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                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 14-14647
                           ________________________

                      D.C. Docket No. 1:12-cv-23304-FAM



GUILLERMO O. ARBELAEZ,

                                                           Petitioner - Appellant,

                                       versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                                                           Respondent - Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (October 12, 2016)

Before HULL, MARCUS and JILL PRYOR, Circuit Judges.

PER CURIAM:

      In this capital case, Guillermo Arbelaez appeals the district court’s denial of

his federal habeas petition. Arbelaez was sentenced to death in Florida for the
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murder of his former girlfriend’s five year old son, which he carried out to exact

revenge against her after an argument. Following an unsuccessful direct appeal

and collateral proceedings in the Florida state courts, Arbelaez filed a federal

habeas petition in the United States District Court for the Southern District of

Florida, which the district court denied. Arbelaez appeals the rejection of his

petition on two grounds. First, he contends that his trial counsel was

constitutionally ineffective in investigating and presenting to the jury a case in

mitigation of the death penalty. Second, he contends the Florida courts’

determination that he was not intellectually disabled (and therefore ineligible for

the death penalty) constituted an unreasonable application of clearly established

law and was based on an unreasonable determination of the facts presented at an

evidentiary hearing.

       After a thorough review of the briefing and the record, and with the benefit

of oral argument, we affirm the denial of Arbelaez’s petition.1 With regard to the

ineffective assistance claim, we conclude that Arbelaez has failed to demonstrate

that his counsel’s performance prejudiced his penalty phase proceedings. As

regards his intellectual disability claim, we conclude he has failed to demonstrate

that the Florida Supreme Court unreasonably applied the law or made unreasonable


       1
        Arbelaez’s motion to stay further appellate proceedings is DENIED. All other pending
motions are DENIED AS MOOT.


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determinations of fact when it concluded that he lacked concurrent deficits in

adaptive behavior.



                       I.     FACTUAL BACKGROUND

      Arbelaez was convicted in Florida of kidnapping and first degree murder. A

jury voted 11 to 1 to recommend a death sentence, and the trial court accepted the

recommendation. Below we recount the events that led to Arbelaez’s conviction

and sentence, as well as evidence adduced at his state postconviction proceedings.

A. Facts Elicited at Trial

      Shortly after Arbelaez met Graciela Alfara, the victim Julio Rivas’s mother,

he moved in with her and her family (five year old Julio, two teenaged daughters,

and a nineteen year old cousin), and the two became intimate. See Arbelaez v.

State (“Arbelaez I”), 

, 170 (Fla. 1993). The relationship ended soon

after it began, however, when Alfara accused Arbelaez of touching one of her

daughters inappropriately. 

the breakup, Arbelaez saw Alfara kiss

another man. 

confronted her, Alfara told Arbelaez that she did not

love him and he should move out. 

morning, while Alfara was still asleep, Arbelaez took Julio from

the home. 

Arbelaez drove to a restaurant for coffee. 

in the car, Arbelaez went inside, where he spoke to his friend Juan Londrian about


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his fight with Alfara. 

at trial that Arbelaez told him “that he

was going to do something that would assure ‘that bitch is going to remember me

for the rest of her life.’” 

the restaurant and, after driving around

with Julio in the car for a couple of hours, attempted to call Alfara. 

refused to speak with him, he “drove to the crest of the Powell Bridge on

the Rickenbacker Causeway and stopped, exited his car, and lifted the hood,

pretending that his car had broken down.” 

threw Julio off the bridge

into the water 70 feet below. 

evidence introduced at trial, Julio was beaten and strangled

before he was thrown off the bridge. 

A medical examiner testified

that the cause of death was asphyxia resulting from both strangulation and

drowning and that the boy’s body “had a large bruise on the right leg” and

“numerous bracket-shaped and rectangular-shaped bruises on the left side” of the

body. 

“The child’s face and forehead also had numerous linear

abrasions consistent with it being knocked or pressed into something.” 

saw photographs of Julio’s body which depicted his injuries. When police

located Arbelaez’s car, they observed damage to the dashboard “consistent with

something coming into contact with the panel.” 

