Arbelaez v. Crews (43 F. Supp. 3d 1271, 2014)

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

FEDERICO A. MORENO, District Judge.

In 1988, Petitioner Guillermo Arbelaez was sentenced to death for kidnapping, strangling, and throwing over a Key Biscayne bridge into the water 75-feet below the 5-year old son of a woman in revenge for her rejection of his romantic advances. After two decades of post-conviction litigation in Florida state courts, the Petitioner claims that his execution is impermissible because he is intellectually disabled and that his trial counsel was ineffective. The State of Florida argues that the September 2012 federal petition is untimely and should be denied. The Court holds that, although the federal petition should have been filed no later than April 4, 2006, the State has waived its timeliness objection. However, the Court denies the petition on the merits, finding the Florida Supreme Court’s determination that Petitioner was not intellectually disabled and that he suffered no prejudice by any alleged ineffective assistance of counsel was not contrary to, or an unreasonable application of, clearly established United States Supreme Court law.

I. Factual Background

Petitioner Arbelaez seeks to vacate the death sentence imposed upon him for the 1988 murder of Julio Rivas, the 5-year old son of Graciela Alfara. Arbelaez rented a room in a Miami house he shared with Ms. Alfara and her 5-year old son, two teenaged daughters and a 19-year old cousin. Arbelaez had an intimate relationship with Ms. Alfara, but that ended when she accused him of touching one of her daughters. Ms. Alfara began seeing other men causing Arbelaez to say that he would do something that would assure “that bitch is going to remember me for the rest of her life.” Arbelaez kidnapped Ms. Alfara’s son, strangled, bruised, and threw him from a bridge in Key Biscayne, Florida. Arbelaez confessed to a friend that he did so as revenge against the mother. Arbe-laez obtained an airline ticket to Puerto Rico under an assumed name and eventually fled to Colombia. After obtaining monetary wire transfers from his family, he returned to Miami.. He waived his Miranda rights and gave two statements admitting that he killed the child as a plan of revenge against the mother. At trial, Arbelaez, contrary to his three prior statements, testified that the child’s death was an accident, and not an intentional killing.

After his conviction, Arbelaez was sentenced to death and subsequently filed an appeal, and several post-conviction motions in state court. On September 11, 2012 Arbelaez filed this federal habeas corpus petition under 28 U.S.C. § 2254. The case was assigned to Judge Robin Rosenbaum and later transferred to the undersigned upon Judge Rosenbaum’s elevation to the Eleventh Circuit Court of Appeals.

The State of Florida argues that Arbe-laez’s petition is time-barred. Arbelaez claims that his execution would violate the United States Constitution because of his intellectual disability. Petitioner further alleges that his court-appointed attorney rendered ineffective assistance of counsel at both the guilt and penalty phases of his trial. For the reasons further discussed below, the Court holds that the State of Florida has waived the timeliness argument, but also finds Arbelaez’s petition should be dismissed on the merits because he has not met his considerable burden under § 2254(d). The Florida Supreme Court’s determinations were not contrary to, or an unreasonable application of clearly established United States Supreme Court law.

II. Procedural History

On April 27, 1988, Petitioner Arbelaez was charged by indictment in Miami-Dade County with first degree murder and kidnapping of 5-year old Julio Rivas. On February 19, 1991, the jury found Arbelaez guilty. Arbelaez v. State, 626 So.2d 169, 174 (Fla.1993). After the penalty phase, the jury recommended a death sentence by a vote of eleven to one. Id. at 175. The trial judge found three aggravating factors and two mitigating factors. After weighing the aggravating and mitigating circumstances, the court sentenced Arbelaez to death. On direct appeal, the Florida Supreme Court affirmed the conviction .and sentence and found that: (1) the defendant was not in custody when he had telephone conversations with police, and thus was not entitled to Miranda warnings; (2) the emotional outburst of the victim’s mother as she took the witness stand did not require a mistrial; (3) the trial court properly found aggravating circumstances; (4) the trial court properly rejected the defendant’s claim of mitigating circumstances; and (5) the death sentence was not disproportionate. See id. at 178.

Thereafter, Arbelaez sought post-conviction relief. The trial court summarily denied all relief requested. See Arbelaez v. State, 775 So.2d 909 (Fla.2000). On appeal from the denial of the post-conviction motion, Arbelaez raised thirteen claims. The Florida Supreme Court denied relief but remanded “because the record does not conclusively demonstrate that Arbelaez is entitled to no' relief on his claim of ineffective assistance of counsel during the penalty phase, the trial court could not properly deny his post-conviction motion without an evidentiary hearing.” Id. at 920. The court remanded “this matter to the trial court with instruction to conduct an evi-dentiary hearing on this claim.” Id.

On remand, the trial court held an evi-dentiary hearing and again denied the motion for post-conviction relief. Just before the court entered its order, Arbelaez filed a supplemental motion under Florida Rule of Criminal Procedure 3.850 arguing the applicability of the then-recent United States Supreme Court decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The trial court denied the supplemental claims as untimely and procedurally barred. Arbelaez appealed the trial court’s order denying post-conviction relief, as well as the denial of his supplemental Ring and Atkins claims. Arbelaez also petitioned for a writ of habe-as corpus raising five separate claims of ineffective assistance of appellate counsel. See Arbelaez v. State, 898 So.2d 25 (Fla. 2005). The Florida Supreme Court denied all relief. Id. During the pendency of his appeal, Arbelaez filed a second motion for post-conviction relief in the trial court asserting that his execution is forbidden by state and federal law because he was mentally retarded. The trial court denied relief but the Florida Supreme Court remanded for an evidentiary hearing on that claim. Arbelaez v. State, 950 So.2d 413 (Fla.2006) (table decision).

