Appellate Case: 21-6097 Document: 010110911270 Date Filed: 08/30/2023 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`August 30, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`ISAIAH GLENNDELL TRYON,
`
` Petitioner - Appellant,
`
`v.
`
`CHRISTE QUICK, Acting Warden,
`Oklahoma State Penitentiary,
`
` Respondent - Appellee.
`_________________________________
`
`
`
`
`
`No. 21-6097
`
`Appeal from the United States District Court
`for the Western District of Oklahoma
`(D.C. No. 5:19-CV-00195-J)
`_________________________________
`
`Callie Heller, Assistant Federal Public Defender, Office of the Federal Public Defender
`(Andrew Stebbins, Research and Writing Specialist, Office of the Federal Public
`Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner – Appellant.
`
`Jennifer L. Crabb, Assistant Attorney General (John M. O’Connor, Attorney General of
`Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent – Appellee.
`_________________________________
`
`Before HOLMES, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges.
`_________________________________
`
`McHUGH, Circuit Judge.
`_________________________________
`
`Isaiah Glenndell Tryon accosted Tia Bloomer, his estranged girlfriend and the
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`mother of his son, in a bus station and stabbed her seven times, resulting in her death.
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`A jury convicted Mr. Tryon of first-degree murder. During a sentencing trial, the
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`State of Oklahoma (“State”) presented evidence of Mr. Tryon’s lengthy criminal
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`history and impulsively violent behavior, including testimony about him physically
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`abusing Ms. Bloomer on other occasions, discharging a firearm at a crowd of fleeing
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`people, and fighting while in custody in 2009 and 2013. In a mitigation effort,
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`Mr. Tryon highlighted his difficult upbringing, his parents’ substance abuse, his
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`history of depression, several head injuries, and his low Intelligence Quotient (“IQ”).
`
`Mr. Tryon also presented expert testimony from John Fabian, a neuropsychologist,
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`and David Musick, a sociology professor. Important to this matter, Mr. Fabian
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`testified that Mr. Tryon was not intellectually disabled. Furthermore, although
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`Mr. Tryon scored a 68—a score below the intellectual disability threshold of 75—on
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`an IQ test administered by Mr. Fabian, Mr. Tryon had scored an 81 on an IQ test
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`administered when he was fourteen. And Mr. Fabian conceded that the score of 68
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`was low and did not reflect Mr. Tryon’s full intellectual capacity.
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`A jury selected a sentence of death. On direct appeal, appellate counsel raised
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`twenty claims of error, none of which involved ineffective assistance of trial counsel.
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`The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Mr. Tryon’s
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`conviction and sentence. In an original application for state post-conviction relief,
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`Mr. Tryon argued appellate counsel was ineffective for not arguing that trial counsel
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`was ineffective for (1) not presenting an intellectual disability defense; (2) not
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`obtaining neuroimaging of Mr. Tryon’s brain; and (3) not countering the 2009 jail
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`fight evidence. The OCCA rejected these claims on the respective grounds that
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`(1) Mr. Tryon’s IQ score of 81, even when accounting for the standard margin of
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`Appellate Case: 21-6097 Document: 010110911270 Date Filed: 08/30/2023 Page: 3
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`measurement error, excluded him from an intellectual disability defense under
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`Oklahoma law; (2) Mr. Tryon could not establish ineffective assistance where he did
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`not support his claim with any neuroimages; and (3) additional evidence on the 2009
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`jail fight was not admissible and, in any event, Mr. Tryon did not suffer prejudice
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`from trial counsel’s failure to introduce it.
`
`Mr. Tryon next sought federal habeas relief, while also filing a successive
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`application for post-conviction relief with the OCCA. As to the successive
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`application for post-conviction relief, the OCCA concluded all of Mr. Tryon’s claims
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`of ineffective assistance of appellate counsel were procedurally barred because he
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`could have raised them in his original application for post-conviction relief.
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`Thereafter, the district court also denied relief on Mr. Tryon’s federal habeas
`
`petition. Presently before us are four issues (1) whether to expand the certificate of
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`appealability (“COA”) to consider a claim that appellate counsel was ineffective for
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`not arguing that trial counsel was ineffective for not challenging the constitutionality
`
`of Oklahoma’s statute governing intellectual disability defenses and for not
`
`presenting an intellectual disability defense; (2) whether appellate counsel was
`
`ineffective for not arguing trial counsel was ineffective for not obtaining and
`
`presenting neuroimages; (3) whether appellate counsel was ineffective for not
`
`arguing trial counsel was ineffective for not countering the 2009 jail fight evidence;
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`and (4) cumulative error based on ineffective assistance of appellate counsel.
