Full opinion text
PER CURIAM: Michael Wayne Hall was convicted of capital murder in state court. He sought state and federal habeas relief, requesting in each forum a live evidentiary hearing on his claim of mental retardation. Each court denied his request. We granted a Certificate of Appealability. I Michael Wayne Hall was tried in Texas state court for the murder of Amy Robinson and convicted of capital murder by the jury. Although he was convicted prior to the Supreme Court’s decision in Atkins v. Virginia, which held that the execution of mentally retarded defendants is unconstitutional, there was evidence regarding his mental abilities presented at trial in mitigation. On direct appeal, the Texas Court of Criminal Appeals (the “CCA”) affirmed the conviction, rejecting his Penry claim and his claim that the Constitution barred the execution of mentally retarded persons. Hall filed a state petition for writ of habeas corpus and a petition for certiorari with the United States Supreme Court. In his state habeas petition, Hall asserted his claim of a constitutional bar to execution of the mentally retarded and requested a “full and fair hearing,” urging, “There has never been a fact finding rendered by either the trial court or a jury as to the issue of whether Applicant is, in fact, mentally retarded.” While his state habeas claim was pending, the Supreme Court decided Atkins. Hall requested a live hearing on the mental retardation issue, urging, “Because the issue of whether or not Applicant is ‘mentally retarded’ has never been fully and fairly litigated and resolved by a fact-finder, this Court cannot rely solely on ... [its] recollection of the testimony from the trial which was conducted over two (2) years ago. This Court should, at a bare minimum, conduct a live hearing on this matter.” Hall also objected to the state court’s “conducting a hearing on Applicant’s Atkins claim via affidavit rather than via live hearing.” Despite Atkins, the trial court conducted a “hearing” by affidavit without awaiting the disposition of Hall’s pending certiorari petition, and the CCA, relying on the paper results, denied Hall’s state habeas claim. The Supreme Court granted Hall’s petition for certiorari from his direct appeal to the state court, vacating and remanding to the CCA to reconsider its initial affirmance of Hall’s conviction in light of Atkins. The CCA, relying on the state habeas and direct appeal records and a “re-review[ ][of] the evidence” from the records, held that Hall was not mentally retarded. Hall appealed again to the Supreme Court, which denied certiorari, and he then filed a federal habeas petition, again arguing, “Mr. Hall has a right under the Fifth, Sixth, Eighth, and Fourteenth Amendments to a full and fair hearing in a court of law on the issue of his mental retardation.” The federal district court relied on the state record to conclude that Hall was not retarded, and denied Hall’s Atkins claim. We granted a COA. II In applying the deferential standard under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we are mindful of the unique facts of this case, in that Atkins was decided after Hall’s conviction, and the state’s paper hearing on the Atkins mental retardation issue was completed before Texas had defined mental retardation under the Atkins standard. We review the federal district court’s refusal to grant an evidentiary hearing on the Atkins issue for an abuse of discretion. Section 2254(e)(2) of United States Code Title 28 does not constrain the district court’s discretion here because Hall diligently developed the factual basis of his claim in state court. In the state habeas proceedings, Hall consistently raised his claim that he was mentally retarded and that execution of a mentally retarded individual is unconstitutional. He also provided affidavits of experts, affidavits of former teachers and other individuals who were familiar with Hall’s capabilities, and evidence of mental limitations, such as medical records, grade reports and special education screening results from school, and the results of Hall’s examination for competency to stand trial. These were more than adequate to establish a factual basis for his mental retardation claim. Once a district court determines that a petitioner may be entitled to an evidentiary hearing, this is not the end of the inquiry, since “[i]n cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court.” In determining whether to grant a hearing, under Rule 8(a) of the habeas Court Rules “ ‘the judge must review the answer [and] any transcripts and records of state-court proceedings ... to determine whether an eviden-tiary hearing is warranted.’ ” And the Supreme Court has held since AEDPA that the court must also “consider whether such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief. Because the deferential standards prescribed by § 2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an eviden-tiary hearing is appropriate.” And finally, a district court abuses its discretion in not holding an evidentiary hearing only if the state court failed to provide a full and fair hearing. The facts before us are a core manifestation of a case where the state failed to provide a full and fair hearing and where such a hearing would bring out facts which, if proven true, support habeas relief. Hall alleges that he is mentally retarded under Texas’ Atkins test for mental retardation announced in Ex Parte Brise-no: under Briseno a defendant must prove that he has “(1) significantly subaverage general intellectual functioning [‘defined as an IQ of about 70 or below’]; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.” Because neither Atkins nor the Briseno test had been established at his original trial, and Briseno was not decided until approximately two years after the state court’s paper hearing on mental retardation, upon which the CCA and the district court relied, Hall never had the opportunity to present a full range of evidence on this technical issue. The federal district court discussed the Briseno factors but did not conduct a hearing, relying instead on the state court’s findings of mental retardation—findings that were made prior to the Briseno test. The district court explained, “In his petition, Hall thoroughly reviews the voluminous evidence as to his mental capacity. The state does the same in its response. There is no reason for the court to do so again here.” The court examined the paper evidence and held, “Having independently reviewed all of the evidence, the court concludes” that “the state court’s finding that Hall is not mentally retarded was not unreasonable.” The district court also addressed Hall’s claim for a jury determination of mental retardation or, in the alternative, a live hearing. The district court found that Hall “failed to raise this issue in the state proceedings” and that it was procedurally defaulted. This conclusion is incorrect; Hall consistently raised this issue in his state and federal habeas