Don William DAVIS, Petitioner-Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Defendant-Appellee, 423 F.3d 868

MURPHY, Circuit Judge. Don William Davis was convicted of capital murder in Arkansas and sentenced to death. His conviction and sentence were affirmed on direct appeal, and his petition for postconviction relief in state court was denied. He then filed this petition for writ of habeas corpus under 28 U.S.C. § 2254. The district court denied his petition as well as a certificate of appealability. We granted a certificate of appealability on two issues and now affirm. I. Jane Daniel was found dead in her home from a shot to the back of her head.

Several items of jewelry and other property were missing from the home. Investigators later discovered that Davis had pawned some of Daniel’s property and had hidden the murder weapon in his bedroom. Davis was charged in an information with capital murder, burglary, and theft of property in November 1990. The state alleged that he had killed Daniel during the commission of a robbery or alternatively that he had killed her with premeditated and deliberate purpose. Davis was declared indigent by the state trial court and pled not guilty and not guilty by reason of mental disease or defect.

Arkansas law requires a trial court to suspend proceedings and order an examination when a defendant’s mental disease or defect becomes or is likely to become an issue. A.C.A. § 5-2-305. The circuit court ordered Dr. Travis Jenkins, a psychiatrist at a regional mental health clinic, to examine Davis and to submit a report as to whether there were reasonable grounds to believe that Davis was insane then or at the time of the offense. Dr. Jenkins met with Davis for about an hour and ten minutes and conducted a standard psychiatric interview and mental status examination.

Jenkins concluded that while there was no evidence that Davis was incompetent or psychotic, there was evidence of residual attention deficit hyperactivity disorder (ADHD). According to Jenkins’ report, ADHD was “not a mental disorder or defect to the degree of criminal irresponsibility,” but it “could have contributed to the commission of the alleged offense.” Davis then moved for a complete examination at the Arkansas State Hospital, contending that the Jenkins report failed to comply with the requirements of state law and that further evaluation was warranted to develop evidence of mitigating circumstances.

The state joined the motion, and the court ordered Davis committed to the Arkansas State Hospital for a thirty day evaluation as provided by state law. In its order the court specifically ordered the hospital to address whether Davis committed the offense while he was under extreme mental or emotional disturbance or unusual pressures or influences, although such an assessment of mitigating circumstances is not required under state law.

The state hospital submitted a report to the trial court stating that Davis was competent to stand trial and did not lack the capacity to conform his conduct to the requirements of law at the time of the crime. The hospital evaluation was based on interviews with Davis, telephone interviews with Davis’ father and uncle, a review of Davis’ medical history and records from his school years, physical and neurological examinations, and laboratory and other physical studies.

Davis received a psychological assessment by a staff psychologist and a psychiatric assessment that included the Minnesota Multiphasic Personality Inventory (MMPI) and the Competency to Stand Trial Assessment Instrument. The report contained diagnoses of alcohol abuse, psychoactive substance abuse, and antisocial personality disorder. It did not address whether there were any mitigating circumstances. After receiving the state hospital report, Davis moved for funds to hire an independent psychiatric examiner.

He asserted that his mental condition would be a significant factor at the penalty phase of his trial and that under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), he was entitled to an independent examination to help him develop and present mitigating evidence for any sentencing hearing. He argued that the evaluation at the state hospital was insufficient because it failed to address mitigation factors and because it was undertaken on behalf of the court and was not protected by physician patient confidentiality or evidentiary privilege.

Davis amended this motion to name the clinical psychologist Dr. Marr as the expert he wished to hire and requested $2,000 for his employment. The court denied the motion, and the case went to trial. Davis did not rely on an insanity defense, and the jury convicted him of capital murder, burglary, and theft. The defense called Dr. Jenkins to testify at the penalty phase of the trial. Jenkins testified that Davis had ADHD and probably had a history of substance abuse. He testified in general about the symptoms of ADHD and stated that Davis had been treated with medication for ADHD at some point as a child.

Jenkins testified that one in five people with ADHD will have significant problems either with substance abuse, psychiatric difficulties, or legal difficulties and that a person with ADHD is eleven times as likely to be arrested by the time he is 17 years old.

