Legal Case Summary

We'll hear argument this morning, case 13, 14, 33, Brumfield versus Cain. Mr. Dutanktis? Mr. Chief Justice, and may it please the Court. The decision of the State Court in this case was to deny Kevin Brumfield a hearing on his claim of intellectual disability. That decision was based on an entirely unreasonable determination of the facts of Brumfield's mental condition. The Court, specifically, the Court expressly stated in its decision to deny hearing was, quote, based on the three bases that it laid out in its oral ruling at page 172 of the pet app. And I'd like to discuss each of those in turn. The first basis given by the State Court was that Brumfield scored a 75 on the Wexler IQ test. That's not just suggestive of intellectual disability. That's actual evidence of intellectual disability. And there was no testimony in the record to the contrary. This Court made it clear in Atkins, all of the clinical texts on which this Court relied on in Atkins make it clear. And the Louisiana Supreme Court had made it clear in Williams and in Dunne. The second basis for the State Court's decision was that the defendant has not, quote, demonstrated impairment based on this record in adaptive skills. To demand or even expect that blood from the stone of a pre-Atkins record, when either intellectual disability nor adaptive skills were even raised. I'm sorry, but it isn't. I don't, whether I agree with you or not, isn't it your burden to prove that he had some deficits in adaptive ability? You have to make the threshold showing. Yes, there's a threshold showing under Louisiana law. What did you show that met that prong in any way? Sure. The standard under Louisiana law is a law one. It's a burden of coming forward with some evidence of objective facts that put the move in intellectual disability at issue. How is that determination under State law pertinent to the question here? I was merely answering, just as so to my or his question, as to what facts were put into evidence before the State Court. I was setting the State Court under that. But given the facts that were presented, this is what the language of the law is, of course, and the evidence presented in the State Court proceeding, how is that pertinent on the Federal question? In other words, I don't think it would be a different. Your burden, I don't think, would be different on the question that's presented here if the State law required a higher threshold or not. And we're not requiring. We're not challenging the State Court. In your answer to Justice Sotomayor, I thought you said, well, the State has a very low standard

. What difference does that make? Are you saying that if the State with its regular processes takes a federal rule and misinterprets the rule as part of its process, then there's a federal violation. Is that your point? No. There could be in that case, that's not what the difference is. What difference does it make? And I think this was what the Chief Justice of Concern was as well. What difference does it make that Louisiana has a low bar or a high bar? It may not make a difference, Your Honor, and it's not a critical part of our argument. And then why you're on the suppose at the trial in the sentencing phase, an expert medical expert testified, in my view, this defendant does not have an intellectual disability as we define that in medical terms. Would you be here? We still have a hypothetical, of course. It's a hypothetical, obviously, that wasn't this case. There was no testimony at the State trial or sentencing about intellectual disability. But in that case, we probably still would be here because that's what happened in Williams. In Williams I, the defense own expert at trial prior to Atkins had testified that the defendant was not intellectually disabled. And yet, the Louisiana Supreme Court sent it back for an Atkins hearing because Atkins had entirely changed the legal land. The first question is whether a state court that considers the evidence presented at a petitioner's penalty phase proceeding as a determinant of the petitioner's claim of intellectual disability under Atkins has based its decision on an unreasonable determination of the facts. So suppose that at the penalty phase proceeding there is evidence of five IQ tests all above 140. Would it be wrong to say that that's a determinant of? Again, obviously not our case. But in that situation, we address that in our blue brief. For the purpose of making clear that we are not asking for a bright line rule in a situation where there is uncontested evidence in the Pre-Atkins record that disqualifies the individual from intellectual ability. So the answer to the first question is no. It is not necessarily unconstitutional to regard the penalty phase evidence as a determinant. It is in this case on this record. And Section D2 is by its very nature, the factual inquiry. So point is your point that we are involved in a wholly different inquiry once Atkins is on the books because when you were before the state court at the sentencing hearing, you weren't talking about intellectual disability. That's correct. You were talking about some mitigating factors. So the state court never had before at Atkins claim. The Atkins claim is raised for the first time on post-conviction review. That's exactly right. It's similar to the reasoning that this court adopted in Bobby versus Bies

. And precisely this setting, the Louisiana Supreme Court held or it explained that prior to Atkins, as your Honor just explained, a defendant only had to show diminished capacity as a mitigating factor and wasn't called upon to marshal demonstrations of intellectual disability or impairment in adaptive skills. You know, if I think it would have been an effective assistance of counsel, pre-Atkins, for a lawyer who had a client who was severely mentally disabled, not to bring that fact forward in the sentencing hearing for consideration by the jury. Even though it wasn't a mandatory federal basis for exerting him from the death penalty, surely you would want the jury to consider that kind of evidence, wouldn't you? Your Honor, this court in Henry and again in Atkins recognized that putting on a defense of, quote unquote, mental retardation as the term was used at that time is a double edged sword. It's a much higher burden typically than the lower burden of putting on mitigating evidence of one's mental condition. And which brings me to answer, I don't find that persuasive. It seems to me you have the burden to show that there was some basis for the state Supreme Court coming out the other way and that basis should have been in the record according to the federal statute and your only defense is, well, we didn't put anything in the record because Atkins had not yet been decided. No, Your Honor, and that goes to Justice Sotomayor's question as well. There was overwhelming evidence of impairment of inadaptive skills and intellectual disability in the state court record for the state court judge. Fine. First, so let's get rid of that argument that Atkins had not been decided that that had nothing you do with the case, right? Okay, turning to the evidence in this case. First, it was evidence before the state court judge that Mr. Brumfield had a fourth grade reading level in terms of mere word recognition, not even comprehension. That's again actual evidence of impairment inadaptive skills. It was in the record before the state court that Mr. Brumfield quote has a basic deficit somewhere in his brain. It was in the record in the state court that he had a very low birth weight that put him at risk of neurological trauma and it was in the record from Dr. Boeter that Mr. Brumfield was in trouble many, many, many years ago. The second expert before the state court, this is in the state court record, was Dr. Grim. She was a social worker. She didn't perform any tests of her own, but she found that Mr. Brumfield was sent to quote special education from the third grade that he had been placed in and out of mental hospitals because no one knew what to do with him throughout his childhood and youth. That his main problem was that he cannot process information the way normal people do. And that's precise, that is a key indicator of intellectual disability that this court recognized twice in adkins. She testified that Brumfield before the state court, she testified that Brumfield needed someone to quote help him function. That he did poorly even at recess as a child because he couldn't function with a lot of chaos around him. That age at age 11, one of the mental institutions in which he had been placed, quote, questioned his intellectual functions and noted his slowness in motor development and that the nurses literally from his birth recognized that there was something wrong with him and that he was slower than normal babies

. And my wrong in my understanding that the record included an expert report stating that Brumfield possessed, quote, a normal capacity to learn and acquire information and that he had, quote, adequate problem and reasoning skills, problem solving and reasoning skills. Is that correct? You Honor, I believe that's from the report of Dr. Jordan. Dr. Jordan did not testify in the state court proceeding. It was not in the record? It's actually an issue of debate whether Dr. Jordan's report was in the record at the federal hearing. The state conceded that it was not and the the state court judge doesn't say he read it. Although it was discussed by some of the experts though not the portion you just read. Well, it was in it. It's pretty categorical, right? I would think that's enough for the state court to hang its hat on. I don't think we can possibly find it. It was unreasonable evidentiary finding if that was indeed in the record. Your Honor, it is because again, the report did the state put it in the record? Nope, there's no evidence, Your Honor, that the state put it in the record. They have claimed at various points in the proceeding. And you didn't, but another expert referred to it. That's correct. Dr. Bolter referenced Dr. Jordan's report regarding his IQ testing that it was merely a screening test and he was dismissive of it. But the state wasn't, didn't put it in the evidence. And they did not put this in the record. And are we talking about the trial record now? Talking about the state trial at the sentencing, at the sentencing hearing. At the sentencing. That's correct. Second, it is very relevant. That the state court ignored all of the objective facts after the defendant had been required only to come on with some evidence. There's no indication in the State Court's decision, which he explains precisely was based on the three factors that he just laid out

. Did you ask the State Court did not? For funds as a matter of Federal right. And the other side says, did you ask for funds and State habeas only under State law and not under Federal law? Is that true? We requested funds repeatedly in every petition before the Court. And in doing so, at least six times, we cited the Louisiana Court of Duboe versus Whitley. That case discusses ache and is based exclusively on ache and Federal law. And this Court has made clear that if that acclaim is preserved by citing a case that relies on the appropriate Federal law. So, yes. I will perhaps talk about what is a little confusing, if not confusing, disconcerting in this case. There seems to be an inequity that one could perceive that says you can use the penalty phase record, but the other side can't to challenge your conclusions. Because that's basically what you're saying. And so, that was, I think, Justice Salitos point, which is you can see it on some, in some circumstances, the State might. What makes your case different? Now, I do know that this, in this case, you're saying you provided some, a sufficient amount of some evidence. Correct. And the State was unreasonable by not giving you a hearing to determine the merits of your claim. Correct. All right. We don't even get to the issue of whether you were entitled to funds at that hearing, but I don't even think on Jalooissiana you wouldn't be. Once you've made the threshold show. It's a distinct issue that our question won does not depend on. All right. So, answer my question, because it's a bit of a take off from Justice Salitos question, which is, what is, why in your case can't the State rely on the evidence in the penalty phase if that's what you're relying on to make your sum showing? There really is no inequity there. Your honor, and I'm glad you asked. The Louisiana Supreme Court explained it in done, which predated the State Court's decision in this case by almost a year. The Court explained that although the defendant was not called upon to offer proof of intellectual disability at the trial prior to Atkins, the defendant did offer evidence of intellectual disability through that record. It was far less than the evidence that I just articulated. From there, the Court explained that it was improper for the State Court to then weigh any contrary evidence without the guidance of experts and essentially make a diagnosis itself as to whether the facts in the record are consistent or inconsistent with intellectual disability. Court always has to do it itself even when there are experts. I mean, I don't understand that. Once the defendant comes forward with some evidence, which Mr

. Brumfield did here overwhelmingly, if there's contrary evidence in the record, that's what the hearing is for. And that's all we were asking. We were putting this in a perspective for a word. Suppose we're in the district court on a petition for habeas, federal district court, and the question is, is the defendant entitled to a hearing, this petitioner entitled to a hearing? What is the standard that the district court must find before the district court has a hearing on the facts, before the district court can have its experts? Does he have to find that the state collateral decision was clearly erroneous or that there was a pre-Mafasia evidence of disability that the state collateral court ignored? What's the district court have to do before it decides it's going to have a hearing on call its own experts? What standard must it meet and did it meet that standard here? The answer to the final part of your question is yes. I would break it down this way. The question of whether an individual is intellectually disabled, this court left to the states under Atkins. So the state standard is what applies for the showing that a defendant must make in order to prove his intellectual disability at the hearing. If that occurs pre-Atkins, as it did in this case, and we get to federal habeas, under 2254d2, the federal habeas judge looks at whether the factual determinations, in this case, of the defendant's mental condition, were unreasonable. And here they were. The judge articulated three grounds, one of which was evidence of intellectual disability, one of which was irrelevant to the question of intellectual disability, and ignored a plethora of evidence in the record putting Mr. Brumfield's intellectual disability. So are you saying that the district court, United States District Court decided to have a hearing because it found that the State Court's collateral review determination was fill in the blank. Clearly erroneous? Was unreasonable. Unreasonable. That's the head-pastandard. That's the head-pastandard and D2. Unreasonable because there were some open questions or because no one could read the record to say that there was evidence that he had no disability. Because the State Court judge in this case expressly indicated what his decision was based on. It was based on three bases, all of which are entirely unreasonable, and no one could say that they support a claim that the defendant is not intellectually. That would be the... Part of a lot of discussion on the evidence at issue in this particular case. What is the broader significance of that discussion here? I'm concerned your answer to Justice Alito was that the answer to your first question was no. It's not necessarily the case that it's unreasonable determination in a situation where the State considers the evidence plethora, but you're saying now that in this case it was. Correct. So what is the broader significance of the question you want us to decide since you've conceded that the question.

