, pp. 219-284 and 102, pp. 3-176 and 103, pp. 3-127; see also Weinstein Report, Doc. 30-1, pp. 3-18). Dr. Swanson is a Louisiana-licensed psychologist who received her Ph.D. from LSU in 1999. (Swanson Curriculum Vitae, Doc. 30-1, pp. 31-39; Swanson Testimony, Doc. 106, p. 19). Before receiving her Ph.D., Swanson worked in the mental retardation field for 26 years in various capacities, including work with school districts, teachers, and appraisal teams. (Swanson Testimony, Doc. 106, pp. 20-22). She served on the committee that drafted the Louisiana bill which eventually became law and created La.C.Cr.P. art. 905.5.1. (Id., pp. 26-27). She was accepted by the Court as an expert in mental retardation and psychology. (Id., p. 31). She created Brumfield’s social history by reviewing school, medical, and institutional records. (Id.). She then met with Brumfield for 5 hours and reviewed additional evidence submitted by the State in this litigation, including much of the information Dr. Weinstein reviewed. (Id., pp. 31-46). Her testimony sifted through Brumfield’s past, emphasized his social history, and ultimately concluded that he is mentally retarded. (See generally Swanson Testimony, Doc. 106, pp. 19-237; see also Swanson Report, Doc. 30-1, pp. 25-30). Dr. Merikangas is a physician who received his M.D. in 1969. (Merikangas Curriculum Vitae, Doc. 30-1, p. 45). He is board-certified in the field of neuropsychiatry. (Id., p. 47). He submitted a report which stated that a neurological physical exam of Brumfield did not disclose any acquired brain damage or ongoing disease. (Merikangas Report, Doc. 30-1, p. 42). He did not testify at the hearing. Dr. Hoppe is a Louisiana-licensed clinical psychologist who received his Psy.D. in 1981. (Hoppe Curriculum Vitae, Ex. S-55). He has maintained a clinical practice for more than 27 years. (Hoppe Testimony, Doc. 103, p. 157). He was admitted by the Court as an expert in clinical and forensic psychology. (Doc. 103, p. 176). He administered an IQ test to Brumfield in addition to reviewing the available records in this case. (Id., Doc. 104, pp. 7-11). He was unable to interview anyone other than Brumfield because counsel for the State did not provide him with contact information for those persons. (Doc. 104, p. 98, 108). He concluded that Brumfield was not mentally retarded. (Id., pp. 25-26). Dr. Blanche is a forensic psychiatrist who received his M.D. from LSU Medical School in New Orleans in 1981. (Blanche Testimony, Doc. 104, p. 169). He works part-time as a psychiatrist in the East Baton Rouge Parish jail, where he identifies symptoms of mentally ill persons for treatment. (Doc. 105, pp. 8-11). The Court accepted him as an expert in forensic psychiatry. (Doc. 104, p. 183). He interviewed Brumfield at Angola and reviewed the available records. (Doc. 104, pp. 184-87). He did not interview anyone other than Brumfield, stating that he felt any information gleaned from outside sources would be unreliable. (Doc. 105, p. 31). Until his deposition in this case in January 2010, Dr. Blanche had never heard of the AAMR/AAIDD and was thus unfamiliar with its diagnostic definitions. (Doc. 104, p. 182; Doc. 105, p. 11). In his work for the jail and in his general practice, he refers persons suspected of mental retardation to a psychologist. (Doc. 105, pp. 7-9). Dr. Blanche received no formal training in administering psychological testing. (Doc. 104, p. 181); see also State v. Corey Williams, 831 So.2d 835, 859 (La.2002) (cautioning courts to not appoint physicians to assess mental retardation because they do not possess the “appropriate expertise”). He concluded that Brumfield does not suffer from mental retardation. (Doc. 104, p. 218). Dr. Bolter is a clinical neuropsychologist who received his Ph.D. from the University of Memphis. (Bolter Testimony, Doc. 107, pp. 3-5). Since 1988 he has worked at the Neuromedical Center in Baton Rouge. (Doc. 107, p. 3). During Brumfield’s murder trial in state court in 1995, he submitted an expert report for the defense and testified at the sentencing phase of Brumfield’s trial. (Transcript of Sentencing Phase, Vol. XVI, pp. 3902-10). Dr. Bolter’s records were subsequently destroyed, and he remembered little about Brumfield. (Doc. 107, pp. 13-21). As a result, the Court admitted Bolter