petitions. The district court went on to hold that “[e]ven if not procedurally defaulted, Hall’s claim that he was entitled to a jury determination on mental retardation is without substantive merit. Nowhere in Atkins does the Supreme Court hold that a jury determination on this issue is required.” This conclusion is correct, but it misses a central element of Hall’s claim — namely, that Hall requested a jury trial or at minimum a live hearing. In reviewing the paper evidence, the district court failed to account for several clearly erroneous findings of the CCA which, if addressed in an evidentiary hearing, might have highlighted the unreasonableness of the state court’s determination of the facts and entitled Hall to habeas relief. The CCA’s habeas determinations rested on the state court’s findings from the paper hearing, as the CCA fully adopted those findings. In other words, errors in the state court’s factual findings were not corrected when they reached the CCA. In assessing the affidavits of experts, which address Hall’s IQ, the state court misread an IQ score of 67 reported in Dr. Church’s sworn affidavit, replacing a Wechsler Adult Intelligence Scale, third edition, exam (“WAIS-III”) score of 67 with 72. The state’s expert, Dr. Price, also erroneously relied on an IQ score of 72 in making his assessment, stating, “[I]f an individual is being assessed for the presence or absence of mental retardation and receives and [sic] IQ score of 72, then his or her actual IQ is 95% likely to fall between 67 and 77-a range of scores that may indicate mild mental retardation or borderline intelligence.” Relying at least partially on this error, the state trial court concluded that Hall’s intelligence level was “either in the borderline range of intellectual functioning or in the upper end of mild mental retardation.” A hearing would clarify whether Dr. Price’s conclusions with respect to Hall’s IQ, which influenced the state court’s finding, were premised on factual error. The state trial court also made erroneous findings with respect to the credibility of at least one of Hall’s experts — -an expert whose testimony was central to Hall’s allegations of limited adaptive functioning. The state concluded that Dr. Church’s submission should “not be given weight” because Texas law does not permit individuals with Dr. Church’s credentials to make mental health determinations. Texas’ Persons with Mental Retardation Act only permits physicians or psychologists licensed in Texas or certified by the Texas Department of Mental Health and Mental Retardation to make such determinations. Yet this Act is inapplicable in the Atkins context, and the state court’s conclusion to the contrary was clearly erroneous. “The PMRA, by its own terms, is irrelevant to the application of Atkins. For Eighth Amendment purposes, it neither defines mental retardation nor — more relevantly — establishes who may diagnose mental retardation.” The issue of mental retardation, defined by Atkins only after Hall was tried and defined by Texas only after Hall’s paper “hearing” on mental retardation, is fact-intensive and rests on nuanced determinations under broadly stated concepts such as “limitations in adaptive functioning.” If Hall can prove the facts that he has consistently alleged on appeal, he will be entitled to habeas relief. Furthermore, the state court’s erroneous factfinding and its refusal to accept more than paper submissions despite the development of a new constitutional standard and a lack of guidance from the state on that standard, deprived Hall of a full and fair hearing at the state level. Although we have found paper hearings adequate where “the trial court and the state habeas court were one in the same,” as was the case here, there is a crucial distinction. Following trial, the state trial judge on habeas review faced a new constitutional rule categorically barring the execution of mentally retarded persons. Atkins was so new that Texas had not had time to establish a definition of mental retardation or the associated burdens of proof. Nor were the district court’s findings of “facts” from the disputed assertions of affidavits below adequate. As we have discussed, some of these accepted “facts” were both critical and incorrect. These errors would have been drawn out in a hearing with an opportunity of counsel to examine the witnesses. Other of the district court’s conclusions rely heavily on the conflicting expert opinions of psychologists, asserted in affidavits unaired in court and shielded from cross examination. Given the material errors in credibility determinations and factfinding at the state level, we are persuaded that the determination of Hall’s claim, caught in the immediate uncertainty following Atkins, was so freighted with a risk of error in fact finding that the failure of the district court below to conduct a meaningful hearing was an abuse of discretion in these unusual and unique circumstances. Ill Accordingly, we VACATE the judgment of the federal district court and REMAND to that court for further proceedings including an evidentiary hearing. . 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). . Hall v. State, 160 S.W.3d 24, 38-40 (Tex.Crim.App.2004). . Schriro v. Landrigan, - U.S. -, 127 S.Ct. 1933, 1937, 167 L.Ed.2d 836 (2007) (“In cases where an applicant for federal habeas relief is not barred from obtaining an eviden-tiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court.”); McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir.1998) (citing United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir.1998)) (“Denials of an evidentiary hearing are reviewed for abuse of discretion.”). .See 28 U.S.C. § 2254(e)(2) (requiring an applicant to show, inter alia, that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense” only if "the applicant has failed to develop the factual basis of a claim in State court proceedings”). . In his first state habeas petition, Hall prayed that the court would grant relief "after a full and fair hearing” and argued: The right to argue mental retardation in mitigation on a case-by-case basis under article 37.071, section 2(e)(1), Texas Code of Criminal Procedure (the so-called Penry instruction) is insufficient to prevent the risk that retarded persons will be sentenced to death despite their lack of the requisite culpability .... . As the CCA put it. Hall provided "testimony of three psychologists, his mother, his brother, his trial attorneys, two private investigators, four teachers, and a fellow death row inmate.” Hall, 160 S.W.3d at 39-40. . Schriro, 127 S.Ct. at 1937. . Id. at 1939 (quoting 28 U.S.C. § 2254, Rule 8(a) and finding that post-AEDPA, the "basic rule has not changed”). .Id. at 1940 (internal citation omitted) (citing Mayes v. Gibson, 210 F.3d 1284, 1287-88 (10th Cir.2000)). Section 2254 provides in relevant part: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. §§ 2254(d), (e)(1). . Clark v. Johnson, 202 F.3d 760, 766 (5th Cir.2000) (citing Moawad v. Anderson, 143 F.3d 942, 948 (5th Cir.1998)) ("To find an abuse of discretion which would entitle ... [petitioner] to discovery and an evidentiary hearing to prove his contentions, we would necessarily have to find that the state did not provide him with a full and fair hearing . 