NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 16-2510
                                      ____________

                             ANDY RIVERA-RODRIGUEZ,
                                                Appellant
                                       v.

           THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
                      SUPERINTENDENT GRATERFORD SCI;
                THE DISTRICT ATTORNEY OF LANCASTER COUNTY
                                ____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (E.D. Pa. No. 5-13-cv-04299)
                     District Judge: Honorable James Knoll Gardner
                                      ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 10, 2017

  Before: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL, District Judge.*

                                  (Filed: March 28, 2017)
                                       ____________

                                       OPINION**
                                      ____________



       *
         The Honorable Lawrence F. Stengel, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
HARDIMAN, Circuit Judge.

      Andy Rivera-Rodriguez appeals an order of the District Court denying his petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Rivera-Rodriguez has

not satisfied his onerous burden under the Antiterrorism and Effective Death Penalty Act

(AEDPA), we will affirm.

                                            I

      On the evening of January 17, 2004, Rivera-Rodriguez was a passenger in a

vehicle owned by Ryan Gardina and operated by Esteban Torres-Sanchez. Police stopped

the vehicle for driving without lights and took Torres-Sanchez into custody. Gardina was

not in the vehicle when it was stopped and he was reported missing the next day by his

family. The day Gardina was reported missing, a police detective went to Rivera-

Rodriguez’s home, but he wasn’t found there, so the detective left word that he would

like to speak with Rivera-Rodriguez about Gardina’s whereabouts. Later that evening, a

few hours after Gardina’s dead body was found near Torres-Sanchez’s home, Rivera-

Rodriguez voluntarily went to the police station. After receiving multiple Miranda

warnings, Rivera-Rodriguez confessed to helping Torres-Sanchez murder Gardina.

Rivera-Rodriguez was charged accordingly with, among other things, criminal homicide

and robbery. The Commonwealth sought the death penalty.

      Prior to the events of January 2004, Rivera-Rodriguez had a history of intellectual

disability diagnoses. Multiple psychologists and doctors assessed him during his youth as

                                            2
suffering from moderate mental retardation, along with other intellectual disabilities.

Following arrests as a young man, Rivera-Rodriguez was twice committed to

Pennsylvania Secure Treatment Units, where mental health evaluations confirmed his

disability.

       Aware of Rivera-Rodriguez’s disability, counsel filed a motion to suppress his

confession alleging, inter alia, that his client’s waiver of Miranda rights could not have

been knowing, intelligent, or voluntary. Counsel retained two experts to support his

argument: Dr. Dixon Miller and Dr. Jerome Gottlieb. Dr. Miller testified in the

suppression hearing as to Rivera-Rodriguez’s intellectual disabilities, including his

evaluation that Rivera-Rodriguez had an IQ of about 58. The Commonwealth in turn

provided testimony that: (1) Rivera-Rodriguez’s interviews with police evidenced an

understanding of the right to remain silent, and (2) Rivera-Rodriguez’s prior encounters

with the criminal justice system showed an ability to understand Miranda warnings

generally. The trial court found that Rivera-Rodriguez “had sufficient mental capacity to

understand and waive his Miranda rights” and denied the motion to suppress. App. 810–

11.

       After the motion to suppress was denied, Rivera-Rodriguez’s counsel struck a deal

with the Commonwealth to take the death penalty off the table in exchange for Rivera-

Rodriguez’s waiver of his right to a jury trial. The judge found Rivera-Rodriguez guilty

and sentenced him to life in prison. The sentence was upheld on appeal.

                                             3
       Rivera-Rodriguez sought relief under the Pennsylvania Post Conviction Relief Act

(PCRA), 42 Pa. Cons. Stat. § 9543. He argued that trial counsel was ineffective for

waiving his right to a jury trial because he was ineligible for the death penalty under

Atkins v. Virginia, 

(2002). At a hearing, Rivera-Rodriguez’s trial counsel

testified that he was aware of both Atkins and his client’s intellectual disabilities and IQ

tests. App. 797. But counsel also noted that Dr. Gottlieb mentioned—consistent with at

least one other medical record—that Rivera-Rodriguez “appeared to be functioning at a

higher IQ level than he tests.” App. 799. Additionally, counsel testified that the

Commonwealth was prepared to submit evidence that Rivera-Rodriguez was capable of

normal functioning, including: employment and relationship history, testimony from

friends that he “appeared normal,” and evidence that he planned this offense and others.

of the “fairly nebulous definition” of adaptive functioning at the time, counsel

decided it was uncertain whether a judge or jury would find Rivera-Rodriguez ineligible

for the death penalty. 

court denied relief, and its decision was affirmed on

appeal.