He said that when combined with an unstable environment, childhood abandonment, and drug abuse, ADHD might cause a person to “get into situations through their impulsivity and poor judgment more quickly than perhaps someone without the disorder so that they — even though they might know that something is right and wrong, they might be in the middle of it before they recognize how right and wrong it is and the consequences of it.” Dr. Jenkins testified that emotional maturity is impaired through serious drug abuse and that Davis had a history of drug abuse starting in childhood.

He stated that Davis had told him he was raised by his grandmother after being deserted by his parents. Defense counsel asked Dr. Jenkins about his review of the report prepared by the Arkansas State Hospital, and Jenkins stated that its conclusions were not significantly different from his. He pointed out that the report had made references to dyslexia and learning disabilities and that it said Davis began using drugs and alcohol by the age of 12.

Counsel asked Jenkins if he believed that Davis’ behavior could have been modified if had received treatment at a younger age, and Jenkins responded, “I would have hoped so.” On cross examination Jenkins testified that, based on his examination, it was his opinion that Davis knew right from wrong at the time he committed the offense, that he was able to appreciate the criminality of his conduct, and that if he killed Daniel, he would have been aware of his actions and would have known he was killing her. The prosecutor also questioned Jenkins about the state hospital report.

Jenkins stated that he agreed with its conclusions that Davis was not psychotic at the time of the offense and that he was capable of conforming his actions to the requirements of law, although that would have been more difficult for Davis than for someone without ADHD. Jenkins testified that he found Davis to be of average or above average intelligence and that he was able to converse with him in an intelligent manner.

He said that Davis had told him he had been diagnosed with ADHD and treated with medication as a child, but he had not reviewed any of Davis’ medical or school records and did not know if he had received additional treatment. He stated that he was not able to interview Davis about the specific circumstances of the crime because he was concerned about incriminating himself, but that he found Davis to be totally responsible for any criminal activity he may have carried out.

On redirect Jenkins testified that drug abuse in a person with ADHD “complicates” judgment and impulsivity and that a person with ADHD who knows the difference between right and wrong may have difficulty conforming his actions. On recross he testified that Davis was intelligent enough to plan a burglary and to make the decision to rob a person at gunpoint. He was again asked about the state hospital report and affirmed that it reported that Davis had been incarcerated for most of his life after the age of sixteen.

Jenkins responded affirmatively to questions about whether Davis had the intelligence to understand that there was a good likelihood that he would be incarcerated if he were convicted and whether he had the intelligence to realize that killing an eyewitness might make it more difficult for the authorities to convict him. Davis called four other witnesses to testify at sentencing. A counselor who had visited Davis in jail testified that his depression and failure to eat while there could be consistent with guilt or remorse.

Davis’ father and uncle testified about his family background and stated that he had been abandoned by both parents soon after birth and lived with his grandmother until she sent him to a boys ranch when he was thirteen. Davis’ sister testified about his background and lack of treatment for ADHD and about her own child who had been diagnosed with ADHD and the type of treatment he receives. Davis also introduced records from school and the boys ranch. The court instructed the jury regarding the statutory aggravating circumstances and gave it a form listing them. See A.C.A. § 5-4-604.

The court told the jury that the aggravating circumstances were specified by law, that they were the only aggravating circumstances it could consider, and that the state had the burden of proving beyond a reasonable doubt that one or more of the listed aggravating circumstances existed at the time of the capital murder. The jury found two statutory aggravating circumstances. It found that Davis had committed the murder for pecuniary gain and to avoid arrest or effect an escape from custody.

Although at least one member of the jury found that Davis’ lack of treatment for ADHD was a mitigating factor, the jury found that the aggravating factors outweighed beyond a reasonable doubt any mitigating circumstances and that a death sentence was justified. The circuit court sentenced Davis to death by lethal injection on the capital murder charge and 40 years imprisonment on each of the burglary and theft charges. Davis appealed his conviction and sentence to the Arkansas Supreme Court. One of the errors he claimed was the trial court’s failure to provide funds for an independent psychiatric expert.

The supreme court affirmed his conviction and sentence, concluding that the trial court had not erred by refusing to provide such funding because it had approved two previous psychiatric evaluations. Davis v. State, 314 Ark. 257, 863 S.W.2d 259 (1993), cert. denied, 511 U.S. 1026, 114 S.Ct. 1417, 128 L.Ed.2d 88 (1994). Davis sought postconviction relief in state court under Arkansas Rule of Criminal Procedure 37. Dr. Marr submitted an affidavit stating that he had reviewed Dr. Jenkin’s diagnosis of ADHD and the transcript of the penalty phase of the trial.