      The jury heard that Arbelaez confessed to the crime five times. Immediately

after the murder, Arbelaez confessed to a friend, Pedro Salazar. He told Salazar


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“that he ‘shook’ the child and ‘squeezed the boy’s neck.’” 

told Salazar

that he threw Julio off the bridge because he wanted revenge against Alfara. 

to Colombia, and while there he spoke with Federal Bureau of

Investigation Detective Rubin Munoz. 

Arbelaez gave his second

confession to Munoz, telling the detective that he had killed Julio and explaining:

“‘As a Latin you would understand the best way to get to a woman is through her

children.’” 

returned voluntarily to the United States two months after

the murder, Homicide Detective Eddy Martinez arrested him at the airport. 

While in custody, Arbelaez confessed three more times to Julio’s murder. In

his third confession, “Arbelaez stated that on the day of the murder he had stopped

[on the bridge], raised the hood in order to pretend that he was stranded, and then

threw the child off the bridge.” 

confession, which was audiotaped,

was similar in content. The fifth, also similar in content, was videotaped. In each

taped interview, “Arbelaez indicated that he killed the child as a plan of revenge

against [Alfara].” 

confessions, Arbelaez testified on his own behalf at trial,

where he denied committing the murder. Although he admitted taking Julio from

Alfara’s house, he said that he had car trouble on the bridge, forgot about Julio

when he went to look under his hood, heard a scream, and then saw Julio floating


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in the water below. 

Arbelaez testified that he tore his car’s dashboard

apart because he was “disgusted with it all.” 

with his prior

confessions, Arbelaez claimed that Salazar, Munoz, and Martinez were lying. 

found Arbelaez guilty of kidnapping and first degree murder. 

Proceedings

      At the sentencing phase, the State called no witnesses to testify. Defense

counsel presented six witnesses in mitigation. Detective Martinez testified that, to

his knowledge, Arbelaez had no significant criminal history and returned

voluntarily to the United States after he had fled to Colombia. 

witnesses—Londrian, Pedro Salazar, Adelfa Salazar, and Marta Salazar—testified

about their relationship with Arbelaez. Each testified that Arbelaez was an honest,

hard-working individual who never took narcotics or drank excessively. 

witness, neurologist Dr. Raul Lopez, testified that he treated Arbelaez for

“chronic epileptic seizures” a few years before the murder. 

      The jury recommended a death sentence by a vote of 11 to 1. 

The trial judge found three aggravating circumstances: the homicide was (1)

committed in a cold, calculated, and premeditated manner without any pretense of

moral or legal justification (“CCP”); (2) especially heinous, atrocious, or cruel

(“HAC”); and (3) committed while Arbelaez was engaged in a kidnapping. Fla.

Stat. § 921.141(5)(d), (h), (i) (1989). The judge found one statutory mitigating


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circumstance: Arbelaez had no significant history of prior criminal history. 

And the judge found one nonstatutory mitigating circumstance:

Arbelaez demonstrated remorse. After weighing these factors, the judge adopted

the jury’s recommendation and imposed a death sentence.

C. Direct Appeal and State Postconviction Proceedings

       The Florida Supreme Court affirmed Arbelaez’s convictions and sentence on

direct appeal. Arbelaez I, 

, cert. denied, 

(1994).

Arbelaez then initiated state postconviction proceedings. His first proceeding

concerned his claim that counsel rendered ineffective assistance in failing to

investigate and present an adequate case in mitigation of the death penalty. After

the Supreme Court held in Atkins v. Virginia, 

(2002), that the Eighth

Amendment prohibits the execution of intellectually disabled persons, Arbelaez

initiated another state proceeding alleging that he was intellectually disabled.

       1. Ineffective Assistance Postconviction Motion

       The trial court conducted an evidentiary hearing2 on Arbelaez’s ineffective

assistance claim at which postconviction counsel elicited testimony from several




       2
         This evidentiary hearing came after the trial court initially summarily denied relief and
the Florida Supreme Court remanded. See Arbelaez v. State, 

(Fla. 2000).


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witnesses, including trial counsel Reemberto Diaz, 3 clinical and forensic

psychologist Dr. Merry Haber, neuropsychologist and behavioral epileptologist Dr.

Ruth Latterner, and two of Arbelaez’s sisters.

