State of Alabama v. Michael Bragg Woolf (2026)

The State of Alabama appeals the Mobile Circuit Court's order granting, in part, Michael Bragg Woolf's petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P. The circuit court set aside Woolf's sentence of death after finding that Woolf was intellectually disabled and resentenced Woolf to life imprisonment without the possibility of parole. Woolf cross-appeals the circuit court's order insofar as it denies his claims that his trial counsel was ineffective in the guilt phase of his trial for failing to investigate and present certain evidence that, he says, was relevant to the issue of his intent.

In November 2010, Woolf was convicted of two counts of capital murder for murdering his wife, Angel Marie Woolf, and his two-year-old son, Ayden Woolf, offenses defined as capital because two or more people were killed pursuant to one plan or scheme, § 13A-5-40(a)(10), Ala. Code 1975, and because Ayden was under the age of 14 years old at the time that he was killed, a violation of § 13A-5-40(a)(15), Ala. Code 1975. In February 2011, the jury, by a vote of 11 to 1, recommended that Woolf be sentenced to death. The circuit court sentenced Woolf to death.

On direct appeal in 2014, this Court affirmed, in part, the circuit court's judgment and remanded Woolf's case for the circuit court to clarify its findings regarding the nonstatutory mitigating circumstances and to reweigh the aggravating and the mitigating circumstances. See Woolf v. State, 220 So. 3d 338 (Ala. Crim. App. 2014). On return to remand, we affirmed Woolf's convictions and sentence of death. See Woolf v. State, 220 So. 3d at 388 (opinion on return to remand). The Alabama Supreme Court initially granted certiorari review but then quashed the writ of certiorari, and the United States Supreme Court denied certiorari review. See Woolf v. Alabama, 581 U.S. 943 (2017). This Court issued the certificate of judgment on October 28, 2016. See Rule 41, Ala. R. App. P.

On October 24, 2017, Woolf filed a timely petition for postconviction relief attacking his capital-murder convictions and sentence of death. The State moved that the petition be partially dismissed on procedural grounds. The circuit court denied that motion. The State then filed a petition for a writ of mandamus in this Court. By an order dated January 30, 2019, this Court denied the State's mandamus petition. See State v. Woolf (No. CR-2018-0324, January 30, 2019).

An amended postconviction petition was filed on June 22, 2023,¹ after Woolf obtained new counsel. After an evidentiary hearing in August 2024, the circuit court granted, in part, Woolf's petition and found that he could not constitutionally be sentenced to death because he is intellectual disabled. The circuit court denied relief on Woolf's claims of ineffective assistance of counsel in regard to the guilt phase of his trial. The State appealed, and Woolf cross-appealed. See Rule 32.10(a), Ala. R. Crim. P.

On direct appeal, this Court stated the following concerning the facts supporting Woolf's convictions:

“On February 15, 2008, Woolf went to Resultz Corp. in Mobile with his wife Angel, their two-year-old son Ayden, and Woolf's mother, Lynn Tullos. Woolf and Angel had what witnesses described as a turbulent relationship, and, because Woolf had begun to doubt that he was Ayden's biological father, Woolf and Angel went to Resultz Corp., ‘a biomedical testing laboratory’ that performed drug screenings and ‘DNA collections and testing,’ for a paternity test to determine whether Woolf was Ayden's biological father. Woolf seemed stressed about the results of the test and said ‘that other people were saying [Ayden] [might] not be his.’ After completing the test, Woolf asked an employee of Resultz Corp. to pray for him.

“After he received the results, Woolf returned to Resultz Corp. with Ayden on March 3, 2008. Woolf told a Resultz Corp. employee that he needed to have the results of the test ‘explain[ed] to him because he was a little confused about [them].’ The employee explained the results to Woolf who said ‘he was just worried about’ what other people were saying regarding Ayden's paternity. As Woolf left Resultz Corp., he asked the owner whether she believed in God and asked her to pray for him.

“Shortly after midnight on the morning of March 5, 2008, Woolf called the Mobile County emergency 911 number and reported that he had killed his family and needed to go to jail. Paramedics with the Mobile Fire Department and officers with the Mobile Police Department were dispatched to Woolf's mobile home.

“․

“Mobile police officers went to Woolf's mobile home, where they found the bodies of Angel and Ayden; both Angel and Ayden had been shot. The officers also located a ‘sock print impression that was in blood’ and several bloody shoe impressions. On the living-room floor officers found a .38 caliber revolver that held two spent casings and one cartridge.

“Officers transported Woolf to the Mobile Police Department headquarters and placed him in an interview room. Officer [Shannon] Payne checked on Woolf, who was alternating between pacing and lying on the floor. Woolf said, ‘I'm a fucking dumb ass.’ He also said, ‘Shoot me, just shoot me.’ (R. 1415.) When Officer Payne asked why he should shoot him, Woolf said, ‘because I'm guilty.’ (R. 1415.)”

Woolf, 220 So. 3d at 345-47 (footnote omitted).

Standard of Review

The Rule 32, Ala. R. Crim. P., petition that is the subject of this appeal was filed in the Mobile Circuit Court by Woolf; therefore, according to Rule 32.3, Ala. R. Crim. P., Woolf has the sole burden of pleading and proving his claims.

“The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence.”

Rule 32.3 (emphasis added).

“ ‘The standard of review on appeal in a postconviction proceeding [after an evidentiary hearing] is whether the trial judge abused his discretion when he denied the petition.’ Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992). ‘[W]hen the facts are undisputed, and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.’ Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001). ‘[W]hen there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, “[t]he standard of review on appeal ․ is whether the trial judge abused his discretion when he denied the petition.” ’ Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim. App. 2003), quoting Elliott, 601 So. 2d at 1119. See also Mashburn v. State, 148 So. 3d 1094, 1104 (Ala. Crim. App. 2013). ‘We will reverse a circuit court's findings only if they are “clearly erroneous.” ’ Barbour v. State, 903 So. 2d 858, 861 (Ala. Crim. App. 2004).”

State v. Mack, [Ms. CR-2023-0284, Dec. 20, 2024] ___ So. 3d ___, ___ (Ala. Crim. App. 2024).

“ ‘ “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). ․’ ”

Morrison v. State, 551 So. 2d 435, 436-37 (Ala. Crim. App. 1989) (citation omitted).

In this case, a different judge presided over the postconviction proceedings than the judge who presided over Woolf's trial. “ ‘The Alabama Supreme Court in Ex parte Gissendanner, 288 So. 3d 1011 (Ala. 2019), recognized that, when a circuit court grants relief on a postconviction petition, we afford the court's findings of fact deference on appeal.’ State v. Lewis, 371 So. 3d 863, 890 (Ala. Crim. App. 2022).” State v. Mack, ___ So. 3d at ___. We further noted in Mack that “[w]e would apply even a greater degree of deference if the same judge presided over the trial and the postconviction proceedings.” Mack, ___ So. 3d at ___ n.10.

When granting relief and finding that Woolf was intellectually disabled, the circuit court stated that its finding was a “question of fact” solely for that court to determine. (C. 1488.) However, in the context of such a claim under Atkins v. Virginia, 536 U.S. 304 (2002), this Court must consider the court's application of the applicable law to the facts.

“IQ analyses in Atkins [v. Virginia, 536 U.S. 304 (2002),] claims pose mixed questions of law and fact. A defendant's specific scores are factual issues, whereas the propriety of a court's interpretation of those scores can be an issue of federal [or state] law. See Hall [v. Florida], 572 U.S. [701] at 723 [(2014)] (concluding that the Constitution prohibited Florida's approach to analyzing IQ scores); Moore [v. Texas], 581 U.S. [1] at 13-15 [(2017)] (vacating the Texas court's IQ analysis because it contravened our holding in Hall, not because it constituted clear factual error).”

Hamm v. Smith, 608 U.S. 278 n.6 (2026) (Alito, J., dissenting from order dismissing writ of certiorari).

With these principles in mind, we first review the State's appeal of the circuit court's order insofar as it finds that Woolf is intellectually disabled.

I.

State's Appeal

The State argues that the circuit court erred in finding that Woolf met the definition of intellectually disabled adopted by the Alabama Supreme Court in Ex parte Perkins, 851 So. 2d 453 (Ala. 2002), pursuant to the United States Supreme Court's decision in Atkins. Specifically, the State argues that, over the course of his life, Woolf had nine IQ tests and that, in none of those tests, did Woolf score less than a full-scale IQ score of 74. The State asserts that the circuit court “cherry-picked Woolf's childhood IQ scores, removing the four highest from consideration to try to create the facts necessary for intellectual disability.” (State's brief at 40.) It further asserts that the court also abused its discretion in considering neuropsychological tests when evaluating the first prong of the Perkins’s inquiry. The circuit court requested imaging of Woolf's brain, it argues, but those tests were “never mentioned or admitted into evidence.” (State's brief at 41.)

The United States Supreme Court, in Atkins, first held that it was a violation of the United States Constitutional protection against cruel and unusual punishment to execute an individual who is mentally retarded. The Court left it to each state to determine the definition of mental retardation.

The Alabama Supreme Court, in Perkins, adopted the most liberal definition of mental retardation utilized by the states that have addressed this issue and held that, to prove mental retardation, now referred to as an intellectual disability, a defendant must show the following:

“(1) significant subaverage intellectual functioning (i.e., an IQ of 70 or below); (2) significant or substantial deficits in adaptive behavior; and (3) the manifestation of these problems during the defendant's developmental period (i.e., before the defendant reached age 18).”

Perkins, 851 So. 2d at 456.

A few years later, in Smith v. State, 213 So. 3d 239 (Ala. 2007), the Alabama Supreme Court expanded its holding in Perkins and explained:

“All three factors must be met in order for a person to be classified as mentally retarded for purposes of an Atkins [v. Virginia, 536 U.S. 304 (2002),] claim. Implicit in the definition is that the subaverage intellectual functioning and the deficits in adaptive behavior must be present at the time the crime was committed as well as having manifested themselves before age 18. This conclusion finds support in examining the facts we found relevant in Ex parte Perkins and Ex parte Smith[, 213 So. 3d 214 (Ala. 2003),] and finds further support in the Atkins decision itself, in which the United States Supreme Court noted: ‘The American Association on Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning.” ’ 536 U.S. at 308 n.3 (second emphasis added). Therefore, in order for an offender to be considered mentally retarded in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18.”

213 So. 3d at 248 (some emphasis added). Since Perkins and Smith, the United States Supreme Court has declined to use the term “mental retardation” but, instead, has used the term “intellectual disability” to be consistent with experts who have modified their terminology. See Hall v. Florida, 572 U.S. 701, 704 (2014).

In Hall v. Florida, the United States Supreme Court revisited Atkins and rejected Florida's strict adherence to a score of 70 as an absolute cutoff for defining intellectual disability under Atkins. The United States Supreme Court further stated:

“By failing to take into account the SEM [Standard Error of Measurement] and setting a strict cutoff at 70, Florida ‘goes against the unanimous professional consensus.’ APA [American Psychological Association] Brief 15. Neither Florida nor its amici point to a single medical professional who supports this cutoff. The DSM-5 [Diagnostic and Statistical Manual, Fifth Edition] repudiates it: ‘IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real-life situations and mastery of practical tasks.’ DSM-5, at 37. This statement well captures the Court's independent assessment that an individual with an IQ test score ‘between 70 and 75 or lower,’ Atkins [v. Virginia, 536 U.S. 304] at 309, n.5 [(2002),] may show intellectual disability by presenting additional evidence regarding difficulties in adaptive functioning.

“The flaws in Florida's law are the result of the inherent error in IQ tests themselves. An IQ score is an approximation, not a final and infallible assessment of intellectual functioning. See APA Brief 24 (‘[I]t is standard psychometric practice to report the “estimates of relevant reliabilities and standard errors of measurement” when reporting a test score’); ibid. (the margin of error is ‘inherent to the accuracy of IQ scores’); Furr [& Bacharach], Psychometrics, at 119 [(2d ed. 2014)] (‘[T]he standard error of measurement is an important psychometric value with implications for applied measurement’). SEM is not a concept peculiar to the psychiatric profession and IQ tests. It is a measure that is recognized and relied upon by those who create and devise tests of all sorts. Id., at 118 (identifying the SEM as ‘one of the most important concepts in measurement theory’).

“This awareness of the IQ test's limits is of particular importance when conducting the conjunctive assessment necessary to assess an individual's intellectual ability. See American Association on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports 40 (11th ed. 2010) (‘It must be stressed that the diagnosis of [intellectual disability] is intended to reflect a clinical judgment rather than an actuarial determination’).

“Intellectual disability is a condition, not a number. See DSM-5, at 37. Courts must recognize, as does the medical community, that the IQ test is imprecise. This is not to say that an IQ test score is unhelpful. It is of considerable significance, as the medical community recognizes. But in using these scores to assess a defendant's eligibility for the death penalty, a State must afford these test scores the same studied skepticism that those who design and use the tests do and understand that an IQ test score represents a range rather than a fixed number. A State that ignores the inherent imprecision of these tests risks executing a person who suffers from intellectual disability. See APA Brief 17 (‘Under the universally accepted clinical standards for diagnosing intellectual disability, the court's determination that Mr. Hall is not intellectually disabled cannot be considered valid’).

“This Court agrees with the medical experts that when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”

572 U.S. at 722-23.

Alabama has applied the Hall v. Florida holding. See Carroll v. State, 300 So. 3d 59 (Ala. 2019); Lane v. State, 286 So. 3d 61 (Ala. 2018); Reeves v. State, 226 So. 3d 711 (Ala. Crim. App. 2016). As we have stated:

“The Court held that, consistent with the ‘medical community's diagnostic framework,’ courts tasked with determining whether a defendant exhibits intellectual-functioning deficits must consider the ‘standard error or measurement.’ Moore [v. Texas,] 581 U.S. [1] at [13], 137 S.Ct. [1039] at 1049 [(2017)]. To that end, the Court,

“ ‘instructs that, where an IQ score is close to, but above, 70, courts must account for the test's “standard error of measurement.” See [Hall v. Florida, 572 U.S. 701] at 713, 724[, 134 S.Ct. at 1995, 2001 (2014)]. See also Brumfield v. Cain, 576 U.S. 305, 315[, 135 S.Ct. 2269, 2278, 192 L.Ed. 2d 356] (2015) (relying on Hall to find unreasonable a state court's conclusion that a score of 75 precluded an intellectual-disability finding). As we explained in Hall, the standard error of measurement is “a statistical fact, a reflection of the inherent imprecision of the test itself.” 572 U.S., at 713[, 134 S.Ct. at 1995]. “For purposes of most IQ tests,” this imprecision in the testing instrument “means that an individual's score is best understood as a range of scores on either side of the recorded score ․ within which one may say an individual's true IQ score lies.” Id., at 713[, 134 S.Ct. at 1995]. A test's standard error of measurement “reflects the reality that an individual's intellectual functioning cannot be reduced to a single numerical score.” Ibid. See also id., at 713[, 134 S.Ct. at 1995]; DSM-5, at 37; AAIDD, User's Guide: Intellectual Disability: Definition, Classification, and Systems of Supports 22-23 (11th ed. 2012) (hereinafter AAIDD-11 User's Guide).’

“Moore, 581 U.S. at 13-14, 137 S.Ct. at 1049. Thus, with a standard error of measurement of 5, an IQ ‘score of 74, adjusted for the standard error of measurement, yields a range of 69 to 79.’ Moore, 581 U.S. at 14, 137 S.Ct. at 1049. ‘Because the lower end of [the] score range falls at or below 70, [courts must] move on to consider ․ adaptive functioning.’ Id.”

Carroll v. State, 300 So. 3d at 54.

Nonetheless, Alabama has not specifically addressed the situation where a defendant alleging intellectual disability under Atkins has taken multiple IQ tests and how those prior test scores should be used in assessing an Atkins claim. The United States Supreme Court in Hall did state:

“Even when a person has taken multiple tests, each separate score must be assessed using the SEM, and the analysis of multiple IQ scores jointly is a complicated endeavor. See Schneider, Principles of Assessment of Aptitude and Achievement, in The Oxford Handbook of Child Psychological Assessment 286, 289-291, 318 (D. Saklofske, C. Reynolds, V. Schwean, ed. 2013). In addition, because the test itself may be flawed, or administered in a consistently flawed manner, multiple examinations may result in repeated similar scores, so that even a consistent score is not conclusive evidence of intellectual functioning.”

572 U.S. at 714 (emphasis added).

Since Hall, little has been written on the issue of assessing multiple IQ scores in light of Atkins. The Ohio Court of Appeals has stated:

“Even if Mr. Wesson achieved a higher score on certain tests, that fact would not allow the trial court to ignore lower scores on different tests. [State v.] Ford[, 158 Ohio St. 3d 139, 154-55, 140 N.E.3d 616, 652-53 (2019)]. When a defendant has taken multiple IQ tests, ‘each score must be assessed using the SEM ․’ Hall, 572 U.S. at 714, 134 S.Ct. 1986. Because Mr. Wesson took multiple IQ tests, the trial court was required to consider each of his scores, apply the SEM to each of his scores, and determine whether any of them evidenced an intellectual-functioning deficit. As noted, an intellectual functioning deficit is indicated by an IQ score of ‘roughly 70 or lower when adjusted for the [SEM].’ ․ Ford[, 158 Ohio St. 3d at 157, 140 N.E.3d at 655-66]. See also Hall [, 572 U.S.] at 722, 134 S.Ct. 1986 (‘An IQ score is an approximation, not a final and infallible assessment of intellectual functioning.’). There is no dispute that Mr. Wesson received a full-scale IQ score of 76 on three separate IQ tests: the WAIS-3, the WAIS-4, and the RIAS. Those scores did not account for the SEM. The trial court acknowledged the SEM but did not explicitly apply it to each of Mr. Wesson's scores to produce a specific confidence interval range for each score. There was testimony that, for at least two of Mr. Wesson's tests, the SEM would result in a confidence interval range as low as 72; just two points shy of 70. That adjusted score also did not account for the Flynn Effect. Because Mr. Wesson presented evidence on the Flynn Effect, the trial court was required to consider and discuss that evidence before deciding whether to adjust his scores due to that phenomenon. See Ford[, 158 Ohio St. 3d at 155, 140 N.E.3d at 653-54].”

State v. Wesson, 281 N.E.3d 818, 840 (Ohio Ct. App. 2026).

The Supreme Court of South Carolina stated:

“Aleksey also challenges the reliability of Tests #1-3, citing incomplete documentation regarding their administration. The PCR [postconviction relief] court nevertheless credited Dr. [Alicia] Hall's testimony that these were standard assessments administered by trained professionals. Further, Dr. Hall did not rely on those scores in isolation. Instead, she considered them alongside Aleksey's school records, diagnoses, and developmental history.”

Aleksey v. State, 448 S.C. 62, 76, 930 S.E.2d 304, 311 (2026).

The United States Court of Appeals for the Eighth Circuit stated:

“According to the State, the district court first erred in considering Jackson's childhood IQ test scores, which the State contends are unreliable or invalid. But as we explained in Jackson III [Jackson v. Kelley, 898 F.3d 859 (8th Cir. 2018)], the district court in 2016 ‘did not find that any of the IQ tests administered to Jackson before he was 18 were invalid.’ See 898 F.3d at 864. The State did not request rehearing in this Court to challenge the validity or use of the childhood IQ scores, nor did it make any such arguments to the district court on remand. The State now points to the testimony of its expert, Dr. [Gilbert] Macvaugh, in which he opined that the record was not ‘real specific’ about which version of a test was given and that he was uncertain whether the tests were administered by a licensed psychologist trained to administer IQ tests. ․ And Dr. Macvaugh also testified: ‘[W]hen you have lots of scores that all fall in the same approximate area or range, then there is probably less error associated with each of those scores because we have evidence of consistency across multiple administrations.’ ”

Jackson v. Payne, 9 F.4th 646, 654 (8th Cir. 2021) (emphasis added).²

Here, the record shows that Woolf had been given nine IQ tests before the postconviction proceedings and that no doctor before Dr. Robert Ouaou had concluded that Woolf was intellectually disabled. (C. 1450-1658.) (2nd Supp. Corr. R. 4622-4719.) Seven of the IQ tests were administered by psychologists. A summary of the IQ tests given to Woolf follows:

--(1) On March 13, 1987, when Woolf was eight years old, he was given the Wechsler Intelligence Scale for Children -- Revised (“WISC-R”) test. Woolf was determined to have a full-scale IQ of 87. (C. 1540; 2nd Supp. Corr. R. 3047.) This test is merely referenced in a 1990 report. No other information concerning this test is contained in the record.