He said he was aware of some of the circumstances of Davis’ background, which included neglect and deprivation by his parents during childhood, learning disabilities, poor performance in school, and lack of consistent focused treatment for ADHD. Dr. Marr said that if he had been appointed by the trial court, he would have provided Davis’ attorneys with advice, instruction, and guidance in the preparation and use of the information from his evaluation in order to develop and present mitigating evidence at the penalty phase.

He would have been able to act as Davis’ psychologist, and his conferences would have been protected by the psychotherapist patient privilege. He would have reviewed all available records about Davis, would have interviewed his family and friends, and would have administered psychological tests. In his judgment a full exploration of Davis’ psychological condition would have required a complete neuropsychological examination because of his history of head injury and psychological trauma as a child and would have included an MMPI and the Gordon Diagnostic Test for ADHD.

Davis’ trial counsel testified at the post-conviction proceeding. His attorneys had interviewed doctors and a social worker from the state hospital prior to the penalty phase of trial and had learned that they would be of no help in respect to mitigating circumstances. The social worker stated that the hospital did not believe that drug or alcohol abuse, child abuse or neglect, or ADHD were mitigating factors. Davis’ attorneys contacted Dr. Jenkins, who said he was willing to testify at the penalty phase.

At the postconviction hearing the court asked one of Davis’ attorneys if Jenkins had been a willing participant at the sentencing phase of the trial, and he responded that Jenkins had been helpful. Davis also raised a claim'of ineffective assistance of counsel for his counsel’s failure to cite and argue the effect of Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), both at trial and on direct review. The trial court denied postconviction relief, and the state supreme court affirmed. Davis v. State, 345 Ark. 161, 44 S.W.3d 726 (Ark.2001). II.

After exhausting his state court remedies, Davis filed this petition in the district court seeking a writ of habeas corpus under 28 U.S.C. § 2254. He raised seventeen separate grounds for relief. These included four due process claims, ten claims of ineffective assistance of counsel, a double jeopardy claim, a claim that the court violated his Fifth and Sixth Amendment rights by allowing certain parts of Dr. Jenkins’ testimony, and a claim that his death sentence was unconstitutional due to the improper use of jury instructions and verdict forms.

The district court denied the petition and denied a certificate of appealability. This court granted a certificate on two of the claims made by Davis: 1) that he was denied due process when the trial court denied his request for funds to hire an independent psychiatric expert to present mitigation evidence, and 2) that his counsel was ineffective for failing to argue that Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), required the trial court to make such funds available. A.

When a claim has been adjudicated on the merits in state court, an application for a writ of habeas corpus can only be granted where the state court adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) (AEDPA).

A decision is “contrary to” federal law in the AEDPA sense if a state court has arrived “at a conclusion opposite to that reached by [the Supreme Court] on a question of law” or if it “confrontfed] facts that are materially indistinguishable from a relevant Supreme Court precedent” but arrived at an opposite result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

A state court unreasonably applies clearly established federal law when it “identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. Habeas relief cannot be granted just because a federal court concludes that the state court erred in its application of federal law; the test is whether the state court’s application of the law was unreasonable. Id. at 411,120 S.Ct. 1495. B.

Davis argues that the district court’s failure to provide funds for an independent psychiatric expert to present mitigating evidence at sentencing violated due process and was contrary to and an unreasonable application of clearly established Supreme Court precedent. Davis contends that Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), required the appointment of an independent psychiatric expert to aid him at sentencing and that the ability to subpoena and question a neutral expert does not satisfy due process. He points out that the Arkansas Supreme Court recognized in Coulter v.

State, 304 Ark. 527, 804 S.W.2d 348, 356 (1991), that the psychiatric examination and report mandated by state statute is not broad enough to cover everything a defendant might raise as a mitigating circumstance. Davis contends that the testimony given by Dr. Jenkins at the penalty phase of trial did not satisfy the requirements of Ake because Jenkins was not able to evaluate the specifics of Davis’ situation as they applied to mitigation because he did not administer any tests, review past records, or speak with Davis about the circumstances of the crime. He cites Starr v.

Lockhart, 23 F.3d 1280 (8th Cir.1994), for the proposition that due process was not satisfied by his merely being able to question Jenkins, a neutral court appointed expert, at the penalty phase of trial. If the court had granted him funds to hire Dr. Marr, Marr would have provided his attorneys with advice, instruction, and guidance in the preparation and use of information to develop and present mitigating evidence.

