United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1847
                        ___________________________

                                Alvin Bernal Jackson

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

          Wendy Kelley,1 Director, Arkansas Department of Correction

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                    Appeal from United States District Court
                 for the Eastern District of Arkansas - Pine Bluff
                                  ____________

                            Submitted: January 11, 2018
                               Filed: August 7, 2018
                                  ____________

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
                             ____________

SHEPHERD, Circuit Judge.

      Once more our Court faces the task of deciding whether Petitioner Alvin
Bernal Jackson was improperly denied habeas corpus relief. This is Jackson’s third

      1
      Wendy Kelley has been appointed to serve as Director of the Arkansas
Department of Correction, and is substituted as Appellee pursuant to Federal Rule of
Appellate Procedure 43(c).
appeal to this Court seeking a finding that he is intellectually disabled under Ark.
Code Ann. § 5-4-618(a)(1), which, in accordance with the Supreme Court’s decision
in Atkins v. Virginia, would exempt him from the death penalty. Atkins, 

, 321 (2002) (finding “that death is not a suitable punishment for a mentally
retarded criminal”). Jackson argues that the district court erred by creating and
applying an additional intellectual disability test not present in either § 5-4-618(a) or
Atkins and by applying the diagnostic criteria from the DSM-V2 rather than the DSM-
IV.3 When the district court conducted its evidentiary hearing and issued its order,
it did not have the benefit of the Supreme Court’s decision in Moore v. Texas, 

(2017). Because the Court in Moore gave significant instructions on how
to analyze Atkins claims, we reverse and remand for the district court to consider
Jackson’s claims in light of that decision.

                                    I. Background

      In 1990, Jackson was convicted for the capital murder of Charles Colclasure
and sentenced to life in prison. While serving his sentence, Jackson killed Scott
Grimes, a prison guard with the Arkansas Department of Correction. In 1996, he was
convicted for the capital murder of Grimes and sentenced to death.

      In 2003, Jackson filed a petition pursuant to 28 U.S.C. § 2254 raising an Atkins
claim and asking that the court find him intellectually disabled and thus ineligible for
the death penalty. Larry Norris, the former Director of the Arkansas Department of
Correction, filed a motion for summary judgment claiming that Jackson’s claim was
procedurally defaulted and without merit. In 2007, the district court dismissed


      2
      DSM-V stands for the American Psychiatric Association’s (the “APA”)
Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).
      3
      DSM-IV stands for the APA Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 2000 Text Revision).

                                          -2-
Jackson’s claim as procedurally defaulted and denied Jackson’s motion for a
certificate of appealability. We granted Jackson a certificate of appealability on his
Atkins claim and reversed and remanded the matter to the district court. Jackson v.
Norris, 256 Fed. Appx. 12 (8th Cir. 2007) (per curiam) (unpublished).

      On remand, the district court ordered Jackson to respond to Norris’s pre-appeal
summary judgment motion. Jackson responded and filed a motion for discovery and
funds to retain experts. In 2009, the district court granted Norris’s motion for
summary judgment and dismissed Jackson’s Atkins claim on the merits. Jackson
again appealed, and we reversed and remanded, finding that Jackson was entitled to
an Atkins hearing. Jackson v. Norris, 

(8th Cir. 2010).

       Upon remand, the district court granted Jackson’s motion for discovery and
funds to retain experts. The court conducted an evidentiary hearing and heard from
two experts: Dr. James Moneypenny, Jackson’s expert, and Dr. Gilbert S. Macvaugh,
III, Kelly’s expert. The district court issued a detailed opinion, walking through the
several tests administered to Jackson throughout his lifetime and the facts
surrounding Jackson’s crimes and incarceration. The court decided that the DSM-V
definition of intellectual disability was the appropriate standard to use to determine
whether Jackson was intellectually disabled. After parsing the DSM-V standard and
the evidence presented at the hearing, the district court decided to credit Dr.
Macvaugh’s clinical opinion and found that Jackson was not intellectually disabled.
Jackson now appeals.

