181678P.pdf   06/02/2021  Andrew Sasser  v.  Dexter Payne
   U.S. Court of Appeals Case No:  18-1678
                          and No:  18-1768
   U.S. District Court for the Western District of Arkansas - Texarkana   
   [PUBLISHED] [Colloton, Author, with Gruender and Grasz, Circuit Judges] 
   Habeas Corpus - Death Penalty. For previous appeal, see Sasser v. Hobbs, 
   735, F. 3d 833 (8th Cir. 2013). Case was remanded on claim Sasser was 
   ineligible for the death penalty due to intellectual disability and four 
   claims of ineffective assistance of counsel. On remand, the district court 
   granted relief on two claims of ineffective assistance of counsel and 
   denied the Atkins v. Virginia claim. Both sides appeal. Two claims of 
   ineffective assistance of counsel were remanded to determine if any 
   procedural default could be excused based on ineffective state 
   postconviction counsel. The district court characterized the claims on 
   remand differently and concluded neither was fairly presented in the state 
   postconviction Rule 37 petition and thus the default was excused. This is 
   error, as the claims the district court characterized on remand were 
   different claims, not previously pleaded, and constituted new unauthorized 
   second or successive claims. The two claims remanded were fairly presented 
   in the Rule 37 motion and then abandoned on appeal and thus the alleged 
   ineffective assistance of postconviction counsel was not cause to excuse 
   the procedural default; the claims identified by the district court were 
   not presented in the first federal habeas petition and barred as second or 
   successive. On Sasser's claim of ineligibility for execution based on 
   intellectual disability, the district court considered Sasser's IQ scores, 
   together with whether Sasser had proven a significant deficit or 
   impairment in adaptive functioning that manifested no later than age 
   eighteen. The court analyzed the claim under the framework of the both 
   DSM-IV-TR and DSM-V, and concluded Sasser was not intellectually disabled 
   at the time he committed his offense of murder. The district court did not 
   err by considering additional indicia of intellectual disability, 
   permissibly considered expert testimony or statements from people who knew 
   Sasser during his developmental years, did not err in considering his 
   adaptive strengths, did not balance unconnected strengths against 
   weaknesses or weigh evidence across skill domains, and properly found his 
   functioning in prison was consistent with his functioning in uncontrolled 
   settings. The district court did not err in considering any adaptive 
   functioning deficits beyond the developmental period and properly analyzed 
   whether Sasser demonstrated intellectual disability at a relevant point of 
   time. The denial of relief on his Atkins claims is affirmed.