--(2) On March 26, 1990, when Woolf was 11 years old, he was given the WISC-R. He was determined to have a full-scale IQ of 78+3. This report is signed by both Cassie G. Fishbein, Ed.S., Associate School Psychologist, and signed as approved by the School Psychologist, Doyle James, Ed.D. (C. 1540-41; 2nd Supp. Corr. R. 3047-3049.)

--(3) On November 11, 1992,3 Woolf was given the WISCR by Dr. Robert G. Cook, a clinical psychologist, when he was 14 years old. An extensive report was completed by Dr. Cook. Woolf was found to have a full-scale IQ of 85. (C. 1545-49.)

--(4) On May 3, 1993, at the age of “14.7,” Woolf was given the Wechsler Intelligence Scale for Children -- Third Edition (“WISC-III”) by the University of Alabama psychological program. The testing and findings were supervised by Dr. Elise Labbe, a clinical psychologist. At Woolf's trial, Dr. Labbe testified at the penalty phase that “[Woolf] and his father came in because they wanted to have him tested. And so my student and I interviewed [Woolf] and the family and then we did some testing, a pretty good battery of testing.” (Direct Appeal, R. 2289.) Dr. Labbe found that Woolf's full-scale IQ was 83+7. (C. 1550-55; 2nd Supp. Corr. R. 6202-07.)

--(5) On April 4, 1994, Woolf was given an IQ test by a psychometrist, Debra S. Laughlin, while Woolf was incarcerated at Strickland Youth Center in Mobile. Woolf had a full-scale IQ of 91. (R. 1556.) It is unclear exactly what IQ test was given to Woolf at this time. The report states “Wechsler Intelligence Scale.” (2nd Supp. Corr. R. 3079.) However, a more detailed copy in the second supplemental record states that Woolf was given the WISC-R IQ test. (2nd Supp. Corr. R. 5008.)

--(6) On September 18, 2009, and January 29, 2010, immediately before Woolf was tried for capital murder, he was evaluated by an expert that he had retained to testify at his trial, Dr. Thomas S. Bennett, a clinical psychologist. Woolf was given the Wechsler Adult Intelligence Scale -- Fourth Edition (“WAIS-IV”). Dr. Bennett evaluated Woolf on three different dates: July 31, 2009, September 18, 2009, and January 29, 2010. Dr. Bennett determined that Woolf's full-scale IQ was 74 and that Woolf was in the borderline range for intellectual functioning. (C. 1578-81.)4

--(7) On May 9, 2019, Woolf was evaluated by Dr. Glen King, a clinical psychologist, as a result of the United States Supreme Court's decision in Atkins. Woolf was given the WAIS-IV test and various other tests. Dr. King stated that Woolf's full-scale IQ was 78. (C. 1611-21.) The original report was dated May 28, 2019, and a supplemental report was filed on June 23, 2024. (2nd Supp. Corr. R. 4959-61.)

--(8) On May 9, 2019, Dr. King also administered the Stanford Binet Intelligence Test, Fifth Edition (“SB-5”). Woolf received a full-scale score of 84 on this test.5

--(9) On May 20, 2022, Woolf was examined by Dr. Robert Ouaou, a neuropsychologist. Woolf was given the WAIS-IV and numerous other tests. Dr. Ouaou found that Woolf had a full-scale IQ of 78 but that, after adjusting for the Flynn Effect his IQ was actually 74.

The circuit court, when finding that Woolf is intellectually disabled, made the following findings:

“Alabama law defines intellectual disability as including three criteria: (1) significantly subaverage intellectual functioning (generally considered to be an IQ of 70 or below), (2) significant or substantial deficits in adaptive behavior, and (3) the onset of these elements during the developmental period, which Alabama courts have identified as 18 years old.[6]

“․.

“In considering these three elements, courts have recognized that ‘the question of whether a person has a significantly subaverage intellectual functioning often overlaps with whether that person also has significant or substantial deficits in adaptive behavior.’ Smith VII [Smith v. Commissioner, Alabama Department of Corrections, (No. 21-14519, Nov. 14, 2014) (M.D. Ala. 2014) (not reported in Federal Reporter)]. As a result, when determining intellectual disability, ‘it is not sound to view a single factor as dispositive of a conjunctive and interrelated assessment.’ Hall [v. Florida, 572 U.S. [701] at 723 [(2014)]. Accordingly, this Court adopts a ‘holistic’ approach that ‘considers the relevant evidence, including as appropriate any relevant expert testimony’ and ensures that Mr. Woolf has the opportunity to present evidence of his intellectual disability over the course of his lifetime. Smith [VII], ․ (citing Hamm v. Smith, 604 U.S. 1 ․ (U.S. 2024)); see also Hall, 572 U.S. at 713, 724.

“․.

“Woolf and the State disagree as to whether he meets his burden of proving significantly subaverage intellectual function, which is generally considered to require at or below 70. Prior to trial, Woolf's expert tested his IQ at 74 -- a score that, taking into account the standard error of measurement, brings him within this range. Complicating matters, however, is the fact that Woolf has multiple other test scores, including testing done for his Rule 32 hearing and from his childhood.

“․.

“Whereas here, a defendant has had his IQ tested on multiple occasions, the question of how to weigh the various scores also ‘complicate[s] matters.’ Smith [VII], ․ (quoting Hall, 572 U.S. at 714). While ‘consistent scores across multiple tests may help identify a test-taker's true IQ score’ such that ‘we'd expect consistent results to reflect a person's intellectual ability as opposed to random chance,’ it is equally the case that repeated tests may all suffer from the same error. ․ ‘Because the test itself may be flawed, or administered in a consistently flawed manner, multiple examinations may result in repeated similar scores, so that even a consistent score is not conclusive evidence of intellectual functioning.’ Hall, 572 U.S. at 714.

“The AAIDD [American Association on Intellectual and Developmental Disabilities] guidance to clinicians making retrospective diagnosis (diagnosis after the individual has left the developmental period) encourages practitioners to use clinical judgment in deciding how much weight to accord previously administered intellectual functioning assessments. ․

“The Eleventh Circuit has adopted a ‘holistic approach’ to weighing a petitioner's multiple IQ tests. Smith [VII], ․. Accordingly, rather than finding the results of a single test dispositive, a court should consider whether IQ tests ‘taken together and in context of expert testimony, foreclose the conclusion that [the defendant has] significantly subaverage intellectual functioning.’ Smith [VII], ․. If they do, ‘additional evidence must be considered, including testimony on [a petitioner's] adaptive deficits.’ Smith [v. Commissioner, Alabama Dep't of Corr.] 67 F.4th [1335] at 1346 [11th Cir. 2023)]; Hall, 572 U.S. at 723; Moore [v. Texas], 581 U.S. [1] at 14 [(2017)] (in considering IQ test scores of 78 and 74, and ‘because the lower end of Moore's [lower] score range falls at or below 70, the [Texas Court of Criminal Appeals] had to move on to consider Moore's adaptive functioning.’) ․

“․.

“Woolf's first known childhood test occurred when he was eight years old. (1990 Mobile Public Schools Testing Rep.). There is no record of this test beyond a brief, one-line mention in a 1990 ‘Child Guidance Center Report of Testing’ where, under the category ‘previous psychological test results,’ it lists a WISC-R test reflecting a [full-scale] IQ score of 87 and the date of March 13, 1987. There is no information about why this test was administered, where it was administered, or who administered it. There is also no raw data for this test, and no SEM is provided with the score.

“The same 1990 Child Guidance Center Report of Testing indicates that, in March 1990, when he was eleven years old, Woolf was ‘referenced for evaluation by officials of Semmes Elementary School’ for a ‘special education re-evaluation, Learning Disability,’ for the purposes of ‘determining educational needs and placement. (1990 Mobile Public Schools Testing Rep.). Woolf was administered the WISC-R, which yielded a [full-scale] IQ score of 78+. Notes accompanying the test state ‘this places him in the borderline range of intellectual functioning.’ The report indicates that an associate school psychologist administered the test, which was approved by a school psychologist.

“In November 1992, at the age of fourteen, Woolf again took the WISC-R and received a [full-scale] IQ of 85. Records do not note the SEM but do provide scores for various subtests.

“In May 1993, Woolf was then given the update to the WISC-R, the WISC-III and scored 83+7. The report from that testing indicates that Woolf was in seventh grade at the time, that he repeated first grade, and that he ‘has been, and is presently, in all Learning Disability (LD) classes, except PE and Art, since the second grade.’ The [full-scale] IQ score of 83+7 ‘places him in the Low Average range.’

“A 1994-95 Individualized Education Program briefly indicates that, one year later, at the age of fifteen, Woolf was given the then-outdated WISC-R and scored a 91 but no SEM was provided. The document does not indicate who administered the test but lists the date as April 4, 1994, less than a year after 1993 test.

“Dr. Ouaou testified that he considered Woolf's childhood IQ score[s], along with his other school and medical records in assessing Woolf. He described Woolf's childhood IQ scores as demonstrating ‘total IQ scores that were within the low, average and borderline ranges.’ Dr. Ouaou explained that his ability to draw conclusions from these tests ‘is really limited because I don't have the actual test date in order to ensure the integrity of these test results.’ Dr. Ouaou also expressed concerns that there ‘likely were some practice effects because of the times between testing, particularly from ‘92 to ‘94. The practice effect refers to the artificially inflated scores because of familiarity with a given test (or version of it). The 1992 and 1994 administrations of the WISC-R after the WISC-III had come out in 1991 are of particular concern. ․ The administration of this outdated test, as well as administration of the WISC three November 1992 and April 1994, violate two important best practices: always using the current version of a give test and not administering the same test to a subject within one year. (AAIDD Manual) (‘Do not administer the same intelligence test within the same year to the same individual, because frequent re-administration may lead to overestimating the examinee's true intelligence (i.e., practice effects)’).

“Dr. Ouaou expressed his opinion that Woolf's childhood scores should be accorded limited weight, in part due to concerns about the practice effect for the test administered within a year and the administration of out-of-date version of some tests. If the two out-of-date administrations of the WISC-R are removed from consideration, it eliminates [full-scale] IQ scores of 85, 83+7, and 91 from the analysis. This leaves as the only childhood score the 78+3 on the WISC-R in 1990, and the 87 on the WISC-R in 1987 (about which very little is known, as discussed, supra.) In sum, the score of 78+3 appears to be the most reliable indicator of Woolf's childhood intelligence functioning.

“The State's expert, Dr. King takes the position that Woolf's childhood scores do not reflect intellectual disability.

“Dr. King's reliance on childhood IQ scores as reliable indicators of intellectual function is opposite the position that he has taken in another pending death penalty case. See Stallworth [v. Raybon], [(No. 1:15-CV-309-KD-M, Jan. 16, 2025) (S.D. Ala. 2025) (not reported in Federal Supplement)]. In Stallworth, as here, the petitioner has childhood IQ scores from the 1980's that place his IQ above 70, even accounting for the standard error of measurement. Stallworth ․. Stallworth’s score on a 1982 test was 84, resulting in a range of 79-89 when accounting for the standard error of measurement, and he scored 80 on a 1986 test, yielding a range of 75-85 when accounting for the standard error of measurement. Stallworth, ․.

“In Stallworth, Dr. King testified that he ‘does not believe these test results are reliable.’ Stallworth, ․. Among other things, he ‘pointed out the thoroughness of the testing and the expertise of the test administrators in 1982 and 1986 is unknown.’ Stallworth, ․. He further questioned whether IQ testing ‘for educational placement purposes’ is sufficient for purposes of determining whether a person is ‘legally and medically intellectually disabled.’ Stallworth, ․. The Stallworth court agreed, concluding that the ‘the IQ tests administered in 1982 and 1986 are not reliable evidence of Stallworth's IQ.’ Stallworth, ․.

“Some of those same concerns exist here. We do not know the thoroughness of Woolf's childhood testing or the expertise of the test administrators, and much of the testing was for educational purposes. Woolf's childhood IQ tests do not preclude a diagnosis of intellectual disability. Accordingly, additional evidence, including evidence of Woolf's adaptive functioning must be considered. Stallworth, ․. (finding ‘the IQ tests administered in 1982 and 1986 are not reliable evidence of Stallworth's IQ’).”

(C. 1488-1501.)

The record shows that, at the postconviction hearing, Woolf presented the testimony of several experts. Dr. Robert Ouaou, a clinical psychologist and neuropsychologist, testified that he was hired in 2022 to evaluate Woolf neuropsychologically. (R. 445-46.) In assessing Woolf, he said, he examined school records, mental-health records from various agencies, police records, records from the Department of Corrections, reports compiled by the State's expert, Dr. Glen King, and reports compiled by other doctors related to Woolf's mental health. (R. 446-47.) It is standard practice in the field to rely on the “DSM-5-TR [Diagnostic and Statistical Manual, Fifth Edition] to make an intellectual disability diagnosis,” he said. (R. 448.) Dr. Ouaou conducted the intelligence test using the “Wechsler Adult Intelligence Scale, 4th Edition, the WAIS-4, which was published in 2008.” (R. 458.) He said that based on this test Woolf scored a full-scale IQ score of 74. (R. 458.) Dr. Ouaou further testified

“[Defense counsel]: For purpose of scoring an IQ test how do you take the Flynn Effect into account?

“[Dr. Ouaou]: The accepted mathematical conversion is that -- what is found in the population in general -- there are three points per decade that need to be accounted for when testing someone with age norms or obsolete norms, which translates into three-tenths of a point per year. The calculation based on the literature and the manual is, you take the date that the test was normed and you minus that from the date that you evaluated the patient or the examinee. To account for the obsolete norms, you times that time discrepancy -- for example, then years -- by point three which would give you 3.

“[Defense counsel]: Why do you apply the Flynn adjustment that you just described?

“[Dr. Ouaou]: For a more accurate assessment of intelligence until we have a more current test.

“[Defense counsel]: Did you apply a Flynn adjustment in Woolf's case?

“[Dr. Ouaou]: I did.

“[Defense counsel]: What was the Flynn adjustment that you applied?

“[Dr. Ouaou]: So, I was fourteen times point three because I evaluated him in 2022, fourteen years since 2008. That resulted in a score of 74, which compensates for four points off the original score.”

(R. 464-65.) When asked about the numerous IQ tests that Woolf had previously been given and his conclusions based on those tests, Dr. Ouaou stated:

“The conclusion is really limited because I don't have the actual test data in order to ensure the integrity of these test results. In fact, there were a couple evaluations or numbers that the name of the administrator wasn't provided. It was a limited set of data to be able to make any constructive comprehensive, I should say, opinions about. I can say that he demonstrated total IQ scores that were within law, average and borderline ranges and that there likely -- although I don't have the test data -- likely were some practice effects because of the times between testing, especially from ‘92 to ‘94, potentially ‘90 to ‘92. I can also say in ‘94 he was given a very much out-of-date test, which, again, we don't have the test data and I don't know the rationale for giving that test at that time.”

(R. 471-72.)

At the time that Woolf was tried, Dr. Ouaou said, Woolf had been evaluated by Dr. Thomas Bennett and had scored a full-scale IQ of 74 on the WAIS-IV test. He said that he could make no conclusions about that test because “like the childhood test data there was no raw data to review.” (R. 474.) He was aware that Dr. King administered the WAIS-IV and the SB-5 IQ tests before the postconviction hearing. For the WAIS-IV test “he obtained a full-scale IQ of 84.” (R. 476.) He said that he reviewed the raw data from that test and “did not see any scoring errors.” (R. 476.) There was one error, he noted, but Dr. King corrected that error when he filed a supplemental report. Dr. King did not apply the Flynn Effect, and it was his opinion that this was error. (R. 478.) Dr. Ouaou further testified that he administered several neuropsychological tests such as the “Wechsler Memory Scale, 4th edition, the California Verbal Learning Test, 3d edition, the Delis Kaplan Executive Function Systems, the Wisconsin Card Sorting Test and the Rey Complex Figure Test.” (R. 478.)

Dr. Ouaou further testified that he used the Adaptive Behavior Diagnostic Scale (“ABDS”) test to assess Woolf's adaptive functioning by talking with his mother and half sister. (R. 497.) He said:

“The ABDS, it's a measure that is administered to others who have observed the examinee's behavior. The questions are focused specifically on the areas of conceptual, social and practical adaptive functioning in line with the DSM-5-TR so that at least in one way we can attempt to get at how an individual's adaptive functioning is or was as rated by an individual who actually observed their behavior.”

(R. 497.) He testified that he “performed in the impaired range on two of the categories, conceptual and social, pretty low on practical.” (R. 501-02.) He also administered the Texas Functional Living Scale to Woolf but recognized that this was not an accepted test for assessing adaptive functioning.

Several experts testified that Woolf suffers from post-traumatic stress disorder (“PTSD”). Dr. Jeff Ghannam, a professor of psychiatry at the University of California in San Francisco, testified that he was a psychologist and that he specialized in trauma-based disorders. (R. 226.) He had been retained to examine Woolf, and he interviewed Woolf and his mother and sister and relied on numerous medicals records that had been provided to him. (R. 229.) He testified that Woolf suffered from “chronic and at times life threatening traumatic events.” (R. 230.) He further testified:

“In addition, I concluded with reasonable medical certainty that he also suffered from a number of psychiatric conditions, including post-traumatic stress disorder, bipolar disorder. I was concerned that he also had evidence of mild traumatic brain injury. I deferred on that one. Major depressive disorder and substance dependence.”

(R. 230.)⁷

Dr. Bhushan Agharkar, a psychiatrist, testified that he was retained to evaluate Woolf and to determine if Woolf suffered from any mental-health issues or neurocognitive problems. (R. 575.) Dr. Agharkar interviewed Woolf and Woolf's mother and examined numerous records related to Woolf. (R. 581.) He said that “when [Woolf] was a young child, around the age of five to eight years old I think it was, he was sexually abused by older children that were friends of his grandfather.” (R. 586.) Woolf told him that he had been raped and had been forced to perform oral sex. (R. 587.) Woolf also told Dr. Agharkar that when he was in juvenile facilities “he was abused by both the guards there as well as other inmates physically.” (R. 591-92.) Dr. Agharkar concluded: “Based on my review of the records as well as my psychiatric evaluation I diagnosed [Woolf] with bipolar disorder type one with psychotic features and PTSD.” (R. 624.)

To rebut Dr. Ouaou's testimony, the State presented the testimony of Dr. Glen King, a clinical and forensic psychologist. (R. 672.) Dr. King said that he had been retained by the Alabama Attorney General's Office to conduct a mental evaluation of Woolf and that he first talked to Woolf in 2019 at Holman Correctional Facility and a second time in 2023. (R. 684.) Dr. King evaluated Woolf for the second time in 2023 because he was “asked by the attorney general's office to go back to see Woolf to now assess the possibility of the presence of PTSD or bipolar disorder or any other psychological condition that he might have.” (R. 734.) Dr. King said that he administered the SB-5 and the WAIS-IV IQ tests to Woolf on the same day. He explained why he administered both tests:

“If I have an opportunity to administer both of the gold standard IQ tests I'm going to do that because there is no overlap between items. There is no overlap between the tasks. There is no practice effects from one test to the other. My idea is that in order to be comprehensive and try to get as much information as possible I will give both tests and see if they agree.”

(R. 700.)

Using the SB-5 test, Dr. King said he determined that Woolf had a full-scale IQ of 84, and, using the WAIS-IV test, he determined that Woolf had a full-scale IQ of 76. (R. 701; 704.) In his opinion the tests did not reflect that Woolf is intellectually disabled. (R. 706.) When questioned about the use of the Flynn Effect, Dr. King stated:

“[Dr. King]: It is a proposal by Dr. Flynn who wrote his first article in 1987, ‘88 to reduce IQ scores by three-tenths of a point per year for every year since the time that the test was normed. Dr. Flynn made that proposal based on data that he had reviewed for the 1950's, ‘60's, and ‘70's. All of that data was derived from Scandinavian and western European countries. The reason for that is that in the United States we don't have any central registry for health records. They do in all of those western countries and also the Scandinavian countries. That's what he reviewed. He compared multiple tests to look at whether or not people were supposedly getting higher IQ scores as time was going on. He proposed that because he believed that was the case that there would be three-tenths of a point deducted from these tests from the time of their norming.

“[Assistant Attorney General]: Was Mr. Flynn a psychologist or psychiatrist or any other kind of mental health professional?

“[Dr. King]: No. He was a political scientist.

“[Assistant Attorney General]: Do you apply the Flynn Effect when you administer IQ tests?

“[Dr. King]: I do not.

“[Assistant Attorney General]: Why is that?