135 S.W.3d 1, 7 (Tex.Crim.App.2004) (internal citations and quotations omitted). . The parties in the state habeas case filed their affidavits for the paper Atkins hearing with the trial court in September 2002. Bri-seno was decided on February 11, 2004. . Hall emphasized in a motion to stay the paper proceeding in the state court, Despite Atkins’ prohibition against the imposition of a death sentence against mentally retarded capital defendants, the Supreme Court's opinion leaves it to the individual States to develop the appropriate method to enforce this restriction. There is currently no statutory procedure set out in Texas to govern the determination of whether or not Applicant (or any other capital defendant) is mentally retarded as contemplated by Atkins. . Hall v. Quarterman, 443 F.Supp.2d 815, 821 (N.D.Tex.2006) (internal citations omitted). . Id. (citing 28 U.S.C. § 2254(d)(2)). . Id. at 822. . Id. . Hall argued in his federal habeas petition, "At the very least, this court should order an evidentiary hearing on this issue [of mental retardation] so that Mr. Hall finally has an opportunity through counsel to present testimony on his behalf and to confront and cross-examine the state’s witnesses on mental retardation. The evidence already in the record that demonstrates Mr. Hall’s mental retardation is summarized below.” . On direct appeal, the CCA likewise relied on the state habeas findings and conclusions. Specifically, it took judicial notice of the prior state habeas proceeding and its outcome and stated that its "conclusion on direct appeal [was] necessarily the same as [its] conclusion in the habeas proceedings.” Hall, 160 S.W.3d at 39. And, even in re-reviewing the evidence in "an abundance of caution,” the CCA still deferred to the trial judge's habeas findings. Id. at 40 ("While there was significant evidence in favor of a finding of mental retardation, there was also significant evidence against such a finding. The trial judge, who presided over the trial and the habeas proceedings, was in the best position to evaluate the conflicting evidence. Her findings, which we have judicially noticed in the current direct appeal, deserve great deference.”). . The state notes that it was Hall's expert, Dr. Denkowski, who initially misstated Hall's final IQ score as 72 rather than 67. The state submits that this error was harmless because the state court discounted his affidavit, and the CCA on direct appeal noted correctly that Dr. Church's examination established an IQ of 67. Cf. Ylst v. Nunnemaker, 501 U.S. 797, 801-05, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (explaining that courts look to the "last reasoned decision” of the state court in determining whether a state procedural bar precludes federal-court review). However, Hall's claim is that this erroneous recitation affected Dr. Price’s overall characterization of Hall's general intellectual functioning. Consequently, neither Denkowski’s affidavit nor the CCA's recitation of the correct post-conviction IQ score would render the error harmless. . The state trial court never indicated which of Hall's IQ scores was most reliable. Instead, it only stated that the scores revealed that Hall was of borderline intelligence or mildly mentally retarded. . State credibility determinations also receive AEDPA deference on habeas review, but not when overcome by clear and convincing evidence. See Summers v. Dretke, 431 F.3d 861, 871 (5th Cir.2005); 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ("A federal court can disagree with a state court’s credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.”). . Dr. Church, a licensed psychologist in Oklahoma, testified in her affidavit that it is "highly doubtful that [Hall] alone could meet the needs of his day to day life.” . Tex. Health & Safety Code § 591.003(16). . In re Hearn, 418 F.3d 444, 447 (5th Cir.2005); see also Ex parte Lewis, 223 S.W.3d 372, 374 (Tex.Crim.App.2006) (Cochran, J., concurring) (joining the majority in declining to adopt the trial court’s fact findings based on Tex. Health & Safety Code § 591.003(16) and explaining that whether a physician or psychologist is licensed in Texas is of no "legal significance in deciding whether [an] applicant is mentally retarded for purposes of eligibility for the death penalty under Atkins v. Virginia or Ex parte Briseno"). . See Schriro, 127 S.Ct. at 1940. . Dr. Denkowski’s affidavit, upon which the trial court relied in finding that Hall was not mentally retarded, indicated incorrectly that Dr. Church’s examination of Hall produced an IQ score of 72; the score was in fact a 67. Additionally, the state posited in its reply to Hall’s state habeas petition that Hall, while in prison, wrote a note that said, "You have to get me out of here because there's no call button. The sink is stopped up. Also there are roaches and a small ass bed. My feet go all the way to the wall because I’m six feet four.” The document actually reads, as Hall's attorneys point out in their briefing: "you half to get out of here because there is No call button, the senk is stopd up also rauch’s and small ass bed by feet go all the way to the wall because I am 6f4.”
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring in part and dissenting in part: The Supreme Court left implementation of Atkins to the states, a license that implicitly insists upon faithfulness to its core holding and the constitutional constraints of due process. I am persuaded that because the state denied Hall the right to confront and cross examine state witnesses in the adjudication of his claim of retardation, Hall’s death sentence was contrary to and involved an unreasonable application of the clearly-established federal law of due process as determined by the Supreme Court of the United States. Michael Wayne Hall was convicted of capital murder by a Texas jury and sentenced to death in 2000. Much of his mitigation case rested on the claim that Hall suffered from a learning disability. The Texas Court of Criminal Appeals affirmed the conviction and sentence, rejecting Hall’s Penny argument that the jury could not give expression to his mitigation evidence and his claim that execution of mentally retarded persons is unconstitutional. Hall filed a petition for certiorari with the Supreme Court and sought collateral habeas review with the state court. There he continued his contention that it was unconstitutional to execute a mentally retarded individual — the issue presented in the Atkins case — which was then sub judi-ce in the Supreme Court. Before the state answered his state habeas petition, the Supreme Court held in Atkins that executing mentally retarded individuals violates the Eighth Amendment. Despite