       Arbelaez’s sisters testified about Arbelaez’s troubled childhood in

Colombia. Both testified that Arbelaez suffered severe physical abuse at the hands

of their father and, to a lesser extent, their mother, brother, and at least one teacher.

They recounted that their family was poor and the children often went hungry.

Arbelaez’s sisters further testified that Arbelaez was a slow learner at school,

endured epileptic episodes without medical treatment, experienced depression (and

abused marijuana to cope), attempted suicide several times, and spent time in a

mental hospital.

       Postconviction counsel’s experts testified about Arbelaez’s mental health

and intellectual functioning. Dr. Haber testified that, when she screened Arbelaez

prior to trial at counsel’s behest, she believed Arbelaez to be of borderline

intelligence. She suspected that, based on Arbelaez’s epilepsy, he likely has

organic brain impairment.4 She testified that Arbelaez showed signs of a

       3
         Because we assume for purposes of analyzing this claim under the test set forth in
Strickland v. Washington, 

(1984), that trial counsel performed deficiently, we do
not recount Diaz’s testimony.
       4
           Postconviction counsel introduced Dr. Haber’s testimony in large part to demonstrate
that trial counsel was deficient in failing to investigate red flags about Arbelaez’s mental health
and family history. We do not recount her testimony relevant to deficient performance because
of our assumption for purposes of this opinion that counsel’s performance was deficient under


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depressive disorder and previously had undergone electroshock therapy in

Colombia while hospitalized after a suicide attempt. Dr. Latterner, who evaluated

Arbelaez in preparation for the evidentiary hearing, testified that Arbelaez is

intellectually disabled and suffers from epilepsy and organic brain damage. The

State called clinical psychologist Dr. Sonia Ruiz, who testified that she did not

believe Arbelaez is intellectually disabled or suffers from organic brain

impairment.

       The trial court rejected Arbelaez’s ineffective assistance claim, and the

Florida Supreme Court affirmed. See Arbelaez v. State, 

, 41 (Fla.

2005). The Florida Supreme Court divided Arbelaez’s ineffective assistance claim

into subclaims—failure to investigate and present evidence of (1) epilepsy, (2)

other mental health mitigation, and (3) family history—and then analyzed deficient

performance and prejudice individually for each one. With respect to epilepsy, the

Florida Supreme Court concluded that Arbelaez failed to show counsel performed

deficiently or that any deficiency prejudiced him. See Strickland v. Washington,

, 687 (1984) (explaining that, to establish ineffective assistance of

counsel, the defendant “must show that counsel’s performance was deficient” and

“that the deficient performance prejudiced the defense”). As to other mental health


Strickland. To be clear, we do not decide whether trial counsel was deficient but only assume it
for purposes of this opinion.


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mitigation, the court concluded that, although counsel’s performance was deficient,

Arbelaez could not demonstrate prejudice. With respect to family history, the

Florida Supreme Court held that counsel’s performance was not deficient. The

court did not address prejudice as it pertained to this subclaim. 5

       2. Intellectual Disability Postconviction Motion

       In a separate proceeding, the trial court conducted an evidentiary hearing on

Arbelaez’s claim that he is intellectually disabled and therefore ineligible for the

death penalty. 6 Specifically, the court conducted the hearing to determine whether

Arbelaez satisfied Florida’s definition of intellectual disability, that is,

“significantly subaverage general intellectual functioning existing concurrently

with deficits in adaptive behavior and manifested during the period from

conception to age 18.” Fla. R. Crim. P. 3.203; see 

(“[W]e

leave to the States the task of developing appropriate ways to enforce the

constitutional restriction upon their execution of sentences.” (alterations and

internal quotation marks omitted)).

       As relevant to this appeal, postconviction counsel proffered testimony from

psychologist Dr. Ricardo Weinstein and educational psychologist Dr. Thomas

       5
         After the Florida Supreme Court denied relief, Arbelaez did not petition the Supreme
Court of the United States for a writ of certiorari.
       6
         As with his ineffective assistance of counsel hearing, Arbelaez’s intellectual disability
hearing also came after the trial court summarily denied this claim and the Florida Supreme
Court remanded for a hearing. See Arbelaez v. State, 

(Fla. 2006).