                                   II. Discussion

       Jackson essentially makes two arguments on appeal. First, he argues the
district court erred in analyzing § 5-4-618(a) when it determined that he is not
intellectually disabled. Second, he contends the district court erred in applying the



                                         -3-
DSM-V’s intellectual disability standard rather than the DSM-IV’s because the DSM-
V was not published at the time of his hearing.

                              A. Intellectual Disability

       Jackson argues that the district court erred in finding that he was not
intellectually disabled and is therefore eligible for the death penalty. “The legal
standard applicable to an Atkins claim presents a pure question of law, which we
review de novo. Whether an individual is mentally retarded under the applicable
legal standard, however, is a pure question of fact, which we review for clear error.”
Sasser v. Hobbs, 

, 841-42 (8th Cir. 2013) (internal citations omitted).

       The Arkansas statute barring the execution of persons with an intellectual
disability defines intellectual disability as follows:

      (A) Significantly subaverage general intellectual functioning
      accompanied by a significant deficit or impairment in adaptive
      functioning manifest in the developmental period, but no later than age
      eighteen (18) years of age; and
      (B) A deficit in adaptive behavior.

§ 5-4-618(a)(1). “[T]he Arkansas Supreme Court has consistently construed [this
statute] to be concurrent with the federal constitutional right established in Atkins.”

. Jackson bears the burden of proving his intellectual
disability “by a preponderance of the evidence.” § 5-4-618(c). To satisfy this burden,
he must show:


      (1) “Significantly subaverage general intellectual functioning”;
      (2) “[A] significant deficit or impairment in adaptive functioning”;



                                         -4-
      (3) That both of the above “manifest[ed] . . . no later than age eighteen”;
      and
      (4) “A deficit in adaptive behavior.”

(alterations in original) (quoting § 5-4-618(a)).

       The first prong of the analysis—intellectual functioning—“is typically
measured with individually administered and psychometrically valid, comprehensive,
culturally appropriate, psychometrically sound tests of intelligence.” DSM-V, supra
note 2, at 37. However, “[t]he psychiatric and psychological communities, including
those specializing in the treatment of mental retardation, agree ‘[a] fixed point cutoff
score for [mental retardation] is not psychometrically justifiable.’” 

(quoting AAIDD, Intellectual Disability: Definition, Classification, and
Systems of Support 40 (11th ed. 2010)). “[W]here an IQ score is close to, but above,
70, courts must account for the test’s ‘standard error of measurement.’” 

. In Moore, the Supreme Court explained that, because IQ tests are
inherently imprecise, “an individual’s score is best understood as a range of scores
on either side of the recorded score.” 

lower range of the defendant’s
IQ score “falls at or below 70,” courts are required to “consider other evidence of
intellectual disability”—meaning courts must “move on to consider [the defendant’s]
adaptive functioning.” 

                  1. Subaverage General Intellectual Functioning

      The first prong of Arkansas’s intellectual disability statute—“significantly
subaverage general intellectual functioning,” § 5-4-618(a)—matches the first clinical
diagnostic criterion for intellectual disability—deficits in intellectual functioning,
DSM-V, supra note 2, at 33. In line with the Supreme Court and the DSM-V, we
have previously held that courts should take into consideration a margin of error of


                                          -5-
plus or minus five points on these tests because it is possible to diagnose intellectual
disability “in individuals with IQs between 70 and 75 who exhibit significant deficits
in adaptive behavior.” 

(internal quotation marks omitted);
see also DSM-V, supra note 2, at 37. Again, “where an IQ score is close to, but
above, 70, courts must account for the test’s standard error of measurement.” 

(internal quotation marks omitted). And, when “the lower end of
the defendant’s score range falls at or below 70,” we must “move on to consider [the
defendant’s] adaptive functioning. 

see also Hall v. Florida, 

, 2001 (2014) (stating that additional evidence of intellectual disability included
“testimony regarding adaptive deficits”).