“[Dr. King]: It's not a standard practice. The only time I have ever seen it proposed is in death penalty cases looking at IQ scores. None of my colleagues that I have ever talked to do it. I do vocational rehabilitation service evaluations and Social Security evaluations every day. It's not part of the protocol to do that with those evaluations. In addition to just not being standard of practice, I have reviewed a lot of the literature on the Flynn Effect and there has been a clear indication that if it ever existed it has reversed since about ‘92 to ‘96 and does not apply any longer, including a statement by Dr. Flynn himself in his last published article that the Flynn Effect is faltered and has appeared to have peaked in ‘96 and has continued to reverse since that time.”

(R. 707-08.) Alabama courts do not require application of the Flynn Effect, Dr. King said, and neither the DSM-5 nor the WAIS-IV call for its use. (R. 708-09.) When cross-examined about the fact that Dr. Flynn himself published an article in 2017 that questioned the continued validity of the Flynn Effect, Dr. King testified that application of the Flynn Effect was “faltering and failing.” (R. 545.)

Dr. King further testified that if the Standard Error of Measurement (“SEM”) was applied to the tests he conducted on Woolf, Woolf would have an IQ of 75 based on the SB-5 test and based a full-scale score of 73 on the WAIS-IV test. (R. 710.)

“[Assistant Attorney General]: Applying the standard error of measurement, just to be clear, even at the low end do Woolf's IQ scores get below 70?

“[Dr. King]: They do not.”

(R. 711.)

When questioned about Dr. Ouaou's scoring, Dr. King said that he noted errors in Dr. Ouaou's scoring.

“In my opinion he mis-scored -- he had two other mis-scorings, one was on the similarities subtest where he gave a zero point response which caused more continuation to stop. When you have three errors in a row, you stop administering that subtest and you move on to the next one. I believe that it had to do with how an anchor and a fence are alike. Mr. Woolf responded ‘keep things there’ or something like that. Dr. Ouaou scored that as a zero because when he was looking at the manual it said something like ‘keep things stable.’ In addition, where there is a real controversy kind of question the manual says that you should always score in terms in favor of continuing the test in order to maximize the person's abilities.”

(R. 736-37.) He also said that Dr. Ouaou also “mis-scored the block design.” (R. 712.) Dr. King further disagreed with Dr. Ouaou's opinion that the “reading section could not be used by itself to obtain a grade equivalent reading level.” (R. 714.) Dr. King said that he determined that Woolf was reading at least at a fifth- or sixth-grade level. (R. 714.) When he administered some portions of the adaptive-functioning test, he said, Woolf was required to read. He explained:

“When he started the ABAS [Adaptive Behavior Assessment Scale], which required the reading level, I had him read the first few items before he started. He didn't have any difficulty reading those. He also read the instructions. I asked him to explain what it was that he read and he had no difficulty telling me what the instructions were and how he should go about it. In addition, that particular instrument has ten or eleven different portions to it. In each portion the adaptive functions are very low level, meaning they are for children. When you look at his performance on each one of those subtests he answers ‘always’ or ‘almost always’ to begin with and toward the end starts doing 1's and then towards the end of that he starts doing zeros. What that tells me is he is discerning what he is reading, and he is giving an accurate response to it.”

(R. 714-15.)

Discussion

As stated above, the State argues that the circuit court “cherry-picked Woolf's childhood IQ scores, removing the four highest from consideration to try to create the facts necessary for intellectual disability.” (State's brief at 40.)

After reviewing the voluminous record and exhibits, we agree with the State and find that the circuit court's rationale for its refusal to consider the majority of the prior IQ test scores is weak, inconsistent with caselaw, and inconsistent in its application. First, the circuit court gave no consideration to most of the prior IQ scores, in part, it said, because there was no raw data for those tests. Nonetheless, the court based a great deal of its findings on the lowest scores that Woolf received, those scores in Woolf's 1994 and 2019 IQ tests, tests that likewise had no raw data. However, the court in its apparent inconsistent application refused to consider prior IQ scores that were higher for their lack of raw data but did not give this same consideration to Woolf's lower IQ scores.

Dr. Ouaou stated that there was no raw data for the test conducted on the 1994 test and that, thus, he could not properly evaluate its accuracy, but he then proceeded to quote Dr. Bennett's findings on that test. “A 74 is low. It's very low. It's in the fourth percentile. There are a couple of things. It falls within the range of intellectual disability” and showed an “intellectually disabled range.” (R. 473-74.) On cross-examination, Dr. Ouaou indicated that he did not contact any doctor to obtain raw data from Woolf's previous IQ tests because, he said, [t]he rule is normally that individuals delete their raw data after seven years.” (R. 556.)

“[T]he fact that [the expert] ‘does not know’ how the IQ tests were administered is a weak criticism.” Holladay v. Allen, 555 F.3d 1346, 1358 (11th Cir. 2009). “If such criticism were sufficient to render unreliable past IQ tests, there would rarely be IQ tests over time upon which courts could rely. It makes much more sense to evaluate past tests in light of all of the information available.” 555 F.3d at 1358 n.14. “We held in Coleman [v. State, 341 S.W.3d 221 (Tenn. 2011),] that the courts were not limited to raw test scores, but could also consider other factors, such as the Flynn Effect, the practice effect, standard error of measurement, malingering, and cultural differences.” Keen v. State, 398 S.W.3d 594, 608 (Tenn. 2012).⁸

We are also concerned that the circuit court placed emphasis on the lack of raw data when more than 20 years had elapsed since those tests had been administered and after Dr. Ouaou had testified that raw data is normally maintained for only 7 years. As one court has stated:

“It is highly unlikely ․ that the people administering an IQ test to a child would ever anticipate the use of that test in an Atkins proceeding, and at the time of Smith's tests the constitutional right provided by Atkins did not even exist. Consequently, records of childhood IQ tests will rarely include the detailed information collected for IQ tests administered under court supervision to adjudicate a defendant's Atkins claim. To discount what may be the only evidence of subaverage general intellectual functioning prior to age eighteen on this ground would effectively deny the protection afforded by Atkins to individuals who are substantially older than eighteen years old, or whose trials predate Atkins, because it would render their intellectual disability nearly impossible to prove. Given the evidentiary challenges so often arising from the retrospective nature of Atkins claims, the Eight Amendment requires that courts apply a more relaxed standard when determining the reliability of evidence documenting childhood onset of intellectual disability.”

Smith v. Ryan, 813 F.3d 1175, 1186 (9th Cir. 2016). The same is true for the State when it is forced to defend an Atkins claim that concerns childhood records that are decades old.

Moreover, the Supreme Court's decision in Hall v. Florida stated that a reviewing court must consider the SEM when evaluating prior valid multiple IQ test scores. This caveat appears to be an effort to compensate for older IQ test scores that frequently arise in regard to Atkins claims.

“The court is cognizant of the risk of errors in IQ administration, and that the availability of raw data makes it possible to check more carefully for (although by no means rule out entirely) such errors. Thus, the unavailability of raw data is a factor to be considered in determining the relative weight to give a particular IQ score. The court disagrees, however, with [the expert's] view of the significance of this factor.

“For one thing, errors in IQ test administration are already largely taken into account by the interpretation of IQ tests using the SEM and confidence intervals. (See Part III.A.1.) See also AAIDD 2010 Manual at 36 (‘An IQ score is subject to variability as a function of a number of potential sources of error, including variations in test performance, examiner's behavior, cooperation of the test taker, and other personal and environmental factors․ The term standard error of measurement ․ is used to quantify this variability.’). The widespread use of the SEM to interpret IQ scores strongly suggests that the psychological community takes as a given that IQ test administration is prone to error, but that this error is not frequent or significant enough to invalidate the scores. Given that IQ tests are typically given by licensed professionals trained in intelligence test administration, the court sees good reason for such a presumption.”9

United States v. Wilson, 922 F. Supp. 2d 334, 354 (E.D. N.Y. 2013), (remanded in light of Hall v. Florida, 572 U.S. 701 (2014)), United States v. Wilson, 571 F. App'x 19 (2d Cir. 2014).

The circuit court also stated that it would not consider some tests because they were outdated at the time that they were administered.¹⁰ On November 11, 1992, Woolf was given the WISC-R test by clinical psychologist Dr. Robert G. Cook. A newer version of this test, the WISC-III, had been published the year before in 1991. Also, on April 4, 1994, Woolf was given the WISC-R test. The court noted that it would not consider those tests because they were outdated when administered to Woolf.

However,

“[c]ourts have accepted that previous versions of a test presently contained on the standardized list are relevant, and should be considered in determining mental retardation. See Walker v. True, No. 1:03cv764 (E.D. Va. Aug. 20, 2006), at 6 n.5 (finding that the WISC-R is approved by the Commissioner for use in this context it is a ‘previous edition’ of the currently listed WISC test).”

Green v. Johnson, (No. CIVA 2:05CV340, Dec. 15, 2006) (E.D. Va. 2006) n.19 (not reported in Federal Supplement).

Indeed, the American Association on Intellectual and Developmental Disabilities (“the AAIDD”) appears to recognize and accept that outdated tests are still used. “What the AAIDD manual urges is that the most recently normed version of a test be used. Adjustment for the Flynn Effect may be warranted only if an older version of a test is used when a more recently normed version is available at the time of testing.” Commonwealth v. Flor, 668 Pa. 512, 562 n.23, 259 A.3d 891, 921 n.23 (2021). Many courts have recognized this principle. See Smith v. Ryan, 813 F.3d at 1184 (“The AAIDD recognizes the existence of the Flynn Effect and recommends correcting for the age of norms in outdated tests.”); Ex parte Cathey, 451 S.W.3d 1, 15 (Tex. Crim. App. 2014) (“The American Association on Intellectual and Developmental Disabilities (AAIDD) Manual states that ‘best practices’ warrant recognition of the Flynn Effect when older versions of an IQ test are used. It notes, ‘in cases of tests with multiple versions, the most recent version with the most current norms should be used at all times. In cases where a test with aging norms is used a correction for the age of the norms is warranted.’ ” (emphasis added).); Black v. Bell, 664 F.3d 81, 93 (6th Cir. 2011) (“[The defendant's] experts ․ applied the Flynn Effect to correct for the outdated nature of the I.Q. test that was taken.”); Smith v. State, 357 S.W.3d 322, 351 (Tenn. 2011) (“When older versions of an intelligence test are used, the scores must be correspondingly adjusted downward.”); In re Salazar, 443 F.3d 430, 433 (5th Cir. 2006). The fact that the 1992 and 1994 tests were not the present current version of the IQ test was not a valid reason for invalidating those tests.

The circuit court also discounted the 1994 IQ test after finding that the person who administered that test was not identified. However, the documents in the record show that the 1994 test was conducted while Woolf was in Strickland Youth Center, a juvenile-detention facility, and that Debra S. Laughlin, a psychometrist, administered that test. (2nd Supp. Corr. R. 5008.)¹¹

We note that when Dr. Ouaou was cross-examined about Woolf's 1992 IQ test that had been administered by Dr. Cook, on which Woolf scored a full-scale IQ of 85, the following occurred:

“[Assistant Attorney General]: Does Dr. Cook write: There was a major discrepancy between the verbal and performance scores. The performance intelligence is entirely average. Is that what Dr. Cook found in his report?

“[Dr. Ouaou]: Yes.

“[Assistant Attorney General]: Would you agree with him that there is a major discrepancy that is over two standard deviations perhaps?

“[Dr. Ouaou]: No, it's not. It appears to be significant, but I don't know how significant it is because that's not reported here.

“[Assistant Attorney General]: The numbers are here. What more information do you need?

“[Dr. Ouaou]: There would be a level of significance perhaps that could be reported. For example, how often that occurs, what percentage of the time that occurs.

“[Assistant Attorney General]: What percentage of what time occurred?

“[Dr. Ouaou]: That discrepancy, how rare it is. How discrepant it is. For example, it occurs five percent of the time.

“[Assistant Attorney General]: You are critiquing Dr. Cook's report because he doesn't specifically explain why there is a discrepancy. Is that correct?

“[Dr. Ouaou]: No. As I said already, it appears significant. I don't know how significant it is.”

(R. 550-51.) When asked several times about Woolf's higher IQ scores, Dr. Ouaou frequently stated “practice effect” with little to no explanation.

Dr. Ouaou also appeared to discount the 1993 test because, he said, “[i]t's my recollection that the examiner was actually someone other than the doctor, if I'm not mistaken,” who conducted the test. (R. 555.) However, Dr. Labbe, a clinical psychologist, testified at the penalty phase at Woolf's trial that she personally interviewed Woolf with one of her student assistants. (Direct Appeal, R. 2289.) On that test, Woolf received a full-scale IQ of 83. (R. 557.) Dr. Ouaou's concerns about the prior tests are not supported by the record and, as the cross-examination shows, are questionable.

The circuit court also stated as an additional reason for not considering two IQ tests that two of the same tests were given to Woolf in one year. The record shows that on November 11, 1992, Woolf was given the WISC-R IQ test. Six months later, on May 3, 13, and 20, 1993, Woolf was given the WISC-III test. Eleven months later, on April 4, 1994, Woolf was given the WISC-R test. The AAIDD recommends that physicians “avoid administering the same intelligence test within the same year to the same individual.” Intellectual Disability: Definition, Classification, and Systems of Support 38 (11th ed. 2010) (“AAIDD Manual”).

The IQ tests that Woolf was given in 1992 and 1993 were not the exact same test -- the second test was an updated version of the first test. Also, Woolf's score on the 1993 test was less than his score on the 1992 test. The 1994 test was given 11 months after the 1993 IQ test.

The AAIDD states:

“The practice effect refers to gains in IQ scores on tests of intelligence that result from a person being retested on the same instrument. Kaufman (1994) noted that practice effect can occur when the same individual is retested on a similar instrument. For example, the WAIS-III Manual presents data showing the artificial increase in IQ scores when the same instrument is readministered within a short time interval. The WAIS-III Manual also reports average increases between administrations with intervals of 2 to 12 weeks. For this reason, established clinical practice is to avoid administering the same intelligence test within the same year to the same individual because it will often lead to an overestimate of the examinee's true intelligence.”

AAIDD Manual at 38 (emphasis added).

As stated above, the practice effect refers to gains in IQ scores when taking the same test at a later date. Here, Woolf's IQ score for his 1993 test was lower than his 1992 test score. Thus, we question its application to the results of the 1993 test score. Also, caselaw does not support the circuit court's finding that the practice effect operates to invalidate an IQ score. In assessing the “practice effect,” courts have looked to the length of time between the administration of the two similar IQ tests.

“In general, a practice effect depends upon the length of time between the original test and the retest. See, e.g., Def.’s Ex. 1033, Kaufman (1994) at 4 (indicating that a practice effect overestimates a person's intellectual functioning ‘especially if the retest is given within about six months of the original test, or ․ several times in the course of a few years’); Tr. Dec. 18, 2013 (Dr. Denney) at 47 (‘Available research shows that the effect of practice enhancement of the score drops with time․ As you get further away, the increase drops each time.’); id. at 185 (‘[I]t's clear there's more retest gain early on, but as time goes by we see the scores decreasing and decreasing.’). Several courts have recognized this proposition based on expert testimony. See, e.g., [United State v.]Wilson, 922 F. Supp. 2d [334] at 352 [(E.D. N.Y. 2013)]; Blue v. Thaler, [(No. H-05-2726, Aug. 19, 2010)] (S.D. Tex. ․ 2010) [(not reported in Federal Supplement)] (‘[T]he practice effect only applies when there is a short interval between tests. The nine-month period here should have dispelled any lingering effect from the first test.’); Green v. Johnson, [(No. CVA 2:05cv340, Dec. 15, 2006)] (E.D. Va. ․ 2006) [(not reported in Federal Supplement)] (‘The practice effect refers to an increase in a person's score on an IQ test when it is administered within a short time after taking the same or [a] similar test․ [T]he effect is more pronounced the closer in time the tests are given.’), Report and Recommendation Adopted as Modified, Green v. Johnson, [(No. 2:05cv340, Mar. 26, 2017)] (E.D. Va. ․ 2007) [(not reported in the Federal Supplement)], aff'd, 515 F.3d 290 (4th Cir. 2008).”

United States v. Williams, 1 F. Supp. 3d 1124, 1144 (D. Haw. 2014) (emphasis added). The 11-month time here between the 1993 and the 1994 IQ tests should have “dispelled any lingering effect from the first test.” 1 F. Supp. 3d at 1144.

The State further argues that the circuit court mischaracterized Dr. Ouaou's testimony concerning Woolf's childhood IQ scores by stating that Dr. Ouaou had testified that the prior scores were entitled to “limited weight.” On direct-examination, Dr. Ouaou offered very little testimony about Woolf's prior IQ tests. When asked about those scores and his conclusions based on those scores, Dr. Ouaou stated:

“The conclusion is really limited because I don't have the actual test data in order to ensure the integrity of these test results. In fact, there were a couple evaluations or numbers that the name of the administrator wasn't provided.[12] It was a limited set of data to be able to make any constructive comprehensive, I should say, opinions about. I can say that he demonstrated total IQ scores that were within the low, average and borderline ranges and that there likely -- although I don't have the test data -- likely were some practice effects because of the times between testing, especially from ‘92 to ‘94, potentially ‘90 to ‘92. I can also say in ‘94 he was given a very much out of date test, which, again, we don't have the test data and I don't know the rationale for giving that test at that time.”

(R. 471-72. (emphasis added).) What is clear from Dr. Ouaou's testimony and the circuit court's order is that little consideration was given to Woolf's prior IQ tests for questionable reasons. This is contrary to the United State Supreme Court's decision in Hall v. Florida, supra, that holds that a court reviewing an Atkins claim based on multiple IQ scores must consider prior valid IQ tests by adjusting those scores using the SEM.

Furthermore, the circuit court's order contains factual errors related to Dr. King's testimony. The court relied, in great part, on Dr. King's testimony in an unrelated case, Stallworth v. Raybon, (No. 1:15-cv-309-KD-M, Jan. 16, 2025) (S.D. Ala. 2025) (not reported in Federal Supplement), to both undermine his current testimony regarding Woolf's childhood IQ tests and as a basis for its refusal to give weight to Woolf's childhood scores. However, our review of the record of Dr. King's testimony reveals that he was never questioned about his testimony in Stallworth and was given no opportunity to address the court's perceived difference in his testimony in Stallworth versus his testimony in this case. Moreover, we have reviewed the federal court's memorandum opinion in Stallworth and find that the circuit court's statements that it attributed to Dr. King in Stallworth are not supported by the federal court's memorandum opinion. First, Dr. King questioned the only two prior IQ tests made in Stallworth's childhood because the person that conducted both of those tests was a psychometrist. In this case, only one test was signed by a psychometrist -- the 1994 test. Secondly, “Dr. King testified that there were ‘mental age’ listings to the side of the actual IQ score and that mental age has not been a utilized tool in IQ tests for around 70 years. Moreover, the actual IQ scores of the two sets of testing and the mental ages listed on each test are contradictory to one another.” Stallworth v. Raybon, supra.¹³ The circuit court quoted the Stallworth case as stating: “[Dr. King] further questioned whether IQ testing ‘for educational placement purposes’ is sufficient for purposes of determining whether a person is ‘legally and medically intellectually disabled.” (C. 1500.) However, what the court in Stallworth stated was the following:

“Dr. King pointed out the thoroughness of the testing and the expertise of the test administrators in 1982 and 1986 is unknown. Each examiner signed as a psychometrist. Dr. King took issue with whether a psychometrist was qualified to administer and interpret IQ scores for purposes of determining whether a person is considered legal and medically intellectually disabled, as opposed for educational placement purposes.”

Stallworth v. Raybon, supra. The court's findings related to Dr. King's testimony are not supported by the federal court's memorandum opinion in Stallworth.

Additionally, the circuit court criticized the fact that Dr. King did not agree with application of the Flynn Effect and devoted a great portion of its order to addressing the Flynn Effect. However, the court failed to address the criticisms of the Flynn Effect that the State presented at the hearing. (R. 708.) At the hearing, the State contested the validity of the Flynn Effect.