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Oakland to support the claim that Arbelaez is intellectually disabled.7 The State

presented the testimony of psychologist Dr. Enrique Suarez. Court appointed

expert Dr. Sonia Ruiz, a forensic psychologist (who had testified at Arbelaez’s

ineffective assistance evidentiary hearing), also testified. Both Dr. Suarez and Dr.

Ruiz testified Arbelaez was not intellectually disabled, and thus their conclusions

about Arbelaez’s intellectual functioning contradicted the opinions of Arbelaez’s

experts.After evaluating Arbelaez, Dr. Weinstein opined that he was intellectually

disabled. Dr. Weinstein obtained an intellectual quotient (“IQ”) score of 65, which

he testified qualified as significantly subaverage general intellectual functioning.

As to deficits in adaptive behavior, Dr. Weinstein testified that he did not formally

assess Arbelaez’s deficits concurrent with the IQ evaluation, although he generally

observed some deficits during the evaluation.

       According to Dr. Weinstein, people with intellectual disabilities are poor

self-reporters of their own adaptive functioning, so it is best to obtain this

information from the individual’s community. Dr. Weinstein opined that, due to

its restrictive environment, a prison cannot constitute a community and prison

guards would be inappropriate subjects for his interviews. Dr. Oakland agreed

with Dr. Weinstein that prison was an inappropriate setting for assessing adaptive

       7
         Arbelaez’s counsel also called several laywitnesses, including friends and family who
knew Arbelaez in Colombia or Florida and three corrections officers who had observed Arbelaez
in prison. Their testimony is immaterial to the issues we address here.


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deficits, testifying that “[i]t is not possible to assess adaptive behavior within the

setting similar to death row.” So instead, Dr. Weinstein reached his conclusion

that Arbelaez suffered from concurrent deficits in adaptive behavior based on

interviews with family members, priests, a teacher, and several friends, as well as a

review of school, medical, and prison records. He also obtained measures of

Arbelaez’s adaptive functioning by asking Arbelaez’s mother and a schoolteacher

to complete the Adaptive Behavior Assessment Scales (“ABAS”), a test used to

evaluate an individual via members of his community. Based on interviews, the

ABAS results, and his observations, Dr. Weinstein concluded that Arbelaez had

concurrent deficits in adaptive functioning. Relying on his interviews with people

who knew Arbelaez as a child, Dr. Weinstein concluded that Arbelaez had

significantly subaverage general intellectual functioning and adaptive behavioral

deficits prior to age 18.

      Dr. Weinstein’s opinion was rejected by the State’s expert, Dr. Suarez, and

by the court-appointed expert, Dr. Ruiz. Dr. Suarez evaluated Arbelaez and,

considering information from before and during his incarceration, including formal

tests of concurrent adaptive functioning, opined that he was not intellectually

disabled. He based his opinion on the facts that Arbelaez: needed no support to

function in his daily life (he was able to drive and run errands and he

communicated with others, even in English); came to this country with relatively


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little assistance; secured employment and performed adequately; used an alias at

work; and fled the country after his crime. Dr. Suarez administered a series of tests

and opined from the results that Arbelaez’s reasoning level was probably in the

average range.

      Dr. Ruiz testified about her evaluation of Arbelaez during preparation for the

ineffective assistance of counsel evidentiary hearing. She testified that she did not

believe Arbelaez was intellectually disabled, but conceded that she relied primarily

on Arbelaez’s self-reporting. After interviewing Arbelaez, Dr. Ruiz concluded

Arbelaez was not intellectually disabled because he reported that he had traveled

alone to Venezuela, the Bahamas, Panama, and Jamaica before coming to the

United States and had held and performed a variety of jobs before being

incarcerated. Dr. Ruiz administered a number of tests and reviewed other reports

and records on Arbelaez. She concluded from her evaluation that Arbelaez had a

borderline intelligence level, no intellectual disability, and abilities to communicate

and live independently that were inconsistent with intellectual disability.

      The trial court denied relief, concluding that Arbelaez failed to demonstrate

significantly subaverage intellectual functioning or concurrent adaptive deficits.

The Florida Supreme Court affirmed, holding that “Arbelaez did not prove that he

has concurrent deficits in adaptive behavior as required by” Florida law. Arbelaez




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v. State, 

, 745 (Fla. 2011), cert. denied sub nom., Arbelaez v. Florida,

(2012).