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`Having considered each of these issues, we deny Mr. Tryon’s motion to
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`expand the COA and affirm the district court’s denial of relief. First, we deny the
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`motion to expand the COA because trial counsel did challenge the constitutionality of
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`the Oklahoma statute, Mr. Tryon’s own expert testified that Mr. Tryon was not
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`intellectually disabled, and any constitutional challenge appellate counsel could have
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`advanced had no chance of success. Second, on the neuroimages claim, we conclude
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`Mr. Tryon’s argument premised on evidence of Fetal Alcohol Spectrum Disorder
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`(“FASD”) is unquestionably procedurally barred and outside the scope of the COA.
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`We also conclude the OCCA did not unreasonably apply federal law when holding
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`Mr. Tryon could not demonstrate ineffective assistance of counsel without presenting
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`imaging and accompanying expert reports in his original application for post-
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`conviction relief. Third, we conclude Mr. Tryon did not establish the admissibility of
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`the 2009 jail fight evidence he faults trial counsel for not presenting and that the
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`OCCA did not unreasonably apply federal law by concluding additional mitigation
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`efforts would not have changed the result of the sentencing proceeding. Fourth,
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`having identified no instances of deficient performance, Mr. Tryon’s cumulative
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`error claim necessarily fails.
`
`I.
`
`A.
`
`BACKGROUND
`
`Offense Conduct
`
`In pursuing § 2254 relief, Mr. Tryon confines his challenges to his sentence,
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`without advancing any attacks against his conviction or the OCCA’s statement of the
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`facts of his offense conduct. Therefore, and in accord with 28 U.S.C. § 2254(e)(1),
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`we rely upon the OCCA’s summary of the facts surrounding the murder:
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`Appellate Case: 21-6097 Document: 010110911270 Date Filed: 08/30/2023 Page: 5
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`On March 16, 2012, around 10:30 a.m., [Mr. Tryon] fatally
`stabbed Tia Bloomer inside the Metro Transit bus station in downtown
`Oklahoma City. Tia recently broke off her relationship with [Mr. Tryon]
`due in part to his inability to support their infant child. . . . The couple
`too had a stormy relationship. The day before her death . . . Tia called
`Detective Jeffrey Padgett of the Oklahoma City Police Department
`(OCPD) Domestic Violence Unit to schedule a follow-up interview for
`an assault case in which she was the named victim. Tia previously
`denied to authorities that [Mr. Tryon] had assaulted her. Instead, she
`claimed another man had assaulted her.
`
`During her phone conversation with Detective Padgett, Tia
`repeated this claim but agreed nonetheless to meet the next day. Later
`that night, Tia sent [Mr. Tryon] a text message stating the following:
`
`
`It’s okay bc im [sic] going to tell the truth
`tomorrow. I’m tired of holding lies for yhu [sic]. Isaiah
`Tryon is the guy who choked nd [sic] nearly killed me
`Saturday.
`
`
`
`The next day, [Mr. Tryon] accosted Tia inside the downtown bus
`station while she was talking on her cell phone. Surveillance video from
`inside the terminal showed [Mr. Tryon] speaking to Tia before stabbing
`her repeatedly with a knife. Immediately before this brutal attack, an
`eyewitness heard Tia yell for [Mr. Tryon] to leave her alone.
`[Mr. Tryon] then stabbed Tia in the neck with the knife, causing blood
`to gush out from her neck. The surveillance video shows [Mr. Tryon]
`grabbing the victim then stabbing her when she tried to leave the
`terminal building. [Mr. Tryon] stabbed the victim repeatedly after she
`fell to the floor. The victim said “help” as [Mr. Tryon] continued
`stabbing her repeatedly and blood gushed out of her wounds. During the
`attack, several bystanders unsuccessfully attempted to pull [Mr. Tryon]
`off the victim. At one point, a bystander can be seen on the surveillance
`video dragging [Mr. Tryon] across the floor while [Mr. Tryon] held on
`to Tia and continued stabbing her.