The trial court held evidentiary hearings over a two-month period. Ultimately, the trial court again denied relief. On appeal, the Florida Supreme Court affirmed indicating: “We hereby affirm the post-conviction court’s denial of relief. Arbelaez did not prove that he has concurrent deficits in adaptive behavior as required by section 921.137(1), Florida Statutes (2004), and Florida Rule of Criminal Procedure 3.203(b).” Arbelaez v. State, 72 So.3d 745 (Fla.2011). On September 11, 2012, Arbe-laez filed this federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming ineffective assistance of counsel and that his mental disability precludes his execution. The State has asserted that the petition is untimely.

III. Timeliness

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a 1-year limitation period for the filing of an application for relief under 28 U.S.C. § 2254. Accordingly, 28 U.S.C. § 2244(d) provides:

(1) 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. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The 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.

In most cases, including the present case, the limitation period begins to run pursuant to § 2244(d)(1)(A). The Eleventh Circuit has decided that the judgment becomes “final” within the meaning of § 2244(d)(1)(A) as follows: (1) “if the prisoner files a timely petition for certiorari, the judgment becomes ‘final’ on the date on which the Supreme Court issues a decision on the merits or denies certiorari, or (2) the judgment becomes ‘final’ on the date on which the defendant’s time for filing such a petition expires.” Kaufmann v. United States, 282 F.3d 1336, 1339 (11th Cir.2002).

In 1996, Congress set a 1-year limitation period for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). Congress intended the AEDPA to further the principles -of comity, finality, and federalism. Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (stating that “there is no doubt Congress intended AEDPA to advance these doctrines [comity, finality, and federalism]”). Clearly, Congress created a limitation period of 1 year that was meant to streamline the habeas review process and to lend finality to state court convictions. Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (recognizing that “[t]he 1 year limitation period of § 2244(d)(1) quite plainly serves the well-recognized interest in the finality of state court judgments”); see also H.R. Cong. Rep. No. 104-518, at 111 (1996), reprinted in H.R. Conf. Rep. No. 518, 104th Cong., at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 944 (1996) (explaining that, in enacting AEDPA, Congress wanted “to curb the abuse of the statutory writ of habeas corpus” by adding, among other things, a one-year period of limitation to the time a state prisoner has to seek habe-as relief from a state conviction). The AEDPA seeks to eliminate delays in the federal habeas review process. See Day v. McDonough, 547 U.S. 198, 205-206, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006).

The United States Supreme Court denied Arbelaez’s petition for writ of certiorari on May 23, 1994. See Arbelaez v. Florida, 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994). At that time, a 1-year limitation period did not exist for federal habeas petitions. See Wilcox v. Fla. Dep’t of Com., 158 F.3d 1209, 1210 (11th Cir.1998). However, on April 24, 1996, Congress enacted the AEDPA which imposed the limitation period of 1 year on federal habeas petitioners. As Arbelaez’s conviction and sentence was final before the enactment of the AEDPA, he had 1 year from the enactment to file his federal habeas petition pursuant to § 2254. See Wilcox, 158 F.3d at 1211. In other words, Arbelaez’s habeas petition was due on April 23, 1997. The record is clear that Arbelaez did not file his petition here until September 11, 2012. Therefore, unless he had “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim [] pending”, the statute of limitations would have expired and the instant habeas petition would be untimely. See 28 U.S.C. § 2244(d)(2).

Because Arbelaez filed his initial post-conviction motion before the enactment of the AEDPA in 1996, the statute of limitations would have started to run in 1997. As such, the limitations period was tolled until his initial motion was denied, affirmed on appeal, and the Florida Supreme Court issued its mandate. The AEDPA clock resumes running when the state’s highest court issues its mandate disposing of the motion for post-conviction relief. Lawrence v. Florida, 549 U.S. 327, 331-32, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). Here, the mandate issued on April 4, 2005. See Arbelaez v. State, 898 So.2d 25 (Fla.2005). Therefore, Arbelaez’s federal habeas petition must have been filed within one year, which is by April 4, 2006 to be considered timely. It was not.

The only way Arbelaez’s instant federal habeas petition could be considered timely would be if he had another properly filed state post-conviction motion pending before April 4, 2006. “A state application filed after expiration of the limitations period does not relate back so as to toll idle periods preceding the filing of the federal petition.” See Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir.2003) (the statutory tolling provision does not encompass a period of time in which a state prisoner does not have a “properly filed” post-conviction application actually pending in a state court). “[T]he tolling provision does not operate to revive the one-year limitations period if such period has expired.” Id.; see also Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.2001) (explaining that where a Rule 3.850 motion is filed after the expiration of the one-year period, it does not toll the period under § 2244(d)(2) because no period remains to be tolled). Here, the State asserts that Arbelaez did not have a “properly filed” motion pending because his second post-conviction motion, as filed, failed to attach the oath required by the Florida Rules of Criminal Procedure. Ar-belaez asserts that he did, in fact, attach an oath to his motion.

State Post-Conviction History

Arbelaez’s state post-conviction proceedings began in August of 1995 when he filed his initial post-conviction motion. See Arbelaez v. State, 775 So.2d 909 (Fla.2000). After receiving responses to his public records requests, Arbelaez filed an amended motion in July of 1996. The trial court summarily denied all relief and Arbelaez appealed to the Florida Supreme Court. Id. at 912. The Florida Supreme Court affirmed in part, reversed in part, and remanded for an evidentiary hearing on Arbelaez’s claim of ineffective assistance of counsel during the penalty phase. Id. at 920.

Meanwhile, after the evidentiary hearing ordered by the Florida Supreme Court was held, but before the state trial court’s order denying the ineffective assistance of counsel claim, Arbelaez filed a “supplemental motion under Florida Rule 3.850 arguing the applicability of the then recent United States Supreme Court decisions in Ring v. Arizona, 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] (2002), and Atkins v. Virginia, 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335] (2002).” This supplemental motion was filed on October 10, 2002. (See [DE 15-47] at 13-46). The state trial court ultimately denied relief on the ineffective assistance of counsel at the penalty phase claim. Arbelaez v. State, 898 So.2d 25 (Fla.2005). The supplemental motion was also denied by the trial court before the Florida Supreme Court reached the merits of Arbelaez’s appeal of the denial of his post-conviction claim. The Florida Supreme Court consolidated the appeal of the denial of the claim after hearing and the denial of the supplemental motion. See Arbelaez v. State, 898 So.2d 25 (Fla.2005). The mandate issued on April 4, 2005. ([DE 15-283] at 21).