.. The answer to the first question presented is no. No. I'm sorry. I certainly did not mean to concede that the answer to the first question presented is no. My answer to Justice Alito's hypothetical was if there is uncontested evidence in the record of qualifying intellectual disability. Right, but your question is if it's determinative is it unreasonable? Justice Alito gave you an example of where it was determinative, and you said it was not unreasonable. So as a general rule, the question is... The answer to the question is no. And in terms of what we're going to decide, I just need to know whether it is simply whether the facts in your particular case lead to a particular result, or if there is some more general legal rule that you're arguing for. Section 2254-D2 is on its face and by its text a factual inquiry. And this court need to do nothing more than rule that what this judge did in this proceeding on this pre-Atkins record was unreasonable. Go back to Justice Kennedy's question. And either working it backwards or working it forward, but you're not taking it step by step, okay? Atkins, I believe says that a State doesn't have to give you a hearing if you haven't met a threshold. And that threshold definition is unreasonable. The threshold definition in Louisiana? Not Louisiana, Atkins. What did Atkins? Atkins doesn't articulate. It doesn't, but it does articulate that there has to be a threshold and it has to be some doubt as to mental capacity. Correct? Some reason to believe that the threshold is intellectually disabled. So that was the standard. Some reason to believe that an individual's mental capacity is compromised, correct? Correct. So is your first argument that there was enough evidence for you to have been entitled to a hearing? That certainly is part of our argument, but it doesn't explain the entirety of the federal error recognized as a cognizable under Federal law under Section D2. Why don't you tell us the three, you said that in the State habeas there were three things that were unreasonable? Correct. So tell us what they were. So the first, this is on pages 171 and 172 of the petition appendix. The first was that Mr

. Brumfield had an IQ score of 75. We know as a matter of clinical fact that that is evidence of intellectual disability. The second, there was the second, was there not testimony about a second IQ test that was a little bit higher? That was one that was 75, was there another one that was higher than 75? Not entered. That came from Dr. Jordan, who did not testify, and his report actually doesn't say what he scored there, and the evidence at trial that came out about it was Dr. Boethers saying what Dr. Jordan did was merely a screening test, which is not reliable anyway. So there is no other number in the record. The second prong articulated by the State Court was that Mr. Brumfield had not demonstrated impairment and adaptive skills. This court, the Louisiana Supreme Court, have all indicated that because Atkins changed the playing field, it is unjust and unreasonable to look to a pre-Atkins record for that determination. However, the record from that pre-Atkins trial and sentencing was replete with evidence which the State Court never mentions in his decision. I thought the former was the question you sought to bring before us. Namely that the State Court couldn't use it at all, period. I mean, question one that you presented in your petition is as follows. Whether a State Court that considers the evidence presented at a petitioner's penalty phase proceeding as determinative of the petitioner's claim of intellectual disability under Atkins has based its decision on an unreasonable determination of the facts. Whether a State Court, any State Court, not this particular State Court, but whether any State Court that makes its decision based upon a pre-Atkins penalty phase hearing is automatically made an unreasonable determination of the facts. Wasn't that the question you presented? We did not intend that the question presented to be to sound more like a legal question that would become a matter of law. Did it? That's what it sounds like. I thought your case included the following. Atkins says you cannot sentence to death and execute an intellectually disabled person. So Mr. Smith, whose case is not final, says to the judge, judge, I would like to produce evidence I am intellectually disabled. The State says no, you can't. That would clearly violate Atkins, wouldn't it? Correct. Now, suppose it says yes, you can't. Now, we don't have an Atkins, a standard which says when you do and when you don't have to state let this person present evidence. We don't say it

. But the State has found one. The State of Louisiana has a standard and I take it if that's a good enough standard, that's what we should follow. And that's standard from State V. Williams says we will give you a hearing if you, Mr. Smith, provide objective factors that will put it issue, put it issue, the fact of mental retardation. If you will come forward with some evidence to put your mental condition at issue. And so I guess unless we think Louisiana can't use that standard, that that standard is good enough for federal purposes. And therefore the issue is, did you or client and you put forward some evidence to put your mental condition at issue. And as long as you came forward with some evidence, then unless we're prepared to write some new federal standard for when you have to give a hearing and when not, that's the question. And you're saying among other things, of course judges, you're telling us, of course we put forward some evidence. In fact, we think we put forward a lot more and we would have put forward a lot more if the hearing hadn't been pre-actual. Isn't that your argument? That is correct. That is our argument. So let's get to it so clearly. Well, I think that's important, but that's your argument. Well, I don't want to want to you say it exactly. I mean, it's important if it really is your argument. And it is. It really is. I don't want to want to chew too much on your rebuttal time, but the case has been argued. I think you're making a strong argument that is purely a factual argument about this case. That you're not making an argument about the categorical rule about not considering evidence at a pre-adkins penalty phase proceeding. And unless you can point to precedent that shows that it was clearly established that you had a white to funding, then your inability to put in evidence of via the funding is not to be considered. And all that is before us is whether on the evidence that was in the record at the State Post-Conviction Proceeding, it was an unreasonable application of Federal, of constitutional law. That's the question, right? No, Your Honor. Respectfully, that would be under D1. Under D2, the question, all right, this is a reasonable determination of fact, but it's a purely fact bound. Yes, that's the nature of D2, and that's the question on which this court granted it

. There's no broader legal issue involved here. Not on D1. Not on. I've asked for a legal issue. Not on D1. Is a question of whether the State Court application of Federal law was unreasonable and contrary to Federal law, and we think it was, it spelled out in our brief. But the first question presented does not depend on that. Mr. Chief Justice, I'll reserve my time for a bottle. Thank you, Council. Mr. Burns? Mr. Chief Justice, and may it please the Court. I would like to just begin by recapping that what is at issue here is whether the ultimate sexual conclusion that was made by the State Habiest Court was it reasonable, an entitled to epideference, under whatever viable support was available in that record. The Magistrate Judge on April 15th of 2008, in her recommendation to the District Court, which was in fact adopted and signed also on by the District Court, found that there was in fact failure to put forth objective factors in this case and that he should not be given an act considering. The State Court, of course, you can't know whether it's unreasonable or not unreasonable, unless you know what standard you're trying to meet. And my impression is, and that's why I went on at length, you heard what I said, and it's really to you. I just want to be sure you adopt it. The standard seemed to be the standard you are entitled to a hearing, says Louisiana, and did a new one if you meet the standard of State V Williams. And that seemed to me good enough to be a federal standard in the absence of any other. Now, am I right about that or wrong? The court, the cases have held that for funding or for under. Forget funding for the moment. There must be sufficient factors set forth, objective factors, not American conclusion. I agree with that. I just want to know factors to show what, and am I right in saying in the absence in actions of any standard about when you have to have a hearing that the State standard is good enough, what he wants is a hearing. He doesn't want us to, he'd like it, but he doesn't want, we don't have to say whether this person is intellectually disabled or not. He wants a hearing. And there is nothing in actions, it says what the standard is to give him a hearing

. Therefore, I looked at the State standard from Williams and thought that's good enough to serve as a federal standard. Now, am I right or wrong? The standard is under deference to the state and to the state of Louisiana and to our mental retardation, intellectual disability, statute that there are three problems. No, you're not answering my question. Of course, we defer to the State. And we defer to the State when it makes what judgment, the judgment you, Mr. Defendant, are not entitled to a hearing. So what's the standard under which state aside, whether he's entitled to a hearing or not? And I thought at State, Williams, am I right or am I wrong? The failure to meet an adaptive prong, you have to put some evidence forward of the answer. Are we going wrong in a circle, a little bit of a circle? It seems to me that if what happened here was the right thing. The Federal Court went back and said, did the State properly preclude this petitioner from putting on or discovering evidence? Did it improperly fail to hold a hearing? And the Court there said, by the courts, by any standard, there was some evidence, certainly by the State standard, but even by a constitutional standard. There was some evidence of incompetency. He was entitled to a hearing. They didn't give it to him. So now I will give him the hearing because this is Federal habeas. And in fact, we have said, if a State improperly preclude you from developing a claim, then there is no difference owed to the State. So what we're really looking at was, was the Federal hearing properly granted. You did not argue that on the basis of the evidence produced at the Federal hearing that this man was not intellectually disabled. You have put all your eggs in the basket of on the record that didn't permit a hearing. He didn't make out a threshold finding. That's been your only defense so far. The two issues that were presented to the Fifth Circuit were both that there should have been, Ed, that there should never have been a hearing in this case, which is still our position, for failure to give difference under Ed. And secondly, had we disagree with that? If we disagree with that, what are you left with? Well, then it needs to be, if you find that there should have been a hearing, then you need to remain it back to the Fifth Circuit for a few of the facts. To view the conclusion from the facts developed. Absolutely. And of course, our position to the Fifth Circuit was you should look at both of these issues. You look at Ed, and if you should find that there should have been a Federal hearing, then at that point we ask you to look to the fact that he did not make a preponderance case, which they made a preliminary finding of in footnote evidence. That isn't at this moment, I'll put it once more, and see if I can get an absolute definite answer. And I'm overstating. But if I had to decide at this moment whether there is enough evidence for you to win on the point, is he intellectually disabled? I would say you win. If I decide, have to decide whether or not he presented enough evidence to get a hearing, I would say you lose. Now that's why it's important to me. To know, are we trying to decide here? Whether there was enough evidence such that the state under Federal law was unreasonable in not granting a hearing? There I look at the standards of Williams, and I think you lose. If we're deciding something else, like whether he's intellectually disabled, and I'm repeating myself, I think you win. That's why I want your answer to the question of which are we deciding or both. The point is that no evidence, not one adaptive deficit, was ever presented. But Mr. and Ms. Bernstein, I think what Justice Breyer is driving at is just this. And reasonable people might disagree on the answer to this. But I think the determination that the State Court was making at that moment was whether to have a hearing. And under Louisiana law, I don't think you disagree with this. I don't think anybody could disagree with this. Under Louisiana law, you have a hearing when the defendant has come forward, and it's the burden is on the defendant, but when the defendant has come forward with some evidence that raises a reasonable doubt as to his mental capacity. That's the standard that's in Williams. It's repeated again and done. You don't disagree with that. I do not, Your Honor. And so what Justice Breyer is suggesting is that when we realize that that's the determination that the State Court is making, whether the defendant has come forward with some evidence putting his mental capacity at issue, it looks awfully like an unreasonable determination of facts to say that this record does not meet that standard. That's all that the case is about, isn't it? I disagree. I disagree. This is almost a reverse hall situation in the States looking at, because if you look at hall, hall was trying to rest totally on an IQ. Here, he's trying to do the same thing to say, oh, there's a 75, possibly we can see it higher IQ than that. But hall and hall, there was a conclusion of the adaptive. When the State Court has said is integral to the showing, not one adaptive or a adaptive, adaptive was not relevant to the determination at the sentencing hearing because there was no actions. They were trying to show mental and deficit, but they adaptive, from when we're making an actance determination. And there was that, that was never before the sentencing court. It's only after after decided that adaptive becomes relevant