Additionally, his conferences with his psychologist would have been protected by the psychotherapist patient privilege, unlike a conference with an expert appointed by the court to determine sanity at the time of the offense. Davis contends that the district court’s refusal to grant funds to hire Dr. Marr resulted in an unfair trial because the jury was not able to hear and weigh all the available mitigating evidence, citing Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (exclusion of relevant mitigating evidence required reversal of death sentence).

The state responds that Davis’ request for assistance under Ake was satisfied by the court’s appointment of Dr. Jenkins and his testimony at sentencing. The state points out that Ake specifically stated that an indigent defendant does not have a constitutional right to choose his own psychiatrist or to receive funds to hire his own, 470 U.S. at 83, 105 S.Ct. 1087, but rather is entitled to “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. The state contends that this is exactly what Davis received from Dr.

Jenkins. In Ake, the Supreme Court held that due process requires that “when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. at 83, 105 S.Ct. 1087. The Court came to a similar conclusion in respect to the capital sentencing proceeding in Ake.

Where the state presents psychiatric evidence of the defendant’s future dangerousness, “due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.” Id. at 84, 105 S.Ct. 1087. Our cases have interpreted Ake to require the appointment of an expert only if the defendant shows “a reasonable probability that an expert would aid in his defense, and that denial of expert assistance would result in an unfair trial.” Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.1987) (en banc).

The defendant in Ake relied solely on an insanity defense, and psychiatric testimony regarding his future dangerousness was used by the state and was a “significant factor” at the penalty phase. 470 U.S. at 86-87, 105 S.Ct. 1087. The defendant’s “bizarre” behavior at arraignment was another factor which caused the Supreme Court to fashion its remedy in that case. Id. In this case Davis did not rely on an insanity defense, and the state did not present any psychiatric evidence or evidence regarding Davis’ mental condition at sentencing. Dr. Jenkins nevertheless testified quite extensively for the defense. Dr.

Jenkins had interviewed Davis prior to trial and conducted a standard psychiatric interview and mental status examination. Jenkins testified on Davis’ behalf at sentencing about his conclusions that Davis had ADHD and probably a history of substance abuse. He testified that one in five people with ADHD will have significant problems with either substance abuse, psychiatric difficulties, or legal difficulties and that a person with ADHD is eleven times as likely to be arrested by the time he is 17 years old.

Jenkins said that when combined with an unstable environment, childhood abandonment, and drug abuse, ADHD might cause impulsivity and poor judgment so that a person could be in the middle of a situation before realizing whether it was right or wrong and what the consequences would be. Jenkins said that Davis had told him he had been raised by his grandmother after being deserted by his parents and that he started using drugs regularly in his childhood.

Jenkins testified that drug abuse in a person with ADHD complicates judgment and impul-sivity and that a person with ADHD who knows the difference between right and wrong may have trouble conforming his actions. He said that Davis had told him he had been treated with medication for ADHD as a child, but he did not know if Davis had received additional treatment. When defense counsel asked Jenkins if he believed that Davis’ behavior could have been modified if he had received treatment at a younger age, Jenkins responded, “I would have hoped so.” Dr.

Marr stated in his affidavit that he would have reviewed all available records about Davis, interviewed Davis’ family and friends, and would have administered an MMPI, the Gordon Diagnostic test for ADHD, and a complete neuropsychological examination. The examination of Davis at the state hospital did, however, include a review of Davis’ records, interviews with family members, an MMPI, and physical and neurological examinations, and Dr. Jenkins testified that he had reviewed the state hospital report and that its conclusions were not significantly different from his.

There is no indication in the record that an examination by Dr. Marr would have led to different results. Jenkins testified that Davis had ADHD, and the state did not dispute that conclusion. Moreover, at least one juror concluded from the evidence presented that Davis’ lack of treatment for ADHD was a mitigating factor. What Davis asks for in this case would go beyond the assistance required by Ake, where the Supreme Court stated that an indigent defendant is not entitled to choose his own psychiatrist or to receive funds to hire his own. 470 U.S. at 83, 105 S.Ct. 1087.