       The district court, crediting Dr. Macvaugh’s expert testimony, found that the
IQ tests that Dr. Macvaugh and Dr. Moneypenny administered were inaccurate
because Jackson was malingering. Assuming that Jackson was malingering on his
most recent IQ tests, the court could still consider Jackson’s scores from his
childhood. The district court did not find that any of the IQ tests administered to
Jackson before he was 18 were invalid. The court mentions the standard error of
measurement in its order, but it does not specifically state that Jackson’s previous
tests, which respectively resulted in IQ scores of 72, 73, 74, and 81, should be
adjusted for the standard error of measurement. Because the standard error of
measurement is plus or minus 5 points, Jackson’s adjusted range for his scores shows
the possibility that his IQ could fall below 70. See 

.

       Though the district court did not specifically adjust Jackson’s previous IQ
scores according to the standard error of measurement, it appears to have followed
the Supreme Court’s directive in Hall that additional evidence of intellectual
disability is required for scores that fall within the standard error of measurement.
See 

The court stated that “[e]specially in this case, an informed clinical
judgment requires a comprehensive review of data that is relevant to Jackson’s
intellectual functioning.” Recognizing this necessity, the court proceeded to devote

                                          -6-
a significant portion of the order to discussing evidence of Jackson’s adaptive
functioning.

                              2. Adaptive Functioning

       The second criterion for intellectual disability in both the DSM-V and the
Arkansas Statute is a deficit in adaptive functioning. DSM-V, supra note 2, at 33;
§ 5-4-618(a). There are three adaptive-skills domains—conceptual, social, and
practical. DSM-V, supra note 2, at 33. The DSM-V states that deficits in only one of
the three adaptive-skills domains is sufficient to show adaptive deficits. 

(citing DSM-V, supra note 2, at 33, 38). The district court adopted the
DSM-V’s definition of intellectual disability and emphasized the explanatory text
stating that “the deficits in adaptive functioning must be directly related to the
intellectual impairments.” DSM-V, supra note 2, at 38.

       In Moore, the Supreme Court provided extensive direction on analyzing the
adaptive functioning prong. Citing the diagnostic guidelines, the Supreme Court
stated that the medical community focuses on adaptive deficits to determine
intellectual disability and that significant limitations in adaptive skills are not
outweighed by potential strengths in other adaptive skills. 

(citing AAIDD, supra at 47, and DSM-V, supra note 2, at 33, 38) (finding that the
Texas Court of Criminal Appeals overemphasized the defendant’s perceived adaptive
strengths when it found that evidence of the defendant’s adaptive strengths overcame
considerable objective evidence of his deficits). Moreover, the Supreme Court
cautioned against relying too heavily on adaptive strengths developed in controlled
settings such as prisons. 

district court found that Jackson has, at the very least, intellectual
deficits. Intellectual deficits would fall under the category of conceptual adaptive
skills. DSM-V, supra note 2, at 37 (“The conceptual (academic) domain involves

                                         -7-
competence in memory, language, reading, writing, math reasoning, acquisition of
practical knowledge, problem solving, and judgment in novel situations, among
others.”). However, the court held that these deficits were not directly related to
intellectual impairments because Jackson also exhibited adaptive functioning
strengths. Throughout the order, the district court relied heavily on Jackson’s
perceived adaptive functioning strengths rather than his deficits, citing to evidence
that Jackson: could drive a car; has filed pro se lawsuits while in prison; has filed
intra-prison grievances; has submitted commissary and law library requests; can recall
information about these lawsuits and requests; has used vocabulary that is generally
inconsistent with intellectual disabilities; has asked Dr. Macvaugh several questions
about his qualifications and the tests he was administering; and, to get around a
prohibition on inmate correspondence with other inmates, utilized a complex method
of letter delivery. Furthermore, almost all of the skills that the district court appears
to have given significant weight are those that Jackson may have developed in prison,
which, according to Moore and the DSM-V, should not be heavily relied upon.

; DSM-V, supra note 2, at 38. Thus, the district court, like
the court of appeals in Moore, inappropriately found that Jackson was not
intellectually disabled because his adaptive strengths outweighed his adaptive
deficits.

       Furthermore, the Supreme Court also found in Moore that “[t]he existence of
a personality disorder or mental-health issue, in short, is not evidence that a person
does not also have intellectual disability.” 