Use of the Flynn Effect is not universal. As this Court has stated:

“We reject Reeves's argument that the circuit court erred in rejecting the ‘Flynn Effect’ and in not deducting points from his IQ scores to account for that phenomenon. This Court has repeatedly held that a circuit court is not required to accept, consider, or apply the ‘Flynn Effect’ in determining intellectual disability. See Carroll v. State, 215 So. 3d 1135, 1151 (Ala. Crim. App. 2015) (‘[T]he circuit court could have reasonably rejected the “Flynn Effect.” ’); Smith v. State, 112 So. 3d 1108, 1131 (Ala. Crim. App. 2012) (‘[T]his Court has previously held on several occasions that a trial court need not accept the “Flynn Effect” as binding, and that it has not been accepted as scientifically valid by all courts.’); and Albarran v. State, 96 So. 3d 131, 200 (Ala. Crim. App. 2011) (‘[T]he circuit court could have reasonably rejected the “Flynn Effect.” ’). As noted above, Dr. King testified that it is not required that the ‘Flynn Effect’ be taken into account when evaluating someone for intellectual disability and that the ‘Flynn Effect’ is ‘not settled’ in the ‘psychological community.’ (R. 244-45.) Although Dr. Goff and Dr. Salekin both testified that the ‘Flynn Effect’ is generally recognized as valid, Dr. Goff admitted that he did not use the ‘Flynn Effect’ for over 20 years after it was first discovered. He also admitted that Dr. Flynn himself, the psychologist who had discovered the ‘Flynn Effect,’ had stated in a recent article that the ‘Flynn Effect’ had not, in fact, been generally accepted as valid. Finally, Dr. Goff admitted that the ‘scoring manual’ for the WAIS-III does not require the use of the ‘Flynn Effect’ to get an accurate IQ score and that the DSMIV also does not mention the ‘Flynn Effect’ or require its application to IQ scores. Therefore, the circuit court did not err in rejecting the ‘Flynn Effect’ and in not deducting points from Reeves's IQ scores to account for that phenomenon.”

Reeves v. State, 226 So. 3d 711, 739 (Ala. Crim. App. 2016).

Furthermore, in finding that Woolf is intellectually disabled, the circuit court relied heavily on the cases of Smith v. Commissioner, Alabama Department of Corrections, 67 F.4th 1335 (11th Cir. 2023) (“Smith I”), and Smith v. Commissioner, Alabama Department of Corrections (No. 21-14519, Nov. 14, 2024) (M.D. Ala. 2024) (not reported in Federal Reporter) (“Smith II”), and quoted both cases extensively in its order.

The Smith I judgment was vacated by Hamm v. Smith, 604 U. S. 1 (2024), on November 4, 2024. In Hamm, the United States Supreme Court, when vacating the lower court's judgment and remanding the case, stated:

“Analyzing Smith's intellectual functioning requires evaluating his various IQ scores. In Hall v. Florida, 572 U.S. 701, 714 (2014), this Court stated that ‘when a person has taken multiple tests, each separate score must be assessed’ considering the standard error of measurement. The Court further noted that ‘the analysis of multiple IQ scores jointly is a complicated endeavor.’ Ibid. This Court has not specified how courts should evaluate multiple IQ scores. See ibid.; Moore v. Texas, 581 U.S. 1 (2017); Brumfield v. Cain, 576 U.S. 305 (2015).

“The Eleventh Circuit's opinion can be read in two ways. On the one hand, the Eleventh Circuit's opinion might be read to afford conclusive weight to the fact that the lower end of the standard-error range for Smith's lowest IQ score is 69. That analysis would suggest a per se rule that the lower end of the standard-error range for an offender's lowest score is dispositive. On the other hand, the Eleventh Circuit also approvingly cited the District Court's determination that Smith's lowest score is not an outlier when considered together with his higher scores. That analysis would suggest a more holistic approach to multiple IQ scores that considers the relevant evidence, including as appropriate any relevant expert testimony.

“The Eleventh Circuit's opinion is unclear on this point, and this Court's ultimate assessment of any petition for certiorari by the State may depend on the basis for the Eleventh Circuit's decision.”

604 U.S. at 2-3 (emphasis added).

On remand, the United States District Court for the Southern District of Alabama clarified that it had used a “holistic approach to multiple IQ score[s] that considers the relevant evidence, including as appropriate any relevant expert testimony.” Smith II, supra. On return to remand, the United States Supreme Court dismissed the writ of certiorari as having been improvidently granted. In Justice Alito's opinion dissenting from the dismissal of the writ of certiorari in Hamm v. Smith, the case relied on by the circuit court to grant relief, Justice Alito addressed concerns that are also present in this case:

“The Eleventh Circuit's analysis started off on the right foot. It explained that Smith ‘ha[d] the burden of proving’ that he possessed ‘significant subaverage intellectual functioning.’ Smith v. Commissioner, 67 F.4th 1335, 1345 (2023) (per curiam) (internal quotation marks omitted). Likewise, the court correctly recognized that ‘[w]hether Smith has significantly subaverage intellectual functioning turns on whether he has an IQ equal to or less than 70.’ Ibid. Thus, in upholding the lower court's decision to grant Smith Atkins relief, the Eleventh Circuit necessarily concluded that his ‘true’ IQ was 70 or lower.

“In reaching this conclusion, however, the Eleventh Circuit employed an illegitimate approach to analyzing Smith's scores. The record below contained five valid IQ scores for Smith: 75, 74, 72, 78, and 74. 67 F.4th at 1345-1346. When assessing whether Smith's IQ was 70 or lower based on these data, the Eleventh Circuit did not employ any recognized method for analyzing multiple test scores. Instead, it determined Smith's ‘true’ IQ by taking the value at ‘the lower end’ of the confidence interval for ‘his lowest IQ score.’ Id., at 1346. Here, Smith's lowest valid score was 72, with a standard error of measurement of 3. Id., at 1340. From those values, the Eleventh Circuit determined that Smith's IQ was ‘actually as low as 69’ and his Atkins claim therefore met the 70-IQ cutoff. 67 F. 4th at 1349. In other words, under the Eleventh Circuit's view, whenever the lower bound of a defendant's lowest score spans 70 or lower, his Atkins claim satisfies the IQ threshold, and courts must ‘move on’ to consider evidence for other Atkins criteria. 67 F.4th at 1347.

“This approach is flagrantly unsound. When a defendant has multiple IQ scores, it is indefensible to use the lower bound of his lowest score to determine whether his ‘true’ IQ is 70 or below. Such an approach contravenes basic principles of psychological measurement and statistics.

“First, psychometric literature teaches that when an individual has multiple IQ scores, the ‘higher scores are likely to be more indicative’ of a person's intelligence than the lower scores. Frances 31; accord, S. Whitaker, The Stability of IQ in People With Low Intellectual Ability: An Analysis of the Literature, 46 Intellectual and Developmental Disabilities, No. 2, p. 126 (2008) (Whitaker) (noting it is ‘likely that the higher result [is] the more accurate’). This asymmetry reflects the fact that the possible sources of error in an individual's IQ-test performance, such as uncooperativeness, anxiety, sleep deprivation, malingering, or other mental-health disorders, ‘will tend to reduce’ one's score. Ibid. In contrast, there is ‘no reason why’ an IQ score would overestimate someone's intelligence. Frances 31. This principle counsels against making decisions based on someone's lowest score.

“The Eleventh Circuit flipped this principle of psychology on its head by giving dispositive weight to Smith's lowest score, which was likely ‘subject to more error’ and ‘less accurate’ than the others. Whitaker 126. If anything, the Eleventh Circuit should have given greater weight to Smith's higher scores of 75 and 78, which indicate that Atkins does not bar his execution. See Hall, 572 U.S. at 715 (noting that the defendant conceded the validity of a bright-line 75-IQ cutoff for Atkins claims).

“Second -- and most critically -- the Eleventh Circuit's sole reliance on the lower bound of Smith's lowest score reflects a basic misunderstanding of statistics. When clinicians construct a confidence interval using the standard error of measurement, their calculations rely on the assumption that a defendant's test scores are normally distributed around his ‘true’ IQ -- i.e., if a defendant took a large number of IQ tests, the scores would form a bell curve centered on his ‘true’ IQ. Cohen 176; K. Widaman, Concepts of Measurement, in The Death Penalty and Intellectual Disability 68 (E. Polloway ed. 2015). Under that assumption, an individual's score on any given test is more likely to be close to his ‘true’ IQ than far away from it. This fact, in turn, means that the values near the center of a confidence interval are more likely estimates of the defendant's ‘true’ IQ than the values at the interval's upper and lower bounds. See G. Cumming & F. Fidler, Confidence Intervals Give Better Answers, 217 J. Psychology 18 (2009); G. Cumming, Inference by Eye: Pictures of Confidence Intervals and Thinking About Levels of Confidence, 29 Teaching Statistics 90-91 (2007).

“The Eleventh Circuit's analysis ignored this attribute of confidence intervals. It concluded that Smith's IQ was 70 or below because the lower bound of the interval for one score was 69. But the fact that 69 marked the lower limit of the interval meant that this value was less likely to reflect Smith's ‘true’ IQ than other, higher values in the interval. Once again, the Eleventh Circuit's analysis was precisely backward.

“The Eleventh Circuit attempted to justify its approach by citing Hall and Moore. On its reading of those cases, any time that the lower bound of a defendant's lowest score descends to 70 or below, IQ cannot be dispositive, and courts must decide an Atkins claim based on evidence of the defendant's adaptive functioning. 67 F.4th at 1348-1349 (‘Hall and Moore required the district court to turn to evidence of Smith's adaptive deficits because the lower end of his standard-error range was 69’). But as we recognized the last time that this case was before us, neither Hall nor Moore established any rules for analyzing multiple IQ scores, much less the one-low-score approach that the Eleventh Circuit took. Hamm, 604 U.S. at 2 (‘This Court has not specified how courts should evaluate multiple IQ scores’ (citing Hall, 572 U.S. at 714, and Moore, 581 U.S. at 1).

“․.

“In short, the Eleventh Circuit's 2023 analysis was indefensible. In determining whether Smith satisfied a 70-IQ cutoff, the court focused on the lower bound of the confidence interval for Smith's lowest score -- the least plausible region of the interval for what was likely Smith's least accurate score. Because this Court was troubled by this deeply flawed approach, we summarily vacated the Eleventh Circuit's decision last Term. Hamm, 604 U.S. at 1-3.”

Hamm v. Smith, 608 U.S. 278, 328 (2026), 146 S.Ct. at 1277-79. (Alito, J., dissenting, joined by Thomas, J., and, in large part, by Roberts, C.J., and Gorsuch, J.).

Here, the circuit court stated that it was using the holistic approach adopted by the federal court in Smith II, but it proceeded to do the opposite by ignoring most of Woolf's prior IQ test scores for vague and questionable reasons. The court gave no consideration to the majority of Woolf's higher IQ test scores and relied on the standard used in a federal case, a standard that has not been recognized or adopted by any Alabama appellate court.¹⁴ The circuit court's findings on the first prong of the Perkins inquiry are not supported by the record and caselaw.

Based on our discussion of the caselaw above, if we set aside the first IQ score made when Woolf was 8 years old, a score of 87 from a test that has no supporting documentation, we are left with the following IQ scores: 78, 85, 83, 91, 74, 78, 84, and 74.¹⁵ The United States Supreme Court stated in Hall v. Florida that the past IQ scores must be adjusted for the SEM. “[T]he [Hall v. Florida] Court did not indicate whether courts should apply the SEM associated with each individual test score, or a SEM of five across all test scores.” United States v. Wilson, 170 F. Supp. 3d 347, 362 (E.D. N.Y. 2016).

“By indicating that the margin for measurement error was ‘generally’ plus or minus five points, based on an average SEM of 2.16 or 2.30 -- depending on the test -- the Supreme Court all but explicitly stated that lower courts should apply two SEMs in conducting this analysis. See Hall, 134 S.Ct. at 1995 (‘A score of 71, for instance, is generally considered to reflect a range between 66 and 76 with 95% confidence and a range of 68.5 and 73.5 with 68% confidence.’). In fact, it is unclear why the Court would include a discussion of the 95% confidence interval if it reflected an unnecessarily cautious approach.”

Wilson, 170 F. Supp. 3d at 365 (footnote omitted). This view in Wilson is also consistent with this Court's holding in Carroll v. State, 300 So. 3d at 54. The two SEM “provides a 95% confidence level that the measured score is within a broader range.” Hall v. Florida, 572 U.S. at 713. The adjusted SEM score ranges would be: 73-83; 80-90; 78-88; 86-96; 69-79; 79-89; and 69-79. If we further adjust the two outdated IQ tests using the Flynn Effect, the score of 80 would be reduced to 74 and the score of 86 would be adjusted to 79.4.¹⁶ Because at least one score dipped below 70, we proceed to the adaptive-functioning prong of the intellectual disability analysis. See Hall v. Florida, supra.

Adaptive Functioning

The second prong of the Perkins inquiry is the adaptive functioning of the defendant. 851 So. 2d at 456. “[I]n order for an offender to be considered mentally retarded in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18.” Smith v. State, 213 So. 3d at 248 (emphasis added). In describing the Smith decision one federal court has aptly summarized that case as follows:

“The Alabama Supreme Court layered a gloss on the [Ex parte] Perkins[, 851 So. 2d 453 (Ala. 2002),] definition in Smith v. State, [213 So. 3d 239 (Ala. 2007], holding that a defendant must exhibit significantly subaverage intellectual functioning abilities and significant deficits in adaptive behavior during three periods of his life: before the age of eighteen; on the date of the capital offense; and currently.

“ ‘All three factors must be met in order for a person to be classified as mentally retarded for purposes of an Atkins claim. Implicit in the definition is that the subaverage intellectual functioning and the deficits in adaptive behavior must be present at the time the crime was committed as well as having manifested themselves before age 18. This conclusion finds support in examining the facts we found relevant in Ex parte Perkins and Ex parte Smith and finds further support in the Atkins decision itself, in which the United States Supreme Court noted: ‘The American Association on Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning.” ’ 536 U.S. at 308 n. 3, 122 S.Ct. 2242, 153 L.Ed.2d 335 (second emphasis added). Therefore, in order for an offender to be considered mentally retarded in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18.’

“Smith, [213 So. 3d at 248] (emphasis supplied).”

Thomas v. Allen, 614 F. Supp. 2d 1257, 1263 (N.D. Ala. 2009).

The DSM-5 defines adaptive functioning as follows:

“Deficits in adaptive functioning (Criterion B) refer to how well a person meets community standards of personal independence and social responsibility, in comparison to others of similar age and sociocultural background. Adaptive functioning involves adaptive reasoning in three domains: conceptual, social, and practical. The conceptual (academic) domain involves competence in memory, language, reading, writing, math reasoning, acquisition of practical knowledge, problem solving, and judgment in novel situations, among others. The social domain involves awareness of others’ thoughts, feelings, and experiences; empathy; interpersonal communication skills; friendship abilities; and social judgment, among others. The practical domain involves learning and self-management across life settings, including personal care, job responsibilities, money management, recreation, self-management of behavior, and school and work task organization, among others. Intellectual capacity, education, motivation, socialization, personality features, vocational opportunity, cultural experience, and coexisting general medical conditions or mental disorders influence adaptive functioning.

DSM-5 at 37-38.

“ ‘Adaptive functioning refers to how effectively individuals cope with common life demands and how well they meet the standards of personal independence expected of someone in their particular age group, sociocultural background, and community setting.’ ” United States v. Salad, 959 F. Supp. 2d 865, 877 (E. D. Va. 2003).

“ ‘The second criterion for intellectual disability in both the DSM-[5] and the Arkansas [s]tatute is a deficit in adaptive functioning. There are three adaptive-skills domains -- conceptual, social, and practical. The DSM-[5] states that deficits in only one of the three adaptive-skills domains is sufficient to show adaptive deficits.’ Jackson III [Jackson v. Kelley], 898 F.3d [859] at 864 [(8th Cir. 2018)] (citations omitted).”

Jackson v. Payne, 9 F.4th 646, 655 (8th Cir. 2021).

The Mississippi Supreme Court has discussed the difficulties in assessing adaptive functioning.

“[T]he conceptualization of ‘adaptive behavior’ or ‘adaptive skills’ has proven elusive. Note, Implementing Atkins, 116 Harv. L. Rev. 2565, 2573 (2003); Lois A. Weithorn, Symposium: Conceptual Hurdles to the Application of Atkins v. Virginia, 59 Hastings L.J. 1203, 1219 (2008) (‘there is no single, commonly-accepted conceptualization of “adaptive behavior” ’); see also Dora W. Klein, Categorical Exclusions from Capital Punishment: How Many Wrongs Make a Right?, 72 Brooklyn L. Rev. 1211, 1234 n.3 (2007) (noting that scholars and courts alike find that determinations regarding adaptive functioning are often subjective). There has been confusion not only about the concept itself, but also disagreement as to its value. Note, Implementing Atkins, 116 Harv. L. Rev. at 2575. Some studies have suggested that IQ remains the best way of measuring intelligence in some contexts. Id.; see also James W. Ellis and Ruth A. Luckasson, Symposium on the ABA Criminal Justice Mental Health Standards: Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 422 n.46 (citing Zigler, Balla & Hodapp, On the Definition and Classification of Mental Retardation, 89 Am. J. Mental Deficiency 215, 227 (1984)) (noting that three scholars have proposed that adaptive functioning be omitted from the definition of mental retardation because ‘ “the essence of mental retardation involves inefficient cognitive functioning” ’).

“Adaptive functioning historically has been assessed ‘on the inherently subjective bases of interviews, observations, and professional judgment.’ Klein, 72 Brooklyn L. Rev. at 1235. In recent decades, researchers have developed an increasing number of test instruments for quantifying adaptive functioning, only a few of which have gained acceptance in the field. Id.; Weithorn, 59 Hastings L.J. at 1220. These tests provide a necessary objective measurement but offer no panacea. There are ‘no generally accepted psychometric instruments for measuring adaptive skill levels that are commensurate in reliability with IQ tests.’ Note, Implementing Atkins, 116 Harv. L. Rev. at 2575 n.72 (citing AAMR, Mental Retardation: Definition, Classification, and Systems of Supports, 24, 87-90 (10th ed. 2002)) (noting that the AAMR concedes that there is no consensus regarding tests for adaptive behavior, but states there are a number of tests with ‘excellent psychometric properties’). One commentator suggests that existing measurement instruments are inadequate and have very little utility in the Atkins context. Weithorn, 59 Hastings L.J. at 1222.

“․ Additionally, testing instruments for assessing adaptive-functioning impairments can, for a variety of reasons, ‘be less than ideal for assessing adult criminal defendants who might be mentally retarded.’ Klein, 72 Brooklyn L. Rev. at 1235 (citing certain problems such as the unavailability of caregivers or other reliable independent sources, the use of inappropriate norms, and the atypical environment of a prison); Knauss & Kutinsky, 11 Widener L. Rev. at 131 (‘Few (if any) measures of adaptive functioning have been designed or normed for use with a correctional population. Thus, adaptive functioning prior to incarceration should be the target for assessment.’); Note, Implementing Atkins, 116 Harv. L. Rev. at 2576 (noting that an individual's environment may add a layer of uncertainty to diagnosing adaptive-skill deficits). Indeed, Dr. [Criss] Lott [psychologist] stated that he knew of no studies that have normed an adaptive-functioning test for those on death row, and Dr. [Daniel] Grant [psychologist] admitted that the adaptive-functioning tests he administered were not normed for a prison population.”

Doss v. State, 19 So. 3d 690, 713-14 (Miss. 2009).

The circuit court made the following findings as they relate to adaptive functioning:

“The second requirement for a diagnosis of intellectual disability is that Woolf exhibit ‘significant or substantial deficits in adaptive behavior.’ Smith [v. Commissioner, Alabama Department of Corrections], 67 F.4th at 1349 (citing Ex parte Perkins, 851 So. 2d at 456). This tracks the DSM-5-TR's second requirement of ‘deficits in adaptive functioning that result in failure to meet developmental and sociocultural standards for personal independence and social responsibility.’ DSM-5-TR; see also Moore [v. Texas], 581 U.S. [1] at 20-21 [(2017)] (the determination of adaptive functioning must also be governed by ‘current medical standards’ as set forth in the DSM and AAIDD)).

“Adaptive functioning consists of three domains: conceptual, social, and practical. Smith [v. Commissioner, Alabama Department of Corrections], 67 F.4th at 1349 (citing DSM-5-TR). Deficits in any one of the three satisfies the adaptive functioning deficit requirement. Smith [v. Commissioner, Alabama Department of Corrections], 67 F.4th at 1349 (citing Moore, 581 U.S. at 15-16); (criterion ‘is met when at least one domain of adaptive functioning -- conceptual, social, or practical -- is sufficiently impaired’ such that ‘ongoing support’ is necessary ‘for the person to perform adequately in one or more life settings at school at work, at home, or in the community’).

“․.

“Dr. Ouaou assessed Woolf's adaptive functioning through standardized adaptive behavior scales, records review, and by speaking to family members who would be able to provide independent, corroborative information regarding Woolf's adaptive functioning skills outside the controlled environment of prison.

“To assess Woolf's adaptive functioning, Dr. Ouaou administered the Texas Functional Living Scales (TFLS) to Woolf. Dr. Ouaou also considered the results from Woolf's neuropsychological testing, and Woolf's records, including medical and school records.