Unlike the state expert who was subpoenaed by the defense in Starr v. Lockhart, 23 F.3d 1280 (8th Cir.1994), Dr. Jenkins agreed to testify for the defense and was able to answer the questions put to him by defense counsel. Defense counsel affirmed in the postconviction hearing that Jenkins had been a willing participant at sentencing and said that he had been helpful. We conclude that Dr. Jenkins’ assistance met the requirements of Ake, and the state court’s denial of funds was not contrary to or an unreasonable application of clearly established federal law. C.

Davis also argues that his counsel was ineffective at trial and on direct appeal for failing to cite Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991), in support of his argument that he was entitled to an independent psychiatric examination. In Coulter, the Arkansas Supreme Court held that the trial court’s refusal to grant funds for a psychiatric evaluation regarding mitigation did not require reversal because defense counsel had paid for an examination that met the Ake standard.

The court noted that the psychiatric review provided by A.C.A. § 5-2-305 was “obviously not broad enough to cover everything a defendant might raise as a ‘mental defect’ basis of mitigation.” 804 S.W.2d at 356. Davis contends that his counsel was ineffective for not raising Coulter because the case clearly invited the argument that the examination and report he received under A.C.A. § 5-2-305 were inadequate to prepare mitigation evidence. To prove that his counsel rendered ineffective assistance in violation of the Sixth Amendment, Davis must satisfy the two prong test outlined in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Davis must first show that his counsel’s performance was deficient. Id. at 688, 104 S.Ct. 2052. To satisfy this prong Davis must overcome the strong presumption that his counsel’s conduct fell within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. Even if Davis could prove deficient performance, he would still have to prove prejudice by showing that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. To prevail on his claim of ineffective assistance, Davis must therefore prove that the outcome would have been different if his counsel had cited and argued Coulter at his trial or that the state supreme court would have reversed the conviction if counsel had cited Coulter on direct review. Regardless of whether counsel’s performance was deficient, no reasonable probability exists that a citation to Coulter would have led to a different result. See Pfau v.

Ault, 409 F.3d 933, 939-40 (8th Cir.2005) (no reasonable probability existed that appellate counsel’s citation to a state supreme court case would have resulted in the supreme court’s reversal of the trial court’s evidentiary decision). On state postconviction review, the Arkansas Supreme "Court stated that Coulter had not resolved the issue of whether a defendant is entitled to funds to hire an independent expert to advise him about mitigating factors, but rather that Coulter had left this question undecided. Davis v. State, 345 Ark. 161, 44 S.W.3d 726, 732 (2001).

Our reading of Coulter is consistent with that conclusion. Defense counsel in Coulter had hired a clinical psychologist at his own expense to testify on defendant’s behalf at the penalty phase of his trial. The issue on appeal was whether the conviction should be reversed because the trial court had refused to provide funds for the expert. The supreme court affirmed the conviction, pointing out that the defendant had received the benefit of the psychologist’s assistance and that he had made no argument that the psychologist’s testimony did not meet the requirements of Ake. We have already concluded that Dr.

Jenkins’ testimony satisfied due process, and the dicta Davis cites from Coulter does not establish a reasonable probability of a different outcome at trial or on direct appeal. Like the defendant in Coutler, Davis received the benefit of expert testimony during the penalty phase of his trial. There is no indication that if counsel had cited Coulter to the trial court, it would have appointed an independent psychiatric expert who could provide testimony that was more favorable than Dr. Jenkin’s.

Moreover, the Arkansas Supreme Court was aware of and had the benefit of its decision in Coulter when it heard Davis’ direct appeal. The supreme court had decided Coulter just two years prior to Davis’ appeal, it included two citations to Coulter in its decision in Davis’ case, and Coulter was cited by the concurrence as well. Davis v. State, 314 Ark. 257, 863 S.W.2d 259, 263, 265, 267 (1993). Davis has therefore not shown that his counsel’s performance violated the Sixth Amendment. D. Finally, Davis has moved for a remand to the district court for further proceedings.

He claims there is significant evidence that he is mentally retarded and that his death sentence is unconstitutional in light of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the Eighth Amendment prohibits the execution of mentally retarded criminals). The state responds that Davis could have presented his Atkins argument to the district court because the Supreme Court issued its opinion in Atkins while Davis was still litigating his habeas petition.