However, before that mandate issued, Arbelaez filed his second motion to vacate judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850. The second motion was filed on November 30, 2004. ([DE 15-67] at 11-30). This is the operative motion. If this second motion was not properly filed, Arbelaez’s federal habeas petition is untimely.

In the second motion, Arbelaez asserted that he could not be executed because he was mentally retarded. The State responded and filed a motion to strike asserting that: (1) Arbelaez did not seek relinquishment from the Florida Supreme Court of his pending appeal, (2) that counsel for Arbelaez failed to attach a certificate of good faith that the motion was made in good faith and on reasonable grounds to believe that his client is intellectually disabled, (3) the motion failed to attach expert opinions and (4) the motion attacks the constitutionality of Florida Rule 3.203 and cannot be a claim under the rule it challenges. ([DE 15-67] at 31). The state trial court held oral argument and then summarily denied the motion, finding it without merit, refuted by the record, and procedurally barred as previously raised. ([DE 15-67] at 70). On appeal, the Florida Supreme Court remanded the case back to the state trial court for an evidentiary hearing on the claim. See Arbelaez v. State, 950 So.2d 413 (Fla.2006) (unpublished opinion).

The Florida trial court held evidentiary hearings on June 23-26, July 15-17, and July 20-21, 2009. On May 7, 2010 the Florida trial court denied the claim. Arbe-laez appealed to the Florida Supreme Court, which affirmed the ruling on September 19, 2011. See Arbelaez v. State, 72 So.3d 745 (Fla.2011). The mandate issued on May 25, 2012. Arbelaez’s federal habe-as petition was filed on September 11, 2012. [DE 1]. If Arbelaez’s second post-conviction motion was properly filed, the instant federal habeas petition would be timely.

The State asserted in its Response to Arbelaez’s petition for writ of habeas corpus that the petition “is barred by the statute of limitations.” ([DE 13] at 35). The State made two principal arguments. The first argument is easily resolved. The State argued that Arbelaez’s third motion for post-conviction relief filed on November 23, 2010 did not toll the time because it should not be considered properly filed. ( [DE 13] at 36). The State asserted that it was not properly filed for federal habeas purposes because the state court ruled that the motion itself was untimely. (Id. at 37). However, Arbelaez’s federal habe-as petition was either due on April 4, 2006 (if no properly filed post-conviction motion was filed) or, if his second post-conviction motion was properly filed, then his federal petition was due one year from when the mandate issued on May 18, 2012. Either way, Arbelaez’s third post-conviction motion filed on November 23, 2010 does not affect the timeliness of Arbelaez’s federal habeas petition.

Waiver of Argument on Failure to Attach the Oath

The State’s second argument is that Ar-belaez’s second post-conviction motion was not properly filed because the “record shows that Petitioner never sworn [sic] to this motion.” ([DE 13] at 37).

In Florida, motions to vacate, set aside, or correct a sentence must be made under oath. See Rule 3.850(c) and 3.851(e)(1). The purpose of the 3.850 oath requirement was to prevent false allegations of fact without the fear of a perjury conviction. See Gorham v. State, 494 So.2d 211, 212 (Fla.1986). Failure to meet the oath requirement of the rule governing motions to vacate, set aside, or correct sentence warrants dismissal of such motion without prejudice. Florida Rule of Criminal Procedure 3.987 requires that motions for post-conviction relief must be “legibly handwritten or typewritten, signed by the defendant, and contain either the first or second oath set out at the end of this rule.”

The record reflects that Arbelaez’s second post-conviction motion does not currently have such an oath attached. ([DE 15-67] at 11-30). The record also reflects that for 8 years and after multiple hearings, hundreds of pages of pleadings, a fully-briefed appeal to the Florida Supreme Court, a remand ordering an evi-dentiary hearing on the motion, the actual evidentiary hearing being held over a period of several weeks in the state trial court, and another fully-briefed appeal to the Florida Supreme Court, the State asserts, for the first time, that Arbelaez’s second post-conviction motion was unsworn.

The State essentially asserts that the failure on its part to raise this issue before now should be of little concern to this Court despite the fact that the Florida Supreme Court considered the motion on the merits. In support of this argument, the State cited two cases. Gorby v. McNeil, 530 F.3d 1363, 1367-68 (11th Cir. 2008) and Walton v. Sec’y, Fla. Dep’t of Gorr., 661 F.3d 1308, 1310-12 (11th Cir.2011). In Gorby, no party disputed that the post-conviction motion was untimely under the state procedural rules and the state trial court found it untimely when the motion was denied. In Walton, the State Supreme Court denied Walton’s second ha-beas petition as successive. In both cases, the state court was clear that there was a procedural infirmity with the post-conviction motion. As such, the Eleventh Circuit concluded that it “will not allow the tolling of AEDPA’s limitations period when it is clear that the petitioner failed to seek timely review -in state court.” Gorby, 530 F.3d at 1368. (emphasis added). These two cases are factually distinguishable.

In this case, the State is implying the Court’s task is straightforward. The Court should look at the motion, see that there is no oath from Arbelaez attached and find that it was not properly filed. Arbelaez’s federal habeas petition would be dismissed and the merits of his case never considered. For 8 years, counsel for the State failed to advise any court that the second post-conviction motion was supposedly unsworn, but now advances that argument as the basis for this Court to deny Arbelaez the opportunity to have his federal habeas petition heard on the merits. Given the specific facts of this case, the Court rejects the State’s view that a federal court should find that a state post-conviction motion was not properly filed for failure to attach an oath even though the state court reached the merits of the motion.