“Dr. Ouaou separately interviewed and administered a structured behavior assessment -- specifically the ABDS (Adaptive Behavior Diagnostic Scale) -- to Woolf's sister and mother.

“․.

“Ms. Tullos and Ms. Woolf were separately asked to think of Woolf at a certain age, which was during the development period (prior to age eighteen), and rate whether he could perform various activities at that age. The tasks on the ABDS correspond to the three domains (conceptual, social, practical) of adaptive functioning identified in the DSM-5-TR. According to Dr. Ouaou, ‘that's what in my opinion makes the ABDS very useful and directly comparable to the DSM-5-TR is that it asked questions that fit specifically in those three categories.’ Adaptive functioning is meant to assess ‘behaviors within the community setting,’ and the questions on the ABDS allow that, particularly when ‘evaluating an individual who is in confinement.’ Thus, as set forth in the AAIDD, retrospective administration is a valid way to assess the adaptive functioning of someone in prison, given the established profession norma against relying on in-prison adaptive functioning analyses.

“․.

“Dr. Ouaou testified that Woolf was ‘below the first percentile on conceptual adaptive functioning as rated by the two raters’ (his mother and sister). Further, ‘he was at the first percentile as rated by the two raters on the social domain and there were relative strengths on the practical domain․.’ In the 5th and 9th percentiles.

“According to Dr. Ouaou, the results from the ABDS administered to Woolf's mother and sister demonstrate that Woolf is ‘certainly significantly impaired in conceptual and social so that he had adaptive behavior deficits that emerged during the developmental period according to his two family members.’ ”

(C. 1504-08.)

First, the State argues that the circuit court erred in relying on the results of Dr. Ouaou's Adaptive Behavior Diagnostic Scale (“ABDS”) test because, it says, “Dr. Ouaou's choice of Woolf's mother and sister was particularly problematic because Woolf's primary custodial parent throughout his childhood was his father, whom no expert interviewed.” (State's brief at 56.) The State argues that this test is only accurate when the person interviewed about the defendant has “had regular contact with the person [evaluated] on a daily basis for six months prior to filling it out.” (R. 716.)

Dr. Ouaou explained:

“The ABDS, it's a measure that is administered to others who have observed the examinee's behavior. The questions are focused specifically on the areas of conceptual, social and practical adaptive functioning in line with the DSM-5-TR so that at least in one way we can attempt to get at how an individual's adaptive functioning is or was as rated by an individual who actually observed their behavior.

“․.

“It's broken down into the actual categories of adaptive behavior put forth in both manuals. Social, do they recognize when someone is teasing them; can they identify what other people are thinking of them. Practical, you know, there is everyday problem-solving questions; were they able to wash their clothes, dress correctly; did they learn tasks correctly. Each section of the ABDS contains many questions and the individual that you are speaking with is asked to rate whether or not they can do it independently, can't do it, or can do it with help.

“․.

“Similar to all of the other tests we have talked about. The raw scores are tallied for each domain of adaptive functioning and those sums are compared to scores for the individual at which age you are rating them and percentiles are provided that compare that individual to the normative sample, individuals who are quote/unquote normal individuals at that same age or age range.”

(R. 497-501.) He testified that “[Woolf] performed in the impaired range on two of the categories, conceptual and social, pretty low on practical. Certainly, significantly impaired in conceptual and social so that he has adaptive behavior deficits that emerged during the developmental period according to his two family members.” (R. 501-02.)

At the postconviction hearing, Anna Woolf testified that she is Woolf's half sister.¹⁷ She said that she lived with Woolf for several years, that, when he was 7 years old and she was 14, she was sent to live with her biological mother in Baltimore and was separated from Woolf, and that between Woolf's being in juvenile facilities and other places she did not know much about where he lived during most of his youth. (R. 187; 198.) She said that after Woolf was released from a juvenile facility immediately before his 18th birthday, Woolf moved in with her and her boyfriend in Vermont and he stayed there “just about two months.” (R. 201.) Lynn Tullos, Woolf's mother, testified that Woolf lived with his father when they separated when Woolf was in the sixth or seventh grade or, she said, about 10 years old. (R. 120.) Here, Woolf's mother and sister did not have daily and continual contact with Woolf in his teen years and were called upon to answer questions when Woolf was 43 years old concerning how Woolf acted before the age of 18 or before the year 1996. (C. 1648.) Dr. Ouaou also testified that he used the Texas Functional Living Scale (“TFLS”) but admitted that this test is not “an accepted measure of adaptive functioning.” (C. 1508.) Nonetheless, the court discussed these findings in its order. (C. 1508.)

Dr. King criticized Dr. Ouaou's decision to rely on Woolf's sister and Woolf's mother in answering the ABDS questions:

“I think Dr. Ouaou was trying to figure out also a way to get some adaptive skill ratings. The problem using both of them is that [Mom] was out of the household by the time he was seven. Mom would have only some reliance on her recollection all these years later for those first seven years. His sister also left home when she was fourteen and when he was seven. ․ The adaptive skills of a five, six, or seven year old are not what we are really looking for in terms of determining ultimate intellectual impairment.”

(R. 723.)

The record further shows that Dr. King used the Adaptive Behavior Assessment Scale (“ABAS”) in assessing Woolf's adaptive functioning. (C. 1619-20.) Dr. King explained:

“The two best instruments that we have for adaptive functioning are the Adaptive Behavior Assessment Scale, 3rd Edition, and the Vineland Social Maturity Scale. Both of these instruments require that if you have a respondent, meaning other than the person filling them out, that the person who responds to it has to have had regular contact with the person on a daily basis for six months prior to filling it out. When you have got someone who has been incarcerated for twenty years, that's a real problem. Can't have guards do it. Can't have other people do it in the prison. There are ”․. significant problems with asking anyone to retrospectively respond to these because typically now we are talking also about someone who has not seen them for twenty years.

“The Vineland Social Maturity Scale has no norms for self-reporting. The adaptive behavior assessment system does have norms for an individual to respond based on his own knowledge about himself. That's why I used the ABAS for Woolf in this case because I didn't really have anyone else to fill it out in my opinion. He would know or be able to respond to these various questions based on his knowledge about his own life. That's what the problems are with regard to these particular instruments. I will admit there are serious problems with them and there are serious problems interpreting them.

“․.

“[Assistant Attorney General]: What was Woolf's general composite score?

“[Dr. King]: Eighty.

“[Assistant Attorney General]: What does that mean?

“[Dr. King]: This is a standard score that would be compared to an average score of 100.

“․.

“[Assistant Attorney General]: What does that score of 80 suggest to you?

“[Dr. King]: It indicates that his adaptive skill areas or adaptive domains are below average, quite a bit below average but they are not in the significantly impaired range of function. He probably has some difficulties with adaptive behaviors in everyday life but he would probably be able to function independently.

“[Assistant Attorney General]: You said significant challenges. What numerical score would you have to get to receive that?

“[Dr. King]: You would look for a score of 70 or below.”

(R. 718-19.)

Dr. King's report related to this issue provides:

“The Adaptive Behavior Assessment System, Third Edition (ABAS-3) provides measure in 10 different adaptive skill areas that include communication, community use, functional academics, home living, health and safety, leisure, self-care, self-direction, social adaptation, and work. On the ABAS-3, Woolf self-administered all the questions and answered them by stating they occurred: never when needed; sometimes when needed; and always or almost always when needed. Questions related to 10 separate areas of adaptive skill area. The scores for each adaptive skill area ranged from a possible low of 1 to a high of 19. The average score would be 10. An extremely low or debilitated score would be 3 or below. All of Woolf's adaptive skill area scores ranged from a low of 4 to a high of 9. He generated no scores on the Adaptive Behavior Assessment System-3 (ABAS-3) of 3 or below. Thus, he had no extremely debilitated adaptive skill areas. In addition, these adaptive skill areas are combined in general factors with the General Adaptive Composite Index as a combination of all scores obtained on all of the adaptive skill areas. These standard scores have an average of 100 with a standard deviation of 15. Woolf generated a General Adaptive Composite (GAC) of 80, which indicates somewhat low but acceptable adaptive functioning. His conceptual, social, and practical skill standard scores were 77, 77, and 84 respectively. As indicated, none of these scores fall below the cut off score for extremely low adaptive functioning.

“The examiner also administered the Independent Living Scales (ILS). The Independent Living Scales is an assessment device used to determine whether an individual can engage tasks that are required for reasonable independent living without supervision. ․ Again, standard scores are generated in various areas including memory/orientation, managing money, managing home and transportation, health and safety, social adjustment, problem solving, and performance/information. All of the subscales are totaled to generate a full-scale standard score. The subscale standard scores range from a low of 20 to high of 63. Any standard score for the subscales above 40 indicates moderate to high independent living abilities. Woolf generated only one low score on social adjustment with a score of 22. The full-scale standard score, which is a combination of all the subscale and factor scores, range from a low of 55 to a high of 121. Any score of 85 or above is considered moderate to high in terms of overall independent living ability. Woolf generated a score of 89, which is in the moderate range, indicating little or no difficulty with independent living.”

(C. 1619-20.)

The circuit court faulted Dr. King for his administration of the test without first determining Woolf's reading level. The court also commented that the test was administered to Woolf 17 years after the fact.¹⁸ However, the record shows that Dr. King testified that he determined that Woolf was reading at least at a fifth- or sixth-grade level. (R. 714.) When he administered some portions of the adaptive-functioning test, Dr. King said Woolf was required to read. He explained:

“When [Woolf] started the ABAS, which required the reading level, I had him read the first few items before he started. He didn't have any difficulty reading those. He also read the instructions. I asked him to explain what it was that he read and he had no difficulty telling me what the instructions were and how he should go about it. In addition, that particular instrument has ten or eleven different portions to it. In each portion the adaptive functions are very low level, meaning they are for children. When you look at his performance on each one of those subtests he answers ‘always’ or ‘almost always’ to begin with and toward the end starts doing 1's and then towards the end of that he starts doing zeros. What that tells me is he is discerning what he is reading and he is giving an accurate response to it.”

(R. 714-15.) Dr. King assessed Woolf's reading ability before he had Woolf complete the ABAS test.

We cannot ignore the fact that Woolf's mother and half sister did not have close and continual contact with Woolf for years before his 18th birthday. Most of their knowledge of Woolf was before Woolf reached the age of 10 or even younger. The record shows that Woolf was incarcerated at the age of 12 and stayed in facilities until he was almost 18 years old. Anna Woolf did state that when Woolf was released from a juvenile facility immediately before his 18th birthday, he lived with her and her boyfriend for about two months. “[V]alid results [of an ABAS test] are dependent on the declarant being ‘reliable, credible, had regular contact with the individual of reasonably long duration, had an opportunity to observe behaviors associated with the specific skill areas of adaptive functioning, were in close contact with the individual prior to 18 ․’ ” Commonwealth v. Flor, 668 Pa. 512, 549, 259 A. 3d 891, 913 (2021). It is questionable whether Woolf's mother and half sister met this requirement. Also, they could not have contributed to any finding related to Woolf's present adaptive functioning, a necessary consideration under Smith, 213 So. 3d at 248. The record does not support the circuit court's unconditional acceptance of Dr. Ouaou's results of the ABDS test as administered to Woolf's mother and half sister.

Moreover, we agree with the federal courts that have addressed this issue:

“Federal courts have been reluctant to rely heavily on such tests, particularly in the Atkins context where they often are based on retrospective recollections of an individual's youth. In [United States v.] Hardy, [762 F. Supp. 2d 849 (E.D. Va. 2010),] for example, the district court noted that ‘the selection of the tests used to assess adaptive behavior, the persons selected as informants, the conduct of the interviews, and the ultimate interpretation of the tests’ results are a good deal more dependent on subjective clinical judgment than the assessment of IQ.’ 762 F. Supp. 2d at 883. The court concluded that ‘as the degree to which a matter is left to an individual clinician's judgment increases, so does the degree to which the Court must rely on its assessment of the relative competence and credibility of the individual experts before it to resolve disputes between them.’ Id.; see also [United States v.] Williams, 1 F. Supp. 3d [1124] at 1147-48 [(D. Haw. 2014)] (determining that it would place ‘some weight’ on the results of standardized tests, but noting that the ‘breadth of evidence enables the court to take a multifactorial approach’); [United States v.] Salad, 959 F. Supp. 2d [865] at 878 [(E.D. Va. 2013)] (‘Prong two generally requires a more expansive investigation of a defendant's life history and skill levels than could be fully evaluated through use of a normed instrument.’).

“In this case, experts on both sides administered standardized assessments of Wilson's adaptive behavior to a range of individuals who knew him. (See Olley Rep. (Dkt. 960) at 26-27; Denney Rep. (Dkt. 956) at 26-36.) However, while these tests are designed to assess current adaptive functioning in the community, all were administered retrospectively, and only after Wilson was incarcerated and facing the possibility of a death sentence. Cf. [United States v.] Williams, 1 F. Supp. 3d [1124] at 1163 [(D. Haw. 2014)] (noting that the ABAS test ‘is typically used to assess someone's current adaptive behavior, and not retrospectively while a testing subject is incarcerated’ ․ (internal citations omitted)). The results are, predictably, inconclusive.”

United States v. Wilson, 170 F. Supp. 3d 347, 368-68 (E.D. NY 2016).

As the Texas Court of Criminal Appeals stated in Ex parte Cathey, 451 S.W.3d 1 (Tex. Crim. App. 2014):

“[T]here were issues of potential bias in giving the Vineland test to applicant's family members who had a motive to underestimate his abilities and activities.63 Further, Dr. [Timothy] Proctor said that clinicians question the validity of any retrospective use of a formal instrument such as the Vineland Scale because the norms were not designed for doing this kind of backward-looking analysis and looking to behavior more than a decade earlier.64 The record does not support the habeas judge's uncritical acceptance of Dr. Fletcher's opinion concerning applicant's adaptive deficits based on the Vineland test.

“

“63The Fifth Circuit has commented on the potential bias of an inmate's relatives in attempting to make a retrospective behavior assessment. Clark v. Quarterman, 457 F.3d 441, 447 (5th Cir. 2006) (noting that state court had found an adaptive assessment based on the inmate's self-reporting coupled with his ex-wife's memories about what he could and could not do nine years earlier ‘unreliable because it did not account for the incentive of Clark and his ex-wife to misreport Clark's adaptive skills’).

“64Experts in other Atkins cases have expressed the same concern. See, e.g., United States v. Montgomery, [(No. 2:11-CR-20044-JPM-1, Jan. 28, 2014)] (W.D. Tenn. 2014) [(not reported in Federal Supplement)](‘Dr. Marcopulos delivered a persuasive argument for why the Vineland Adaptive Behavior Scales (‘VABS’) administered by Dr. Reschly in this matter are unreliable based on their discrepant scores and retrospective application, and thus, why the Court must examine other sources of evidence to consider Defendant's adaptive functioning’; noting that expert concluded that ‘these Vineland “scores are not reliable, and I don't feel that I can trust them as being reliable indices of [Defendant's] adaptive functioning because they are not reliable within the person, they're not reliable across the persons, and the test was administered in an unstandardized way using retrospective data.” ’); United States v. Jiménez-Benceví, 934 F. Supp. 2d 360, 372 (D.P.R. 2013) (criticizing a ‘fundamentally unreliable’ VABS administration to the defendant's sister, who ‘had a clear incentive to provide answers that were helpful to her brother’ and derived from memories that ‘were at least ten years old, raising doubts about their reliability.’); United States v. Candelario-Santana, 916 F. Supp. 2d 191, 215-16 (D.P.R. 2013) (testifying expert described the use of retrospective use of Vineland test ‘controversial’); Thorson v. State, 76 So. 3d 667, 673 (Miss. 2011) (trial court, in addressing Atkins mental-retardation case, found ‘the application of retrospective Vineland tests unreliable and unpersuasive’); Mark Tasse, Adaptive Behavior Assessment and the Diagnosis of Mental Retardation in Capital Cases, 16 Applied Neuropsychology 114, 120 (2009) (‘It should be noted that there is no research available examining the reliability or error rate of adaptive behavior assessments obtained retrospectively. At issue is the respondent's ability to correctly recall from memory the assessed individual's actual performance. Memory degradation is a real issue and we do not have any solid research regarding the forgetting curve regarding someone's recollection of another person's adaptive behavior.’). But see Wiley v. Epps, 625 F.3d 199, 216-18 (5th Cir. 2010) (recognizing that the authors of the Vineland test express that retrospective interviews are permissible in certain circumstances).”

Cathey, 451 S.W.3d at 21-22 (last footnote omitted.) This criticism would apply equally to both Dr. King's tests and Dr. Ouaou's tests.

Because of the inherent unreliability of the tests administered by both Dr. Ouaou and Dr. King, other factors should be considered in assessing adaptive functioning.

“Both Dr. [Victoria] Swanson and Dr. [Jill] Hayes noted that their evaluations had to be made retrospectively. In a part of Dr. Swanson's report with which Dr. Hayes was in agreement, she provided an overview of the problems associated with retrospective diagnosis and the ways that clinicians grapple with them. ‘To overcome this obstacle, experts in the field of mental retardation recommend that the examiner seek adaptive behavior information from several sources and to look for the convergence of findings.’ Those sources typically include school, medical, psychiatric, work, military, Social Security, and prison records, as well as interviews with ‘[i]ndividuals who have had the opportunity to observe the offender as he interacted in his home, neighborhood, and community during the developmental period (i.e., prior to or as near the age of 18 as possible).’ ”

United States v. Hardy, 762 F. Supp. 2d 849, 884-85 (E.D. La. 2010) (emphasis added).

“Even if the Vineland had been administered with reliable subjects reporting on their contemporaneous knowledge of applicant's behavior, the Vineland would be only one part of a person's overall adaptive behavior profile. ‘[T]he process of assessing adaptive behavior, particularly on a retroactive sense, “is a matter of drawing information from many sources, all of which are imperfect.” ’ Given the vague and amorphous nature of the definition of adaptive behavior in the relevant statutes and treatises, courts have adhered to the ‘relative consensus that the best way to retroactively assess [an inmate's] adaptive functioning is to review the broadest set of data possible, and to look for consistency and convergence over time.’ A significant impairment in adaptive behavior may be thought of as ‘the extent to which the individual has required assistance to carry out appropriate age activities.’ ”

Ex parte Cathey, 451 S.W.3d at 22-23 (footnotes omitted).

The circuit court did consider Woolf's school records and various other records. The court cited selective portions of an IQ report that was

compiled when Woolf was “14.7” years of age from a test administered in 1993 by Dr. Labbe. The circuit court quoted from Dr. Labbe's report:

“Finally, a Woodcock-Johnson Psychoeducational Battery given when Woolf was 14 revealed relative strengths on the proofing subtext (15th percentile) and basic writing skill (9th percentile), but severe weakness in punctuation and capitalization (0.1 percentile) and broad written language (2nd percentile).”

(C. 1509.)

However, what the court ignored was the following findings in that same report:

“On the Vineland Adaptive Behavior Scales (VABS), [Woolf's] daily living skills are well developed for his age. He obtained a standard score of 119 on this scale. His communication skills (standard score = 55) and his social skills (standard score = 44) are poor. His overall adaptive behavior score is 67.”

(C. 1553.) This same report further stated:

“The Child Behavior Checklist (CBCL), completed by [Woolf's] father, resulted in a social competence T-score of 32. The scores are in the normal range for his age on the activities and social scales but in the non-normal range on the school scale. The behavior T-score is 74. The delinquent, aggressive, and hyperactive scales are in the clinical range for a boy his age. The CBCL completed by [Woolf's] Language Arts teacher, Ms. Wright, results in a behavior T-score of 57 which is in the normal range. [Woolf] also scores in the normal range on the behavior scales in his Math (T=47) and PE (T=47) classes. But [Woolf] scored in the clinical range in his science and social studies classes which are taught by Ms. Wright (T=72). He scored on the borderline range on the immature scale and he scored in the clinical range in the obsessive-compulsive and aggressive scales.”

(C. 1553-54.)

The circuit court also based a great deal of its decision regarding adaptive functioning on the fact that Woolf had been placed in learning disability classes at an early age.

“[A] learning impairment constitutes a distinct impairment from an intellectual impairment, and one does not necessarily entail or subsume the other. See Laboriel v. Saul, No. 18-CV-5294 (KPF) (OTW), [Aug. 22, 2019] (S.D.N.Y. ․ 2019)[(not published in Federal Supplement)] (“[A] learning [disability] is different from an intellectual disability.”); United States v. Lewis, No. 1:08 CR 404, [Dec. 23, 2010] (N.D. Ohio ․ 2010)[(not reported in Federal Supplement)] (‘[A] learning disability is a subject specific disorder and can be distinguished from an intellectual disability that exhibits “general impairment in intellectual functioning.” ․ [A] learning disability is distinguished from intellectual disability because a learning-disabled individual will have a discrepancy between his or her IQ and academic performance. Conversely, an intellectually disabled individual will have a subaverage IQ that is consistent with his or her academic performance.’) (citations omitted) (quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, Text Revision 15 (4th ed. 2000)).”