The state argues that Davis’ motion to remand is equivalent to a request to file a second habeas petition and should be denied because he did not file his new application within the one year statute of limitations in 28 U.S.C. § 2244(d)(1)(C). Davis concedes that he did not raise the issue of mental retardation in state court or in his federal habeas corpus petition, but he contends that even if his motion to remand is viewed as a second or successive habeas petition under § 2244(b), the one year limitations period in § 2244(d)(1)(

C) does not apply. Davis’ motion to remand is the functional equivalent of a second or successive petition for habeas corpus because he seeks to amend his original petition and obtain an evidentiary hearing on the Atkins issue. See Smith v. Armontrout, 888 F.2d 530, 540 (8th Cir.1989) (motion to remand to the district court to raise new claim is the functional equivalent of a second or successive petition); see also Guinan v. Delo, 5 F.3d 313, 316-17 (8th Cir.1993) (Rule 60(

b) motion seeking relief from the denial of habeas petition properly treated as a second habeas petition).

Under 28 U.S.C. § 2244(b)(2)(A), a petitioner may not bring a second or successive habe-as application on a claim that relies on new law when it was not presented in a prior application unless “the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The rule in Atkins prohibiting the execution of mentally retarded defendants was made retroactive to cases on collateral review by Penry v.

Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (stating that such a rule would apply retroactively to defendants on collateral review), but the Atkins rule was not previously unavailable to Davis because he could have raised this issue while he was litigating his habeas petition in the district court. The Supreme Court heard oral argument in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), on February 20, 2002, more than a month before Davis filed his petition for habeas corpus on April 1, 2002.

While Davis was litigating that petition and well before his scheduled evidentiary hearing in September 2002, the Court’s opinion in Atkins was issued on June 20, 2002. The evidence Davis relies on in support of his request to raise this claim was available to him in the district court, and he earlier used some of this same evidence in state court. Although the issue was available to Davis, he did not attempt to present an Atkins claim to the district court and instead waited until after filing this appeal to seek permission to raise it.

Since Davis could have raised his Atkins claim in the district court, it was not previously unavailable to him, and his second or successive habeas petition must be dismissed under 28 U.S.C. § 2244(b)(2). The motion to remand is denied. III. In conclusion, the state court’s denial of funds to hire an independent psychiatric expert was not contrary to or an unreasonable application of the Supreme Court’s decision in Ake v. Oklahoma, and Davis’ sixth amendment rights were not violated by his counsel’s failure to cite Coulter v. State at trial or on direct appeal.

Since Davis’ motion to remand is equivalent to a successive habeas petition and his claim under Atkins v. Virginia could have been brought below, the motion to remand is denied. For these reasons the judgment of the district court is affirmed. . The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas. . State law requires that the examiner’s report include:

(1) A description of the nature of the examination;

(2) A diagnosis of the mental condition of the defendant;

(3) An opinion as to his capacity to understand the proceedings against him and to assist effectively in his own defense;

(4) An opinion as to the extent, if any, to which the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired at the time of the conduct alleged; and

(5) When directed by the court, an opinion as to the capacity of the defendant to have title culpable mental state that is required to establish an element of the offense charged. A.C.A. § 5-2-305(d) (1991). . Under A.C.A. § 5-4-605 mitigating circumstances include but are not limited to whether the "capital murder was committed while the defendant was under extreme mental or emotional disturbance” and whether the "capital murder was committed while the defendant was acting under unusual pressures or influences or under the domination of another person.” .

For the death penalty to be imposed under Arkansas law, the juiy must have unanimously found beyond a reasonable doubt that aggravating circumstances exist, that the aggravating circumstances outweigh beyond a reasonable doubt all mitigating circumstances found to exist, and that the aggravating circumstances justify a sentence of death beyond a reasonable doubt. A.C.A. § 5-4-603(a). . Davis has presented evidence that at age 9 his IQ score on the Peabody Picture Vocabulary Test (PPVT) was 69, placing him in the veiy slow learner range.

The Wechsler Intelligence Scale for Children (WISC) was given at the same time and returned an IQ of 94, although Davis argues that this number was artificially inflated and that the version of the test he took was unreliable. He also had an IQ score of 77 on a test given when he was 12 years old, which he says is consistent with subaverage intellectual functioning. .

The state also cites journal articles stating that the PPVT was not designed "as a screening tool for measuring intellectual level of functioning” and that "its scores are not interchangeable” with IQ scores obtained from other tests, and it points out that the report from the Arkansas State Hospital stated that Davis’ intellectual functioning was "at least within the average range of abilities.” We note in addition that Dr. Jenkins found Davis to be of average or above average intelligence.