State Court Record

Arbelaez’s state court record spans 24 years. The Florida Supreme Court remanded the case several times for eviden-tiary hearings after the state trial court summarily denied his Rule 3.850 motions. As one might expect, with 20 plus years of post-conviction litigation, the record is voluminous. This Court has reviewed the entire file and confirms that fact. Human nature almost assures that documents will be misplaced or misfiled when dealing with such a large court file. This is why the State’s last minute contention that the second post-conviction motion was unsworn is itself untimely. In addition, the proposition is devoid of sufficient reliability, in view of the voluminous page pleadings that are part of the record that cannot exclude the possibility, if not the probability, that the document with the oath is simply lost. This is particularly probable when considering the sworn statement by Petitioner’s counsel that the petition was accompanied by the required oath.

In reply to the State’s timeliness arguments, Arbelaez provided the Court with 12 motions or notices filed over the course of 19 years where the Miami-Dade County Clerk’s Office had lost, misplaced, or otherwise failed to provide the Florida Supreme Court with the proper record on appeal. ([DE 24] 3-14). The items missing from the record included portions of the actual trial transcripts from the guilt and sentencing phases, ([DE 24-3]); Volume 1 of Arbelaez’s entire court file ([DE 24-4]); the order denying relief by the lower court following an evidentiary hearing; a motion to disqualify the lower court judge; a motion to exclude the potential testimony of witness Lisa Wiley ([DE 24-5]); “missing pages 2 thru 5” of the Motion to Disqualify Judge and Supporting Memorandum of Law ([DE 24-6]); the State’s Response in Opposition to the Motion to Disqualify and the Order on the Motion to Recuse ([DE 24-7]); certain documents were filed but returned by the Florida Supreme Court for incorrect pagination, ([DE 24-10]); the State’s Motion to Strike Motion to Vacate Judgment and Sentence Pursuant to Rule 3.850/3.851 and the appendix ([DE 24-11]); a notice of appearance; an order scheduling status conference for July 12, 2007; an order scheduling status conference for July 6, 2007; an order scheduling status conference for September 24, 2007; an attachment to notice of filing; the State’s motion for test protocols/raw data, notice of court appearance; the State’s notice of hearing on November 26, 2007; the State’s motion to establish procedure during the psychological examination of defendant; the response to motion to establish procedure during psychological examination; the motion to obtain test to be administered by state psychologist; the motion to videotape evaluation; the petitioner’s emergency petition to stay proceedings; the notice of filing defendant’s supplemental witness list; the notice of filing order scheduling case management conference; the Defendant’s Exhibit C; the order scheduling status conference; the transcript of telephonic deposition; the motion for reconsideration of evidentiary ruling; the memorandum of law regarding background materials supplied to expert; the notice of intent to appear telephonically; the defendant’s written closing argument; the notice of appeal; the order scheduling status conference; the notice of hearing; the order scheduling status conference. ([DE 24-13]). The State knew of the incompleteness of the court record because the State either filed the actual motions to supplement the record or was consulted by opposing counsel and did not object to his request to have the record supplemented.

With the passing of more than a quarter of a century, it is understandable that the record is replete with missing or incomplete documents, inaccurate photocopying, and incorrect pagination. Yet the State would like the Court to simply dismiss the petition of an inmate sentenced to death without giving consideration to the merits of his claims or even to the substantial probability that the attached page with the oath to the Petitioner’s second state post-conviction motion is simply lost. Under the unique facts of this case—particularly the passage of 8 years before the State raises any objection to the supposedly missing page with the oath—the Court will not elevate form over substance under the time-barred statutory and case law applicable to a federal post-conviction petition. More importantly, because of the numerous missing documents throughout the 8-year period of post-conviction litigation, the State simply has not proven that the second post-conviction motion was not sworn. Arbelaez filed an affidavit from his post-conviction counsel, Todd Scher, Esq. that swore under oath that he filed Arbe-laez’s oath when the Rule 3.850 motion was filed. ([DE 24-1]). “What I can say with absolute certainty is that the verification was filed and that the State never took a position to the contrary in all the years that the motion was being litigated in the state court.” (Id. at 3).

Without more, the Court must review the merits of Arbelaez’s claims finding the State has not rebutted the Petitioner’s claim that he filed an oath. In any event, the State has waived its timeliness objection by being untimely itself.

IV. Standard of Review

Having disposed of the timeliness objection, the Court proceeds to analyze the merits of the petition. Arbelaez’s habeas corpus petition is governed by the Antiter-rorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996) (codified as amended at 28 U.S.C. §§ 2241-55), which significantly changed the standards of review that federal courts apply in habeas corpus proceedings. The AEDPA allows federal courts to grant habeas corpus relief only if the state court’s resolution of those claims (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.” 28 U.S.C. § 2254(d).

“A state court decision’s is ‘contrary to’ clearly established Supreme Court precedent in either of two respects: (1) ‘if the state court applies a rule that contradicts the governing law set forth'in [Supreme Court] cases,’ or (2) ‘if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” DeBruce v. Comm’r, Ala. Dep’t of Corr., 758 F.3d 1263, 1266 (11th Cir.2014) (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The Eleventh Circuit also drew the distinction from when a state court decision is an unreasonable application of clearly established federal law versus an incorrect application of federal law. Id. In so holding, DeBruce instructed federal courts to grant state courts “deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id. (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011)). As a result, a federal court must deny habeas relief “so long as fairminded jurists could disagree oh the correctness of the state court decision.” Id. (quoting Harrington, 131 S.Ct. at 786).

With respect to the “unreasonable application” prong of § 2254(d)(1), which applies when a state court identifies the correct legal principle but purportedly applies- it incorrectly to the facts before it, a federal habeas court “should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495; see also Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). An “unreasonable application” can also occur if a state court

“unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir.2001).