Adams v. Crestwood Med. Ctr., 504 F. Supp. 3d 1263, 1282 (N.D. Ala. 2020).

The circuit court made the following findings:

“In fact, the United States Supreme Court has acknowledged the presence of a learning disability diagnosis as potentially indicative of intellectual disability. Brumfield [v. Cain], 576 U.S. [305] at 321 [(2015)] (Defendant who, among other things, ‘was diagnosed with a learning disability and placed in special education classes’ had made a sufficient showing to obtain an Atkins hearing).”

(C. 1515.) However, the United States Supreme Court in Brumfield v. Cain, 576 U.S. 305, 321 (2015) stated:

“An individual who points to evidence that he was at risk of ‘neurological trauma’ at birth, was diagnosed with a learning disability and placed in special education classes, was committed to mental health facilities and given powerful medication, reads at a fourth-grade level, and simply cannot ‘process information,’ has raised substantial reason to believe that he suffers from adaptive impairments.”

Dr. King stated the following concerning a learning disability:

“A learning disability requires that an individual have an average intellectual ability and that would mean at least an IQ of 85. That can be a little more complicated. And that the achievement score they have is at least one standard deviation below that what would be expected given their intellectual level. Because learning disabilities typically involve things like reading, writing, arithmetic, all of which are verbal kinds of abilities, one of the things that we see on IQ tests is that their verbal comprehension index is significantly lower than the performance or perceptual index. That would make sense because they are having trouble with verbal abilities in school so they don't pick up on all of that information over that period of time.

“Lots of times their reading, writing and arithmetic scores are much lower than what we would expect given their perceptual reasoning ability. It may be commensurate with what we get from the verbal comprehension abilities. Learning disability requires usually an average IQ as measured by typically the perceptual performance part of the IQ test and their achievement scores are at least fifteen points below that.”

(R. 697-98.) He further testified that the presence of a learning disability is not “indicative of low intelligence.” (R. 699-700.)

The State further argues that neuropsychological tests should not have been relied on to assess Woolf's IQ score under Atkins. The circuit court did cite numerous neuropsychological tests that had been conducted by Dr. Ouaou on Woolf. Like the State, we are concerned by the court's extensive use of neuropsychological tests when assessing Woolf's IQ score. As one court has noted:

“[A]pplicant attempts to use neuropsychological measures to wholly replace full-scale IQ scores in measuring intellectual functioning. However, this court has regarded non-IQ evidence as relevant to an assessment of intellectual functioning only where a full-scale IQ score was within the margin of error for standardized IQ testing. Thus, we hold that, while applicants should be given the opportunity to present clinical assessment to demonstrate why his or her full-scale IQ score is within that margin of error, applicants may not use clinical assessment as a replacement for full-scale IQ scores in measuring intellectual functioning.”

Ex parte Hearn, 310 S.W.3d 424, 431 (Tex. Crim. App. 2010) (footnotes omitted). “Overall ․ because the clinical sources focus on the full-scale IQ scores, a detailed discussion of these other neuropsychological test results is not necessary.” United States v. Williams, 1 F. Supp. 3d at 1159.

The record shows that Woolf moved that he be transported from Holman Correctional Facility to a hospital for an MRI/PET scan. (C. 353.) That motion was granted. (C. 403.) The documents indicate that Woolf was scheduled for an MRI/PET scan. (C. 1824-26.)¹⁹ However, nothing was introduced concerning that test during Dr. Agharkar's testimony, and Dr. Ouaou said that he knew nothing about the test. (R. 562-63.) We note that Dr. King filed a rebuttal to Dr. Ouaou's report that states: “On pages 14-15 of [Dr. Ouaou's] report, it appears that Dr. Ouaou tends to highlight the poor performance on some of his neuropsychological tests to the exclusion of average performance on many of the psychological tests that he performed.” (2nd Supp. C. 4680.) Dr. King's statements are supported by the record.

Most importantly, according to the Alabama Supreme Court's decision in Smith, 213 So. 3d at 248, Woolf was required to present evidence and prove that he had significant deficits in adaptive functioning at three points in his life: before the age of 18, at the time of the crime, and currently. The circuit court noted in its order: “At the Rule 32 hearing, Woolf pleaded and presented evidence establishing the three elements of intellectual disability under Alabama law; specifically, that he: (1) has significantly subaverage intellectual functioning; (2) has significant deficits in adaptive function; and (3) these problems manifest themselves before Woolf reached the age of eighteen.” (C. 1490.) Indeed, the order does not specifically address all three points that the Alabama Supreme Court have held are essential for a finding of intellectual disability under Atkins. See Smith, 213 So. 3d at 248.

What is clear is that Woolf was placed in learning-disability classes at an early age and was diagnosed with an attention-deficient disorder and placed on Ritalin. Woolf was bored with his classes, frequently did not pay attention, and made bad grades. He dropped out of school in the eighth grade. Woolf was also placed in a youth facility at the age of 12 and stayed in a youth facility until immediately before he turned 18 years old.

An examination of the direct-appeal record shows the following. Jean Griffin, a retired teacher, testified at the penalty phase of Woolf's trial that she had taught Woolf in the seventh and eighth grade when he was in learning-disability classes. Griffin testified that “[Woolf] was ․ in behavior, very social, very -- liking people. He was outgoing.” (Direct Appeal, R. 2297.) She said that Woolf's problems were in math and reading, but, she said, his problem was mainly in math. Griffin said that the kids in the school liked Woolf. Diane Harmon, an old friend of Woolf's family, testified

“[Defense counsel]: What kind of kid was [Woolf]?

“[Harmon]: He was a typical kid as all boys, getting in trouble but no -- just like my son, doing things in school that they shouldn't be doing and, you know.

“[Defense counsel]: Was [Woolf] able to express affection towards you and you toward him.

“[Harmon]: Yes.”

(Direct Appeal, R. 2325.)

While Woolf was incarcerated at Strickland Youth Facility when he was 17 years old, a report was compiled in 1995 on his progress at that facility. (2nd Supp. Corr. R. 5009-12.) That report states that he was in the ninth-grade level at Strickland. It contains comments by his teachers and his report card. That record reads, in part: “[Woolf] received a Certificate of Achievement for ‘Best Essay on the Four Keys to the Program.’ ” (2nd Supp. Corr. R. 5010.) Woolf's English instructor wrote: “ ‘Very good student, both academically and behaviorally. He is very quiet also and should be commended.’ ” (2nd Supp. Corr. R. 5011.) The report card attached shows that Woolf was getting good grades that were mostly “B's.” (2nd Supp. Corr. R. 5012.) We note that those documents appear to be consistent with the IQ score of 91 that was assessed at the Strickland facility in 1994.

Woolf was also assessed for educational purposes at Kilby Correction Facility in 2000. The report states that Woolf was reading at a grade level equivalent to 6.6, that his math was at a level of 5.1, that his language was at a level of 4.2, and that his spelling was at a level of 7.7. (C. 1557-69.)

The exhibits also contain numerous copies of letters between Woolf and his mother while he has been incarcerated. (2nd Supp. Corr. R. 6352-48.) In May 2000, Woolf's mother wrote: “How's the GED coming along? Have you tried the actual test yet? If you don't pass it the first time, keep trying. Study in between. You can pass it if you try real hard.” (2nd Supp. Corr. R. 6399.) In January 2001, Woolf's mother wrote: “I'm so proud of you for reading the CDL[²⁰ ] Study Guide and know you can do well if you just put your mind to it.” (2nd Supp. Corr. R. 6369.) In February 2011, Woolf wrote to his mother and made a detailed list of the personal items that he needed from the prison store and what each individual item cost. (2nd Supp. Corr. R. 6355-59.)

Moreover, as this Court stated in Reeves:

“[T]he court appropriately looked at evidence regarding Reeves's adaptive functioning other than the expert testimony -- such as Reeves's technical abilities in brick masonry, welding, and automobile mechanics; Reeves's ability to work construction and do so reliably when he was not around his brother, Julius; Reeves's participation in a drug-sale enterprise in which he was able to make thousands of dollars a week that he then used to purchase personal items and a car; and particularly Reeves's cold and calculated actions surrounding the murder, including planning the robbery with his codefendants, hiding incriminating evidence after he had shot the victim, splitting the proceeds of the robbery with his codefendants, and bragging about the murder, claiming that he would earn a ‘teardrop’ -- a gang tattoo indicating that a gang member had killed someone -- for the murder. See, e.g., Ex parte Smith, 213 So. 3d 313, 320 (Ala. 2010) (‘We find especially persuasive Smith's behavior during the commission of these murders.’).”

226 So. 3d at 741-43. “A retrospective evaluation also could include a thorough review of school records, social history, and work history, among other things.” Goodin v. State, 102 So. 3d 1102, 1115 (Miss. 2012).

In regard to work history, the record shows that “Woolf was first employed at age 18 doing landscaping and nursery work. He then worked as a dishwasher at a restaurant for some years and at age 23 began installing sheetrock and did that for seven years full-time.” (C. 1615; Dr. King's report.) “Woolf has done sheetrock work, dishwashing, and frame carpentry.” (C. 1578; Dr. Bennett's report.)

At the time of the murders, Woolf was married and had a child. He testified that, when his wife got pregnant, he was living and working in Destin, Florida, and that he was hanging sheetrock and building decks. They moved back to Mobile after his wife had the baby. Woolf further testified that he had “hung sheetrock since 2001” until he was arrested in 2008. (Direct Appeal, R. 1879.) He said that his wife had not worked since 2003 or 2004. (Direct Appeal, R. 1881.)

Dr. King noted in his interview with Woolf that Woolf told him that he had been reading self-help books in prison. (R. 716.) He also stated that Woolf had “taken steps to remove himself from perceived danger” because of his debt by placing himself on “single walk” or away from other inmates when he was out of his cell. (R. 725.) Dr. King stated that this action to keep himself safe was relevant to his present adaptive functioning. (R. 725.)

The circuit court discounted Dr. King's testimony concerning Woolf's actions in prison. However, according to the Alabama Supreme Court's decision in Smith, 213 So. 3d at 248, this information was relevant to proving an Atkins claim and was relevant for the State to rebut that claim as it relates to current adaptive functioning.

The circuit court's findings on adaptive functioning are not supported by the record.

Manifestation Before Age 18

“[B]ecause the evidence does not support Smith's contention that he manifested subaverage intellectual functioning and significant deficits in adaptive behavior, we need not address the third factor -- whether those problems evinced themselves before Smith was 18 years old.” Ex parte Smith, 213 So. 3d 214, 225-26 (Ala. 2003).

Conclusion

Based on the circuit court's errors in its findings of facts and its application of the law, we hold that the court's order was clearly erroneous. As a result, we cannot give those findings the deference that they would be due had the court correctly applied the law and the facts. Moreover, given that Dr. Ouaou failed to give Woolf's prior IQ scores the consideration they were entitled to based on Hall v. Florida, we give his findings little weight.

We do agree with the circuit court that the best approach to consider Woolf's prior multiple IQ scores is to use a holistic approach that examines all relevant evidence and expert opinions and all relevant evidence concerning adaptive functioning.²¹ See Smith v. Commissioner, Alabama Department of Corrections, (No. 21-14519, Nov. 14, 2024) (M.D. Ala. 2024) (not reported in Federal Reporter). A holistic approach is also consistent with the Alabama Supreme Court's opinion in Smith, which further defines the Atkins inquiry and states: “[I]n order for an offender to be considered mentally retarded [now intellectually disabled] in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18.” Smith, 213 So. 3d at 248.

Our review of the record supports the conclusions from the numerous doctors who evaluated Woolf that Woolf is borderline intellectually disabled. We agree with Dr. King that Woolf's IQ scores, taken as a whole, do not support a finding that he has significantly subaverage intellectual functioning sufficient to satisfy the Perkins requirement. Also, the record does not support the conclusion that Woolf has significant or substantial deficits in adaptive functioning, either before the age of 18, at the time of the crime, or currently. See Smith, 213 So. 3d at 248. Woolf failed to meet his burden of establishing the requirements of Perkins and Smith that are necessary to vacate a sentence of death. Therefore, the circuit court's ruling vacating Woolf's sentence of death is reversed.

II.

Woolf's Cross-Appeal

Woolf filed a cross-appeal challenging the circuit court's denial of his claims that his counsel was ineffective at the guilt phase of his capital-murder trial. On appeal, Woolf does not pursue all the claims of ineffective counsel that were raised in his postconviction petition. “Those claims that [Woolf] raised in his petition but does not pursue on appeal are deemed abandoned and will not be considered by this Court.” Reeves v. State, 226 So. 3d at 746.

For Woolf to prevail on a claim that his counsel's performance was ineffective, he must satisfy the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, Woolf must prove (1) that his counsel's performance was deficient and (2) that he was prejudiced by that deficient performance.

“Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide Strickland, 466 U.S. at 689. range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ See Michel v. Louisiana, ․ 350 U.S., [91] at 101, [(1955)]. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L. Rev. 299, 343 (1983).”

Strickland, 466 U.S. at 689.

“The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. See United States v. Decoster, [199 U.S. App. D.C. 359] at 372-373, 624 F.2d [196], at 209-210 [(D.C. Cir. 1979)].”

Strickland, 466 U.S. at 691 (emphasis added).

In regard to the ineffective-assistance-of-counsel claims that Woolf's attorney was ineffective for failing to investigate and present evidence, this Court has recognized:

“It is extremely difficult, if not impossible, to prove a claim of ineffective assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record. Indeed, ‘trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.’ Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). This is so because it is presumed that counsel acted reasonably:

“ ‘The presumption impacts on the burden of proof and continues throughout the case, not dropping out just because some conflicting evidence is introduced. “Counsel's competence ․ is presumed, and the [petitioner] must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305 (1986) ․ (citations omitted). An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption. Therefore, “where the record is incomplete or unclear about [counsel]’s actions, we will presume that he did what he should have done, and that he exercised reasonable professional judgment.” Williams [v. Head,] 185 F.3d [1223,] 1228 [(11th Cir. 1999)]; see also Waters [v. Thomas,] 46 F.3d [1506,] 1516 [(11th Cir. 1995)] (en banc) (noting that even though testimony at habeas evidentiary hearing was ambiguous, acts at trial indicate that counsel exercised sound professional judgment).’

“Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000). ‘ “If the record is silent as to the reasoning behind counsel's actions, the presumption of effectiveness is sufficient to deny relief on [an] ineffective assistance of counsel claim.” ’ Dunaway v. State, [198 So. 3d 530, 547] (Ala. Crim. App. 2009) (quoting Howard v. State, 239 S.W.3d 359, 367 (Tex. App. 2007)).”

Broadnax v. State, 130 So. 3d 1232, 1255-56 (Ala. Crim. App. 2013).

Woolf pleaded in his amended postconviction petition that his trial counsel was ineffective at the guilt phase for failing to investigate and present evidence of Woolf's bipolar disorder and the psychosis associated with that disorder, Woolf's traumatic childhood that included sexual abuse, and the fact that Woolf had PTSD because, he said, they were all relevant to the issue of Woolf's intent to commit murder. Woolf also argues that the circuit court employed the incorrect legal standard for reviewing his claims and erred in its analysis related to whether any prejudice had been proven.

Woolf argues that the circuit court applied the incorrect standard of review regarding his claim that counsel was ineffective for failing to investigate. Specifically, Woolf argues that the court improperly held that, before a defendant asserting a claim of ineffective assistance of counsel may prevail, the defendant must present the testimony of his or her attorney. Specifically, Woolf argues:

“The Supreme Court has recognized two categories of ineffective assistance claims -- one as to trial counsel's strategic decisions (for instance, whether to call witnesses or introduce evidence), and another as to trial counsel's underlying investigation into witnesses and evidence. Each is governed by its own legal framework. ․ [A] trial counsel's investigatory decisions are not ‘virtually unassailable’ as a categorical matter absent trial counsel's testimony. Only ‘strategic choices made after thorough investigation of law and facts ․ are virtually unchallengeable.’ ”

(Woolf's brief at 75-76.) Woolf asserts that in numerous places in its order the circuit court stated that a claim was due to be denied because the record was silent as to the reasons for counsel's actions and, thus, that it had to presume that counsel's actions were reasonable.

This Court has frequently stated:

“While it is true that strategic decisions are virtually unchallengeable, before a reviewing court may find that a decision was strategic, the reviewing court must first determine if counsel conducted a ‘thorough investigation’ before making that decision. ‘[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.’ Strickland [v. Washington], 466 U.S. [668] at 690-91, 104 S.Ct. 2052 [(1984)]. See also Blankenship v. Hall, 542 F.3d 1253, 1273 (11th Cir. 2008) (‘In addition to the duty to reasonably investigate avenues of defense (or make a reasonable decision to not do so), counsel's choice of strategy is subject to review, but ‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable․’ Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066 ․.’).”

State v. Mack, ___ So. 3d at ___.

However, we have also held:

“ ‘[A]ppellant contends that his counsel failed to fully investigate possible mitigating factors. He argues that counsel should have called an expert witness on “cultural diversity,” but he does not explain what such a witness could have said on his behalf. He also argues that counsel should have called an expert witness on fetal alcohol syndrome and should have obtained a neuropsychological assessment to investigate possible organic brain impairment. However, the record does not show that defense counsel failed to investigate these possibilities. Contrary to appellant's suggestion, we cannot infer failure to investigate from a silent record; the burden of demonstrating ineffective assistance is on him.’

“State v. Murphy, 91 Ohio St. 3d 516, 542, 747 N.E.2d 765, 797 (2001). ‘Although trial counsel clearly has a duty to adequately investigate possible defenses to enable formulation of an informed trial strategy ․, we will not presume from a silent record that counsel failed in this duty.’ People v. Jennings, 53 Cal. 3d 334, 375, 807 P.2d 1009, 1035, 279 Cal. Rptr. 780, 806 (1991).”

Burgess v. State, 962 So. 2d 272, 289 (Ala. Crim. App. 2005).

“In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in this case, no proper evidentiary record is developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208-09 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel's trial strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was ‘ “so outrageous that no competent attorney would have engaged in it.” ’ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).”

Aldaba v. State, 382 S.W.3d 424, 431-32 (Tex. App. 2009).

Nonetheless, this Court has recognized that there may be situations when counsel's representation is deemed to be “per se” ineffective.

“ ‘Trial counsel's failure to investigate the possibility of mitigating evidence [at all] is, per se, deficient performance.’ Ex parte Land, 775 So. 2d 847, 853 (Ala. 2000), overruled on other grounds, State v. Martin, 69 So. 3d 94 (Ala. 2011). However, ‘counsel is not necessarily ineffective simply because he does not present all possible mitigating evidence.’ Pierce v. State, 851 So. 2d 558, 578 (Ala. Crim. App. 1999), rev'd on other grounds, 851 So. 2d 606 (Ala. 2000). When the record reflects that counsel presented mitigating evidence during the penalty phase of the trial, as here, the question becomes whether counsel's mitigation investigation and counsel's decisions regarding the presentation of mitigating evidence were reasonable.”

Reeves v. State, 226 So. 3d 711 at 751. See Bohannon v. State, 401 So. 3d 302, 317 (Ala. Crim. App. 2023) (“Defense counsel's failure to provide any meaningful adversarial testing of the State's case constitutes per se ineffective assistance that does not require a showing of prejudice.”); Adkins v. State, 930 So. 2d 524, 536 (Ala. Crim. App. 2001) (“An attorney's performance is not per se ineffective for failing to present mitigating evidence at the penalty phase of a capital trial.”).

However, the situation in this case does not support application of the per se ineffective standard. Indeed, a review of the record clearly shows that counsel did more than a little preparation for Woolf's case and, in fact, did extensive preparation. Therefore, without counsel's statements about why certain evidence was not presented, we must presume that counsel's actions were reasonable. The circuit court did not apply the incorrect standard to this issue.

As stated above, Woolf asserts that his trial counsel was ineffective at the guilt phase for failing to investigate and present evidence of his psychosis induced by his bipolar disorder, his sexual abuse, and his PTSD.

First, “ ‘[a]lthough [the] claim is that his trial counsel should have done something more, we [must] first look at what the lawyer did in fact.’ ” Broadnax v. State, 130 So. 3d at 1248 (quoting Chandler v. United States, 218 F.3d 1305, 1320 (11th Cir. 2000)).