D. Federal Habeas Proceeding

      After he had exhausted his state appeals, Arbelaez filed a petition for a writ

of habeas corpus in federal district court, raising several claims including his

ineffective assistance and intellectual disability claims. The district court denied

Arbelaez relief but granted him a certificate of appealability (“COA”) on his claim

that counsel rendered ineffective assistance at the penalty phase of his trial. We

expanded Arbelaez’s COA to include his claim that the Florida Supreme Court’s

intellectual disability determination constituted an unreasonable application of

clearly established federal law and was based on an unreasonable determination of

facts in light of the evidence presented at the evidentiary hearing.

                          II.   STANDARD OF REVIEW

      “When reviewing a district court’s grant or denial of habeas relief, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Reaves v. Sec’y, Fla. Dep’t of Corr., 

, 899

(11th Cir. 2013) (internal quotation marks omitted).

      The standard by which we and the district court must review the relevant

state court decisions depends on whether the state court rendered a decision on the

merits of Arbelaez’s claims. If so, then we review those claims under the


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standards set by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Williams v. Taylor, 

, 402-03 (2000). Generally,

AEDPA bars federal courts from granting habeas relief to a petitioner on a claim

that was adjudicated on the merits in state court unless the state court’s

adjudication:

      (1) resulted in a decision that was contrary to, or involved an
         unreasonable application of, clearly established Federal law,
         as determined by the Supreme Court of the United States; or

      (2) resulted in a decision that was based on an unreasonable
         determination of the facts in light of the evidence presented
         in the State court proceeding.

28 U.S.C. § 2254(d). “‘[C]learly established Federal law’ under § 2254(d)(1) is

the governing legal principle or principles set forth by the Supreme Court at the

time the state court renders its decision.” Lockyer v. Andrade, 

, 71-72

(2003). With respect to § 2254(d)(2), “[s]tate court fact-findings are entitled to a

presumption of correctness unless the petitioner rebuts that presumption by clear

and convincing evidence.” Conner v. GDCP Warden, 

, 761 (11th Cir.

2015).

      If the state courts have not rendered a decision on the merits of a claim, then

our review is de novo. See Porter v. McCollum, 

, 39 (2009) (“Because

the state court did not decide whether Porter’s counsel was deficient, we review

this element of Porter’s Strickland claim de novo.”).


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      For the reasons that follow, we review Arbelaez’s ineffective assistance of

counsel claim de novo and his intellectual disability claim through AEDPA’s

deferential lens.

                                III.   DISCUSSION

A. Ineffective Assistance of Counsel Claim

      Arbelaez claims that his trial counsel was ineffective in failing to investigate

and present evidence about his mental health problems and troubled family history

during the penalty phase and that there is a reasonable probability that, had the jury

heard that evidence, it would have recommended a sentence other than death.

Under 

, a defendant has a Sixth Amendment right to

effective assistance of trial counsel. Counsel renders ineffective assistance,

warranting vacatur of a conviction or sentence, when his performance falls “below

an objective standard of reasonableness,” taking into account prevailing

professional norms, and when “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” 

694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 

      We assume for present purposes that Arbelaez’s trial counsel rendered

deficient performance in failing to investigate and present a sufficient case in

mitigation. See Castillo v. Fla., Sec’y of DOC, 

, 1283-84 (11th Cir.


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2013) (making “simplifying assumptions in favor of the petitioner” to facilitate the

Court’s analysis, including assuming deficient performance and deciding

Strickland’s prejudice prong only). Thus, we must decide whether counsel’s

deficient performance prejudiced Arbelaez in the penalty phase of his trial,

considering in addition to the testimony counsel actually elicited at the penalty

phase the mental health and family history mitigating evidence adduced at the

postconviction evidentiary hearing.

      Although the Florida Supreme Court decided on the merits the prejudice

prong of one subclaim—failure to investigate and present mental health mitigation

evidence—it failed to assess prejudice as it pertained to counsel’s failure to

investigate and present evidence of Arbelaez’s family background. We thus are

left with a situation in which part of our prejudice inquiry may require deference to

the Florida Supreme Court’s decision, while part may not. We need not resolve

how to apply AEDPA deference to the Florida Supreme Court’s decision, however,

because even under de novo review Arbelaez cannot demonstrate that counsel’s

failure to investigate and present this mitigating evidence prejudiced his defense.