Atkins, the trial court on habeas refused over Hall’s objection to conduct an evidentiary hearing to determine whether Hall was mentally retarded, refusing Hall the opportunity to cross examine witnesses. Rather, it recommended that the CCA reject Hall’s state habeas claim, relying upon the record from his original trial and affidavits submitted by order of the trial court. No live testimony was taken, and Hall was not allowed to cross examine any of the affiants despite the introduction of many new affiants and claims that had not been tested at trial. In May of 2004, addressing the Supreme Court’s opinion vacating and remanding the judgment of the CCA, which had rejected the Atkins claim on Hall’s direct appeal, a divided CCA repaired to the same record and again concluded that Hall was not mentally retarded. Hall again petitioned the Supreme Court for certiorari, which the Supreme Court denied in June of 2005. Hall then filed his federal habeas claim, again requesting a hearing on the Atkins issue. Without holding a federal evidentiary hearing, the U.S. district court deferred to the state adjudication. I Michael Wayne Hall was 18 years old when he killed Amy Robinson, a mentally retarded co-worker at a grocery store. Hall had low intelligence and lived in a chaotic family environment. He had never been incarcerated, although he had participated in minor shoplifting incidents with other individuals. Hall often associated with people younger than his age but he met an older friend, Robert Neville, in 1997. He appreciated Neville’s friendship and attention and spent many hours with him, accepting his offers of gifts, rides, and places to stay, and imitating his style of dress. Neville persuaded Hall to quit his job so they could work together at a grocery store. They decided to kill someone. With purchased weapons, they killed Amy, an easy target. Police arrested them attempting to walk to Mexico several hundred miles away. The trial commenced in February of 2000. The state presented, inter alia, a videotape that the media had taken of Hall, Hall’s written statement to the police, the arrest warrant, the weapons, photographs of the area where the victim was found, and testimony of the agents and detectives who questioned Hall and took his statement. There were vague references to Hall’s acuity throughout this portion of the trial, but they were not drawn out. At one point, an agent indicated that detectives had asked Hall to take a polygraph test, but he said that “he couldn’t take it, his mind was kind of messed up.” The attorney cross examining the agent asked if Hall had expanded on this statement, but the agent replied in the negative. The attorney also inquired about the competency of the writing — grammar and spelling, for example — in Hall’s statement, as well as Hall’s ability to communicate with the agent (whether there was anything “unusual about his understanding of events or how he told them” to the agent). The defense asked a detective involved in the case whether Hall’s family members had indicated that Hall had any mental disabilities and if this was consistent with the detective’s impressions of Hall. The detective replied briefly that, “[i]f I recall, [Hall’s stepbrother] said he was slow,” and that according to the detective, “he was not the most intelligent person I had ever seen, but he’s also not the dumbest person I had ever seen, either.” On the third day of trial, the jury found Hall guilty. In the sentencing phase of the trial, the defense offered evidence of Hall’s learning disability. Hall’s mother and brother testified about mental problems and learning disabilities in the family, Hall’s struggles to perform typical childhood tasks, childhood injuries to his head, and later difficulties when he started work and attempted to socialize with colleagues. In addition to testimony from Hall’s family, Hall’s teachers and psychologists discussed his mental capacity at school. The school psychologist and experts discussed various results from Hall’s IQ tests, ranging from 67 to 71 for full-scale IQ tests but differed as to their significance, reliability, relevance, and margin of error. Several experts also testified generally as to Hall’s adaptive functioning and knowledge, and his academic abilities. Dr. Cunningham assessed Hall’s adaptive functioning, con-eluding that the tests indicated that Hall was learning disabled, with “significant academic deficiency.” Dr. Price assessed Hall’s adaptive knowledge (not adaptive functioning, which is the applicable issue under the Briseno test for Atkins mental retardation) using a Street Survival Skills Questionnaire, indicating that Hall was “slow on a lot” of the questions but that his intelligence was “either borderline, right at the level of mild mental retardation, or he’s mildly mentally retarded.” Dr. Price concluded, “it’s sort of a judgment call.” Finally, the state presented lay witnesses who had some past contact with Hall. A fellow grocery store employee of Hall’s testified that Hall taught him how to bag groceries, said that he had worked with mentally challenged children, and indicated that he did not notice anything slow about Hall. A waitress who had once served food to Hall and Neville in a restaurant after the murder testified that Hall ordered food for himself and that she did not notice him picking up food with his hands, although she did not discuss whether or not he was able to use a knife. In their closing arguments to the jury, the state and the defense focused exclusively on Hall’s mental capacity as it related to mitigation. The state argued that Hall was “at worst mildly retarded” and that this was not mitigating, since he was “smart enough” to choose a trusting victim. Hall’s attorney only discussed his IQ in the broad sense (discussing one teacher’s estimation that it was “somewhere in the 60s,” and how the experts could not agree on a “precise” IQ number) and emphasized Hall’s mental capacity in light of his inability to understand the wrongness or “grasp the horribleness” of his crime. The state, in its final rebuttal, argued: “does it really matter to us, other than for labeling purposes, whether he’s labeled as mild mentally retarded or low normal? Does that really tell us anything that we need to know or help us in determining is this a mitigating factor?” The jury answered “no” to the question of whether there were mitigating circumstances to spare Hall’s life. On automatic appeal, the CCA affirmed the trial court’s conviction and sentence on January 16, 2002, rejecting Hall’s contention that it is unconstitutional to execute mentally retarded persons. On January 17, 2002, Hall filed a state application for a habeas writ, re-emphasizing his argument that “[t]o inflict a death sentence on a person suffering from mental retardation” violates Article 1, § 12 of the Texas Constitution and Eighth Amendment of the U.S. Constitution, an issue that was then before the Supreme Court in Atkins. He requested a full and fair