Submitted: January 11, 2018 
from United States District Court for the Eastern District of
Arkansas - Pine Bluff
SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
more our Court faces the task of deciding whether Petitioner
Alvin Bernal Jackson was improperly denied habeas corpus
relief. This is Jackson's third appeal to this Court
seeking a finding that he is intellectually disabled under
Ark. Code Ann. § 5-4-618(a)(1), which, in accordance
with the Supreme Court's decision in Atkins v.
Virginia, would exempt him from the death penalty.
Atkins, 536 U.S. 304, 321 (2002) (finding "that
death is not a suitable punishment for a mentally retarded
criminal"). Jackson argues that the district court erred
by creating and applying an additional intellectual
disability test not present in either § 5-4-618(a) or
Atkins and by applying the diagnostic criteria from
the DSM-V rather than the DSM-IV. When the district
court conducted its evidentiary hearing and issued its order,
it did not have the benefit of the Supreme Court's
decision in Moore v. Texas, 137 S.Ct. 1039 (2017).
Because the Court in Moore gave significant
instructions on how to analyze Atkins claims, we
reverse and remand for the district court to consider
Jackson's claims in light of that decision.
1990, Jackson was convicted for the capital murder of Charles
Colclasure and sentenced to life in prison. While serving his
sentence, Jackson killed Scott Grimes, a prison guard with
the Arkansas Department of Correction. In 1996, he was
convicted for the capital murder of Grimes and sentenced to
2003, Jackson filed a petition pursuant to 28 U.S.C. §
2254 raising an Atkins claim and asking that the
court find him intellectually disabled and thus ineligible
for the death penalty. Larry Norris, the former Director of
the Arkansas Department of Correction, filed a motion for
summary judgment claiming that Jackson's claim was
procedurally defaulted and without merit. In 2007, the
district court dismissed Jackson's claim as procedurally
defaulted and denied Jackson's motion for a certificate
of appealability. We granted Jackson a certificate of
appealability on his Atkins claim and reversed and
remanded the matter to the district court. Jackson v.
Norris, 256 Fed.Appx. 12 (8th Cir. 2007) (per curiam)
remand, the district court ordered Jackson to respond to
Norris's pre-appeal summary judgment motion. Jackson
responded and filed a motion for discovery and funds to
retain experts. In 2009, the district court granted
Norris's motion for summary judgment and dismissed
Jackson's Atkins claim on the merits. Jackson
again appealed, and we reversed and remanded, finding that
Jackson was entitled to an Atkins hearing.
Jackson v. Norris, 615 F.3d 959 (8th Cir. 2010).
remand, the district court granted Jackson's motion for
discovery and funds to retain experts. The court conducted an
evidentiary hearing and heard from two experts: Dr. James
Moneypenny, Jackson's expert, and Dr. Gilbert S.
Macvaugh, III, Kelly's expert. The district court issued
a detailed opinion, walking through the several tests
administered to Jackson throughout his lifetime and the facts
surrounding Jackson's crimes and incarceration. The court
decided that the DSM-V definition of intellectual disability
was the appropriate standard to use to determine whether
Jackson was intellectually disabled. After parsing the DSM-V
standard and the evidence presented at the hearing, the
district court decided to credit Dr. Macvaugh's clinical
opinion and found that Jackson was not intellectually
disabled. Jackson now appeals.
essentially makes two arguments on appeal. First, he argues
the district court erred in analyzing § 5-4-618(a) when
it determined that he is not intellectually disabled. Second,
he contends the district court erred in applying the
DSM-V's intellectual disability standard rather than the
DSM-IV's because the DSM-V was not published at the time
of his hearing.
argues that the district court erred in finding that he was
not intellectually disabled and is therefore eligible for the
death penalty. "The legal standard applicable to an
Atkins claim presents a pure question of law, which
we review de novo. Whether an individual is mentally retarded
under the applicable legal standard, however, is a pure
question of fact, which we review for clear error."
Sasser v. Hobbs, 735 F.3d 833, 841-42 (8th Cir.
2013) (internal citations omitted).
Arkansas statute barring the execution of persons with an
intellectual disability defines intellectual disability as
(A) Significantly subaverage general intellectual functioning
accompanied by a significant deficit or impairment in
adaptive functioning manifest in the developmental period,
but no later than age eighteen (18) years of age; and (B)A
deficit in adaptive behavior.
§ 5-4-618(a)(1). "[T]he Arkansas Supreme Court has
consistently construed [this statute] to be concurrent with
the federal constitutional right established in
Atkins." Sasser, 735 F.3d at 842.
Jackson bears the burden of proving his intellectual
disability "by a preponderance of the evidence."