See 

consider as one claim rather than as independent subclaims

Arbelaez’s contention that counsel failed to investigate and present adequate

evidence in mitigation; this evidence is inherently interrelated. See Wiggins v.

Smith, 

, 534-35 (2003) (considering mitigating evidence of


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petitioner’s “diminished mental capacities” together with his “troubled history” in

deciding whether counsel’s deficient performance prejudiced his defense).

       We conclude that Arbelaez suffered no prejudice from his counsel’s failure

to present mitigation testimony from his sisters and mental health experts.

Arbelaez’s sisters testified that he suffered from an extremely physically abusive

and impoverished childhood. They and Arbelaez’s mental health experts testified

that Arbelaez had epilepsy with organic brain damage, was depressed, had

attempted suicide, and had low intellectual functioning. All of these circumstances

indisputably are mitigating. See 

we consider this new

mitigating evidence together with the mitigation evidence actually presented at

trial—that Arbelaez was hard working and lacked any significant criminal

history—and weigh it against the evidence in aggravation, we cannot conclude that

Arbelaez has met Strickland’s standard for prejudice.8

       “This is not a case where the weight of the aggravating circumstances or the

evidence supporting them was weak.” Sochor v. Sec’y, Dep’t of Corr., 

, 1030 (11th Cir. 2012) (internal quotation marks omitted). After the jury

recommended a death sentence, the trial judge found that the prosecution proved

three statutory aggravators, including CCP and HAC. The Florida Supreme Court

       8
         The trial judge also concluded that Arbelaez demonstrated remorse but, in light of
Arbelaez’s denial of any involvement of the crime at trial, understandably assigned that
mitigating factor little weight.


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“has consistently recognized that CCP and HAC are two of the weightiest

aggravators in Florida’s statutory sentencing scheme.” Brown v. State, 

, 405 (Fla. 2014). The evidence postconviction counsel introduced would not

have reduced the impact of these powerful aggravators sufficient to undermine our

confidence in the outcome of Arbelaez’s penalty phase proceedings.

      The new mitigating evidence would not have mitigated the strength of the

HAC aggravator, which “‘pertains more to the nature of the killing and the

surrounding circumstances’” than the defendant’s mental state. Hardwick v. Sec’y,

Fla. Dep’t of Corr., 

, 561 (11th Cir. 2015) (quoting Stano v. State,

, 893 (Fla. 1984)). Evidence introduced at trial demonstrated that

five year old Julio was kidnapped, driven around for several hours, beaten,

strangled, and thrown 70 feet into the water, where he drowned. The jury saw

photographs that demonstrated the extent of Julio’s injuries, including photographs

of his body and the damaged dashboard of Arbelaez’s car.

      Similarly, the mitigating evidence regarding Arbelaez’s mental health and

troubled childhood is insufficient to undermine substantially the strength of the

evidence supporting the CCP aggravator in this case. The jury heard that Arbelaez

told a friend before the murder that he was going to “assure ‘that bitch is going to

remember me for the rest of her life,’” referring to Alfara. Arbelaez 

. The jury heard about not one, not two, but five confessions Arbelaez gave,


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including two confessions in Arbelaez’s own recorded voice. These confessions

likely were extraordinarily powerful evidence in aggravation. Remarkably

consistent in their chilling details—Arbelaez repeatedly explained that he

murdered Julio to exact revenge upon the child’s mother—these confessions

provided the jury with a concrete basis on which to conclude that the murder was

cold, calculated, and premeditated.

       In sum, evidence of Arbelaez’s mental health and troubled family

background undoubtedly would have been mitigating. Even so, in light of the

highly aggravated nature of the crime at issue in this case, we conclude that there is

no reasonable probability that the evidence would have convinced the jury to

recommend a sentence other than death. See Crawford v. Head, 

,

1322 (11th Cir. 2002) (concluding upon a de novo review that evidence of a

defendant’s alcoholic father and disadvantaged childhood, although mitigating,

would not overcome an “extremely aggravated” murder). Accordingly, we affirm

the denial of relief on Arbelaez’s ineffective assistance of counsel claim.