       Rivera-Rodriguez subsequently filed an untimely federal habeas petition again

asserting ineffective assistance of counsel.1 The District Court granted equitable tolling of

the petition, finding that Rivera-Rodriguez’s mental disability prevented him from


       1
        Rivera-Rodriguez asserted a number of other claims not preserved for this appeal,
including that the trial court erred in not suppressing his confession under Miranda v.
Arizona, 

(1966).
                                              4
understanding the nature of a deadline. The District Court denied his claim on the merits,

however, holding that the state court did not err when it found that counsel was not

deficient in bargaining, as evidence existed that Rivera-Rodriguez possessed some

adaptive skills and the definition of “mental retardation” under Atkins was a “legal

uncertainty.” Rivera-Rodriguez v. Superintendent Wenerowicz S.C.I. Graterford, 

, at *3 n.3 (E.D. Pa. Apr. 21, 2016). The District Court granted a certificate

of appealability on “his claim of ineffectiveness of counsel as to the waiver of his right to

a jury trial.” 

This appeal followed.

                                              II2

       We review the District Court’s findings of fact for clear error and its conclusions

of law de novo. Love v. Morton, 

, 133 (3d Cir. 1997). Under AEDPA, we

may reverse the state court judgment only if it “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States” or “was based on an unreasonable determination of

the facts in light of the evidence presented.” 28 U.S.C. § 2254(d); see also Williams v.

Taylor, 

, 384 (2000).




       2
         The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253.

                                                  5
                                              III

       To prevail on an ineffective assistance of counsel claim, a defendant must show

deficient performance and prejudice. See Strickland v. Washington, 

, 687

(1984). As to the first Strickland prong, Rivera-Rodriguez must convince us of two

propositions. First, no reasonable factfinder could have found him death-eligible under

Atkins. Second, counsel would have known this to be true with either a better

understanding of the law or a more thorough investigation of Rivera-Rodriguez’s case.

His appeal fails in both respects.

       The Supreme Court in Atkins barred the execution of the intellectually disabled,

but did not provide the States with a bright-line rule for determining intellectual

disability. 

. Rather, the Court chose to “leave to the State[s] the

task of developing appropriate ways to enforce the constitutional restriction.” 

original) (quoting Ford v. Wainwright, 

, 416 (1986)). While the

Court noted that those with an IQ below 70 generally suffer from what the Court

described as “mental retardation,” 

n.3, it also noted that the clinical definition

“require[d] not only subaverage intellectual functioning, but also significant limitations in

adaptive skills such as communication, self-care, and self-direction,” 

As

Rivera-Rodriguez acknowledges, Pennsylvania courts had not elaborated on the Atkins

standard by the time of his trial. Because they had failed to do so, it was unclear whether

Rivera-Rodriguez was eligible for the death penalty based on his IQ alone.

                                               6
       Rivera-Rodriguez acknowledges that “IQ scores alone” would not have triggered

Atkins protection, Rivera-Rodriguez Br. 29, but argues that greater investigation into his

adaptive deficits would have demonstrated he was not death eligible. He places

significant emphasis on his trial counsel’s testimony at the PCRA hearing that counsel did

not “go into adaptive functioning with [his retained experts] to a large degree,” App. 797.

Nevertheless, counsel remained concerned that “general facts, not necessarily expert

opinions” would also sway the jury’s determination—namely, that the Commonwealth’s

evidence of some adaptive skills made the Atkins determination uncertain. 

counsel diligently marshals medical and legal

resources to show flaws in the Commonwealth’s evidence rebutting Rivera-Rodriguez’s

intellectual disability. But whether that evidence appears persuasive today is beside the

point for this ineffective assistance claim. Counsel for Rivera-Rodriguez knew that the

Commonwealth would produce evidence rebutting the notion that his client was disabled

within the meaning of Atkins and reasonably inferred there was at least a chance that the

death penalty could be imposed. Under our deferential standard of review, we cannot say

that the state court erred when it held that “counsel had a strategic basis for his advice.”

App. 854.

                                       *      *       *

       We will affirm the District Court’s judgment for the reasons stated.




                                              7