hearing, a “live” hearing. On June 10, 2002, Hall petitioned the Supreme Court for a writ of certiorari on the mental retardation issue, seeking review of the CCA’s judgment on direct appeal affirming his conviction and sentence. On June 20, 2002, the U.S. Supreme Court in Atkins held that the “[Eighth Amendment of the] Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender,” thus setting a constitutional bar against the execution of mentally retarded individuals. The state filed its reply to Hall’s state habeas application on July 16, 2002, acknowledging the Atkins decision but maintaining that the trial court’s procedure for determining mental retardation was adequate. The habeas trial judge, who had also presided over the original trial, refused to order a hearing or to allow cross examination of experts on the new Atkins issue, announcing that the issue would be submitted based on affidavits and the trial record. Hall again objected, urging that the court conduct a live hearing. The parties submitted affidavits from Dr. Price and Dr. Cunningham, as well as affidavits from many individuals who had not testified at trial, including psychologists Dr. Denkowski and Dr. Church, an advocate for mentally retarded death row inmates, prison guards, a mitigation specialist, investigators who assisted Hall with his ha-beas claim, an inmate who resided next to Hall on death row, more of Hall’s teachers, and Hall’s trial counsel. Free of cross examination, experts presented new evidence of Hall’s IQ and further disputed the margin of error associated with the various IQ scores. These IQ scores included the school’s WISC-R result of 71 with a measurement error of 2.6, when Hall was 12/£ years old; Dr. Cunningham’s WAIS-III test, which resulted in Hall’s score of 67 at age 20; Dr. Church’s WAIS-III test at age 22, which again showed a score of 67 (wrongly reported by Dr. Denkowski as a 72); and TONI-2 and TONI-3 scores of 84 and 77 at ages 16 and 20, respectively (with associated information that the TONI “yields a 7-point higher score than the WISC-R Full Scale IQ” and does not measure general intellectual functioning). Dr. Price’s affidavit discussed the IQ findings from the original trial but presented new allegations regarding the proper standard for determining mental retardation under Atkins, and how his testing related to this standard. He criticized Dr. Denkowski for basing his affidavit on records rather than a personal examination of Hall but indicated that he and Dr. Denkowski “basically agree on the current working definition of mental retardation that is used by the psychological community (i.e., IQ below approximately 70 with measurement error considered, significant adaptive behavior deficits in 2 or 3 skill areas, and origination of these factors in the developmental period.)” Dr. Price also described the results of his adaptive knowledge testing of Hall. He alleged that “Mr. Hall’s knowledge of adaptive behavior ranged from the borderline level (16th percentile) in several areas (understanding and telling time, handling money, and using common measurements) to the average level (8th to 63rd percentile) in other areas” (“recognizing and understanding basic spatial/quantitative concepts, functional signs, tools, kitchen utensils, hygiene, safety skills, and the use of public services”). He did not indicate whether any of the tests demonstrated that Hall was below borderline. Dr. Price also alleged: “It is very important to note that Michael Hall was placed in special education due to having been classified as having a learning disability — not mental retardation .... [M]y review of this case does not clearly indicate that Michael Hall is mentally retarded.” Yet he concluded elsewhere that “[i]t is obvious that the issue of the diagnosis of mild mental retardation is controversial and determining whether or not someone receives that diagnosis can literally turn on a word or a number.” Dr. Denkowski’s affidavit explained that he did not interview Hall because a meeting in a high security prison would “not provide reliable information for gauging [Hall’s] functional status.” He contested Dr. Price’s IQ data, indicating that “Dr. Price ... misrepresented Mr. Hall’s SSSQ [adaptive behavior] data through tacit implication that they were contrasted with those of typical adults,” whereas in reality the test derives “adult norms” from “two secondary school prevocational programs in Indiana and Texas.” Dr. Denkowski concluded that “how Dr. Price presents SSSQ data is unacceptable for any diagnostic purpose, even outside the courtroom” and that Dr. Price’s other adaptive skills test, the K-FAR, showed that Hall’s math skills were “less competent than those of 99% of typical same-aged persons” and that his reading skills were “less proficient than 95% of people of his age.” Dr. Denkowski also examined relevant authorities that determine mental retardation under Atkins in Texas, concluding that the relevant numbers required for a finding of mental retardation of a defendant in Texas are a “WAIS-III full scale IQ” below 75, “significant adaptive behavior deficits must exist in three skills areas and the measurement error adjusted standard score for the overall instrument must be below 71,” and “[t]hese impairments must have originated prior to the 18-22 age range.” Further, he found that “[s]ince Mr. Hall’s IQ and adaptive behavior quality plainly fall within the area that the DSM-IV and Texas law consider to define mental retardation, it seems reasonable to express confidence in his diagnosis of mental retardation.” Hall’s adaptive behavior tests indicated that his behavior was “of the quality of higher-level mentally retarded adults.” Dr. Denkowski also emphasized that Texas’s definition of mental retardation recognized only a WAIS test for IQ determination, since only that test “yield[s] a ‘full scale intelligence quotient’ ” and that the TONI test (which had been discussed at trial) does not yield an actual IQ or assess general intellectual function, thus making it useless for diagnosing mental retardation in Texas. Most significantly, Denkow-ski’s affidavit, upon which the trial court relied in finding that Hall was not mentally retarded, indicated incorrectly that Dr. Church’s examination of Hall produced an IQ score of 72; the score was in fact a 67. Dr. Denkowski’s affidavit, in addition to commenting on other experts’ evaluations of Hall, discussed the weaknesses of the state’s lay witness affidavits as well as some of the state’s claims regarding mental retardation. There were gaps and inconsistencies throughout the record; we mention only a small sample here. The state posited in its reply to Hall’s state habeas petition that Hall, while in prison, wrote a note that said, “You have to get me out of here because there’s no call button. The sink is stopped up. Also there are roaches and a small ass bed. My feet go all the way to the wall because I’m six feet four.” The document actually reads, as Hall’s attorneys