. If I decide, have to decide whether or not he presented enough evidence to get a hearing, I would say you lose. Now that's why it's important to me. To know, are we trying to decide here? Whether there was enough evidence such that the state under Federal law was unreasonable in not granting a hearing? There I look at the standards of Williams, and I think you lose. If we're deciding something else, like whether he's intellectually disabled, and I'm repeating myself, I think you win. That's why I want your answer to the question of which are we deciding or both. The point is that no evidence, not one adaptive deficit, was ever presented. But Mr. and Ms. Bernstein, I think what Justice Breyer is driving at is just this. And reasonable people might disagree on the answer to this. But I think the determination that the State Court was making at that moment was whether to have a hearing. And under Louisiana law, I don't think you disagree with this. I don't think anybody could disagree with this. Under Louisiana law, you have a hearing when the defendant has come forward, and it's the burden is on the defendant, but when the defendant has come forward with some evidence that raises a reasonable doubt as to his mental capacity. That's the standard that's in Williams. It's repeated again and done. You don't disagree with that. I do not, Your Honor. And so what Justice Breyer is suggesting is that when we realize that that's the determination that the State Court is making, whether the defendant has come forward with some evidence putting his mental capacity at issue, it looks awfully like an unreasonable determination of facts to say that this record does not meet that standard. That's all that the case is about, isn't it? I disagree. I disagree. This is almost a reverse hall situation in the States looking at, because if you look at hall, hall was trying to rest totally on an IQ. Here, he's trying to do the same thing to say, oh, there's a 75, possibly we can see it higher IQ than that. But hall and hall, there was a conclusion of the adaptive. When the State Court has said is integral to the showing, not one adaptive or a adaptive, adaptive was not relevant to the determination at the sentencing hearing because there was no actions. They were trying to show mental and deficit, but they adaptive, from when we're making an actance determination. And there was that, that was never before the sentencing court. It's only after after decided that adaptive becomes relevant. But I did, I wanted to ask you something in this record that's disturbing and maybe you can explain it. There is a brief, you know it, it's by Justice Caligaro that says there were 18 people who were sentenced to death and he foreattends, and actance is decided. Everyone except for this petitioner that he heard in the State Court, is that true? That is not true. And if your honourable indulge me, I can go case by case, very well, you didn't have my time, but I'll be glad to do that. And Don? Please don't. In many of those cases, there was either a pretrial showing of mental retardation, something in the record that was serious, a diagnosis which was never present in this case. There was no mention of the word intellectual disability in Kevin Brumfield's case until June 16, 2003, after actance was decided. And that is the first time after actance was decided that he made this claim and says, I have a 75 IQ, I have adaptive deficits without specifying one of them. And they were on onset prior to 18. He did not meet his standard under actance. But, Mr. And if we could go back and just on this point, you said he didn't meet the standard, and the standard is, as Justice Breyer suggested, and you agreed, the one that comes from done. And what I understand, Mr. Brumfield, to be saying is, look, all I need is some evidence. The evidence that was in the trial record, even though it was pre-actance, the evidence that was in the trial record was, I had a very low IQ, 75. In addition, there was some evidence of adaptive deficits. Even though they weren't trying to prove this point, evidence came in that he didn't read very well. He didn't write very well. He had problems processing information so that there was all that evidence. And then, you sort of, when you look at what the court said, I mean, basically, each one of the three things that the court said was just wrong. You know, the 75 is evidence of disability. There was evidence of adaptive functioning. And this idea that the court had that evidence relating to an anti-social personality somehow precluded the finding of mental disability as wrong as well. So, I guess the question that Justice Breyer's question really leads to is, like, what's not some evidence here? And didn't the court just misunderstand what record it was looking at and what it was doing? I would disagree respectfully, and I would also ask this Court to remember that the court here looked at the entire record. And that is the point. It seems to me that is the point you have to attack. Does the State saying that there has to be some evidence? Does that mean if there is one item of evidence, even though it's outweighed by everything else? It's contradicted by other witnesses. If there's one little peppercorn of evidence, you have to go on to a hearing

. But I did, I wanted to ask you something in this record that's disturbing and maybe you can explain it. There is a brief, you know it, it's by Justice Caligaro that says there were 18 people who were sentenced to death and he foreattends, and actance is decided. Everyone except for this petitioner that he heard in the State Court, is that true? That is not true. And if your honourable indulge me, I can go case by case, very well, you didn't have my time, but I'll be glad to do that. And Don? Please don't. In many of those cases, there was either a pretrial showing of mental retardation, something in the record that was serious, a diagnosis which was never present in this case. There was no mention of the word intellectual disability in Kevin Brumfield's case until June 16, 2003, after actance was decided. And that is the first time after actance was decided that he made this claim and says, I have a 75 IQ, I have adaptive deficits without specifying one of them. And they were on onset prior to 18. He did not meet his standard under actance. But, Mr. And if we could go back and just on this point, you said he didn't meet the standard, and the standard is, as Justice Breyer suggested, and you agreed, the one that comes from done. And what I understand, Mr. Brumfield, to be saying is, look, all I need is some evidence. The evidence that was in the trial record, even though it was pre-actance, the evidence that was in the trial record was, I had a very low IQ, 75. In addition, there was some evidence of adaptive deficits. Even though they weren't trying to prove this point, evidence came in that he didn't read very well. He didn't write very well. He had problems processing information so that there was all that evidence. And then, you sort of, when you look at what the court said, I mean, basically, each one of the three things that the court said was just wrong. You know, the 75 is evidence of disability. There was evidence of adaptive functioning. And this idea that the court had that evidence relating to an anti-social personality somehow precluded the finding of mental disability as wrong as well. So, I guess the question that Justice Breyer's question really leads to is, like, what's not some evidence here? And didn't the court just misunderstand what record it was looking at and what it was doing? I would disagree respectfully, and I would also ask this Court to remember that the court here looked at the entire record. And that is the point. It seems to me that is the point you have to attack. Does the State saying that there has to be some evidence? Does that mean if there is one item of evidence, even though it's outweighed by everything else? It's contradicted by other witnesses. If there's one little peppercorn of evidence, you have to go on to a hearing. Is that what the State will means or does it mean when you consider the entirety, including the rebuttal evidence? Is there reasonably some evidence of his mental disability? Justice Scalia, it is the entirety of the record. I cannot. I cannot. I cannot. I cannot underscore that. The first thing that the State did at the sentencing hearing was to reintroduce the 41 witnesses who testified, their testimony, as well as the 159 exhibits that went into the very sophisticated, very independent planning. I can't stop. I can't stop. Then there is a legal question here. And the legal question is, can a State make the final determination of mental incapacity or lack thereof based on a trial record that did not address the issue? That was the question presented. You're saying it can. And what your adversary is saying, if there is some evidence of mental incapacity that I'm entitled to a separate hearing that addresses that question alone, I can put in additional evidence and contradict whatever happened at the penalty stage. That's what his point is. Why is he wrong? He's wrong because that would require if mental retardation was not raised. What should have been in this case is a mitigator. There is any other relevant mitigating circumstances. If he was a governor. You don't just convey that in Williams and Dunn, your own Supreme Court said it's a double-led sword and we don't expect counsel to raise an issue that doesn't get them off. Justice Sotomayor, if I may disagree with that, the rationale of this Court in Atkins is that we are in evolving decent society that will not have a consensus to execute mentally retarded people. That's all in the face. That's all in the face of saying that juries then are inclined to execute them if they show some evidence of mental retortation. No, really, I think we're all on the same page here. And I think we've made some progress in this because I agree with you and I agree with Justice Scalia that what we have to do, and there isn't to, is to look at the whole record. And see, keeping in mind the fact that it was a pre-Atkins record, and they didn't know about Atkins, but looking at the whole record is the Louisiana Court clearly wrong. Is it unreasonable in saying there wasn't enough evidence even though there has to be some, which is up to them, how pretty much how they say the sum, but they're unreasonable in saying that there wasn't some evidence justifying a hearing. And the only way to do that is for us to read it. Is that right? The record has to be reasonable. Would you agree with that? I would agree that the entirety of the record has got to be read

. Is that what the State will means or does it mean when you consider the entirety, including the rebuttal evidence? Is there reasonably some evidence of his mental disability? Justice Scalia, it is the entirety of the record. I cannot. I cannot. I cannot. I cannot underscore that. The first thing that the State did at the sentencing hearing was to reintroduce the 41 witnesses who testified, their testimony, as well as the 159 exhibits that went into the very sophisticated, very independent planning. I can't stop. I can't stop. Then there is a legal question here. And the legal question is, can a State make the final determination of mental incapacity or lack thereof based on a trial record that did not address the issue? That was the question presented. You're saying it can. And what your adversary is saying, if there is some evidence of mental incapacity that I'm entitled to a separate hearing that addresses that question alone, I can put in additional evidence and contradict whatever happened at the penalty stage. That's what his point is. Why is he wrong? He's wrong because that would require if mental retardation was not raised. What should have been in this case is a mitigator. There is any other relevant mitigating circumstances. If he was a governor. You don't just convey that in Williams and Dunn, your own Supreme Court said it's a double-led sword and we don't expect counsel to raise an issue that doesn't get them off. Justice Sotomayor, if I may disagree with that, the rationale of this Court in Atkins is that we are in evolving decent society that will not have a consensus to execute mentally retarded people. That's all in the face. That's all in the face of saying that juries then are inclined to execute them if they show some evidence of mental retortation. No, really, I think we're all on the same page here. And I think we've made some progress in this because I agree with you and I agree with Justice Scalia that what we have to do, and there isn't to, is to look at the whole record. And see, keeping in mind the fact that it was a pre-Atkins record, and they didn't know about Atkins, but looking at the whole record is the Louisiana Court clearly wrong. Is it unreasonable in saying there wasn't enough evidence even though there has to be some, which is up to them, how pretty much how they say the sum, but they're unreasonable in saying that there wasn't some evidence justifying a hearing. And the only way to do that is for us to read it. Is that right? The record has to be reasonable. Would you agree with that? I would agree that the entirety of the record has got to be read. It cannot be taken in a vacuum as counsel would have you believe that this judge was my object. I haven't read the whole record, you know, and I doubt that I'm going to. And I doubt that this court is going to read the whole record in all of these Atkins cases in the future. I mean, what you're asking is, you don't think it's fantastical? I do, Your Honor. And that's my whole point is if you make the argument that in every one of these cases where mental retardation was not raised as an issue, it opens the floodgates for every pre-Atkins case to have to be reexamined, to have to be given a hearing. No, not everyone. I wanted to say what the petitioner's counsel has conceded that if in this hearing, at the sentencing hearing, medical evidence was that in the opinion of the expert witness, this defendant has no intellectual disability. This would be a different case. That's not in this case. And what is in this case, and you have still not answered Justice Breyer's question echoed by Justice Kagan, don't we look at Dunn and Williams to see what the standard is? And you have not said yes, and you have not said no. Yes, that is the law. All right. That still requires him to come forward with not just some evidence, but significant factors, significant objective factors to send him to have your money to do it. He said, if I had money, I would investigate, and I would come up with a lot more than I did at the sentencing hearing, but the state won't give me any money. Justice Ginsburg, if I may address this issue because unlike the majority of cases that this court has analyzed in an ad put difference, although under a strict one on Breloff, normally in terms of mitigation and in effectiveness of counsel, by filing separate claims for funding, this man was awarded at the time of this trial, approximately $10,000 in funding, which would be approximately $30,000 today for investigators, for investigative services, for a sociologist who was board certified for two neuropsychologists, and Dr. Huy and testified she conducted 28 to 32 interviews. She procured every medical school record that included prior psychiatric and psychological analyses of this defendant including a humanitarian addition that was put in, did get funding when he was in federal court. No, he got funding in the state. This is in the state court to flesh out any possible defend. I'm not talking about the sentencing hearing. I'm talking about the federal habeas. What was their additional evidence? That was just, apparently, that they just showed up and they had the money. There was never a hearing. He showed up one day. He got the experts and I don't know how the funding was granted because he just showed up with those reports. File them into as an amended habeas in state, in district court, and as a result of the reports that he got independently, that's what triggered the citizen of the state. In the state court, did petitioner say, give me a hearing and if you do, I will produce additional evidence without having funding. Or did he say, give me a hearing and if you provide me with funding so that I can put an additional evidence? He made a vague and his very first habeas petition and this went on for a period of 44 months