`
`[Mr. Tryon] released his grip on the victim only after Kenneth
`Burke, a security guard, sprayed him in the face with pepper spray. The
`security guard then forced [Mr. Tryon] to the ground, handcuffed him
`and ordered the frantic crowd to move away both from [Mr. Tryon] and
`the bloody scene surrounding the victim’s body. A bloody serrated knife
`with a bent blade was found resting a short distance away on the floor.
`
`
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`* * *
`
`While waiting for police to arrive, Burke checked on the victim
`but found no signs of life. Paramedics soon arrived and decided to
`transport the victim to the hospital because they detected a faint pulse.
`Despite the efforts of emergency responders, Tia died from her injuries.
`The medical examiner autopsied the victim and found seven (7) stab
`wounds to her head, neck, back, torso and right hand. Several
`superficial cuts were also observed on the victim’s face and the back of
`her neck. The medical examiner testified these cuts were consistent with
`having been made by a serrated blade. The cause of death was multiple
`stab wounds. In addition to these injuries, the medical examiner
`observed redness and heavy congestion in the victim’s eyes. The
`medical examiner did not associate this congestion with the victim’s
`stab wounds but testified it is sometimes found in cases of strangulation.
`
`
`
`After being released from the hospital, [Mr. Tryon] was
`transported to police headquarters. There, he was read the Miranda
`warning by OCPD Detective Robert Benavides and agreed to talk.
`During his interview, [Mr. Tryon] admitted stabbing Tia repeatedly
`while inside the bus terminal. [Mr. Tryon] said he stabbed the victim six
`times with a kitchen knife he brought from home. [Mr. Tryon] explained
`that he and Tia recently broke up and that they had been fighting over
`his support of their infant son. When [Mr. Tryon] saw Tia at the bus
`station, he walked up and tried to talk with her about their problems. Tia
`refused and told [Mr. Tryon] to get away from her. That is when
`[Mr. Tryon] said he pulled out his knife and began stabbing her.
`
`[Mr. Tryon] claimed he did not know Tia would be at the bus
`station that morning or that he would even see her that day. [Mr. Tryon]
`did know, however, that Tia had some business to take care of that day.
`[Mr. Tryon] admitted bringing the knife with him because if he saw Tia,
`he planned to stab her. [Mr. Tryon] said Tia was facing him when he
`grabbed her and started stabbing her in the neck. [Mr. Tryon] described
`how he continued stabbing Tia after she fell to the ground and how he
`kept hold of her arm. [Mr. Tryon] said he was sad and depressed when
`he stabbed Tia because he didn’t want to be without her. Nor did he
`want anyone else to be with her. [Mr. Tryon] did not believe he could
`find someone else to be with. [Mr. Tryon] admitted that what he did to
`Tia “wasn’t right.” At one point during the interview, [Mr. Tryon]
`demanded protective custody because “people ain’t gonna like that type
`of shit” and would try to kill him in the county jail.
`
`
`
`
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`During the interview, [Mr. Tryon] asked whether Tia was okay.
`Detective Benavides promised to let him know about Tia’s condition as
`soon as he found out. When informed by Detective Benavides at the end
`of the interview that Tia did not survive her injuries and was dead,
`[Mr. Tryon] showed no emotion to this news.
`
`Tryon v. State, 423 P.3d 617, 625–26 (Okla. Crim. App. 2018) (Tryon I) (citation and
`
`footnote omitted). A jury convicted Mr. Tryon of one count of murder in the first
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`degree. Id. at 625.
`
`B.
`
`Sentencing Stage Trial
`
`1.
`
`Pre-Trial Proceedings
`
`The State filed a Bill of Particulars in re Punishment that alleged four
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`“aggravating circumstances” in support of the death penalty, including: (1) “[t]he
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`murder was especially heinous, atrocious, or cruel,” (2) “[t]he defendant was
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`previously convicted of a felony involving the use or threat of violence to the
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`person,” and (3) “[a]t the present time there exists a probability that the defendant
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`will commit criminal acts of violence that would constitute a continuing threat to
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`society.”1 State Criminal Appeal Original Record at 34. In support of the murder
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`being “especially heinous, atrocious, or cruel,” the State advanced three allegations.