point out in their briefing: “you half to get out of here because there is No call button, the senk is stopd up also rauch’s and small ass bed by feet go all the way to the wall because I am 6f4”.” This cleaning up of a statement lies buried in the paper records but would have been brought to light by any trial lawyer given the opportunity to cross examine the opposing party. Mr. Harris, one of Hall’s trial attorneys, indicated in an affidavit that Hall’s defense team had chosen not to reveal the victim’s IQ score, since she was clearly an innocent victim. However, the state at trial had focused strongly on how Amy was mentally impaired and was clearly more mentally impaired than Hall. In fact, as Mr. Harris’s affidavit reveals, her IQ of approximately 83 (the exact number remains unclear, as it was only put forth on paper) was meaningfully higher than Hall’s. Hall’s affidavits from teachers alleged that he drooled in class, that he had “extreme difficulty speaking complete sentences,” and that he had trouble spelling his own name. An affidavit of a mitigation specialist appointed to Hall’s case indicated that Hall did not understand the appeal or how the attorney would help him with the appeal. He could only communicate basic information about himself, such as his name and his mother’s name, and that, during the interview, “Hall would agree with or go along with whatever he thought [the mitigation specialist] wanted him to say.” Finally, he indicated that Hall mispronounced words or used them out of context and appeared to use words that he did not understand “in an attempt to mask or hide his disabilities.” The state filed “affidavits” of prison staff, all of which appeared to have been similar “fillable forms” employed by a state investigator. The affidavits alleged that Hall appeared “normal” to the guards and that he could follow instructions. To demonstrate experience with mental illness, one guard wrote that he “knew some kids in school with Down’s syndrome,” while another said that he had an uncle who was mentally retarded. Dr. Denkow-ski pointed out that the observations of teachers and prison guards, indicating that Hall was able to obey, follow rules, and function and cope, were painted by the state as indications of Hall’s mental capacity but in fact simply affirm that “Hall has long demonstrated the capacity to learn and abide by institutional rules and expectations,” as many mildly mentally retarded persons are capable of doing. Additional papers presented by affidavit included Hall’s medical records (showing various incidents such as a fall on the sidewalk resulting in an abrasion to his mouth and cuts that resulted from glass falling on Hall), grade reports and special education/disability documents from school, prison medical and other records, the results of a psychiatric examination to determine Hall’s competency to stand trial (indicating that Mr. Hall “presented his charge very well” but that “[h]e could perform only two of the four basic elementary mathematical functions”), and psychology texts, such as the American Association on Mental Retardation’s book entitled, Mental Retardation: Definition, Classification, and Systems of Supports. The CCA relied entirely upon these affidavits and the original trial court record in reviewing Hall’s habeas claim of mental retardation, which was now controlled by the decision of the Supreme Court in Atkins. The CCA adopted the trial court’s paper findings in full — at least one of which was based on an erroneous conclusion of law — on February 26, 2003, and denied Hall’s habeas application. The CCA then rejected the mental retardation claim a second time on the Supreme Court remand of Hall’s direct appeal case but once again it simply adopted the trial court’s findings based on the paper record and relied solely on its habeas findings and portions of its original case affirming Hall’s conviction, as well as a “re-review[ ]” of the record evidence, to conclude that Hall was not mentally retarded. The court considered no new evidence in these trials and ordered no hearing on the Atkins issue. It justified its actions by arguing that the process was sufficient: [T]he trial court and this Court did have the benefit of Atkins during the habeas proceedings. The parties had ample opportunity to present evidence at that time on the specific issue of mental retardation. And we can consider the ha-beas proceedings and evidence in the current posture of this appeal ... we are faced in a direct appeal with an issue that has already been presented to us on habeas corpus. Consequently, we address appellant’s mental retardation in light of both the direct appeal and the habeas records ... we believe that taking judicial notice of the habeas proceeding and its outcome satisfies the Supreme Court’s remand order in the present case. The dissenting justices disagreed with the “unique” precedent the court elected to follow to determine the Atkins claims on remand of the direct appeal, emphasizing that “[n]o trier of fact in this case has ever heard live testimony, subject to testing on cross examination, on the specific issue of whether appellant is mentally retarded.” The dissent concluded, “[W]e will never know [whether Hall is mentally retarded] unless we order [a] full hearing and have before us both the tested testimony of persons who are knowledgeable in the mental-health field and relevant lay testimony about his adaptive behavior.” In June of 2006, Hall filed a federal habeas petition after the Supreme Court had denied his petition for certiorari. He again specifically argued that the denial of a full evidentiary hearing denied him due process rights, stating, “Mr. Hall has a right under the Fifth, Sixth, Eighth, and Fourteenth Amendments to a full and fair hearing in a court of law on the issue of his mental retardation.” The federal district court, like the state trial court and court of appeals, refused to conduct an evidentiary hearing or to allow cross examination of the state experts on the Atkins claims, denying the claims, deferring to the state adjudication under AEDPA, and conducting its own examination of the paper record. We granted a certificate of appeala-bility on the Atkins claim. II Our decisions have accorded deference to state adjudications of claims for habeas relief from state criminal convictions under AEDPA even if made without a live hearing. Under AEDPA there is a presumption that the state court’s findings of fact are accurate “unless the petitioner can rebut the findings of fact through clear and convincing evidence.” Following this line of deference, in May and similar cases both before and after AEDPA, we have found that where the trial judge who presided over the initial case later considers the habeas claim, we presume that reliance upon the completed record is acceptable. This is sensible in many cases, at least those in which the trial judge experienced first-hand evidence directly relevant to the habeas issue. Due process requires a hearing, not two. Despite the deference that we give the adjudication of state courts under AEDPA, this court has highlighted — post-AEDPA—that “ ‘[t]he fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner”.’ ” This said, allowing the original trial judge to proceed without an evidentiary hearing or live cross examination finds trouble when a central constitutional principle changes between the initial trial court decision and that same court’s decision of a habeas claim — acutely so where the claim turns on sharply contested issues of fact and witness credibility. AEDPA provides, An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. The Supreme Court has explained that AEDPA does not “require the federal courts, including this Court, to defer to state judges’ interpretations of federal law.” Rather, our duty is to make an “ ‘independent evaluation’ ” of “whether or not a rule is clearly established at the time a state court renders its final judgment of conviction.” A state court decision is contrary to clearly established federal law in two instances — first, where it is “diametrically different, opposite in character or nature, and mutually opposed to [the Supreme Court’s] clearly established precedent,” and second, where a “state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from our precedent.” Under AEDPA, “state-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated.” We must decide whether the state court’s decision to deny Hall the right of confrontation and cross examination in determining whether he was mentally retarded under Atkins was contrary to federal law. Looking to federal law of due process and the right of cross examination and confrontation as announced by the Supreme Court, I am persuaded that the relevant law is clear, and dictates the conclusion that the state court’s decisional process was contrary to this clearly-established law. The life or death of a defendant, determined without hearing cross examination to resolve disputed material facts, here violates the core principles of due process and Hall’s right of confrontation as announced by the Court. It is helpful to lift up the questions that either are not presented or have otherwise been dispositively decided. I accept here the state’s refusal to grant a jury trial on the issue of mental retardation. Hall asked for a jury trial, but he also maintained that given the posture of the case, due process assured him more than a submission “on the papers.” I also give full force to the Supreme Court’s holding in Atkins and in Ford v. Wainwright leaving “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences,” while addressing the constitutional minimum required of the state proceeding. The relevant question to my eyes is the process required by federal law for the death eligibility determination made here, and whether the state court’s process directly conflicts with this law. The inquiry could begin and end with Ford, but it is helpful to ground this case in its place within the larger stream of due process precedent. Atkins holds that “the mentally retarded should be categorically excluded from execution” and that “death is not a suitable punishment for a mentally retarded criminal”; Ford establishes a “bar against executing a prisoner who has lost his sanity.” While the factors establishing insanity and mental retardation differ and, under each case, are established by the state, the result of the constitutional determinations required by Ford and Atkins is identical: both determinations, if established in the affirmative, render a defendant ineligible for a death sentence. Ford was convicted of murder and sentenced to death in Florida Following trial and sentencing, Ford began to exhibit strange behavior and eventually became incomprehensible, speaking in a code known only to him. A psychiatrist diagnosed him with paranoid schizophrenia. His counsel requested that the state determine Ford’s competency. The Governor appointed a panel of three psychiatrists to determine Ford’s competency. Ford had one, thirty-minute meeting with the psychiatrists who collectively questioned him. Each then wrote a short report concluding that he had some form of psychosis but was competent to understand the death penalty and its consequences. Armed with these reports, the Governor decided that Ford was not insane and signed Ford’s death warrant. The state court denied Ford’s request for a hearing on his insanity. A district court, on habeas review, denied Ford’s petition for an evidentiary hearing on insanity. The Supreme Court found that since “the Eighth Amendment has been recognized to affect significantly both the procedural and the substantive aspects of the death penalty,” the adequacy of the procedures for determining Ford’s insanity rested on whether or not the Constitution barred the execution of an insane prisoner. In other words, a determination that the Constitution substantively bars the execution of certain types of people brings due process concerns to the forefront— with the substantive guarantee came assured procedures. Having determined that the Eighth Amendment was a constitutional bar to the execution of insane prisoners, the court turned to “whether the [court] was under an obligation to hold an evidentiary hearing on the question of Ford’s sanity.” The plurality held, The adequacy of a state-court procedure ... is largely a function of the circumstances and the interests at stake. In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different. Although the condemned prisoner does not enjoy the same presumptions accorded a defendant who has yet to be convicted or sentenced, he has not lost the protection of the Constitution altogether; if the Constitution renders the fact or timing of his execution contingent upon establishment of a further fact, then that fact must be determined with the high regard for truth that befits a decision affecting the life or death of a human being. Thus, the ascertainment of a prisoner’s sanity as a predicate to lawful execution calls for no less stringent standards than those demanded in any other aspect of a capital proceeding. Indeed, a particularly acute need for guarding against error inheres in a determination that in the present state of the mental sciences is at best a hazardous guess however conscientious. Justice Powell, concurring in Ford in the narrowest opinion, rejected the need for a full “sanity trial” but required procedural protections and a “fair hearing,” holding that At least in the context of competency determinations prior to execution, the [due process] standard is no different from the protection afforded by procedural due process. It is clear that an insane defendant’s Eighth Amendment interest in forestalling his execution unless or until he recovers his sanity cannot be deprived without a “fair hearing.” Indeed, fundamental fairness is the hallmark of the procedural protections afforded by the Due Process Clause. I am persuaded that the state court acted