As noted above, § 2254(d)(2) provides an alternative avenue for relief. Habeas relief may be granted if the state court’s determination of the facts was unreasonable. “A state court’s determination of the facts, however, is entitled to deference” under § 2254(e)(1). See DeBruce, 758 F.3d at 1266-67. This means that a federal habeas court must presume that findings of fact by a state court are correct; and, a habeas petitioner must rebut that presumption by clear and convincing evidence. See Hunter v. Sec’y, Dept, of Corr., 395 F.3d 1196, 1200 (11th Cir. 2005).

Finally, where a federal court would “deny relief under a de novo review standard, relief must be denied under the much narrower AEDPA review standards.” Jefferson v. Fountain, 382 F.3d 1286, 1295 n. 5 (11th Cir.2004).

V. Analysis

Arbelaez asserts four claims for federal habeas relief. First, Arbelaez contends that it would violate the Eighth Amendment’s prohibition against excessive punishment to execute him because he is intellectually disabled as defined by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Arbelaez’s second ground for relief is a hybrid of the first. Arbelaez’s first argument is a legal one as he asserts that the Florida Supreme Court unreasonably applied clearly established federal law when it determined that Arbe-laez was not intellectually disabled. His second claim is that the Florida Supreme Court made an unreasonable determination of the facts when it determined that Arbelaez was not-mentally retarded. Ar-belaez’s third claim is that he was denied the effective assistance of counsel during the penalty phase of his trial. Finally, Arbelaez argues that he was denied the effective assistance of counsel during the guilt phase of his trial. For the reasons that follow, Arbelaez’s four claims for ha-beas relief are dismissed

A. The Florida Supreme Court’s application of Atkins v. Virginia.

In order for the Court to grant Arbelaez federal habeas relief, he must show that, when the Florida Supreme Court determined that he “did not prove that he has concurrent deficits in, adaptive behavior,” that this was an unreasonable application of clearly established federal law. Arbelaez v. State, 72 So.3d 745 (Fla.2011) (unpublished opinion). This is a very high standard to meet. Under these circumstances, Arbelaez can satisfy the “unreasonable application” prong of § 2254(d)(1) only by showing that “there was no reasonable basis” for the Florida Supreme Court’s decision. Harrington, 131 S.Ct. at 784 (2011) (“[A] habeas court must determine what arguments or theories ... could have supporte[d] the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.”). It is undisputed that Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, is the clearly established federal law governing Arbelaez’s claim that the death penalty would violate the Eighth Amendment’s prohibition because he is intellectually disabled. ■

Atkins v. Virginia and Hall v. Florida

Arbelaez asserts that the Florida Supreme Court’s determination that he is not mentally retarded was an unreasonable application of, and in conflict with, the clearly established federal law as recited by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The basis for his argument is that the Florida Supreme Court unreasonably applied Atkins “by placing an impossible burden on Arbelaez to show adaptive deficits in an environment where adaptive behavior cannot be observed,” ([DE 1] at 35), such as the structural institutional setting of a prison.

In Atkins, the United States Supreme Court held that the execution of mentally retarded offenders is categorically prohibited by the Eighth Amendment to the U.S. Constitution. 536 U.S. at 321, 122 S.Ct. 2242. Atkins did not define mental retardation, leaving it to the states. to develop appropriate ways to prohibit the execution of the mentally retarded. However, the Court did provide some guidance to the states regarding the definition of mental retardation by citing two clinical definitions of mental retardation that it noted were consistent with many state statutory definitions. Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242. It was not until after Atkins that the Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.203 establishing the procedure for all capital defendants raising claims of mental retardation or intellectual disability as a bar to execution. See Fla. R.Crim. P. 3.203; Amendments to Fla. R. of Crim. P. & Fla. R. of App. P., 875 So.2d 563 (Fla. 2004). Prior to the Atkins decision and the enactment of Rule 3.203, the State of Florida had only a statutory prohibition against the execution of mentally retarded person. Rule 3.203’s definition of mental retardation is substantially identical to that of Florida Statute § 921.137 and the clinical definitions in Atkins-. According to Florida law, Rule 3.203 is applicable to Arbelaez’s claim.

Florida Rule of Criminal Procedure 3.203(b) provides:

Definition of Mental Retardation. As used in this rule, the term “mental retardation” means significantly subaver-age general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,” for the purpose of this rule, means performance that is two or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and Family Services in rule 65G-4.011 of the Florida Administrative Code. The term “adaptive behavior,” for the purpose of this rule, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.

On May 27, 2014 the United States Supreme Court in Hall v. Florida, — U.S.-, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014) found Florida’s law defining intellectual disability to require an Intelligence Quotient (“IQ”) test score of 70 or less was too rigid to pass constitutional scrutiny. A state cannot execute a person whose IQ test score falls within the test margin of error, unless he has been able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. The Supreme Court instructed courts to examine a variety of adaptive deficits to determine if an individual is intellectually disabled and therefore, exempt from the death penalty. Thus, the Florida Supreme Court’s use of a bright-line rule of an IQ of 70 as discussed in Cherry v. State, 959 So.2d 702 (Fla.2007) was reversed. Under Cherry, in Florida, a person whose IQ test score was above 70, including a score within the margin of measurement error, was automatically found not to have an intellectual disability and was barred from presenting other evidence that would show his faculties are limited. Arbelaéz’s IQ score, according to his own expert, is below 70. Therefore, the strict IQ test score cutoff of 70 invalidated by the United States Supreme Court is not an issue in this case.

In fact, as Hall points out “[i]n determining who qualifies as intellectually disabled, it is proper to consult the medical community’s opinions.”

As the Court noted in Atkins, the medical community defines intellectual disability according to three criteria: significantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the developmental period. This last factor, referred to as “age of onset,” is not at issue. The first and second criteria—deficits in intellectual functioning and deficits in adaptive functioning—are central here. In the context of a formal assessment, “[t]he existence of concurrent deficits in intellectual and adaptive functioning has long been the defining characteristics of intellectual disability.”