B. Intellectual Disability Claim

      The Eighth Amendment to the United States Constitution prohibits the

execution of the intellectually disabled. 

. Consistent with

Atkins, we look to Florida law for the applicable definition of intellectual

disability. See Holladay v. Allen, 

, 1353 (11th Cir. 2009). Florida


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law defines intellectual disability as “significantly subaverage general intellectual

functioning existing concurrently with deficits in adaptive behavior and manifested

during the period from conception to age 18.” Fla. R. Crim. P. 3.203.

“[S]ignificantly subaverage general intellectual functioning” means “performance

that is two or more standard deviations from the mean score on a standardized

intelligence test.” 

for purposes of this opinion that Arbelaez meets

this requirement, see 

, and consider the adaptive

behavior deficiency prong.

       “[A]daptive behavior” means “the effectiveness or degree with which an

individual meets the standards of personal independence and social responsibility

expected of his or her age, cultural group, and community.” Fla. R. Crim. P.

3.203. The American Association of Intellectual and Developmental Disabilities’

(“AAIDD”) definition of intellectual disability, with which Florida’s definition is

consistent, defines adaptive deficits as “‘limitations in two or more of the

following applicable adaptive skill areas: communication, self-care, home living,

social skills, community use, self-direction, health and safety, functional

academics, leisure, and work.’” 

n.3 (quoting AAIDD

definition in effect in 2002). 9


       9
          Defense expert Dr. Marc Tasse conceded that Florida’s definition of intellectual
disability, including a requirement of concurrent adaptive deficits, was consistent with the


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       The Florida Supreme Court denied on the merits Arbelaez’s intellectual

disability claim, so we review it under AEDPA’s deferential standard of review.

Arbelaez contends that the Florida Supreme Court’s decision is not entitled to

deference because it was based on an unreasonable application of clearly

established federal law, § 2254(d)(1), and an unreasonable determination of the

facts, § 2254(d)(2). We disagree.

       1. Florida Supreme Court’s Application of Clearly Established Federal
          Law

       Arbelaez contends that Florida’s requirement that a petitioner demonstrate

concurrent deficits in adaptive behavior contravenes Atkins and the Supreme

Court’s later decision in Hall v. Florida, 

(2014). 10 He argues that

these cases, taken together, require states to conform their definitions of

intellectual disability to accepted medical and professional standards. And,




definitions used by the AAIDD and the Diagnostic and Statistical Manual of Mental Disorders,
4th Edition. “Earlier publications of the AAIDD [such as the one quoted in Atkins] were
published under its former name, the American Association on Mental Retardation.” Hall v.
Florida, 

, 2003 n.1 (2014).
       10
           In Hall, the Supreme Court held that Florida’s rigid rule foreclosing “all further
exploration of intellectual disability” if a petitioner is deemed to have an IQ above 70 was

. But Hall was decided after the Florida Supreme Court
rendered its decision on Arbelaez’s intellectual disability postconviction motion, so it was not a
“governing legal principle” at that time. 

. We conclude, however,
that the Florida Supreme Court’s decision withstands our deferential review even if Hall applied
retroactively. See 

.


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Arbelaez asserts, medical and professional standards dictate that adaptive deficits

cannot be determined adequately in a prison environment.

      We acknowledge Arbelaez’s concern about the difficulties attendant in

assessing deficits in adaptive behavior in a restrictive carceral environment. See

Hall v. State, No. SC10-1335, __ So. 3d __, 

, at *7 (Fla. Sept. 8,

2016) (“Evaluating the adaptive behavior of an individual who has spent much of

his adult life incarcerated can be difficult.”). But the question before us is not

whether we would render a different decision on Arbelaez’s claim than the Florida

Supreme Court. 

. Rather, to overcome AEDPA’s

deferential standard of review, Arbelaez “must show that the state court’s

ruling . . . was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 

, 103 (2011).

      Arbelaez cannot make this showing. Nothing in the holdings of Atkins or

Hall speaks directly to the methodology for discerning an individual’s deficits in

adaptive functioning. See 

(emphasizing that the phrase

“‘clearly established Federal law, as determined by the Supreme Court of the

United States’ . . . refers to the holdings, as opposed to the dicta,” of the Supreme

Court’s decisions). The Florida Supreme Court’s determination that United States

Supreme Court precedent is consistent with Florida’s requirement that a petitioner


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show concurrent deficits in adaptive functioning is not, therefore, beyond any

fairminded disagreement.