contrary to this clearly-established Supreme Court precedent. Like Ford, Hall challenged the adequacy of the process afforded to determine the crucial fact underlying a substantive constitutional right, the right against cruel and unusual punishment. Just as the state and district courts denied Ford an evidentiary hearing when he requested one, both the state court and the district court denied Hall a meaningful hearing. Neither Ford nor Hall received a determination of insanity or mental retardation at trial — in Ford, this was denied because insanity is a pre-trial question, or a post-trial question for condemned prisoners; here, because mental retardation at the time of his trial was solely a mitigating factor and yet to be defined by the constitutional strictures of Atkins. Both Ford and Hall were denied the minimal due process afforded for the determination of a substantive constitutional right, process with a “high regard for truth that befits a decision affecting the life or death of a human being.” Instead, they were afforded only a minimal process void of any guarantees afforded by an adversarial hearing, such as confronting and cross examining witnesses to question their credibility. Ford lacked even the guarantees of the judicial system and received only a “cursory form of procedural review” in an executive forum. Hall had the benefit of a judicial system but received the same administrative-style review. Cases defining due process, while not treating eligibility, bear on the clarity of Supreme Court precedent. Sentencing decisions on the elements of an offense and aggravating factors of course affect whether a death sentence is “appropriate,” but they do not reach the determinative question of whether the defendant is eligible for the death penalty. While sentencing decisions with respect to the underlying offense and accompanying factors involve a range of gradation and substantial discretion, the question of eligibility as determined by mental retardation or insanity is not a sentencing “factor.” As the Court determined in Atkins and Ford, the determination of eligibility is itself a substantive, constitutional guarantee governed by higher standards. The Ford Court alluded to this distinction between elements of death penalty offenses and sentencing factors on the one hand, and the determination of death eligibility based on a defendant’s mental abilities on the other, holding that heightened constitutional protections apply to the determination of insanity where the “ultimate decision will turn on the finding of a single fact, not on a range of equitable considerations.” In Emnund v. Florida, the Court held that under the Eighth Amendment, a defendant could not be sentenced to death for aiding and abetting a felony murder if there was no determination that the defendant himself killed or attempted to kill the victim. The circuits differed over the constitutionally secured process for making this determination. The Fifth Circuit held that the guilt-innocence or sentencing phase of the trial must establish whether a defendant participated in murder or attempted murder, and the Eleventh Circuit held that a judge could make the finding. The Court in Cabana v. Bullock resolved the split, agreeing with the Eleventh Circuit and holding that “the Eighth Amendment is satisfied so long as the death penalty is not imposed upon a person ineligible under Enmund for such punishment .... The Eighth Amendment is not violated ... regardless of who makes the determination of the requisite culpability.” Cabana addressed only whether a jury trial was necessary for a finding of an element of a death-eligible offense and did not address the level of factfinding necessary for due process, holding, [T]he question whether the defendant killed, attempted to kill, or intended to kill might in a given case turn on credibility determinations that could not be accurately made by an appellate court on the basis of a paper record .... We shall not now attempt to determine what factfinding procedures would be adequate in the particular case before us, for, as we shall see, the state courts have not yet purported to engage in the requisite factfinding, and we decline to decide the hypothetical question of the adequacy of that which has not yet occurred. The State argues that the Mississippi Supreme Court itself made a finding sufficient to satisfy Enmund in the course of its direct review of [defendant’s] conviction and sentence. We are very doubtful, however, that these assessments of the record were sufficient in themselves to constitute a finding that Bullock killed, attempted to kill, or intended to kill Dickson. The Mississippi Supreme Court obviously was not addressing the specific requirements set forth in Enmund, for that case had not yet been decided. Cabana’s core holding that an element of a death-eligible offense may be determined by a judge has since been eroded. Walton v. Arizona relied on Cabana and similar cases in holding that a jury need not determine the “aggravating circumstances ‘elements’ of ... [a death-eligible] offense.” The Court in Ring v. Arizona compared Walton’s holding to Apprendi v. New Jersey, which held that a sentencing judge’s determination that a crime had been committed because of racial animus— a determination that triggered the application of the Hate Crimes Statute — violated the requirement that “a jury determin[e] that [defendant] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Ring found the two cases irreconcilable and “overrule[d] Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” The primary distinction between Cabana and Walton was that Cabana permitted a judge to determine a requisite element of a capital offense, whereas Walton found the same for the determination of an aggravating circumstance leading to a capital offense determination. Little remains of Cabana after Ring. In Williams v. New York, the Court upheld judicial discretion to impose a death sentence where a jury found first-degree murder but recommended a life sentence. The Court denied the invitation to “draw a constitutional distinction as to the procedure for obtaining information where the death sentence is imposed.” Much has changed since 1949. The Court in Woodson v. North Carolina, striking down North Carolina’s mandatory death penalty statute, held, the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. The court also held, [W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. Regardless of what remains of Cabana, Walton, and Williams after Ring’s holding, Apprendi, Woodson, Cabana, and Walton all addressed the question of whether a jury must determine a necessary element or aggravating circumstance of a capital offense, a question that I do not here ask or answer. This brings me to other cases that do not speak to the due process afforded a determination of mental retardation or insanity but set heightened due process requirements for similar determinations. In Specht v. Patterson the Supreme Court he