. It cannot be taken in a vacuum as counsel would have you believe that this judge was my object. I haven't read the whole record, you know, and I doubt that I'm going to. And I doubt that this court is going to read the whole record in all of these Atkins cases in the future. I mean, what you're asking is, you don't think it's fantastical? I do, Your Honor. And that's my whole point is if you make the argument that in every one of these cases where mental retardation was not raised as an issue, it opens the floodgates for every pre-Atkins case to have to be reexamined, to have to be given a hearing. No, not everyone. I wanted to say what the petitioner's counsel has conceded that if in this hearing, at the sentencing hearing, medical evidence was that in the opinion of the expert witness, this defendant has no intellectual disability. This would be a different case. That's not in this case. And what is in this case, and you have still not answered Justice Breyer's question echoed by Justice Kagan, don't we look at Dunn and Williams to see what the standard is? And you have not said yes, and you have not said no. Yes, that is the law. All right. That still requires him to come forward with not just some evidence, but significant factors, significant objective factors to send him to have your money to do it. He said, if I had money, I would investigate, and I would come up with a lot more than I did at the sentencing hearing, but the state won't give me any money. Justice Ginsburg, if I may address this issue because unlike the majority of cases that this court has analyzed in an ad put difference, although under a strict one on Breloff, normally in terms of mitigation and in effectiveness of counsel, by filing separate claims for funding, this man was awarded at the time of this trial, approximately $10,000 in funding, which would be approximately $30,000 today for investigators, for investigative services, for a sociologist who was board certified for two neuropsychologists, and Dr. Huy and testified she conducted 28 to 32 interviews. She procured every medical school record that included prior psychiatric and psychological analyses of this defendant including a humanitarian addition that was put in, did get funding when he was in federal court. No, he got funding in the state. This is in the state court to flesh out any possible defend. I'm not talking about the sentencing hearing. I'm talking about the federal habeas. What was their additional evidence? That was just, apparently, that they just showed up and they had the money. There was never a hearing. He showed up one day. He got the experts and I don't know how the funding was granted because he just showed up with those reports. File them into as an amended habeas in state, in district court, and as a result of the reports that he got independently, that's what triggered the citizen of the state. In the state court, did petitioner say, give me a hearing and if you do, I will produce additional evidence without having funding. Or did he say, give me a hearing and if you provide me with funding so that I can put an additional evidence? He made a vague and his very first habeas petition and this went on for a period of 44 months. The first petition says, I need about 10 different types of experts and probably will need money. Then he filed for motions to continue saying, I am still reviewing this record and I do not know what experts I will be needing. Then when he came in on the hearing, there was never, although there was a claim at the very, very end, claim 105, which was the last claim, he never filed a separate eighth motion as had been done in everything pre trial in this case. He just came in, he sat mute, he didn't say to the judge, which would be Louisiana standard your honor. You need to rule on this ahead of time, I still need time to investigate. There was never any kind of objection, any kind of moving for the funds or any kind of specificity. And as a result of that, the reviewing, stay habeas court, dismissed those claims with prejudice for failure to make them out with particularity. Well, I see, unless we know the answer to that question, I don't know how we can answer the question of whether there should have been hearing. If he wasn't going to produce anything more at the hearing than what was already in the record, there would be no point in granting a hearing. And so if the only purpose of the hearing was to allow him to put in additional evidence with funding, the case comes down to the question whether it was unconstitutional, whether under Ed Pett, it was clearly established that it was unconstitutional for the State court to deny funding for this purpose. There was never, in my point again, is just as he did not make the threshold for the Atkins hearing, he did not make any kind of threshold and showing of specificity for any expert funding. You just always have. Q. So, he would not be right to think, sure, he'd rather have had funding, but he wanted the hearing regardless of whether he was going to get funding. And he could go out and seek pro bono support. He could try to go back to the same experts that he had used at the sentencing. So, even without funding, the opportunity for hearing might have been worth something to him. And what's clear is that this is the, you said that there's questions as to whether he asked for funding or didn't ask for funding. What's clear is that he asked for a hearing, isn't that right? He did ask for a hearing, but to get a hearing again, you have to meet a threshold. And I might add to the court that it would have been, as in many other cases, a relatively simple manner to go back to an approach, Dr. Bolter, Dr. Jordan, Dr. Ewan, and just said, look, a case named Atkins has come out in the court. In 2002, you have previously evaluated, this defendant, would it now make any difference to you in view of the holding in that case? Would you just say in a letter that it would be? Often in order to obtain a hearing, a party who is moving for a hearing has to make a proper of what will be shown at the hearing. It makes no sense to say we're going to have the hearing, and I want a hearing, and I don't have any evidence to prove the point that I need to prove. And what does seem to come down to funding unless there's something in the record, and maybe you or your counsel can point to something in the record that shows that he wanted a hearing, even if he wasn't going to have funding? He proceeded with the hearing that day without making any type of objection and proceeded to the merits. First of all, he did not file any separate egg claim. I consider that very important because that was the procedure that was followed

. The first petition says, I need about 10 different types of experts and probably will need money. Then he filed for motions to continue saying, I am still reviewing this record and I do not know what experts I will be needing. Then when he came in on the hearing, there was never, although there was a claim at the very, very end, claim 105, which was the last claim, he never filed a separate eighth motion as had been done in everything pre trial in this case. He just came in, he sat mute, he didn't say to the judge, which would be Louisiana standard your honor. You need to rule on this ahead of time, I still need time to investigate. There was never any kind of objection, any kind of moving for the funds or any kind of specificity. And as a result of that, the reviewing, stay habeas court, dismissed those claims with prejudice for failure to make them out with particularity. Well, I see, unless we know the answer to that question, I don't know how we can answer the question of whether there should have been hearing. If he wasn't going to produce anything more at the hearing than what was already in the record, there would be no point in granting a hearing. And so if the only purpose of the hearing was to allow him to put in additional evidence with funding, the case comes down to the question whether it was unconstitutional, whether under Ed Pett, it was clearly established that it was unconstitutional for the State court to deny funding for this purpose. There was never, in my point again, is just as he did not make the threshold for the Atkins hearing, he did not make any kind of threshold and showing of specificity for any expert funding. You just always have. Q. So, he would not be right to think, sure, he'd rather have had funding, but he wanted the hearing regardless of whether he was going to get funding. And he could go out and seek pro bono support. He could try to go back to the same experts that he had used at the sentencing. So, even without funding, the opportunity for hearing might have been worth something to him. And what's clear is that this is the, you said that there's questions as to whether he asked for funding or didn't ask for funding. What's clear is that he asked for a hearing, isn't that right? He did ask for a hearing, but to get a hearing again, you have to meet a threshold. And I might add to the court that it would have been, as in many other cases, a relatively simple manner to go back to an approach, Dr. Bolter, Dr. Jordan, Dr. Ewan, and just said, look, a case named Atkins has come out in the court. In 2002, you have previously evaluated, this defendant, would it now make any difference to you in view of the holding in that case? Would you just say in a letter that it would be? Often in order to obtain a hearing, a party who is moving for a hearing has to make a proper of what will be shown at the hearing. It makes no sense to say we're going to have the hearing, and I want a hearing, and I don't have any evidence to prove the point that I need to prove. And what does seem to come down to funding unless there's something in the record, and maybe you or your counsel can point to something in the record that shows that he wanted a hearing, even if he wasn't going to have funding? He proceeded with the hearing that day without making any type of objection and proceeded to the merits. First of all, he did not file any separate egg claim. I consider that very important because that was the procedure that was followed. He doesn't want funding. He didn't want funding, you're saying, right? No, he made a nebulous claim for funding and said, well, you know I'm reviewing this, I don't know what I've heard. So he proceeded without it, so he did. So he didn't want funding. That doesn't help your case. It hurts your case. He proceeded to the hearing that day. So when looking at the record, what are we supposed to do with Dr. Jordan's report? My, I, my, I direct this court to the Magistrate Judges recommendation, which is found, it's document 37, page 17, footnote 7, where she references a certain page of Dr. Jordan's report. And it's, we don't know. It is a defendant's burden when we file for discovery to at least file whatever reports are going to be used. Well, no, that's a bit of a cop out. You're the prosecutor. Was it admitted at the Senate was not admitted at the sentencing hearing? As evidence, right. But she had a copy of it. And as Dr. Jordan was not more for the State Court. Apparently, it was viewed by the judge. You can still have, if it's not introduced as evidence by either party during the trial, it can still be filed as part of an answer and be part of that trial record, which the court reviews. There was, it was discussed during, I gather, during cross examination several times. What is the status of documents that are subject of cross examination under Louisiana law? Are they part of the record? Are they simply extraneous material that can be consulted? What, what are they? If, of course, the rule is if someone has relied upon a report as both Dr. Bolter and Dr. Guin did in this case, and the report had been tender to me the Jordan report. We have the right. The report had been tendered. What? The report had been tendered to the State after, after much argument, they did not want to tender that report. But we had a copy of it because I vary, I think, very, very repletely cross-examined Dr