(internal
quotation marks omitted) (finding that the court of appeals erred when it used
academic failure and childhood abuse to detract from a determination that the
defendant’s intellectual and adaptive behaviors were related); see also United States
v. Wilson, 

, 371 (E.D.N.Y. 2016). The Court stated that “many
intellectually disabled people also have other mental or physical impairments” and
the medical community actually uses those experiences as “risk factors,” causing
clinicians to further explore the possibility of intellectual disability rather than

                                          -8-
“counter[ing] the case for a disability determination.” 

; see
also 

.

       Like the court of appeals in Moore, the district court found that Jackson’s
diagnosis of anti-social personality disorder, coupled with his untreated childhood
ADHD, conduct disorders, and communications disorders, indicated that his adaptive
deficits were not related to subaverage intellectual functioning. However, prior to
issuing it’s order, the district court did not have the benefit of the Supreme Court’s
finding that the existence of additional personality disorders or mental-health issues
is not evidence weighing against an intellectual disability determination. In light of
the Court’s decision in Moore, we believe the district court erred by placing too much
emphasis on the existence of other diagnosed disorders to find that Jackson was not
intellectually disabled.

       The court also tried to bolster its adaptive functioning analysis by comparing
Jackson’s conduct in his underlying crimes to the Supreme Court’s justifications in
Atkins for exempting intellectually disabled persons from execution. In finding that
intellectually disabled offenders were ineligible for the death penalty, the Supreme
Court explained that:

      Mentally retarded persons frequently know the difference between right
      and wrong and are competent to stand trial. Because of their
      impairments, however, by definition they have diminished capacities to
      understand and process information, to communicate, to abstract from
      mistakes and learn from experience, to engage in logical reasoning, to
      control impulses, and to understand the reactions of others. There is no
      evidence that they are more likely to engage in criminal conduct than
      others, but there is abundant evidence that they often act on impulse
      rather than pursuant to a premeditated plan, and that in group settings
      they are followers rather than leaders. Their deficiencies do not warrant
      an exemption from criminal sanctions, but they do diminish their
      personal culpability.


                                         -9-


. In Tennard v. Dretke, the Supreme Court stated that
“impaired intellectual functioning is inherently mitigating . . . . Nothing in [Atkins]
suggested that a mentally retarded individual must establish a nexus between her
mental capacity and her crime before the Eighth Amendment prohibition on executing
her is triggered.” Tennard, 

, 287 (2004).

       The district court compared the underlying facts of Jackson’s crimes to the
Atkins justifications. Relying on Jackson’s strengths as displayed in those crimes,
the court found that his actions did not align with the justifications for exempting
mentally disabled persons from the death penalty, thereby proving he is not
intellectually disabled. By analyzing Jackson’s crimes in light of the Atkins
justifications, the district court has essentially required Jackson to prove that there
was a nexus between his mental capacity and his crime—i.e., that his criminal
conduct reflected his mental disability. However, it is not necessary for Jackson’s
crime to be related to his intellectual disability: it is only necessary for Jackson to
actually be intellectually disabled to be exempt from the death penalty. See 

. That Jackson’s potential adaptive strengths were used to commit
these crimes does not mean that adaptive deficits related to subaverage intellectual
functioning do not exist. See 

. Again, the district court
balanced Jackson’s strengths against his deficiencies to find that he was not
intellectually disabled, which, subsequent to the district court’s order in this case, the
Supreme Court has directed courts not do. See 

are given pause because Kelley’s own expert, Dr. Macvaugh,
who the district court credits, gave a clinical opinion but refused to give a forensic
opinion on intellectual disability, stating in the hearing that if Jackson “has mental
retardation, it’s not by much. If he doesn’t have it, it’s not by much.” R. at 295. The
indecisiveness of Kelley’s expert, coupled with the district court’s brief reference to
Jackson’s deficits but heavy emphasis on his strengths, is concerning. Accordingly,



                                          -10-
we find that the district court committed clear error in finding Jackson’s adaptive
behavior deficits were not related to subaverage intellectual functioning.