“The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions. See United States v. Decoster, [199 U.S. App. D.C. 359,] 372-373, 624 F.2d [196,] 209-210 [(D.C. Cir. 1976)].”

Strickland, 466 U.S. at 691.

Woolf did not present the testimony of one of his attorneys or present any affidavits in lieu of testimony.²² Attorneys James Vollmer and Ronald Goleman were appointed to represent Woolf before he was arraigned. (Direct Appeal, C. 8.)  ²³ Goleman later moved to withdraw as counsel, and new counsel, J. Gregory Evans, was appointed. Evans passed away in 2014.

The trial record shows that, within three months of Woolf's arraignment, counsel moved that Woolf be mentally evaluated concerning his competency to stand trial and his competency at the time of the murders. (Direct Appeal, C. 122.) In this motion, Woolf stated, in part:

“Counsel for [Woolf] would aver that there apparently exists significant medical history with regard to treatment of [Woolf] for serious mental health issues encountered by [Woolf] in the past. This information was provided to defense counsel by a third party. Based upon said information, counsel is forthwith filing a subpoena duces tecum for production of any and all documents maintained by Mobile Mental Health and physicians and/or counselors employed thereby who may have treated [Woolf].”

(Direct Appeal, C. 122.) The circuit court granted that motion. (Direct Appeal, C. 12.) Counsel also moved for funds to employ a “Board Certified Psychiatrist.” (Direct Appeal, C. 128.) That motion was also granted. The State then moved that a State expert evaluate Woolf's mental condition. (Direct Appeal, C. 133.) That motion was granted. The direct-appeal record further shows that Woolf was evaluated by two experts before trial: Dr. Thomas Bennett, a clinical psychologist, who was retained by Woolf, and the State's expert, Dr. Doug McKeown, a licensed clinical psychologist. Both experts submitted their reports to the circuit court. (Direct Appeal, C. 137-47.) After the reports were filed, Woolf moved to amend his plea to “Not guilty by reasons of mental disease or defect.” (Direct Appeal, C. 148.)

The direct-appeal record further shows that, at a pretrial-motion hearing, defense counsel discussed the motion for mental evaluation and indicated that the State's expert had found Woolf to be competent but that Woolf's expert “raised some issues.” (Direct Appeal, R. 38.) The parties discussed subpoenas, and the circuit court indicated that if counsel needed any help in obtaining any documents the court would assist.

Woolf presented numerous witnesses in his defense at trial. Defense counsel called 14 witnesses in the guilt phase. Dr. Thomas Bennett testified at both the guilt and the penalty phases of Woolf's trial. In the guilt phase, Dr. Bennett testified that he examined Woolf and looked at numerous “documents as they pertained to this case. But primarily his history that goes back to childhood, extensive records from schools, psychologists, psychiatrists, various places. He's been in treatment for much of his life.” (Direct Appeal, R. 1981.) Woolf, he said, had been diagnosed with “attention deficit hyperactivity disorder, learning disabilities, [and] bipolar disorder.” (Direct Appeal, R. 1982.) Dr. Bennett also found that Woolf had borderline intellectual functioning. He gave Woolf the WAIS-4 and determined that Woolf had a full-scale IQ of 74. (Direct Appeal, R. 1983.). Dr. Bennett further testified that Woolf's cognitive disability, his bipolar disorder, and his personality disorder would all have contributed to his conduct on the day of the murders. (Direct Appeal, R. 1995.)

At the penalty phase, defense counsel presented six witnesses. Dr. Dr. Elise Labbe, a psychologist, testified that she was asked to evaluate Woolf when Woolf was 14 years old and that she “interviewed [Woolf] and the family and then we did some testing, a pretty good battery of testing. We also went out and observed him in school.” (Direct Appeal, R. 2289.) She testified: “Basically the results showed that he had low average intelligence. His overall IQ was about 83 which is like at the 14th percentile. He had deficits in academic skills and he was having problems dealing with the divorce of his parents and was kind of angry and resentful.” (Direct Appeal, R. 2289.) Counsel also called Jean Griffin, a retired teacher who had taught “learning disabled children” and had taught Woolf when he was in the seventh and eighth grades. (Direct Appeal, R. 2296.) She said that Woolf had problems with math and reading. Like in the guilt phase, Dr. Bennett testified that he had diagnosed Woolf with “bipolar disorder, mixed substance abuse currently in a controlled environment, personality disorder with anti-social and borderline features and borderline intellectual functioning,” with a full-scale IQ of 74. (Direct Appeal, R. 2307.) For the bipolar disorder, Woolf was taking lithium carbonate, which, he said, would stabilize moods. Dr. Bennett said that, on the night of the murders, Woolf was suffering from extreme mental and emotional disturbance. (Direct Appeal, R. 2313.) Lynn Tullos, Woolf's mother, testified that it was very tough on Woolf when she divorced Woolf's father, that after the divorce he started getting into trouble, that when he was in first grade he was tested and determined to have a learning disability, that he was placed on Ritalin, that it affected him, that after the divorce he lived with his father, and that he dropped out of school in the eighth grade.

At trial, Woolf admitted that he shot and killed both his son and his wife. Woolf testified in his own defense and said that he and his wife Angel were having a fight and were “screaming and yelling”, that he had a gun in his hand and Angel grabbed his arm, and when he “snapped away from her” he “shot the gun towards -- behind [him] and towards the floor to scare her.” (Direct Appeal, R. 1902.)²⁴ Woolf further testified that, when he turned around, he saw that his son Ayden had been shot. Woolf said that he and Angel started “freaking out and she started screaming and I shot her.” (Direct Appeal, R. 1902.) After the shooting, he called emergency 911.

During opening statements, defense counsel asserted that Woolf shot his son by accident and was extremely upset but still called the police. He said that Woolf had been diagnosed with a learning disability when he was young and had a low IQ. Two weeks before the shootings, Woolf learned that his wife had had an affair with one of his friends. (Direct Appeal, R. 1312-13.) Woolf then began to believe that Ayden was not his son. They borrowed money from Woolf's mother to get a DNA test. Woolf became paranoid, he said. Defense counsel stated that Woolf was not guilty of capital murder because he had no intent to kill Ayden.

With this background in mind, we review the claims raised in Woolf's cross-appeal.

A.

Woolf first argues that the circuit court erred in finding that his counsel's performance was not ineffective for failing to investigate and present evidence of the “psychotic features of bipolar disorder at the time of the shootings.” (Woolf's brief at p. 73.)

When addressing this claim, the circuit court stated:

“Woolf alleges that he was prejudiced because evidence of his psychosis and PTSD would have created reasonable doubt about his competence at the time of the murders and the existence of his intent to kill Angel and Ayden. He claims that had the jury known of his alleged psychosis, ‘it is reasonably probable that the jury would have found that [Woolf] lacked intent to kill and would not have found him guilty of capital murder.’

“Again, Woolf offered no evidence of what counsel actually knew at the time of his trial, nor has he presented testimony about his supposed psychosis from any lay witness who would definitely have appeared at trial except for Lynn, his own mother. The Court is not persuaded that it should count Woolf's recollections of psychosis against trial counsel where Woolf has offered nothing to show that he ever shared these recollections with counsel.

“Moreover, both trial experts, Dr. Doug McKeown and Dr. Bennett[,] found Woolf competent at the time of the shootings and competent to stand trial.”

(C. 1458.)

As stated above, before Woolf's trial, defense counsel moved to have him evaluated regarding his competency to stand trial and his competency at the time of the murders. Dr. Doug McKeown, a clinical and forensic psychologist, examined Woolf and completed a report. Dr. McKeown's report stated, in pertinent part:

“[Woolf] is alleged to have been responsible for causing the death of his wife and young son by gunshot wounds in Mobile County, Alabama. [Woolf] indicates that he had been married to his wife for approximately ten years but did have a period of about 18 months where they were separated while he was incarcerated. He has basically been back in the family unit since 2001 up until the time of the index crime. He is quite capable of proving information about his actions, thoughts, behaviors, and motivation in the time frame associated with the current charges. There is no indication of any aberrations of thought or cognitive limitations other than his reported use of marijuana in the time frame associated with the index crime.

“The examiner is of the opinion that [Woolf] would have been capable of appreciating appropriate and inappropriate behavior and also capable of appreciating the nature and quality of his actions and behavior in the time frame associated with the current charges.”

(C. 1576.) This report was discussed at a pretrial hearing, and defense counsel stated that he had examined the report and had requested that “a board-certified psychiatrist examine [Woolf].” (Direct Appeal, R. 22.) Given Dr. McKeown's assessment, Woolf's counsel had no reason to retain a different expert.

“[T]rial counsel had no reason to retain another psychologist to dispute the first expert's findings. ‘A postconviction petition does not show ineffective assistance merely because it presents a new expert opinion that is different from the theory used at trial.’ State v. Combs, 100 Ohio App. 3d 90, 103, 652 N.E.2d 205, 213 (1994). See also State v. Frogge, 359 N.C. 228, 244-45, 607 S.E.2d 627, 637 (2005). ‘Counsel is not ineffective for failing to shop around for additional experts.’ Smulls v. State, 71 S.W.3d 138, 156 (Mo. 2002). ‘Counsel is not required to “continue looking for experts just because the one he has consulted gave an unfavorable opinion.” Sidebottom v. Delo, 46 F.3d 744, 753 (8th Cir. 1995).’ Walls v. Bowersox, 151 F.3d 827, 835 (8th Cir. 1998).”

Waldrop v. State, 987 So.2d 1186, 1193 (Ala. Crim. App. 2007). We agree with the circuit court that this claim was properly denied. Accordingly, Woolf is due no relief on this claim.

B.

Woolf next argues that the circuit court erred in finding that his counsel was not ineffective for failing to present evidence of his childhood sexual abuse in the guilt phase.

The circuit court made the following findings on this claim:

“Woolf claims that trial counsel rendered deficient performance because they failed to adequately investigate his childhood sexual trauma. He contends that counsel failed to investigate his abuse, particularly between the ages of five and seven; that ‘[c]hildren of his grandfather's friends’ who were older than Woolf assaulted him, taught him to masturbate, and forced Woolf to join them in oral sex; that Woolf was anally penetrated at least once; that Woolf told [his father] about these events but asked [his father] not to intervene; that these experiences were traumatizing to Woolf ․.

“There is no evidence in the record as to what trial counsel knew about Woolf's alleged childhood sexual abuse because Woolf failed to call counsel to testify at the evidentiary hearing. Thus, this Court ‘view[s] trial counsel's actions as strategic decision, which are virtually unassailable.’ McGahee [v. State], 885 So. 2d [191] at 221-22 [(Ala. Crim. App. 2003)].

“Moreover, Woolf failed to identify how his counsel should have learned of his sexual abuse. The only witnesses identified in the amended petition are Woolf, [Woolf's father], and the alleged perpetrators, unnamed children who were friends of one of Woolf's grandfathers. Woolf offered no evidence that his supposed assailants or [his father] would have spoken to trial counsel, and assuming that Woolf told counsel none of this information, he cannot show that counsel were ineffective for failing to pry it from him.

“Turning then to what was actually presented during the evidentiary hearing, Woolf offered a rather different series of allegations focusing not on the neighborhood boys but rather on his maternal grandfather. Lynn claimed that her father, AY, sexually abused her when she was one or two years old. She also disavowed any knowledge of the claim that AY had assaulted Woolf until well after his trial. Anna claimed that AY may have sexually assaulted her and Woolf, though she could provide no details and never saw Woolf be abused. The only other testimony about Woolf's alleged sexual abuse came in through his statements to the experts over the past fifteen years.

“The record shows no indication that Woolf mentioned any sexual abuse to either of the psychologists who evaluated him at the time of trial, to ․ his first Rule 32 counsel, or to Dr. King in 2019, whose report notes, ‘Mr. Woolf states categorically that he was neither physically nor sexually abused as a child.’ In early 2022, Woolf told Dr. Agharkar that he had been sexually abused by older children ‘who were friends with his grandfather.’ In October of that year, Woolf told Dr. Mikel Matto, who was not called as an expert witness at the evidentiary hearing, that he was ‘sexually assaulted when he was between 5 and 7 years old by “children of [his] granddad's friends” ’ when he visited during the summer, that he told [his father] and asked [his father] not to intervene, and that he had nightmares following these events. When Dr. King evaluated Woolf for a second time in September 2023, Woolf said that after the first time, ‘his sexual relations as a child with an older boy was consensual,’ that he had no ‘dreams or memories about sex abuse,’ and that he lied during their first meeting because, ‘I just don't talk about it. I let it go and forgot about it as a teenager.’ By the time Woolf met with Dr. Ghannam in 2023-2024, his story had grown to ‘a vast history of sexual abuse and assault starting around age 3 when his maternal grandfather sexually abused him for years until his grandmother intervened,’ plus sexual assault by the neighborhood children.

“In sum, then, there is no indication that Woolf spoke of his alleged childhood sexual abuse with anyone until 2022. Indeed, he denied sexual abuse as late as 2019.

“This Court cannot find that counsel were ineffective for failing to put on evidence of sexual abuse. While the record is silent as to what counsel knew, it is clear that counsel spoke to Lynn and to Woolf, both of whom testified at trial. If neither mentioned sexual abuse (or denied its existence), then counsel cannot be faulted for believing Woolf and his mother. As for Anna, her claims are vague, if she would have been willing to speak to counsel and testify in 2010-2011 -- and again, she never actually witnessed Woolf being abused. Two psychologists testified at Woolf's trial, and there is no indication in the record that either of them knew of Woolf's current allegations. Woolf's failure to mention sexual abuse to Dr. Bennett, the defense psychologist, does not mean that counsel were ineffective for not hiring a different expert who might have coaxed this information from him. ․

“Woolf has failed to show deficient performance, and so this claim is denied as to the guilt and the penalty phase.”

(C. 1468-70.)

Tullos, Woolf's mother, testified at the postconviction hearing that “I didn't know until just recently the fact that [Woolf] had been assaulted by my father.” (R. 118.) Anna Woolf testified that there was “no physical violence in the home [she] shared with [Woolf's father and mother and Woolf].” (R. 161.) The following occurred:

“[Defense counsel]: Did [Woolf's mother's father] sexually assault you?

“[Anna]: Yes, I do believe he did.

“[Defense counsel]: Why do you believe that?

“[Anna]: I will try to explain. There have been many years between then and now. There has been a lot of healing that I have done. It come in layers. There is reactions that my body has had that has protected me from some of the memories. There are reactions that I have had as a grownup and out of it grown through the trauma. There are reactions that are very clear to me that even though I have maybe not let myself remember the full details of everything that happened, I know that the results that I have lived with since they really tell me that there are trauma and abuse that happened. I have no doubt.”

(R. 181-82.) She further testified that she “never saw any sexual abuse of [Woolf].” (R. 213.)

Dr. King testified that, when he met with Woolf in 2019, “[Woolf] categorically denied that he was either physically or sexually abused. By categorically I mean he was relatively adamant that that never happened.” (R. 697.)

“[W]e have found that trial counsel was not deficient for failing to present evidence of sexual abuse when the defendant, who was the abuse victim, denied or did not inform counsel or mental health experts about it. See, e.g., Anderson v. State, 18 So. 3d 501, 510 (Fla. 2009); Morton v. State, 995 So. 2d 233, 240 (Fla. 2008); Davis v. State, 928 So. 2d 1089, 1110 (Fla. 2005).”

Jennings v. State, 123 So. 3d 1101, 1117 (Fla. 2013). “We cannot conclude that trial counsel was deficient for failing to pursue such mitigation when [the defendant] himself failed to inform either counsel or mental health experts about his matter.” Davis v. State, 928 So. 2d 1089, 1110 (Fla. 2006).

Given that we do not know whether Woolf told his counsel about the sexual abuse before trial, we cannot say that counsel's actions were unreasonable. Accordingly, we agree with the circuit court that Woolf is due no relief on this claim.

C.

Woolf last argues that the circuit court erred in finding that his counsel was not ineffective for failing to investigate and present evidence of his PTSD in the guilt phase.

The circuit court made the following findings:

“Woolf alleges that trial counsel were ineffective for failing to present evidence that he was suffering from PTSD at the time of the shootings. He contends that he ‘suffered a history of exposure to actual or threatened serious injury and physical and sexual violence,’ including childhood sexual assault and beating at Vacca [Alabama Department of Youth Services Campus]; that he experienced multiple symptoms consistent with PTSD; and that counsel's failure to retain a trauma expert resulted in him not being diagnosed with PTSD at trial. Woolf further claims that but for counsel's ineffectiveness, he would not have been convicted of capital murder or sentenced to death.

“There is no evidence in the record as to what trial counsel knew about Woolf's alleged trauma and PTSD because Woolf failed to call counsel to testify at the evidentiary hearing. Thus, this Court ‘view[s] trial counsel's actions as strategic decisions, which are virtually unassailable.’ McGahee [v. State], 885 So. 2d [191] at 221-22 [(Ala. Crim. App. 2003)].

“Moreover, Woolf failed to identify how counsel should have known more details of his supposed trauma and need for a trauma expert. Woolf was evaluated by two qualified psychologists prior to trial, Dr. [Doug] McKeown and Dr. [Thomas] Bennett, neither of whom diagnosed him with PTSD. Even as late as 2019, when Dr. [Glen] King evaluated him, Woolf did not mention ․ the sexual and physical abuse he now alleges occurred during his childhood and adolescence -- indeed, he categorically denied sexual abuse. Counsel were not ineffective for relying on Dr. Bennett and not seeking out a different expert to diagnose Woolf with PTSD.

“Indeed, the only potential sources of information identified in Woolf's amended petition are a trauma expert -- potentially Dr. Ghannam -- and Woolf himself. The allegations he has made in recent years about his grandfather, the neighborhood boys, and the guards and other inmates at Vacca all concern information within his knowledge. As Woolf was the source of the facts alleged, he failed to show how counsel were ineffective for not coaxing this information from him.

“Further, the experts disagree as to whether Woolf actually has PTSD. As discussed above, Drs. [Bhushan] Agharkar, [Jess] Ghannam, and [Mikel] Matto believe he does, while Dr. King does not. While Drs. Ghannam and Matto administered the Adverse Childhood Experience Score (ACES) to Woolf, Dr. King opined that this test ‘has no validity or liability whatsoever’ because it is subjective, has no validity check for malingering, and ‘encourages respondents under these circumstances to answer in the affirmative to any adverse childhood experiences.’ It is telling that Woolf scored 5 or 5 when Dr. Matto administered the ACES to him but 7 when Dr. Ghannam did. Woolf failed to prove that trial counsel were ineffective for not offering more evidence of his alleged PTSD at trial.”

(C. 1472-73.)

In discussing a counsel's failure to present PTSD evidence at trial, one federal court has stated:

“[S]everal courts have addressed factual scenarios similar to the case at hand, concluding that counsel's failure to discover that a defendant suffered from PTSD was not ineffective assistance of counsel under Strickland when counsel, like [Christina] Wedding, had investigated the defendant's history and had no reason to suspect the existence of PTSD. See, e.g., Campbell v. Coyle, 260 F.3d 531 (6th Cir. 2001) (holding that counsel's failure to investigate and discover petitioner's PTSD was not ineffective assistance of counsel when a clinical psychologist failed to diagnose the petitioner as suffering from PTSD and when counsel investigated the petitioner's history); Taylor v. Mitchell, 296 F. Supp. 2d 784 (N.D. Ohio 2003) (holding that counsel's failure to investigate and discover petitioner's PTSD was not ineffective assistance of counsel after a forensic psychologist failed to diagnose him as suffering from PTSD). ․

“Additionally, in Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992), this court found that the petitioner's trial counsel, who knew of the petitioner's PTSD, was not ineffective for failing to investigate and present evidence of his PTSD, since counsel did not believe that his crime fit with the characteristics of PTSD and made a strategic choice not to pursue a PTSD trial strategy. If the trial counsel in Black was not ineffective in choosing not to use documented proof of his client's PTSD, Wedding cannot be faulted for failing to pursue a PTSD defense, especially in light of the fact that Dr. [William] Crommack's evaluation and Wedding's reasonable investigation indicated that Easley did not suffer from PTSD. Accordingly, the district court correctly found that the state habeas court did not err when it concluded that Wedding did not render ineffective assistance of counsel by failing to investigate further a PTSD defense.”

Easley v. Dretke, 122 F. App'x 124, 129-30 (5th Cir. 2005).

The two experts who evaluated Woolf before his trial did not diagnose him with PTSD. Also, Dr. King testified that he did not believe that Woolf has PTSD. Without knowing that counsel was informed about this condition, we cannot say that counsel's failure to present this evidence was unreasonable. This claim was properly denied by the circuit court. Thus, Woolf is due no relief on this claim.