. He doesn't want funding. He didn't want funding, you're saying, right? No, he made a nebulous claim for funding and said, well, you know I'm reviewing this, I don't know what I've heard. So he proceeded without it, so he did. So he didn't want funding. That doesn't help your case. It hurts your case. He proceeded to the hearing that day. So when looking at the record, what are we supposed to do with Dr. Jordan's report? My, I, my, I direct this court to the Magistrate Judges recommendation, which is found, it's document 37, page 17, footnote 7, where she references a certain page of Dr. Jordan's report. And it's, we don't know. It is a defendant's burden when we file for discovery to at least file whatever reports are going to be used. Well, no, that's a bit of a cop out. You're the prosecutor. Was it admitted at the Senate was not admitted at the sentencing hearing? As evidence, right. But she had a copy of it. And as Dr. Jordan was not more for the State Court. Apparently, it was viewed by the judge. You can still have, if it's not introduced as evidence by either party during the trial, it can still be filed as part of an answer and be part of that trial record, which the court reviews. There was, it was discussed during, I gather, during cross examination several times. What is the status of documents that are subject of cross examination under Louisiana law? Are they part of the record? Are they simply extraneous material that can be consulted? What, what are they? If, of course, the rule is if someone has relied upon a report as both Dr. Bolter and Dr. Guin did in this case, and the report had been tender to me the Jordan report. We have the right. The report had been tendered. What? The report had been tendered to the State after, after much argument, they did not want to tender that report. But we had a copy of it because I vary, I think, very, very repletely cross-examined Dr. Guin. And waiting for the last half of your sentence, if, right, if a witness testified about it, and if it was tendered to the court, then what is the conclusion? You can, you can, of course, use that report. And it becomes part of the record. Yes, it does. Okay. Absolutely. Absolutely. We were told that the three reasons given by the State Havies Court that, if you all of those, the three were wrong, that's what Mr. Counsel for the petitioner told us. And what is your response to that? 75, we know that it isn't an absolute, that you can have a 75's for, and still be intellectually disabled. 75 is, of course, within the range. And what's noticeably been absent from this record in reply brief is that everything's been taken down the five points by the SAM. But we never hear, in these cases, that truly are argued that the SAM can go up the five points. The first test that this defendant was administered when he was 11, which was a whisk, there was no number put down. But the doctor opined that it was a dull normal, which would be an 80 to an 89, which is more consistent if we took the five points up from the 75 that Dr. Walter did. And additionally, we also, well, there was, there was additional evidence, of course, at the Federal hearing that would put it more in that upper range, I believe. All right, could I go back to your answer to Justice Scalia? I've practiced elsewhere. And if anything's made part of the record, you give it an evidence number. Losing on is different. It's not, it's not introduced in evidence. No, just not necessarily. No, the given report was not introduced by the defense into evidence. I will refer to corners reports, crime lab reports. I do not necessarily file them into evidence. What I do is as part of the answer to discovery, we attach them. They are part of the record. That is, that is Louisiana

. Guin. And waiting for the last half of your sentence, if, right, if a witness testified about it, and if it was tendered to the court, then what is the conclusion? You can, you can, of course, use that report. And it becomes part of the record. Yes, it does. Okay. Absolutely. Absolutely. We were told that the three reasons given by the State Havies Court that, if you all of those, the three were wrong, that's what Mr. Counsel for the petitioner told us. And what is your response to that? 75, we know that it isn't an absolute, that you can have a 75's for, and still be intellectually disabled. 75 is, of course, within the range. And what's noticeably been absent from this record in reply brief is that everything's been taken down the five points by the SAM. But we never hear, in these cases, that truly are argued that the SAM can go up the five points. The first test that this defendant was administered when he was 11, which was a whisk, there was no number put down. But the doctor opined that it was a dull normal, which would be an 80 to an 89, which is more consistent if we took the five points up from the 75 that Dr. Walter did. And additionally, we also, well, there was, there was additional evidence, of course, at the Federal hearing that would put it more in that upper range, I believe. All right, could I go back to your answer to Justice Scalia? I've practiced elsewhere. And if anything's made part of the record, you give it an evidence number. Losing on is different. It's not, it's not introduced in evidence. No, just not necessarily. No, the given report was not introduced by the defense into evidence. I will refer to corners reports, crime lab reports. I do not necessarily file them into evidence. What I do is as part of the answer to discovery, we attach them. They are part of the record. That is, that is Louisiana. As the answer, but how do we know the trial judge read it? Because he said so. He, first of all, under Herrington versus Richter, it is the ultimate conclusion. The factual conclusion reached by the Court, not necessarily the language that he used. It does not require that each and every ground that he relied on be articulated. And the Court stated in his rulings that I'll have examined this record. It says, I've looked at the application, the response, the record, which in this case, just to educate the Court as to Louisiana Havius procedure, if a Havius judge is reviewing, he would get the 16 initial volumes of the case. There were four additional supplemental volumes. That includes everything from indictment to pretrial discovery. Any answers, documents that were filed and answer to that. It includes the testimony during any suppression or funding hearings. It includes the Vaudier, which in this case was 13 days. It includes the guilt phase, which was 16 days. And we can't have any of these. You were answering my question and then, and you told me there are 75 rights, you, but there were two others. Yes. There was nothing on adopted behavior, but in fact, it was evidence, some evidence of adopted behavior. And then the third point, anti-social behavior, there's nothing inconsistent about being anti-social and having an intellectual disability. There is. And it was simply, I think, I don't think you can necessarily fault the Court for saying that he's just simply reciting that there was a finding in this case, because every doctor, every thing is perfectly consistent with intellectual disability. This individual was examined five times prior to the age of 18. He was given a risk. Nobody found the words intellectual disability. And fact, of course, because the act was not decided. No, mental retardation has existed since the beginning of time. It does not require the act in case to come into play. Nobody found him to be intellectually disabled, what they did find was conduct disorder, hyperactivity, under-socialized, aggressive, and then as an adult, that morphed into anti-social personality behavior. They are two also two separate and distinct items. And that is contained in the Louisiana statute on intellectual disability that certain things like learning disabilities, environmental cultural or economic disadvantage, emotional stress in the home or school, difficulty in adjusting to school, behavioral disorders, and other mental types of behavior psychoses are not necessarily indicative

. As the answer, but how do we know the trial judge read it? Because he said so. He, first of all, under Herrington versus Richter, it is the ultimate conclusion. The factual conclusion reached by the Court, not necessarily the language that he used. It does not require that each and every ground that he relied on be articulated. And the Court stated in his rulings that I'll have examined this record. It says, I've looked at the application, the response, the record, which in this case, just to educate the Court as to Louisiana Havius procedure, if a Havius judge is reviewing, he would get the 16 initial volumes of the case. There were four additional supplemental volumes. That includes everything from indictment to pretrial discovery. Any answers, documents that were filed and answer to that. It includes the testimony during any suppression or funding hearings. It includes the Vaudier, which in this case was 13 days. It includes the guilt phase, which was 16 days. And we can't have any of these. You were answering my question and then, and you told me there are 75 rights, you, but there were two others. Yes. There was nothing on adopted behavior, but in fact, it was evidence, some evidence of adopted behavior. And then the third point, anti-social behavior, there's nothing inconsistent about being anti-social and having an intellectual disability. There is. And it was simply, I think, I don't think you can necessarily fault the Court for saying that he's just simply reciting that there was a finding in this case, because every doctor, every thing is perfectly consistent with intellectual disability. This individual was examined five times prior to the age of 18. He was given a risk. Nobody found the words intellectual disability. And fact, of course, because the act was not decided. No, mental retardation has existed since the beginning of time. It does not require the act in case to come into play. Nobody found him to be intellectually disabled, what they did find was conduct disorder, hyperactivity, under-socialized, aggressive, and then as an adult, that morphed into anti-social personality behavior. They are two also two separate and distinct items. And that is contained in the Louisiana statute on intellectual disability that certain things like learning disabilities, environmental cultural or economic disadvantage, emotional stress in the home or school, difficulty in adjusting to school, behavioral disorders, and other mental types of behavior psychoses are not necessarily indicative. Thank you, Council. Mr. DeSanck, do you have two minutes remaining? Thank you, Alma. Thank you, Mr. Chief Justice. First, the Dr. Jordan's report was not in the record, and that is made clear at the petition appendix 39A note 13, where the court noted that Council recognized that it was not in the record. Second, Council articulated that there were scores, IQ scores in the 80s and 90s. That is not correct. Federal volume 1 of the Federal hearing at page 57 shows that there were two other tests, one at 75 and one at 54. Finally, I want to emphasize that this court recently recognized that it is unconstitutional to create an unacceptable risk that persons with intellectual disability will be executed. The state court's determination of the facts in this case created precisely that risk. And now that we are here, it is not just risk, it is certainty. The only court to provide Mr. Brumfield with a hearing found that he is intellectually disabled. And unless this court reverses the fifth circuit's erroneous ruling, an intellectually disabled person will be executed. Thank you. Thank you, Council. The case is submitted.