      2. Florida Supreme Court’s Determination of Facts

      Arbelaez also contends that the Florida Supreme Court’s decision that he is

not intellectually disabled rests on an unreasonable factual determination. Again,

we assume for our purposes that Arbelaez has satisfied the required showing of

significantly subaverage intellectual functioning, so we do not address the trial

court’s denial on that ground. With respect to its findings on adaptive functioning,

Arbelaez argues that the Florida Supreme Court’s decision was premised on three

flawed factual determinations. He asserts that the decision: (1) ignored that Dr.

Weinstein informally observed deficits in Arbelaez’s adaptive behavior during his

evaluation, (2) disregarded much or all of Dr. Weinstein’s findings regarding

Arbelaez’s adaptive functioning leading up to his incarceration, and (3)

unreasonably rejected Dr. Weinstein’s use of the ABAS as a retrospective measure

of adaptive functioning.

      “A determination as to whether a person is [intellectually disabled] is a

finding of fact.” Fults v. GDCP Warden, 

, 1319 (11th Cir. 2014).

We may only disturb a state court’s factual findings if they are unreasonable. “The

term ‘unreasonable’ is no doubt difficult to define.” 

.

Nonetheless, “it is enough to reiterate that a state-court factual determination is not


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unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance.” Burt v. Titlow, 

, 15 (2013)

(internal quotation marks omitted). Thus, “even if reasonable minds reviewing the

record might disagree about the finding in question, on habeas review that does not

suffice to supersede the trial court’s determination.” Wood v. Allen, 

,

302 (2010) (alterations and internal quotation marks omitted).

      Arbelaez cannot demonstrate that the Florida Supreme Court’s conclusion

that he lacks deficits in adaptive behavior was based on an unreasonable

determination of the facts introduced at the evidentiary hearing. Under Florida

law, a person is intellectually disabled only if he has deficits in adaptive behavior

existing concurrently with significantly subaverage general intellectual

functioning. Although Dr. Weinstein made observations of Arbelaez’s adaptive

behavior during the in-prison evaluation, he conceded that he failed to use any

formal measure to assess Arbelaez’s adaptive functioning concurrent with the IQ

testing. By contrast, Dr. Suarez assessed Arbelaez’s adaptive behavior both

retrospectively and concurrently with intellectual functioning testing, concluding

that Arbelaez lacked the requisite adaptive behavioral deficits. Because the basis

for Dr. Suarez’s opinion more closely tracked Florida’s definition of intellectual

disability, the Florida Supreme Court was entitled to credit Dr. Suarez’s opinion

over Dr. Weinstein’s.


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      Given that it was reasonable to credit Dr. Suarez’s opinion over Dr.

Weinstein’s based on Dr. Weinstein’s failure to formally assess concurrent

adaptive deficits, Arbelaez’s other two points of dispute with the factual findings

regarding his intellectual disability claim also must fail. Those arguments pertain

to the soundness of Dr. Weinstein’s retrospective study of adaptive functioning,

which the Florida Supreme Court reasonably decided was insufficient for a reliable

opinion on concurrent deficits in adaptive behavior. Thus, as the district court

concluded, “even if Arbelaez had proved [through Dr. Weinstein’s evaluation] that

he had adaptive deficits while growing up in Colombia and during the time he

lived in Florida,” “he has not shown that the Florida Supreme Court’s

determination that he failed to prove concurrent adaptive deficits at the time of the

intellectual quotient testing was an unreasonable determination of facts.” Arbelaez

v. Crews, 

, 1297 (S.D. Fla. 2014).

      Because Arbelaez was unable to pierce AEDPA deference, we are required

to defer to the Florida Supreme Court’s determination that he is not intellectually

disabled. Accordingly, we affirm the denial of relief on Arbelaez’s intellectual

disability claim.

                                IV.    CONCLUSION

      The district court’s denial of Arbelaez’s petition for a writ of habeas corpus

is affirmed.


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AFFIRMED.




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