Hall, 134 S.Ct. at 1994 (2014) (internal citations omitted) (quoting Brief for American Psychological Assoc., et al. as Amici Curiae, 12-13). The Court in Atkins did not provide a specific definition of mental retardation, but it did provide two clinical definitions for the diagnosis as guidance to the states:

The American Association on Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaverage intellectual functioning, existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed.1992).

The American Psychiatric Association’s definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50-55 to approximately 70. Id., at 42-43.

Atkins, 536 U.S. at 309, n. 3, 122 S.Ct. 2242. It is apparent, from the text of Florida’s Rule 3.203 and the clinical definitions in Atkins, that Florida’s definition of mental retardation is substantially similar to those cited by the United States Supreme Court in both Atkins and Hall.

The parties do not dispute that Florida’s definition of intellectual disability or mental retardation and that of the American Association of Mental Retardation (“AAMR” and now the “AAIDD”) and the American Psychiatric Association (“APA”) are consistent. Arbelaez concedes that “[t]he Florida definition of mental retardation as it pertains to a criminal defendant’s eligibility for the death penalty is consistent with and virtually identical to those promulgated by the APA and AAMR.” ( [DE 1] at 36). Where the dispute between Arbelaez and the State arises is in Florida’s application of that definition. Specifically, Arbelaez’s argument is that “[t]he issue at had [sic] is whether Atkins permits a state to craft a definition of Mental Retardation that requires the application of diagnostic criteria so restrictive as to preclude a diagnosis of Mental Retardation ever being made on incarcerated individuals, which is what the Florida scheme efi fectively does.” ([DE 24] at 19).

Therefore, the question before the Court is a narrow one. Arbelaez’s first claim is not necessarily about the application of Atkins to his specific facts but, instead it is that Florida’s method for determining mental retardation is unconstitutional. (See [DE 24] at 21). Despite the limited nature of this claim, the Court has reviewed the entire record from the state courts and will discuss the evidence in detail before addressing the merits.

Evidentiary Hearing

Arbelaez was granted an evidentiary hearing on this claim in state court. Over a period of several days, the defense and the State presented expert and lay witnesses to testify as to Arbelaez’s level of intelligence, adaptive behaviors, and manifestation before age 18. A summary of the testimony follows:

(1) Dr. Ricardo Weinstein, a licensed psychologist from California, testified about the necessity to conduct a retrospective analysis when the individual being evaluated is older than 18 years of age to establish that the disability was present prior to age 18. ([DE 15, Appx. GG, Vol. 78] at 153). In the course of his evaluation, Dr. Weinstein interviewed Arbelaez, conducted testing, reviewed documents, interviewed collateral sources and conducted adaptive behavioral assessments with Ar-belaez’s family, friends and employers in both the United States and in Colombia. Dr. Weinstein administered intelligence testing and concluded that Arbelaez’s IQ is below 70. Dr. Weinstein conducted tests with Arbelaez but did not interview or speak to anyone within the correctional system. Dr. Weinstein did not interview prison officials because “they wouldn’t have any knowledge regarding how Arbe-laez functions in the real world.” (Id. at 192). Dr. Weinstein testified that the specific crime for which Arbelaez was convicted is “not relevant for the determination of mental retardation.” Dr. Weinstein also testified that “the facts of the crimes are not relevant to the determination of mental retardation.” (Id. at 276). Further) Dr. Weinstein testified that what Ar-belaez remembers “about the crime and his confession is also not relevant'for the determination of mental retardation.” (Id.). Ultimately, Dr. Weinstein concluded that Arbelaez should be diagnosed as having mental retardation based on his subav-erage intelligence and the adaptive deficits present before age 18.

(2)The defense called Dr. Marc Tasse, a licensed psychologist. ([DE 15, Vol. 37, Appx. GG] at 379). Dr. Tasse’s areas of expertise are mental retardation and autism. Dr. Tasse co-authored the User’s Guide on how to help clinicians make a diagnosis of intellectual disabilities. Dr. Tasse testified that the State of Florida’s definition of mental retardation is consistent with the American Association of Intellectual and Developmental Disabilities and the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition. (Id. at 388). However, Dr. Tasse also testified that a retrospective diagnosis is appropriate for individuals who have been incarcerated for some time. Dr. Tasse offered little by way of facts about Arbelaez because he did not meet or evaluate Arbe-laez. Rather, he testified generally about how mental retardation should be diagnosed in a clinical context.

(3) The defense also called Dr. Thomas Oakland. Dr. Oakland has a PhD in educational psychology. ([DE 15, Vol. 38, Appx. GG] at 454). Dr. Oakland specializes in “adaptive behavior, the assessment of intelligence, mental retardation, ... ethics and law, or at least ethics and temperament.” (Id. at 459). Similar to Dr. Tasse, Dr. Oakland did not meet or interview Arbelaez. Dr. Oakland testified that “[i]t is not possible to assess adaptive behavior within the setting similar to death row.” (Id. at 556). Dr. Oakland interpreted “concurrent” when assessing adaptive behavior to mean before age 18 rather than “now.” (Id. at 568). Dr. OaHand testified that “nothing that happens in the prison setting, in which the defendant lives now, can inform [him] as to whether or not [Arbelaez] is mentally retarded.” (Id. at 582). Dr. Oakland also testified that the fact that Arbelaez fled after the crime, used an alias, and traveled to Puerto Rico would not tell him anything about Arbe-laez’s adaptive behavior because “I don’t know the context or the degree to which that was independent.” (Id. at 587). Dr. Oakland also testified that all criminal behavior is mal adaptive and is not considered in making a diagnosis of adaptive deficits.

(4) The defense then called a series of lay witnesses who testified regarding Ar-belaez’s life when he resided in Medellin, Colombia as a child or as an adult in Miami, Florida: Amparo Arbelaez Alvarez (Arbelaez’s sister), Flor Celina Arboleda Palacio (Arbelaez’s sixth grade Spanish teacher), Vincente Manuel Soler (Arbe-laez’s former employer), Jorge Salazar (a friend with whom Arbelaez briefly resided with in Miami), and Martha Arguelles (a friend of Arbelaez who provided him with the money to leave the country after the crime).