We'll hear argument this morning, case 13, 14, 33, Brumfield versus Cain. Mr. Dutanktis? Mr. Chief Justice, and may it please the Court. The decision of the State Court in this case was to deny Kevin Brumfield a hearing on his claim of intellectual disability. That decision was based on an entirely unreasonable determination of the facts of Brumfield's mental condition. The Court, specifically, the Court expressly stated in its decision to deny hearing was, quote, based on the three bases that it laid out in its oral ruling at page 172 of the pet app. And I'd like to discuss each of those in turn. The first basis given by the State Court was that Brumfield scored a 75 on the Wexler IQ test. That's not just suggestive of intellectual disability. That's actual evidence of intellectual disability. And there was no testimony in the record to the contrary. This Court made it clear in Atkins, all of the clinical texts on which this Court relied on in Atkins make it clear. And the Louisiana Supreme Court had made it clear in Williams and in Dunne. The second basis for the State Court's decision was that the defendant has not, quote, demonstrated impairment based on this record in adaptive skills. To demand or even expect that blood from the stone of a pre-Atkins record, when either intellectual disability nor adaptive skills were even raised. I'm sorry, but it isn't. I don't, whether I agree with you or not, isn't it your burden to prove that he had some deficits in adaptive ability? You have to make the threshold showing. Yes, there's a threshold showing under Louisiana law. What did you show that met that prong in any way? Sure. The standard under Louisiana law is a law one. It's a burden of coming forward with some evidence of objective facts that put the move in intellectual disability at issue. How is that determination under State law pertinent to the question here? I was merely answering, just as so to my or his question, as to what facts were put into evidence before the State Court. I was setting the State Court under that. But given the facts that were presented, this is what the language of the law is, of course, and the evidence presented in the State Court proceeding, how is that pertinent on the Federal question? In other words, I don't think it would be a different. Your burden, I don't think, would be different on the question that's presented here if the State law required a higher threshold or not. And we're not requiring. We're not challenging the State Court. In your answer to Justice Sotomayor, I thought you said, well, the State has a very low standard. What difference does that make? Are you saying that if the State with its regular processes takes a federal rule and misinterprets the rule as part of its process, then there's a federal violation. Is that your point? No. There could be in that case, that's not what the difference is. What difference does it make? And I think this was what the Chief Justice of Concern was as well. What difference does it make that Louisiana has a low bar or a high bar? It may not make a difference, Your Honor, and it's not a critical part of our argument. And then why you're on the suppose at the trial in the sentencing phase, an expert medical expert testified, in my view, this defendant does not have an intellectual disability as we define that in medical terms. Would you be here? We still have a hypothetical, of course. It's a hypothetical, obviously, that wasn't this case. There was no testimony at the State trial or sentencing about intellectual disability. But in that case, we probably still would be here because that's what happened in Williams. In Williams I, the defense own expert at trial prior to Atkins had testified that the defendant was not intellectually disabled. And yet, the Louisiana Supreme Court sent it back for an Atkins hearing because Atkins had entirely changed the legal land. The first question is whether a state court that considers the evidence presented at a petitioner's penalty phase proceeding as a determinant of the petitioner's claim of intellectual disability under Atkins has based its decision on an unreasonable determination of the facts. So suppose that at the penalty phase proceeding there is evidence of five IQ tests all above 140. Would it be wrong to say that that's a determinant of? Again, obviously not our case. But in that situation, we address that in our blue brief. For the purpose of making clear that we are not asking for a bright line rule in a situation where there is uncontested evidence in the Pre-Atkins record that disqualifies the individual from intellectual ability. So the answer to the first question is no. It is not necessarily unconstitutional to regard the penalty phase evidence as a determinant. It is in this case on this record. And Section D2 is by its very nature, the factual inquiry. So point is your point that we are involved in a wholly different inquiry once Atkins is on the books because when you were before the state court at the sentencing hearing, you weren't talking about intellectual disability. That's correct. You were talking about some mitigating factors. So the state court never had before at Atkins claim. The Atkins claim is raised for the first time on post-conviction review. That's exactly right. It's similar to the reasoning that this court adopted in Bobby versus Bies. And precisely this setting, the Louisiana Supreme Court held or it explained that prior to Atkins, as your Honor just explained, a defendant only had to show diminished capacity as a mitigating factor and wasn't called upon to marshal demonstrations of intellectual disability or impairment in adaptive skills. You know, if I think it would have been an effective assistance of counsel, pre-Atkins, for a lawyer who had a client who was severely mentally disabled, not to bring that fact forward in the sentencing hearing for consideration by the jury. Even though it wasn't a mandatory federal basis for exerting him from the death penalty, surely you would want the jury to consider that kind of evidence, wouldn't you? Your Honor, this court in Henry and again in Atkins recognized that putting on a defense of, quote unquote, mental retardation as the term was used at that time is a double edged sword. It's a much higher burden typically than the lower burden of putting on mitigating evidence of one's mental condition. And which brings me to answer, I don't find that persuasive. It seems to me you have the burden to show that there was some basis for the state Supreme Court coming out the other way and that basis should have been in the record according to the federal statute and your only defense is, well, we didn't put anything in the record because Atkins had not yet been decided. No, Your Honor, and that goes to Justice Sotomayor's question as well. There was overwhelming evidence of impairment of inadaptive skills and intellectual disability in the state court record for the state court judge. Fine. First, so let's get rid of that argument that Atkins had not been decided that that had nothing you do with the case, right? Okay, turning to the evidence in this case. First, it was evidence before the state court judge that Mr. Brumfield had a fourth grade reading level in terms of mere word recognition, not even comprehension. That's again actual evidence of impairment inadaptive skills. It was in the record before the state court that Mr. Brumfield quote has a basic deficit somewhere in his brain. It was in the record in the state court that he had a very low birth weight that put him at risk of neurological trauma and it was in the record from Dr. Boeter that Mr. Brumfield was in trouble many, many, many years ago. The second expert before the state court, this is in the state court record, was Dr. Grim. She was a social worker. She didn't perform any tests of her own, but she found that Mr. Brumfield was sent to quote special education from the third grade that he had been placed in and out of mental hospitals because no one knew what to do with him throughout his childhood and youth. That his main problem was that he cannot process information the way normal people do. And that's precise, that is a key indicator of intellectual disability that this court recognized twice in adkins. She testified that Brumfield before the state court, she testified that Brumfield needed someone to quote help him function. That he did poorly even at recess as a child because he couldn't function with a lot of chaos around him. That age at age 11, one of the mental institutions in which he had been placed, quote, questioned his intellectual functions and noted his slowness in motor development and that the nurses literally from his birth recognized that there was something wrong with him and that he was slower than normal babies. And my wrong in my understanding that the record included an expert report stating that Brumfield possessed, quote, a normal capacity to learn and acquire information and that he had, quote, adequate problem and reasoning skills, problem solving and reasoning skills. Is that correct? You Honor, I believe that's from the report of Dr. Jordan. Dr. Jordan did not testify in the state court proceeding. It was not in the record? It's actually an issue of debate whether Dr. Jordan's report was in the record at the federal hearing. The state conceded that it was not and the the state court judge doesn't say he read it. Although it was discussed by some of the experts though not the portion you just read. Well, it was in it. It's pretty categorical, right? I would think that's enough for the state court to hang its hat on. I don't think we can possibly find it. It was unreasonable evidentiary finding if that was indeed in the record. Your Honor, it is because again, the report did the state put it in the record? Nope, there's no evidence, Your Honor, that the state put it in the record. They have claimed at various points in the proceeding. And you didn't, but another expert referred to it. That's correct. Dr. Bolter referenced Dr. Jordan's report regarding his IQ testing that it was merely a screening test and he was dismissive of it. But the state wasn't, didn't put it in the evidence. And they did not put this in the record. And are we talking about the trial record now? Talking about the state trial at the sentencing, at the sentencing hearing. At the sentencing. That's correct. Second, it is very relevant. That the state court ignored all of the objective facts after the defendant had been required only to come on with some evidence. There's no indication in the State Court's decision, which he explains precisely was based on the three factors that he just laid out. Did you ask the State Court did not? For funds as a matter of Federal right. And the other side says, did you ask for funds and State habeas only under State law and not under Federal law? Is that true? We requested funds repeatedly in every petition before the Court. And in doing so, at least six times, we cited the Louisiana Court of Duboe versus Whitley. That case discusses ache and is based exclusively on ache and Federal law. And this Court has made clear that if that acclaim is preserved by citing a case that relies on the appropriate Federal law. So, yes. I will perhaps talk about what is a little confusing, if not confusing, disconcerting in this case. There seems to be an inequity that one could perceive that says you can use the penalty phase record, but the other side can't to challenge your conclusions. Because that's basically what you're saying. And so, that was, I think, Justice Salitos point, which is you can see it on some, in some circumstances, the State might. What makes your case different? Now, I do know that this, in this case, you're saying you provided some, a sufficient amount of some evidence. Correct. And the State was unreasonable by not giving you a hearing to determine the merits of your claim. Correct. All right. We don't even get to the issue of whether you were entitled to funds at that hearing, but I don't even think on Jalooissiana you wouldn't be. Once you've made the threshold show. It's a distinct issue that our question won does not depend on. All right. So, answer my question, because it's a bit of a take off from Justice Salitos question, which is, what is, why in your case can't the State rely on the evidence in the penalty phase if that's what you're relying on to make your sum showing? There really is no inequity there. Your honor, and I'm glad you asked. The Louisiana Supreme Court explained it in done, which predated the State Court's decision in this case by almost a year. The Court explained that although the defendant was not called upon to offer proof of intellectual disability at the trial prior to Atkins, the defendant did offer evidence of intellectual disability through that record. It was far less than the evidence that I just articulated. From there, the Court explained that it was improper for the State Court to then weigh any contrary evidence without the guidance of experts and essentially make a diagnosis itself as to whether the facts in the record are consistent or inconsistent with intellectual disability. Court always has to do it itself even when there are experts. I mean, I don't understand that. Once the defendant comes forward with some evidence, which Mr. Brumfield did here overwhelmingly, if there's contrary evidence in the record, that's what the hearing is for. And that's all we were asking. We were putting this in a perspective for a word. Suppose we're in the district court on a petition for habeas, federal district court, and the question is, is the defendant entitled to a hearing, this petitioner entitled to a hearing? What is the standard that the district court must find before the district court has a hearing on the facts, before the district court can have its experts? Does he have to find that the state collateral decision was clearly erroneous or that there was a pre-Mafasia evidence of disability that the state collateral court ignored? What's the district court have to do before it decides it's going to have a hearing on call its own experts? What standard must it meet and did it meet that standard here? The answer to the final part of your question is yes. I would break it down this way. The question of whether an individual is intellectually disabled, this court left to the states under Atkins. So the state standard is what applies for the showing that a defendant must make in order to prove his intellectual disability at the hearing. If that occurs pre-Atkins, as it did in this case, and we get to federal habeas, under 2254d2, the federal habeas judge looks at whether the factual determinations, in this case, of the defendant's mental condition, were unreasonable. And here they were. The judge articulated three grounds, one of which was evidence of intellectual disability, one of which was irrelevant to the question of intellectual disability, and ignored a plethora of evidence in the record putting Mr. Brumfield's intellectual disability. So are you saying that the district court, United States District Court decided to have a hearing because it found that the State Court's collateral review determination was fill in the blank. Clearly erroneous? Was unreasonable. Unreasonable. That's the head-pastandard. That's the head-pastandard and D2. Unreasonable because there were some open questions or because no one could read the record to say that there was evidence that he had no disability. Because the State Court judge in this case expressly indicated what his decision was based on. It was based on three bases, all of which are entirely unreasonable, and no one could say that they support a claim that the defendant is not intellectually. That would be the... Part of a lot of discussion on the evidence at issue in this particular case. What is the broader significance of that discussion here? I'm concerned your answer to Justice Alito was that the answer to your first question was no. It's not necessarily the case that it's unreasonable determination in a situation where the State considers the evidence plethora, but you're saying now that in this case it was. Correct. So what is the broader significance of the question you want us to decide since you've conceded that the question... The answer to the first question presented is no. No. I'm sorry. I certainly did not mean to concede that the answer to the first question presented is no. My answer to Justice Alito's hypothetical was if there is uncontested evidence in the record of qualifying intellectual disability. Right, but your question is if it's determinative is it unreasonable? Justice Alito gave you an example of where it was determinative, and you said it was not unreasonable. So as a general rule, the question is... The answer