                         3. Manifestation No Later Than 18

       The third criterion in § 5-4-618(a) and the DSM-V is that both subaverage
general intellectual functioning and a significant deficit or impairment in adaptive
functioning manifested no later than age 18. § 5-4-618(a); DSM-V, supra note 2, at
33. The parties agree and the district court found that the third prong requiring
deficits to be present before Jackson turned 18 was satisfied. The evidence presented
at the hearing—Jackson’s childhood IQ scores, reports from his schools and other
institutions about his behavioral issues, and testimony from both experts—shows that
Jackson fell within the standard error of measurement for subaverage intellectual
functioning and demonstrated adaptive functioning deficits prior to the age of 18.
Thus, we find that the district court did not clearly err in determining that this factor
was satisfied.

                           4. Deficit in Adaptive Behaviors

       The final factor in § 5-4-618(a) is a deficit in adaptive behaviors. In Sasser,
this Court found that although the DSM-IV does not have a fourth prong, “Arkansas’s
mental retardation standard . . . is fully consistent with nationally accepted diagnostic
criteria. The fourth prong largely duplicates the second prong, but places no age
requirement on the evidence used to establish limitations in adaptive behavior.”

(internal citations and quotation marks omitted).
Accordingly, the same evidence used to prove the second prong is used prove the
fourth prong. As a result, our same analysis under the second prong applies to the
fourth prong. For the reasons stated above, we hold that the district court clearly
erred in finding that Jackson’s adaptive behavior deficits were not related to
subaverage intellectual functioning.


                                          -11-
                        B. Application of the DSM-V Standard

       Jackson next argues that the district court erred when it applied the DSM-V
rather than the DSM-IV standard for intellectual disability. At the time the Atkins
hearing took place, the DSM-IV was the most recent version of the APA’s diagnostic
manual. The DSM-IV contained no specific requirement that an individual’s adaptive
behavior deficits be caused by that person’s subaverage intellectual functioning.
DSM-IV, supra note 3, at 39-49. Dr. Macvaugh testified that he could not be sure
that Jackson’s deficits were due to subaverage intellectual functioning and that he
believed the medical field is not clear about whether the adaptive deficits have to be
caused by subaverage intellectual functioning. R. at 356.

       The DSM-V was published after Jackson’s Atkins hearing. Though it does not
specify the need for a direct relationship between adaptive deficits and subaverage
intellectual functioning in the diagnostic criteria, the explanatory text states that “[t]o
meet diagnostic criteria for intellectual disability, the deficits in adaptive functioning
must be directly related to the intellectual impairments described in [prong one].”
DSM-V, supra note 2, at 38. The district court decided to adopt the DSM-V’s
standard and found that Jackson had shown intellectual deficits and that both experts
had identified adaptive deficits in a number of areas. However, the court also found
Jackson failed to show that those deficits were directly related to subaverage
intellectual functioning. Jackson argues that the application of the DSM-V standard
is inappropriate because that is not the standard under which the parties argued the
case. Thus, he claims he was not on notice that he needed to present evidence of a
direct connection between his adaptive behavior deficits and his subaverage
intellectual functioning. Accordingly, Jackson requests that we remand the case and
allow him to present evidence on this connection.

       In Moore, the Supreme Court reversed the court of appeals’ finding that the
state habeas court erred when it applied the most recent medical guidelines to


                                           -12-
determine intellectual disability rather than the 1992 guidelines that the court of
appeals had adopted in a previous case. 

. Quoting its
decision in Hall, the Supreme Court stated that “[e]ven if ‘the views of medical
experts’ do not ‘dictate’ a court’s intellectual-disability determination . . . the
determination must be ‘informed by the medical community’s diagnostic
framework.’” 

(quoting 

). The Court added that
in its decisions, it “relied on the most recent (and still current) versions of the leading
diagnostic manuals—the DSM-5 and AAIDD-11.” 

the Supreme Court
stated that it need not interpret the Constitution in isolation and “the professional
community’s teachings are of particular help in . . . case[s] where no alternative
definition of intellectual disability is presented and where this Court and the States
have placed substantial reliance on the expertise of the medical profession.” 

(“Atkins itself points to the diagnostic criteria employed by
psychiatric professionals.”). The Court’s decision in “Hall indicate[s] that being
informed by the medical community does not demand adherence to everything stated
in the latest medical guide. But neither does [the Court’s] precedent license disregard
of current medical standards.” 