For the reasons detailed in Part I of this opinion, we reverse the circuit court's order insofar as it finds that Woolf is intellectually disabled, and we remand this case to the Mobile Circuit Court for that court to reinstate Woolf's sentence of death. We affirm the circuit court's denial of Woolf's claims in his cross-appeal.

APPEAL -- REVERSED AND REMANDED.

CROSS-APPEAL -- AFFIRMED.

I concur with respect to Part II of the main opinion, addressing Michael Woolf's cross-appeal. Further, I agree with the main opinion's conclusion that Woolf did not demonstrate that he was intellectually disabled in support of his claim that Atkins v. Virginia, 536 U.S. 304 (2002), renders his death sentence unconstitutional. Consequently, I concur in the result with respect to Part I of the main opinion, addressing the State's appeal. I write specially to discuss my partial disagreement with the main opinion's reasoning and to address other issues intertwined with Woolf's Atkins claim.

Specifically, I disagree with the main opinion to the extent that it relies upon the application of “the so-called Flynn Effect -- a controversial theory involving the inflation of IQ scores over time.” Dunn v. Reeves, 594 U.S. 731, 736 (2021). In its evaluation of Woolf's IQ scores, the main opinion elects to “adjust ․ two outdated IQ tests using the Flynn Effect.”²⁵ ___ So. 3d at ___. Adjusting individually obtained IQ scores is neither warranted nor necessary here. Neither the Alabama Supreme Court nor the United States Supreme Court have held that the so-called Flynn Effect must be applied to individually obtained IQ scores. Indeed, quite recently, the United States District Court for the Middle District of Alabama recognized the scientific debate surrounding Dr. Flynn's work and declined to apply the Flynn Effect. In Bush v. Lovelace (No. 2:12-CV-345-RAH, Sept. 30, 2026) (M.D. Ala. 2026) (not published in Federal Supplement), the district court noted:

“In sum, the expert testimony, as well as the academic literature referenced at the hearing, made clear that, while there is generally no dispute about the empirical existence of the Flynn Effect at the population level, there is disagreement within the profession about whether the Flynn Effect should be employed to adjust obtained individual IQ scores and how to do so.”

Neither the main opinion nor Woolf point to evidence that it is common practice in the psychological field to lower individually obtained IQ scores to account for the Flynn Effect in any context other than in death-penalty cases. For instance, Dr. Glen King, the State's expert witness, testified that he did not know of any colleagues who made Flynn adjustments, and that it was not part of the protocol for the Social Security evaluations that he performs for the federal government. (R. 708.)

To be sure, on direct examination Dr. Ouaou testified that he makes Flynn adjustments in some cases, and he made the bare assertion that the “need to adjust for the Flynn Effect [is] widely accepted among neuropsychologists.” (R. 467.) His own opinion is all very well and good, but Dr. Ouaou provided very little professional context for it. He did not identify any other psychological experts who adjust scores for the Flynn Effect, and he did not explain exactly what the “needed adjustment” was. When asked on direct examination for articles that “recognize the need” to adjust scores according to Dr. Flynn's theory, Dr. Ouaou simply said that there were a “plethora of articles” that did so without specifying any such articles. (R. 465.) Dr. Ouaou did point to two specific sources: the DSM-IV-TR and the AAIDD manual. But only the AAIDD manual appears to directly call for a Flynn adjustment. The DSM-IV-TR, for its part, mentions the Flynn Effect as a possible concern, but it does not instruct evaluators to adjust individually obtained scores. (R. 532-533.)

On cross-examination, Dr. Ouaou conceded that the manual for administering and scoring the WAIS-IV does not include instructions to perform a Flynn adjustment. (R. 543.) Instead, he testified that the Flynn Effect is more of a “caveat as it is in the DSM to consider when considering the accuracy of the score using a test with outdated norms.” (Id.) But, as Dr. Ouaou acknowledged, Dr. Flynn himself published an article noting a reversal of the Flynn Effect in Northern Europe -- the area where Dr. Flynn drew his original data. (R. 544-545, 546.)

The State also asked Dr. Ouaou about specific scientific articles setting out the case against making Flynn Effect adjustments. One of these, titled “Adjusting IQ Scores for the Flynn Effect,” concluded that “adjusting obtained scores ․ on the basis of the [Flynn Effect] do[es] not represent the convention and custom in psychology.” (C. 1883.) Another, titled “Science Rather Than Advocacy When Reporting IQ Scores,” recognized that the Flynn Effect was one factor that “might impact the reliability and validity” of an obtained score, but advised against the formulaic three-points-per-decade adjustment favored by Dr. Ouaou because “the magnitude and direction of [shifting IQ scores in a population] are not predictable” and “the degree to which group mean score shifts may impact an individual's score is incalculable.” (C. 1886, 1889.)

Nonetheless, Dr. Ouaou was unmoved in Woolf's case because, he said, “there are a plethora of articles currently that support the rise of testing scores in the United States that much outweigh those other articles.” (R. 565.) None of the articles included within Dr. Ouaou's “plethora” was identified or made part of the record, so this Court has no way of knowing whether any of them called for individual Flynn adjustments to obtain scores. In short, Dr. Ouaou's opinion tells us very little beyond what he personally believes and practices.

I do not believe, however, that an issue as important as the proper application of the Flynn Effect should rest on the ipse dixit of a single expert witness.²⁶ See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (explaining that “nothing in either Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),] or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.”); United States v. Frazier, 387 F.3d 1244, 1261 (2004) (quoting Fed. R. Evid. 702 Advisory Committee's Notes (2000 amends.)) (explaining that a trial court's “gatekeeping function requires more than simply ‘taking the expert's word for it.’ ”).

I consider it especially significant that Dr. Ouaou's dismissal of the indications that the Flynn Effect may have “faltered” was based on the fact that the data is from “other places than the United States.” (R. 565.) But Dr. Ouaou ignores the fact that the very existence of the Flynn Effect as an observed phenomenon was based on data from outside the United States. (R. 707.) I cannot see how an expert could dismiss such data as suspect or unreliable in one instance but embrace it in another except through ipse dixit.

Finally, Dr. Ouaou was questioned about whether, as indicated by a 2023 article, “research is limited regarding if the Flynn Effect, or its reversal, is a current phenomenon in the United States.” (R. 545.) This strikes closer to the mark than Dr. Ouaou's bland assurances. It seems clear that Dr. Flynn observed something in the data he reviewed, and there does not seem to be any genuine question that IQ testing instruments need to be periodically normed to accurately reflect where a given subject's score falls in relation to deviations from the mean. See Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010) (“The Flynn effect is a statistically-proven phenomenon, although no medical association recognizes its validity.”) But given the uncertainties in the courts and in the psychological field, and the record before us, I do not believe that warrants the adoption of the practice of adjusting individually obtained IQ scores to account for an observed phenomenon as unstable and questionable as the “so-called Flynn Effect.” Dunn, 594 U.S. at 736.

Moreover, these debates over how a single obtained score should be evaluated begin to lose some of their significance when we consider a situation, such as in this case, in which there exists a wealth of IQ measures taken across the span of Woolf's life. As the main opinion notes, Woolf's scores included an 87 in 1987, a 78 in 1990, an 85 in 1992, an 83 in 1993, and a 91 in 1994. Then, in 2009, after he was charged with capital murder, another round of testing occurred. Woolf scored a 74 in 2009, a 78, in 2019, an 84 in 2019, and a 78 in 2022. After accounting for the standard error of measurement (“SEM”), only one of those scores -- the 74 obtained “in the lead up to his original trial,” could fall more than two standard deviations from the mean at 69, and only then at the lower end of the SEM. (C. 1495.) But that adjusted 69 is no more likely to be a measure of Woolf's true IQ score on that particular test than is the upper end of the SEM at 79.²⁷ In short, considering the range of Woolf's scores, it is a virtual certainty that Woolf's true IQ is considerably higher than 69. In cases such as this, when multiple, valid IQ scores place a defendant's IQ score well above 70, I concur with Justice Alito's observation that,

“[w]hen a defendant has multiple IQ scores, it is indefensible to use the lower bound of his lowest score to determine whether his ‘true’ IQ is 70 or below. Such an approach contravenes basic principles of psychological measurement and statistics.”

Hamm v. Smith, 608 U.S. 278, 325 (2026) (Alito, J., dissenting).

Nor does Hall v. Florida, 572 U.S. 701 (2014), compel such an approach. See Moore v. Texas, 581 U.S. 1, 15 (2017) (requiring courts to “continue the inquiry and consider other evidence of intellectual disability where an individual's IQ score, adjusted for the test's standard error, falls within the clinically established range for intellectual-functioning deficits”). As Justice Thomas recently explained, “Hall did not tell courts what to do when low scores whose error ranges touch 70 are paired with multiple higher scores whose error ranges do not.” Hamm, 608 U.S. at 307 (Thomas, J., dissenting).

In Hall, the Supreme Court observed that multiple scores might not be “conclusive evidence of intellectual functioning” because “the test itself may be flawed, or administered in a consistently flawed manner.” 572 U.S. at 714. In this case, by way of contrast, we have multiple scores on at least 4 different tests, by different examiners, and occurring over a period of more than 30 years. In sum, Woolf's situation is a far different scenario than the hypothetical concerns the Court expressed in Hall. Here we have “other evidence” of Woolf's true intellectual ability in the form of multiple evaluations over the span of 30-plus years -- something not presented to the Court in Hall. Recognizing that a defendant with a range of scores like those in the present case does not have an intellectual disability, as that term (and its predecessor term, “retardation”) have been defined by the decisions of Alabama's courts and the United States Supreme Court, would not be the sort of “mandatory cutoff” that the Court rejected in Hall. See Hall, 572 U.S. at 712. Rather, it would be a recognition that, as the DSM-IV-TR cautioned, “intellectual assessment using multiple IQ or other cognitive tests to create a profile are more useful for understanding intellectual abilities than a single IQ score.” (R. 534.) For these reasons, I agree with the main opinion's conclusion that “Woolf's IQ scores, taken as a whole, do not support a finding that he has significantly subaverage intellectual functioning.” ___ So. 3d at ___.

Finally, on a somewhat related issue, I write to address the SEM discussed in the main opinion. Clearly, Hall recognized that courts must consider the SEM when evaluating IQ scores. But it strikes me as odd that Hall, which held that “Courts must recognize, as does the medical community, that the IQ test is imprecise,” was so imprecise regarding what the SEM actually is. Hall, 572 U.S. at 723. As the main opinion recognizes, Hall does not indicate whether courts should apply the SEM for a particular test or a “rule of thumb” SEM of +/- 5 points. See United States v. Wilson, 170 F. Supp. 3d 347, 362 (E.D. N.Y. 2016) (“Unfortunately, Hall does not provide clear guidance with respect to how lower courts should apply [the SEM] in practice.”). Using a “rule of thumb” SEM may have the effect of overstating the imprecision of any particular IQ measure. Bush, No. 2:12-CV-345-RAH, Sept. 30, 2026 (M.D. Ala. 2026) (“the ‘rule of thumb’ SEM of +/-5 points overstates any ‘cumulative’ SEM in Petitioner's favor.”). If scientific precision is the target for which courts should aim, then we should look not to rules of thumb but the actual SEM for each IQ test. If the SEM for the test on which Woolf scored a 74 is “plus or minus 5 points,” then the SEM would place the lower end of the range of possibility below 70. (R. 846-47.) But what if the precise SEM is not +/- 5? What if it is more?²⁸ Or less?²⁹ These are questions that the Supreme Court has left unanswered and with which lower courts must grapple.

Because I disagree with the main opinion's Flynn adjustment to Woolf's childhood IQ scores, and because of my other concerns with respect to the calculation of Woolf's IQ scores undertaken by the majority, I respectfully concur in the result as to Part I, addressing the State's appeal.

FOOTNOTES

1.   A review of the record shows that the delay in this case was caused by changes in postconviction counsel and scheduling delays necessitated by the COVID-19 pandemic.

2.   The State has notified this Court of a recent decision released by the United States District Court for the Middle District of Alabama, Bush v. Lovelace, (No. 2:12-CV-345-RAH, September 30, 2026) (M.D. Ala. 2026) (not published in Federal Supplement), in which the court addressed multiple IQ scores in relation to an Atkins v. Virginia, 536 U.S. 304 (2002), claim. In Bush, the inmate's six IQ scores ranged from 63 to 81, and the court denied habeas relief, finding that Bush did not meet the definition of intellectually disabled adopted by the Alabama Supreme Court pursuant to Atkins. The Bush court also declined to apply the Flynn Effect and noted: “[I]t does not appear that the application of the Flynn Effect here produces greater certainty about what is [Bush's] true level of intellectual functioning.” The holding in Bush is not inconsistent with our holding today.

3.   This is the date that the report by Dr. Robert G. Cook was completed; it is not the date that the test was administered. However, the report states that Woolf had recently celebrated his 14th birthday. Given that Woolf's birthday is October 21, we know that this test was administered between October 21 and November 11. (C. 1545.) For clarity, we use the date of the report.

4.   On June 12, 2009, Woolf was also evaluated by Dr. Doug McKeown before trial to determine his competency at the time of the murders and his competency to stand trial. (C. 1571-77.) This report does not indicate that Dr. McKeown administered an IQ test. The report does show that Woolf was competent.

5.   “It is ․ often suggested that the Stanford-Binet is more challenging than Wechsler tests. AAMR [American Association on Mental Retardation] 58 (10th ed. 2002).” Simpson v. Quarterman, 593 F. Supp. 2d 922, 942 n.21 (E.D. Texas 2009).

6.   We note that in the circuit court's order, the court quotes the Diagnostic and Statistical Manual, Fifth Edition, definition of intellectual disability and not the definition that the Alabama Supreme Court adopted in Perkins and further refined in Smith. Specifically, the three factors to consider are: (1) significantly subaverage intellectual functioning (i.e., an IQ of 70 or below); (2) significant or substantial deficits in adaptive behavior; and (3) the manifestation of these problems during the defendant's developmental period (i.e., before the defendant reached age 18). However, in Smith, the court added that, in “order for an offender to be considered mentally retarded in the Atkins context, the offender must currently exhibit subaverage intellectual functioning, currently exhibit deficits in adaptive behavior, and these problems must have manifested themselves before the age of 18.” Smith, 213 So. 3d at 248 (emphasis added). The circuit court does cite Perkins and Smith, but it does not quote the relevant Smith holding. (C. 1490.)

7.   Dr. Ghannam did not personally meet with Woolf but spoke to him on the telephone on several occasions. (R. 797-98.)

8.   Tennessee has codified the procedure for addressing “[i]ntellectually disabled defendants; capital punishment” by adopting Tenn. Code Ann., § 39-13-203.

9.   As the American Association on Intellectual and Developmental Disabilities states: “An IQ score is subject to variability as a function of a number of potential sources of error, including variations in test performance, examiner's behavior, cooperation of the test taker, and other personal and environmental factors. ․ The term standard error of measurement ․ is used to quantify this variability.” Intellectual Disability: Definition, Classification, and Systems of Support 36 (11th ed. 2010).

10.   “[T]he most current versions of a test should be used at all times and, when older versions of the test are used, the scores must be correspondingly adjusted downward.” Coleman v. State, 341 S.W.3d 221, 242 n.55 (Tenn. 2011).

11.   For purposes of the Social Security Act, 42 U.S.C. § 301 et seq., a psychometrist is not an accepted medical source for establishing disability and ta psychometrist's findings are not entitled to the same weight as an examining psychologist. See Giles ex rel. Dowdell v. Barnhart, 182 F. Supp. 2d 1195, 1198 (M.D. Ala. 2002).

12.   We could find only one prior IQ test that Woolf had been given where the person who administered that test was not identified. That was the first test that Woolf took when he was eight years old. (C. 1540.)

13.   The circuit court used Dr. King's prior testimony in unrelated cases to attack his credibility but declined to do the same in regard to Dr. Ouaou. Dr. Ouaou was questioned extensively on cross-examination about his testimony in the federal case of United States v. Madison, (No. 6:17-cr-15-Orl-37LRH, Oct. 29, 2020) (M.D. Fla. 2020) (not reported in Federal Supplement). In that case, the federal court stated: “Dr. Ouaou repeatedly attempted to use shock value as opposed to validated testimony theory and analysis, to convince me that Madison was severely cognitively impaired. Dr. Ouaou further exhibited his defense bias in his analysis of the ‘practice effect.’ Every time Madison demonstrated an increase in any of his cognitive test scores, Dr. Ouaou attributed that increase to the ‘practice effect,’ even where the increase was outside any known possible range that could be attributable to such an effect.” The same criticism is applicable in this case. Whenever Dr. Ouaou was presented with testimony about Woolf's increased IQ scores, he merely stated “practice effect” with little or no explanation.

14.   “ ‘Decisions of federal courts other than the United States Supreme Court, though persuasive, are not binding authority on this Court.’ ” State v. Crossman, 687 So. 2d 817, 820 (Ala. Crim. App. 1996) (quoting Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165 n.2 (Ala. 1991)).

15.   Dr. Ouaou adjusted his 78 score for the Flynn Effect and reported that score as 74.

16.   As stated previously, Dr. Ouaou testified that, when applying the Flynn Effect, you discount a score by .3 for every year after the test was published or normed. The WISC-R was published in 1972, United States v. Davis, 611 F. Supp. 2d 472, 489 n.13 (D. Md. 2009); the WISC-III was published in 1991, Simpson v. Quarterman, 593 F. Supp. 2d 922, 928 (E.D. Texas 20009); the WAIS-IV was published in 2008, Ex parte Cathey, 451 S.W.3d 1, 19 (Tex. Crim. App. 2014); and the SB-5 was published in 2003, Holladay v. Allen, 555 F. 3d 1346, 1350 n.4 (11th Cir. 2009). Dr. Ouaou applied the Flynn Effect to his score when presenting it to the court.

17.   Anna testified that she and Woolf have the same father.

18.   The circuit court did not make this same criticism about the test that was administered to Woolf's mother and half sister even though the same period of time had passed.

19.   The MRI/PET scan was ordered by Dr. Agharkar.

20.   Based on other documents in the record, it appears that CDL is a reference to a Commercial Driver's License.

21.   Justice Sotomayor noted in her concurrence in Hamm v. Smith, 608 U.S. at 279, that there is no consensus on the use of multiple IQ scores but that of taking an average score from all of the multiple scores, taking a median score, or using the highest score has all been suggested.

22.   Rule 32.9(a), Ala. R. Crim. P., addresses the filing of affidavits in lieu of testimony.

23.   We have taken judicial notice of our records in Woolf v. State, 220 So. 3d 338 (Ala. Crim. App. 2014). See Hamm v. State, 439 So. 2d 829, 831 (Ala. Crim. App. 1983).

24.   Woolf appeared to have no difficulty in answering questions posed to him by both defense counsel and the prosecutor.

25.   Additionally, the main opinion appears to give credence to Dr. Robert Ouaou's testimony that, in reporting Woolf's score on the WAIS-4, he deducted four points to account for the Flynn Effect. In my view, a court should not outsource its decision on whether to apply the Flynn Effect to obtained scores by simply accepting an adjusted score proffered by a witness, even one qualified as an expert.

26.   This is especially true where, as here, there is evidence indicating that the federal government does not recognize the Flynn Effect when determining an ordinary citizen's right to federal disability benefits. It cannot be that ordinary citizens are not entitled to the application of the Flynn Effect for the purpose of federal law when the federal purse is involved while convicted murderers are entitled to the most favorable application of the Flynn Effect under federal law as interpreted by the United States Supreme Court.

27.   Notably, the Eleventh Circuit Court of Appeals has “unambiguously reject[ed] any suggestion that a court may ever conclude that a capital defendant suffers from significantly subaverage intellectual functioning based solely on the fact that the lower end of the standard-error range for his lowest of multiple IQ scores is 69.” Smith v. Comm'r, Ala. Dep't of Corrs. (No. 21-14519, Nov. 14, 2024) (11th Cir. 2024) (not published in Federal Reporter), cert. granted in part, Hamm v. Smith, 145 S. Ct. 2776, 222 L. Ed. 2d 1075 (2025), and cert. dismissed as improvidently granted, Hamm v. Smith, 608 U.S. 278, 146 S. Ct. 1251, 224 L. Ed. 2d 778 (2026).

28.   The record before us indicates that the SEM for the WISC-3 was +/- 7 points. (R. 557.)

29.   The record before us indicates that the SEM for the WISC-R was +/- 3 points. (R. 549.) Indeed, the SEM on some measures is as low as “plus or minus 2.” (R. 450.)

KELLUM, Judge.

Windom, P.J., and Minor, J., concur. Anderson, J., concurs in part and concurs in the result, with opinion. Cole, J., concurs in the result.