to the question is no. And in terms of what we're going to decide, I just need to know whether it is simply whether the facts in your particular case lead to a particular result, or if there is some more general legal rule that you're arguing for. Section 2254-D2 is on its face and by its text a factual inquiry. And this court need to do nothing more than rule that what this judge did in this proceeding on this pre-Atkins record was unreasonable. Go back to Justice Kennedy's question. And either working it backwards or working it forward, but you're not taking it step by step, okay? Atkins, I believe says that a State doesn't have to give you a hearing if you haven't met a threshold. And that threshold definition is unreasonable. The threshold definition in Louisiana? Not Louisiana, Atkins. What did Atkins? Atkins doesn't articulate. It doesn't, but it does articulate that there has to be a threshold and it has to be some doubt as to mental capacity. Correct? Some reason to believe that the threshold is intellectually disabled. So that was the standard. Some reason to believe that an individual's mental capacity is compromised, correct? Correct. So is your first argument that there was enough evidence for you to have been entitled to a hearing? That certainly is part of our argument, but it doesn't explain the entirety of the federal error recognized as a cognizable under Federal law under Section D2. Why don't you tell us the three, you said that in the State habeas there were three things that were unreasonable? Correct. So tell us what they were. So the first, this is on pages 171 and 172 of the petition appendix. The first was that Mr. Brumfield had an IQ score of 75. We know as a matter of clinical fact that that is evidence of intellectual disability. The second, there was the second, was there not testimony about a second IQ test that was a little bit higher? That was one that was 75, was there another one that was higher than 75? Not entered. That came from Dr. Jordan, who did not testify, and his report actually doesn't say what he scored there, and the evidence at trial that came out about it was Dr. Boethers saying what Dr. Jordan did was merely a screening test, which is not reliable anyway. So there is no other number in the record. The second prong articulated by the State Court was that Mr. Brumfield had not demonstrated impairment and adaptive skills. This court, the Louisiana Supreme Court, have all indicated that because Atkins changed the playing field, it is unjust and unreasonable to look to a pre-Atkins record for that determination. However, the record from that pre-Atkins trial and sentencing was replete with evidence which the State Court never mentions in his decision. I thought the former was the question you sought to bring before us. Namely that the State Court couldn't use it at all, period. I mean, question one that you presented in your petition is as follows. Whether a State Court that considers the evidence presented at a petitioner's penalty phase proceeding as determinative of the petitioner's claim of intellectual disability under Atkins has based its decision on an unreasonable determination of the facts. Whether a State Court, any State Court, not this particular State Court, but whether any State Court that makes its decision based upon a pre-Atkins penalty phase hearing is automatically made an unreasonable determination of the facts. Wasn't that the question you presented? We did not intend that the question presented to be to sound more like a legal question that would become a matter of law. Did it? That's what it sounds like. I thought your case included the following. Atkins says you cannot sentence to death and execute an intellectually disabled person. So Mr. Smith, whose case is not final, says to the judge, judge, I would like to produce evidence I am intellectually disabled. The State says no, you can't. That would clearly violate Atkins, wouldn't it? Correct. Now, suppose it says yes, you can't. Now, we don't have an Atkins, a standard which says when you do and when you don't have to state let this person present evidence. We don't say it. But the State has found one. The State of Louisiana has a standard and I take it if that's a good enough standard, that's what we should follow. And that's standard from State V. Williams says we will give you a hearing if you, Mr. Smith, provide objective factors that will put it issue, put it issue, the fact of mental retardation. If you will come forward with some evidence to put your mental condition at issue. And so I guess unless we think Louisiana can't use that standard, that that standard is good enough for federal purposes. And therefore the issue is, did you or client and you put forward some evidence to put your mental condition at issue. And as long as you came forward with some evidence, then unless we're prepared to write some new federal standard for when you have to give a hearing and when not, that's the question. And you're saying among other things, of course judges, you're telling us, of course we put forward some evidence. In fact, we think we put forward a lot more and we would have put forward a lot more if the hearing hadn't been pre-actual. Isn't that your argument? That is correct. That is our argument. So let's get to it so clearly. Well, I think that's important, but that's your argument. Well, I don't want to want to you say it exactly. I mean, it's important if it really is your argument. And it is. It really is. I don't want to want to chew too much on your rebuttal time, but the case has been argued. I think you're making a strong argument that is purely a factual argument about this case. That you're not making an argument about the categorical rule about not considering evidence at a pre-adkins penalty phase proceeding. And unless you can point to precedent that shows that it was clearly established that you had a white to funding, then your inability to put in evidence of via the funding is not to be considered. And all that is before us is whether on the evidence that was in the record at the State Post-Conviction Proceeding, it was an unreasonable application of Federal, of constitutional law. That's the question, right? No, Your Honor. Respectfully, that would be under D1. Under D2, the question, all right, this is a reasonable determination of fact, but it's a purely fact bound. Yes, that's the nature of D2, and that's the question on which this court granted it. There's no broader legal issue involved here. Not on D1. Not on. I've asked for a legal issue. Not on D1. Is a question of whether the State Court application of Federal law was unreasonable and contrary to Federal law, and we think it was, it spelled out in our brief. But the first question presented does not depend on that. Mr. Chief Justice, I'll reserve my time for a bottle. Thank you, Council. Mr. Burns? Mr. Chief Justice, and may it please the Court. I would like to just begin by recapping that what is at issue here is whether the ultimate sexual conclusion that was made by the State Habiest Court was it reasonable, an entitled to epideference, under whatever viable support was available in that record. The Magistrate Judge on April 15th of 2008, in her recommendation to the District Court, which was in fact adopted and signed also on by the District Court, found that there was in fact failure to put forth objective factors in this case and that he should not be given an act considering. The State Court, of course, you can't know whether it's unreasonable or not unreasonable, unless you know what standard you're trying to meet. And my impression is, and that's why I went on at length, you heard what I said, and it's really to you. I just want to be sure you adopt it. The standard seemed to be the standard you are entitled to a hearing, says Louisiana, and did a new one if you meet the standard of State V Williams. And that seemed to me good enough to be a federal standard in the absence of any other. Now, am I right about that or wrong? The court, the cases have held that for funding or for under. Forget funding for the moment. There must be sufficient factors set forth, objective factors, not American conclusion. I agree with that. I just want to know factors to show what, and am I right in saying in the absence in actions of any standard about when you have to have a hearing that the State standard is good enough, what he wants is a hearing. He doesn't want us to, he'd like it, but he doesn't want, we don't have to say whether this person is intellectually disabled or not. He wants a hearing. And there is nothing in actions, it says what the standard is to give him a hearing. Therefore, I looked at the State standard from Williams and thought that's good enough to serve as a federal standard. Now, am I right or wrong? The standard is under deference to the state and to the state of Louisiana and to our mental retardation, intellectual disability, statute that there are three problems. No, you're not answering my question. Of course, we defer to the State. And we defer to the State when it makes what judgment, the judgment you, Mr. Defendant, are not entitled to a hearing. So what's the standard under which state aside, whether he's entitled to a hearing or not? And I thought at State, Williams, am I right or am I wrong? The failure to meet an adaptive prong, you have to put some evidence forward of the answer. Are we going wrong in a circle, a little bit of a circle? It seems to me that if what happened here was the right thing. The Federal Court went back and said, did the State properly preclude this petitioner from putting on or discovering evidence? Did it improperly fail to hold a hearing? And the Court there said, by the courts, by any standard, there was some evidence, certainly by the State standard, but even by a constitutional standard. There was some evidence of incompetency. He was entitled to a hearing. They didn't give it to him. So now I will give him the hearing because this is Federal habeas. And in fact, we have said, if a State improperly preclude you from developing a claim, then there is no difference owed to the State. So what we're really looking at was, was the Federal hearing properly granted. You did not argue that on the basis of the evidence produced at the Federal hearing that this man was not intellectually disabled. You have put all your eggs in the basket of on the record that didn't permit a hearing. He didn't make out a threshold finding. That's been your only defense so far. The two issues that were presented to the Fifth Circuit were both that there should have been, Ed, that there should never have been a hearing in this case, which is still our position, for failure to give difference under Ed. And secondly, had we disagree with that? If we disagree with that, what are you left with? Well, then it needs to be, if you find that there should have been a hearing, then you need to remain it back to the Fifth Circuit for a few of the facts. To view the conclusion from the facts developed. Absolutely. And of course, our position to the Fifth Circuit was you should look at both of these issues. You look at Ed, and if you should find that there should have been a Federal hearing, then at that point we ask you to look to the fact that he did not make a preponderance case, which they made a preliminary finding of in footnote evidence. That isn't at this moment, I'll put it once more, and see if I can get an absolute definite answer. And I'm overstating. But if I had to decide at this moment whether there is enough evidence for you to win on the point, is he intellectually disabled? I would say you win. If I decide, have to decide whether or not he presented enough evidence to get a hearing, I would say you lose. Now that's why it's important to me. To know, are we trying to decide here? Whether there was enough evidence such that the state under Federal law was unreasonable in not granting a hearing? There I look at the standards of Williams, and I think you lose. If we're deciding something else, like whether he's intellectually disabled, and I'm repeating myself, I think you win. That's why I want your answer to the question of which are we deciding or both. The point is that no evidence, not one adaptive deficit, was ever presented. But Mr. and Ms. Bernstein, I think what Justice Breyer is driving at is just this. And reasonable people might disagree on the answer to this. But I think the determination that the State Court was making at that moment was whether to have a hearing. And under Louisiana law, I don't think you disagree with this. I don't think anybody could disagree with this. Under Louisiana law, you have a hearing when the defendant has come forward, and it's the burden is on the defendant, but when the defendant has come forward with some evidence that raises a reasonable doubt as to his mental capacity. That's the standard that's in Williams. It's repeated again and done. You don't disagree with that. I do not, Your Honor. And so what Justice Breyer is suggesting is that when we realize that that's the determination that the State Court is making, whether the defendant has come forward with some evidence putting his mental capacity at issue, it looks awfully like an unreasonable determination of facts to say that this record does not meet that standard. That's all that the case is about, isn't it? I disagree. I disagree. This is almost a reverse hall situation in the States looking at, because if you look at hall, hall was trying to rest totally on an IQ. Here, he's trying to do the same thing to say, oh, there's a 75, possibly we can see it higher IQ than that. But hall and hall, there was a conclusion of the adaptive. When the State Court has said is integral to the showing, not one adaptive or a adaptive, adaptive was not relevant to the determination at the sentencing hearing because there was no actions. They were trying to show mental and deficit, but they adaptive, from when we're making an actance determination. And there was that, that was never before the sentencing court. It's only after after decided that adaptive becomes relevant. But I did, I wanted to ask you something in this record that's disturbing and maybe you can explain it. There is a brief, you know it, it's by Justice Caligaro that says there were 18 people who were sentenced to death and he foreattends, and actance is decided. Everyone except for this petitioner that he heard in the State Court, is that true? That is not true. And if your honourable indulge me, I can go case by case, very well, you didn't have my time, but I'll be glad to do that. And Don? Please don't. In many of those cases, there was either a pretrial showing of mental retardation, something in the record that was serious, a diagnosis which was never present in this case. There was no mention of the word intellectual disability in Kevin Brumfield's case until June 16, 2003, after actance was decided. And that is the first time after actance was decided that he made this claim and says, I have a 75 IQ, I have adaptive deficits without specifying one of them. And they were on onset prior to 18. He did not meet his standard under actance. But, Mr. And if we could go back and just on this point, you said he didn't meet the standard, and the standard is, as Justice Breyer suggested, and you agreed, the one that comes from done. And what I understand, Mr. Brumfield, to be saying is, look, all I need is some evidence. The evidence that was in the trial record, even though it was pre-actance, the evidence that was in the trial record was, I had a very low IQ, 75. In addition, there was some evidence of adaptive deficits. Even though they weren't trying to prove this point, evidence came in that he didn't read very well. He didn't write very well. He had problems processing information so that there was all that evidence. And then, you sort of, when you look at what the court said, I mean, basically, each one of the three things that the court said was just wrong. You know, the 75 is evidence of disability. There was evidence of adaptive functioning. And this idea that the court had that evidence relating to an anti-social personality somehow precluded the finding of mental disability as wrong as well. So, I guess the question that Justice Breyer's question really leads to is, like, what's not some evidence here? And didn't the court just misunderstand what record it was looking at and what it was doing? I would disagree respectfully, and I would also ask this Court to remember that the court here looked at the entire record. And that is the point. It seems to me that is the point you have to attack. Does the State saying that there has to be some evidence? Does that mean if there is one item of evidence, even though it's outweighed by everything