. Accordingly, we find it
was not error for the district court to apply the DSM-V standard.

       However, we also find that there is no material difference between the DSM-V
standard and the DSM-IV with regard to the connection between subaverage
intellectual functioning and adaptive behavior deficits. Though the DSM-V’s
language may appear to create a heightened standard, it is actually “claryif[ying] the
most logical approach to a diagnosis of intellectual disability.” United States v.
Wilson, 

, 371 (E.D.N.Y. 2016). The DSM-V does not require a
showing of specific causation; rather, as the district court found in United States v.
Wilson:

       [t]he court assumes that a clinician would not diagnose intellectual
       disability on the basis of adaptive functioning deficits that were related
       to something else entirely, such as a physical disability or traumatic

                                           -13-
       event. However, where an individual has demonstrated significantly
       subaverage intellectual functioning, along with significant adaptive
       deficits that relate to such intellectual impairment, that individual has
       satisfied the first two diagnostic criteria for intellectual disability. To
       require this individual to further prove that he satisfies these criteria
       because he is intellectually disabled would render the criteria
       meaningless. Indeed, [that] approach would transform the standard for
       intellectual disability into an impossible test: In order for a defendant to
       show that he was intellectually disabled, he would need to prove that he
       satisfied the criteria because he was intellectually disabled. As though
       trapped on an M.C. Escher staircase, the defendant would climb to the
       top only to find he had returned to the bottom.

defendant is not required to rule out other contributing causes of his
adaptive deficits in order to meet the standard for intellectual disability.” Id.; see also

.

       Here, the district court appears to have required a specific showing of causation
by expecting Jackson to “rule out other contributing causes of his adaptive deficits.”

; see also 

. The court
recognized that Jackson has adaptive behavior deficits, but it heavily emphasized Dr.
Macvaugh’s testimony that he was unable to determine whether Jackson’s adaptive
behavior deficits were due to subaverage intellectual functioning or another
condition. Therefore, the district court found, Jackson did not have an intellectual
disability because he did not demonstrate a specific link between the deficits and
subaverage intellectual functioning.

       This was error. Jackson is not required to demonstrate a specific connection
between subaverage intellectual functioning and adaptive behavior deficits. Rather,
he must show only that deficits related to intellectual functioning exist. Furthermore,
as discussed earlier, Jackson’s other diagnoses are frequently co-occurring with
intellectual disability, see DSM-V, supra note 2, at 40, and Jackson is not required to
exclude those disorders as causes of his adaptive behavior deficits, see Wilson, 170

                                           -14-
F. Supp. 3d at 371. As the court in Wilson found, it would be too much to “ask[] the
court to break down each deficit and determine what portion of each is attributable
to a learning disability, emotional disturbance, ADHD, or a conduct disorder,” and
“such an approach would [not] comply with the legal requirement, as articulated by
Hall, to avoid the ‘unacceptable risk that persons with intellectual disability will be
executed’ in violation of the Eighth Amendment.” 

(quoting Hall, 134 S.
Ct. at 1990).

                                   III. Conclusion

       We make no judgment as to whether or not Jackson is intellectually disabled,
but find that the exacting review required in death penalty cases commands further
consideration of this matter. See Ortiz v. United States, 

, 1166-67
(2011) (“Because we cannot be fairly certain the error was harmless, we find it
appropriate to remand [the] Atkins claim to the district court for further
consideration . . . .”).

       Clearly, the district court did not have the benefit of the Supreme Court’s
guidance in Moore. Consequently, in light of Moore and the publication of the DSM-
V following Jackson’s Atkins hearing, we reverse the district court’s finding that
Jackson is not intellectually disabled and remand with instructions that the district
court reconsider this matter in light of that opinion. The court shall include in its
reconsideration: the standard error of measurement as applied to Jackson’s IQ tests
administered during his youth; whether Jackson’s adaptive functioning deficits are
related to his subaverage intellectual functioning without requiring Jackson to
demonstrate a specific link between the two; and whether Jackson’s adaptive
functioning deficits rather than his adaptive functioning strengths indicate that he is
not intellectually disabled.
                        ______________________________



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