(5) The defense also called three corrections officers, who have observed Arbelaez while on death row: Sergeant Henry-Walker, Sergeant Jerome Lee (supervisor of the prison law library) and Officer John Flattery. These officers testified regarding the policy and procedures of the prison and, specifically, the operations of death row. [DE 15, Yol. 39, Appx. GG]. These officers were asked to complete an adaptive behavior questionnaire from Dr. Suarez, the State’s expert witness. The defense inquired about the specific process of completing the questionnaire.

(6) The State called Dr. Enrique Suarez, a licensed psychologist. ([DE 15, Vol. 40, Appx. GG] at 860). Dr. Suarez testified that, in Florida, mental retardation is diagnosed by looking at intellectual functioning and, at the same time, adaptive behavior. If those two prongs are met, then you would consider if those adaptive deficits and subaverage intellect also existed before the age of 18. (Id. at 880-82). Dr. Suarez testified that he reviewed records both before and after Arbelaez’s arrest and incarceration. Dr. Suarez also met with and conducted tests on Arbelaez while he was on death row. Dr. Suarez conducted the testing in Spanish. (Id. at 905). In reaching his conclusion that Ar-belaez was not mentally retarded, Dr. Suarez considered that Arbelaez came to this country from Colombia with relatively little assistance, secured employment, which he performed at an acceptable level, utilized alias at work (before he was legally eligible to work in the United States) and he fled to Puerto Rico after the crime. Arbelaez was also able to drive, run errands, and take his clothing to the laundromat. Dr. Suarez found that Arbelaez’s ability to communicate with others and understand his environment even in an English speaking country is relevant to making a determination of mental retardation. (Id. at 968). Dr. Suarez reviewed artwork that Arbelaez has done while incarcerated. This artwork is posted on a website by the Canadian Coalition Against the Death Penalty. Arbelaez sends his artwork to a pen pal in England who has them uploaded to the website. Dr. Suarez concluded by testifying definitively that Arbelaez is not mentally retarded.

(7) The State next called Dr. Sonia Ruiz, ([DE 15, Vol. 41, Appx. GG] at 1097), a clinical psychologist, appointed by the court to conduct a psychological evaluation of Arbelaez in November 2001. In the course of her evaluation, Dr. Ruiz reviewed prior evaluations conducted by Dr. Latterner and Dr. Castellanos. Dr. Ruiz interviewed Arbelaez for an hour and a half. Arbelaez told Dr. Ruiz that he had traveled alone to Venezuela, the Bahamas, Panama, and Jamaica prior to his arrival in the United States in 1980. Dr. Ruiz also considered Arbelaez’s work history prior to his incarceration where he held a variety of jobs including when he was in charge of “opening up, receiving and distributing merchandise to the cook.” (Id. at 1110). Dr. Ruiz concluded that it was not her “opinion that the defendant was mentally retarded.” (Id. at 1120). Dr. Ruiz relied primarily on Arbelaez’s self-reporting and did not independently corroborate the information that he provided to her.

(8) The State’s final witness was Lisa Wiley. Ms. Wiley worked at the Florida Department of Corrections as a Mental Health Specialist. She is a psychologist with a master’s degree but she is not a licensed clinical psychologist. ([DE 15, Vol. 41, Appx. GG] at 1139). She has been trained to evaluate people for mental retardation. Ms. Wiley has known Arbelaez since 1992. Ms. Wiley testified that Arbe-laez was neat, well-kept and his cell was clean. Ms. Wiley did not observe an inability to care for himself, which could have been indicative of mental retardation. (Id. at 1175). However, Ms. Wiley has only observed Arbelaez in the structured institutional setting of prison.

After the hearing concluded, the state circuit judge issued a detailed order summarizing the witnesses’ testimony and the appropriate legal standard. ([DE 15, Appx. GG, Vol. 35] at 6388-6405). Specifically, the post-conviction judge found:

Defendant’s reliance solely on a retrospective evaluation is not in compliance with the Florida Supreme Court’s holdings in Phillips and Jones that found this type of evaluation is not sufficient to prove deficits in current adaptive behavior. Defendant made no effort whatsoever to present any evidence to show that he had present adaptive behavior deficits occurring contemporaneously with the determination of his IQ.

(Id. at 6404). In other words, because Arbelaez’s IQ tests were administered while he was in prison, his adaptive deficits too must be measured while he is in prison. Rule 3.203 clearly states that such subaverage intelligence must be existing concurrently with adaptive deficits. The Florida Supreme Court agreed with the trial court.

Guillermo Octavio Arbelaez filed a successive post-conviction motion in which he raised claims based on Atkins v. Virginia, 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335] (2002). The post-conviction court denied the motion after an evidentiary hearing. We hereby affirm the post-conviction court’s denial of relief. Arbelaez did not prove that he has concurrent deficits in adaptive behavior as required by section 921.137(1), Florida Statutes (2004), and Florida Rule of Criminal Procedure 3.203(b).

Arbelaez v. State, 72 So.3d 745 (Fla.2011) (unpublished opinion). Despite its brevity, this is the opinion to which the Court must give AEDPA deference. “It is by now abundantly clear that AEDPA deference applies to summary dispositions of a state court, because § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.’ ” Bishop v. Warden, 726 F.3d 1243 (11th Cir.2013). A review of Florida law both before and after the Florida Supreme Court’s opinion in Arbelaez shows that the court was consistent in its analysis of Arbelaez’s claim.

Florida law

In the decade or so since the inception of Florida Rule of Criminal Procedure 3.203, the Florida Supreme Court has reviewed substantive mental retardation claims made pursuant to this Rule numerous times. See Johnston v. Florida, 960 So.2d 757 (Fla.2006); Rodgers v. State, 948 So.2d 655 (Fla.2006); Trotter v. State, 932 So.2d 1045 (Fla.2006); Cherry v. State, 959 So.2d 702 (Fla.2007); Burns v. State, 944 So.2d 234 (Fla.2006); Brown v. State, 959 So.2d 146 (Fla.2007); Nixon v. State, 2 So.3d 137 (Fla.2009).