as an expert in neuropsychology but restricted questions to the scope of his 1995 report. (Doc. 107, pp. 19-20; see also Bolter Report, Exs. S-39 and P-33). Based on his 1995 report, Bolter found nothing in the report to suggest petitioner was mentally retarded. (Doc. 107, pp. 36 — 37). B. Prong 1: Significant Limitations in Intellectual Functioning The AAIDD recognizes that because “intelligence is best conceptualized and captured by a general factor of intelligence,” (10th Edition, Ex. P-11, p. 55), an assessment of intellectual functioning requires “reliance on a general functioning IQ score.... ” (Id., p. 51). There is no federally-established, bright-line cutoff for persons to qualify as mentally retarded, even using an objective IQ test as the measure for the intellectual functioning prong. See Atkins, 536 U.S. at 308-09, n. 3, 122 S.Ct. 2242 (“ ‘Mild’ mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70.”) (citing Diagnostic and Statistical Manual of Mental Disorders 42^13 (4th ed.2000)) (emphasis added); id. at 309, n. 5, 122 S.Ct. 2242 {“[A]n IQ between 70 and 75 or loioer ... is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.”) (citing 2 Kaplan & Sadock’s Comprehensive Textbook of Psychiatry 2952 (B. Sadock & V. Sadock eds., 7th ed.2000)) (emphasis added). Nor does any codified portion of Louisiana law provide for a numerical cutoff. Louisiana cases have never explicitly found a bright-line cutoff and have consistently rejected imposition of one. E.g., State v. Shedran Williams, 22 So.3d 867, 888 (La.2009) (“[Njeither our legislature nor our jurisprudence has set forth a specific IQ score for determining intellectual functioning in the capital sentencing context....”). The cases which have rejected Atkins claims based on IQ scores have done so, not simply because of the IQ score, but because other factors relevant to assessing intellectual functioning also pointed toward a finding of non-retardation. Moreover, those cases have arisen from direct review of a jury’s rejection of a mental retardation claim. For instance, in Shedran Williams, 22 So.3d at 888, the defendant had a full scale score of 73 on the WAIS-R test. Id. at 888, n. 16. The defendant contested the jury’s finding of non-retardation on direct review, alleging that the expert testimony of Dr. Hoppe (incidentally, the same expert used by the State in this case) that the ceiling IQ for mild mental retardation was 70 was legal error. Id. at 887. The Court declined to find error in the jury’s determination because the jury could also have reasonably found he flunked the adaptive skills prong. Id. at 888. The Court also noted that the defendant failed to present to the jury how the standard error of measurement might impact the full scale IQ score. Id. at 888, n. 16. In State v. Dunn III, 41 So.3d 454, 470 (La.2010), the court stated that “scores of 75 brush the threshold score for a mental retardation diagnosis” but ultimately did not disturb on direct review the jury’s finding of non-retardation. See also State v. Lee, 976 So.2d 109, 146 (La.2008) (holding that Dr. Hoppe’s explanation of “an average IQ as a child of 75.5” as “well over the clinical definition of mild retardation” did not ultimately result in an irrational or unreasonable jury finding of non-retardation). Mental health literature published by the AAIDD has admonished practitioners to avoid imposition of cutoff IQ scores as well, with the current edition noting that 70-75 is the upper range for mild mental retardation. (10th Edition, Ex. P-11, pp. 57-59). Because the Court has found the 10th Edition is the proper source to follow in construing Louisiana’s definition of mental retardation, the Court therefore finds that, consistent with Louisiana statutory and case law, an IQ score of 75 or below does not preclude a finding of mild mental retardation for Atkins purposes. In this case, Brumfield took four different IQ assessments and received the following unadjusted, full scale scores, as reported by petitioner’s experts: — In a 1995 WAIS-R test administered by then-defense expert Dr. Bolter, he scored a 75, with a 95% confidence interval of 70-80. — In a 2007 Stanford-Binet V test administered by petitioner’s expert, Dr. Weinstein, he scored a 72, with a 95% confidence interval of 69-77. — In a