else? It's contradicted by other witnesses. If there's one little peppercorn of evidence, you have to go on to a hearing. Is that what the State will means or does it mean when you consider the entirety, including the rebuttal evidence? Is there reasonably some evidence of his mental disability? Justice Scalia, it is the entirety of the record. I cannot. I cannot. I cannot. I cannot underscore that. The first thing that the State did at the sentencing hearing was to reintroduce the 41 witnesses who testified, their testimony, as well as the 159 exhibits that went into the very sophisticated, very independent planning. I can't stop. I can't stop. Then there is a legal question here. And the legal question is, can a State make the final determination of mental incapacity or lack thereof based on a trial record that did not address the issue? That was the question presented. You're saying it can. And what your adversary is saying, if there is some evidence of mental incapacity that I'm entitled to a separate hearing that addresses that question alone, I can put in additional evidence and contradict whatever happened at the penalty stage. That's what his point is. Why is he wrong? He's wrong because that would require if mental retardation was not raised. What should have been in this case is a mitigator. There is any other relevant mitigating circumstances. If he was a governor. You don't just convey that in Williams and Dunn, your own Supreme Court said it's a double-led sword and we don't expect counsel to raise an issue that doesn't get them off. Justice Sotomayor, if I may disagree with that, the rationale of this Court in Atkins is that we are in evolving decent society that will not have a consensus to execute mentally retarded people. That's all in the face. That's all in the face of saying that juries then are inclined to execute them if they show some evidence of mental retortation. No, really, I think we're all on the same page here. And I think we've made some progress in this because I agree with you and I agree with Justice Scalia that what we have to do, and there isn't to, is to look at the whole record. And see, keeping in mind the fact that it was a pre-Atkins record, and they didn't know about Atkins, but looking at the whole record is the Louisiana Court clearly wrong. Is it unreasonable in saying there wasn't enough evidence even though there has to be some, which is up to them, how pretty much how they say the sum, but they're unreasonable in saying that there wasn't some evidence justifying a hearing. And the only way to do that is for us to read it. Is that right? The record has to be reasonable. Would you agree with that? I would agree that the entirety of the record has got to be read. It cannot be taken in a vacuum as counsel would have you believe that this judge was my object. I haven't read the whole record, you know, and I doubt that I'm going to. And I doubt that this court is going to read the whole record in all of these Atkins cases in the future. I mean, what you're asking is, you don't think it's fantastical? I do, Your Honor. And that's my whole point is if you make the argument that in every one of these cases where mental retardation was not raised as an issue, it opens the floodgates for every pre-Atkins case to have to be reexamined, to have to be given a hearing. No, not everyone. I wanted to say what the petitioner's counsel has conceded that if in this hearing, at the sentencing hearing, medical evidence was that in the opinion of the expert witness, this defendant has no intellectual disability. This would be a different case. That's not in this case. And what is in this case, and you have still not answered Justice Breyer's question echoed by Justice Kagan, don't we look at Dunn and Williams to see what the standard is? And you have not said yes, and you have not said no. Yes, that is the law. All right. That still requires him to come forward with not just some evidence, but significant factors, significant objective factors to send him to have your money to do it. He said, if I had money, I would investigate, and I would come up with a lot more than I did at the sentencing hearing, but the state won't give me any money. Justice Ginsburg, if I may address this issue because unlike the majority of cases that this court has analyzed in an ad put difference, although under a strict one on Breloff, normally in terms of mitigation and in effectiveness of counsel, by filing separate claims for funding, this man was awarded at the time of this trial, approximately $10,000 in funding, which would be approximately $30,000 today for investigators, for investigative services, for a sociologist who was board certified for two neuropsychologists, and Dr. Huy and testified she conducted 28 to 32 interviews. She procured every medical school record that included prior psychiatric and psychological analyses of this defendant including a humanitarian addition that was put in, did get funding when he was in federal court. No, he got funding in the state. This is in the state court to flesh out any possible defend. I'm not talking about the sentencing hearing. I'm talking about the federal habeas. What was their additional evidence? That was just, apparently, that they just showed up and they had the money. There was never a hearing. He showed up one day. He got the experts and I don't know how the funding was granted because he just showed up with those reports. File them into as an amended habeas in state, in district court, and as a result of the reports that he got independently, that's what triggered the citizen of the state. In the state court, did petitioner say, give me a hearing and if you do, I will produce additional evidence without having funding. Or did he say, give me a hearing and if you provide me with funding so that I can put an additional evidence? He made a vague and his very first habeas petition and this went on for a period of 44 months. The first petition says, I need about 10 different types of experts and probably will need money. Then he filed for motions to continue saying, I am still reviewing this record and I do not know what experts I will be needing. Then when he came in on the hearing, there was never, although there was a claim at the very, very end, claim 105, which was the last claim, he never filed a separate eighth motion as had been done in everything pre trial in this case. He just came in, he sat mute, he didn't say to the judge, which would be Louisiana standard your honor. You need to rule on this ahead of time, I still need time to investigate. There was never any kind of objection, any kind of moving for the funds or any kind of specificity. And as a result of that, the reviewing, stay habeas court, dismissed those claims with prejudice for failure to make them out with particularity. Well, I see, unless we know the answer to that question, I don't know how we can answer the question of whether there should have been hearing. If he wasn't going to produce anything more at the hearing than what was already in the record, there would be no point in granting a hearing. And so if the only purpose of the hearing was to allow him to put in additional evidence with funding, the case comes down to the question whether it was unconstitutional, whether under Ed Pett, it was clearly established that it was unconstitutional for the State court to deny funding for this purpose. There was never, in my point again, is just as he did not make the threshold for the Atkins hearing, he did not make any kind of threshold and showing of specificity for any expert funding. You just always have. Q. So, he would not be right to think, sure, he'd rather have had funding, but he wanted the hearing regardless of whether he was going to get funding. And he could go out and seek pro bono support. He could try to go back to the same experts that he had used at the sentencing. So, even without funding, the opportunity for hearing might have been worth something to him. And what's clear is that this is the, you said that there's questions as to whether he asked for funding or didn't ask for funding. What's clear is that he asked for a hearing, isn't that right? He did ask for a hearing, but to get a hearing again, you have to meet a threshold. And I might add to the court that it would have been, as in many other cases, a relatively simple manner to go back to an approach, Dr. Bolter, Dr. Jordan, Dr. Ewan, and just said, look, a case named Atkins has come out in the court. In 2002, you have previously evaluated, this defendant, would it now make any difference to you in view of the holding in that case? Would you just say in a letter that it would be? Often in order to obtain a hearing, a party who is moving for a hearing has to make a proper of what will be shown at the hearing. It makes no sense to say we're going to have the hearing, and I want a hearing, and I don't have any evidence to prove the point that I need to prove. And what does seem to come down to funding unless there's something in the record, and maybe you or your counsel can point to something in the record that shows that he wanted a hearing, even if he wasn't going to have funding? He proceeded with the hearing that day without making any type of objection and proceeded to the merits. First of all, he did not file any separate egg claim. I consider that very important because that was the procedure that was followed. He doesn't want funding. He didn't want funding, you're saying, right? No, he made a nebulous claim for funding and said, well, you know I'm reviewing this, I don't know what I've heard. So he proceeded without it, so he did. So he didn't want funding. That doesn't help your case. It hurts your case. He proceeded to the hearing that day. So when looking at the record, what are we supposed to do with Dr. Jordan's report? My, I, my, I direct this court to the Magistrate Judges recommendation, which is found, it's document 37, page 17, footnote 7, where she references a certain page of Dr. Jordan's report. And it's, we don't know. It is a defendant's burden when we file for discovery to at least file whatever reports are going to be used. Well, no, that's a bit of a cop out. You're the prosecutor. Was it admitted at the Senate was not admitted at the sentencing hearing? As evidence, right. But she had a copy of it. And as Dr. Jordan was not more for the State Court. Apparently, it was viewed by the judge. You can still have, if it's not introduced as evidence by either party during the trial, it can still be filed as part of an answer and be part of that trial record, which the court reviews. There was, it was discussed during, I gather, during cross examination several times. What is the status of documents that are subject of cross examination under Louisiana law? Are they part of the record? Are they simply extraneous material that can be consulted? What, what are they? If, of course, the rule is if someone has relied upon a report as both Dr. Bolter and Dr. Guin did in this case, and the report had been tender to me the Jordan report. We have the right. The report had been tendered. What? The report had been tendered to the State after, after much argument, they did not want to tender that report. But we had a copy of it because I vary, I think, very, very repletely cross-examined Dr. Guin. And waiting for the last half of your sentence, if, right, if a witness testified about it, and if it was tendered to the court, then what is the conclusion? You can, you can, of course, use that report. And it becomes part of the record. Yes, it does. Okay. Absolutely. Absolutely. We were told that the three reasons given by the State Havies Court that, if you all of those, the three were wrong, that's what Mr. Counsel for the petitioner told us. And what is your response to that? 75, we know that it isn't an absolute, that you can have a 75's for, and still be intellectually disabled. 75 is, of course, within the range. And what's noticeably been absent from this record in reply brief is that everything's been taken down the five points by the SAM. But we never hear, in these cases, that truly are argued that the SAM can go up the five points. The first test that this defendant was administered when he was 11, which was a whisk, there was no number put down. But the doctor opined that it was a dull normal, which would be an 80 to an 89, which is more consistent if we took the five points up from the 75 that Dr. Walter did. And additionally, we also, well, there was, there was additional evidence, of course, at the Federal hearing that would put it more in that upper range, I believe. All right, could I go back to your answer to Justice Scalia? I've practiced elsewhere. And if anything's made part of the record, you give it an evidence number. Losing on is different. It's not, it's not introduced in evidence. No, just not necessarily. No, the given report was not introduced by the defense into evidence. I will refer to corners reports, crime lab reports. I do not necessarily file them into evidence. What I do is as part of the answer to discovery, we attach them. They are part of the record. That is, that is Louisiana. As the answer, but how do we know the trial judge read it? Because he said so. He, first of all, under Herrington versus Richter, it is the ultimate conclusion. The factual conclusion reached by the Court, not necessarily the language that he used. It does not require that each and every ground that he relied on be articulated. And the Court stated in his rulings that I'll have examined this record. It says, I've looked at the application, the response, the record, which in this case, just to educate the Court as to Louisiana Havius procedure, if a Havius judge is reviewing, he would get the 16 initial volumes of the case. There were four additional supplemental volumes. That includes everything from indictment to pretrial discovery. Any answers, documents that were filed and answer to that. It includes the testimony during any suppression or funding hearings. It includes the Vaudier, which in this case was 13 days. It includes the guilt phase, which was 16 days. And we can't have any of these. You were answering my question and then, and you told me there are 75 rights, you, but there were two others. Yes. There was nothing on adopted behavior, but in fact, it was evidence, some evidence of adopted behavior. And then the third point, anti-social behavior, there's nothing inconsistent about being anti-social and having an intellectual disability. There is. And it was simply, I think, I don't think you can necessarily fault the Court for saying that he's just simply reciting that there was a finding in this case, because every doctor, every thing is perfectly consistent with intellectual disability. This individual was examined five times prior to the age of 18. He was given a risk. Nobody found the words intellectual disability. And fact, of course, because the act was not decided. No, mental retardation has existed since the beginning of time. It does not require the act in case to come into play. Nobody found him to be intellectually disabled, what they did find was conduct disorder, hyperactivity, under-socialized, aggressive, and then as an adult, that morphed into anti-social personality behavior. They are two also two separate and distinct items. And that is contained in the Louisiana statute on intellectual disability that certain things like learning disabilities, environmental cultural or economic disadvantage, emotional stress in the home or school, difficulty in adjusting to school, behavioral disorders, and other mental types of behavior psychoses are not necessarily indicative. Thank you, Council. Mr. DeSanck, do you have two minutes remaining? Thank you, Alma. Thank you, Mr. Chief Justice. First, the Dr. Jordan's report was not in the record, and that is made clear at the petition appendix 39A note 13, where the court noted that Council recognized that it was not in the record. Second, Council articulated that there were scores, IQ scores in the 80s and 90s. That is not correct. Federal volume 1 of the Federal hearing at page 57 shows that there were two other tests, one at 75 and one at 54. Finally, I want to emphasize that this court recently recognized that it is unconstitutional to create an unacceptable risk that persons with intellectual disability will be executed. The state court's determination of the facts in this case created precisely that risk. And now that we are here, it is not just risk, it is certainty. The only court to provide Mr. Brumfield with a hearing found that he is intellectually disabled. And unless this court reverses the fifth circuit's erroneous ruling, an intellectually disabled person will be executed. Thank you. Thank you, Council. The case is submitted