However, it was not until Jones v. State, 966 So.2d 319 (Fla.2007), that the Florida Supreme Court addressed this precise issue: at what point in time does one measure adaptive deficits? Prior to Jones, the court had limited its discussions to the standard for subaverage intelligence. In those cases, the State of Florida adopted a bright line rule of an IQ of 70 or below, which has now been rejected by the United States Supreme Court in Hall. As the focus was on intelligence, these earlier cases had only a generalized discussion regarding adaptive deficits. See Cherry v. State, 959 So.2d 702 (Fla.2007). However, Jones transformed the generalized into a specific standard.

Since 2007, the law in Florida has been clear. The precise issue raised by Arbe-laez now was litigated in Jones with the respective expert witnesses asserting the same arguments as those made here by Arbelaez. Jones’ arguments were specifically rejected by the Florida Supreme Court in 2007; several years prior to the evidentiary hearing on Arbelaez’s mental retardation. Accordingly, Arbelaez knew what Florida law said he must show to be successful on his claim. Yet, Arbelaez proceeded to assert a virtually identical argument that was made, and rejected, in Jones.

In Jones, the defense called Dr. Hyman Einstein. Dr. Einstein testified that he “conducted a ‘retrospective diagnosis’ to assess Jones’s adaptive levels before age 18. He concluded that Jones’s adaptive skill levels as an adult were not part of the criteria defining mental retardation.” Jones, 966 So.2d at 323. (emphasis in original). Conversely, the State’s expert, Dr. Enrique Suarez stated that “according to the applicable diagnostic manual, the inquiry into adaptive functioning must consider present circumstances because true mental retardation is lifelong.” Id. at 324. Ultimately, the Florida Supreme Court squarely rejected the argument made by Jones, that the' intellectual functioning component is based on current testing while the adaptive deficits inquiry is limited to behavior occurring before the age of eighteen.

Both Florida law and our rule state that the exception to the death penalty applies to a defendant who “is mentally retarded” or “has mental retardation.” § 921.137(2), Fla. Stat. (stating no person may ,be sentenced to death “if it is determined in accordance with this section that the defendant has mental retardation”); Fla. R.Crim. P. 3.203(e) (providing for an evidentiary hearing to consider “the issue of whether the defendant is mentally retarded”). Thus, the question is whether a defendant “is” mentally retarded, not whether he was. Both the statute and our rule define mental retardation as .“significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” § 921.137(1), Fla. Stat. (2005) (emphasis added); Fla. R.Crim. P. 3.203(b). Jones does not dispute that the intellectual functioning component must be based on current testing. Moreover, his own expert based his determination of this prong largely on testing administered between 1991 and 2005, from the time Jones was 29 to the time of the rule 3.203 hearing. "What Jones argues is that the second prong is concerned solely with an individual’s adaptive behavior as a child under age 18. The legal definition, however, states that the intellectual functioning component must “exist[] concurrently with” the deficient adaptive behavior. The word “concurrent” means “operating or occurring, at the same time.” Merriam Webster’s Collegiate Dictionary 239 (10th ed.2001). Jones’s analysis would require us to ignore the plain meaning of the phrase “existing concurrently with” that links the first two components of the definition. The third prong—“and manifested during the period from conception to age 18”—specifies that the present condition of “significantly subaverage general intellectual functioning” and concurrent “deficits in adaptive behavior” must have first become evident during childhood.

Id. at 326. Likewise, the court rejected the alternate contention made by Arbelaez here, which is that Atkins prohibits a determination of an individual’s current adaptive skills if that person is in prison. Id. at 327. The Florida Supreme Court found no basis for this argument. Nonetheless, Arbelaez made these precise arguments on appeal to the Florida Supreme Court years later. This strategy resulted in Arbelaez having presented no evidence to the trial court of adaptive deficits concurrent with his subaverage intelligence.

One year after Jones, the Florida Supreme Court reaffirmed that it “held retrospective diagnosis insufficient to satisfy the second prong of the mental retardation definition. We found that both the statute and the rule require significantly subaver-age general intellectual functioning to exist concurrently with deficits in adaptive behavior.” Phillips v. State, 984 So.2d 503 (Fla.2008) (citing Jones, 966 So.2d at 325-27).

In finding that Phillips was not mentally retarded, the Florida Supreme Court did not limit its analysis to Phillips’ behaviors while in prison. After a review of Phillips’ conduct both before and after the crime, the court concluded that Phillips had failed to prove adaptive deficits. The factors the court considered were his previous employment, his functioning at home such as paying bills and household chores, his ability to cook and grocery shop. The court also considered that the crime had been planned and Phillips engaged in a coverup, which indicated foresight and acts of self-preservation indicating adaptive behavior. The court also found that actions required to satisfy the cold, calculated, and premeditated aggravator are not indicative of mental retardation. See Atkins, 536 U.S. at 319-20, 122 S.Ct. 2242 (“Exempting the mentally retarded from [the death penalty] will not affect the ‘cold calculus that precedes the decision’ of other potential murderers. Indeed, that sort of calculus is at the opposite end of the spectrum from behavior of mentally retarded offenders.”). When Arbelaez asserted that the Florida Supreme Court definition of mental retardation runs afoul of Atkins because it “requires the application of diagnostic criteria so restrictive as to preclude a diagnosis of Mental Retardation ever being made on incarcerated individuals,” he is vastly overstating the state court’s analysis of Atkins’ claims.

Jones and Phillips were followed by Hodges v. State, 55 So.3d 515 (Fla.2010). For a third time, the Florida Supreme Court held that “subaverage intellectual functioning must exist at the same time as the adaptive deficits, and there must be c