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`First, the State pointed to the seven stab wounds, describing each:
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` Right side of Ms. Bloomer’s head;
`
`1 The Bill of Particulars in re Punishment also alleged, as an aggravating
`circumstance, that “[t]he murder was committed by a person while serving a sentence
`of imprisonment on conviction of a felony.” State Criminal Appeal Original Record
`at 34. Although the jury found the State proved this aggravating circumstance, the
`OCCA invalidated this finding on the ground that Mr. Tryon was serving a probated
`sentence on which he had never been incarcerated. Tryon v. State, 423 P.3d 617,
`648–50 (Okla. Crim. App. 2018) (Tryon I).
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` Right side of Ms. Bloomer’s neck, perforating her larynx;
` Right breast, with depth down to Ms. Bloomer’s lung;
` Right side of Ms. Bloomer’s torso, with a depth of 4.5 cm, reaching into
`her lung and a lobe of her liver;
` Right hand, with full penetration, through and through;
` Upper back of Ms. Bloomer’s neck, with 4 cm depth cutting into her C1
`vertebrae bone;
` Left side of Ms. Bloomer’s upper back, with 5 cm depth.
`
`Second, the State noted Mr. Tryon committed the murder in a public place such that
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`Ms. Bloomer’s suffering was exposed to public view. Third, the State asserted
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`Ms. Bloomer’s death was not instantaneous, causing her to experience suffering, as
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`evidenced by the blood found in her airway.
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`In support of Mr. Tryon having sustained a previous conviction for a felony
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`involving the use or threat of violence to a person, the State relied upon a 2009
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`incident resulting in Mr. Tryon pleading guilty to four counts of assault with a
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`dangerous weapon. These convictions derived from Mr. Tryon chasing a group of
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`five individuals out of a hotel and shooting at them as they fled across a parking lot.
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`Finally, the State offered a long list of accusations to support the final
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`aggravating circumstance, that Mr. Tryon was a continuing threat to society. First,
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`the State identified the callous nature of the offense, which supports the aggravating
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`circumstance under Oklahoma law. Second, the State contended Mr. Tryon was a
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`known member of the “Outlaw 30’s Blood” gang and had been a gang member since
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`2004. Id. at 1105. Third, the State pointed to the fact that Mr. Tryon had been
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`involved in three physical altercations while in custody, including one in November
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`2009 and one in August 2013, while in pre-trial detention for the murder charge.
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`Fourth, the State identified ten criminal incidents in which Mr. Tryon was the
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`perpetrator: (1) a 2001 Assault and Battery incident where Mr. Tryon punched a
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`female student, chipping four of her teeth, because she “snitched too much,” id.
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`at 1106; (2) a 2004 Concealed Weapon incident where a police officer stopped
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`Mr. Tryon on a bike and Mr. Tryon fled while attempting to draw a 9-millimeter
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`handgun on the officer; (3) a 2005 Domestic Assault and Battery incident where
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`Mr. Tryon kicked, choked, and punched his younger brother; (4) a 2007 Disorderly
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`Conduct incident where Mr. Tryon threatened a principal at school; (5) the 2009
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`Assault with a Dangerous Weapon incident involving the shooting outside of the
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`hotel, as already described in support of the prior aggravating circumstance; (6) a
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`2010 Domestic Assault and Battery incident in which Mr. Tryon repeatedly punched
`
`Ms. Bloomer, resulting in her needing medical care; (7) a 2010 Assault and Battery
`
`with a Dangerous Weapon incident where Mr. Tryon brandished a revolver at several
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`people in a house and then fired a round in the direction of Ms. Bloomer while she
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`held their two-month-old son; (8) a 2011 Assault and Battery with a Dangerous
`
`Weapon incident where Mr. Tryon slashed Ms. Bloomer’s nephew with a knife above
`
`his eye; (9) a 2011 Domestic Assault and Battery incident where Mr. Tryon choked
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`and headbutted Ms. Bloomer while she held their son; and (10) a 2012 Obstructing
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`Officer incident where Mr. Tryon refused to obey officer commands to leave a third
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`party’s residence and then attacked the officers by hitting and kicking them. Fifth, the
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`State pointed to Mr. Tryon’s behavior in juvenile facilities, including that he threw a
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`chair at a girl, punched another girl, had violent outbursts toward staff, ran away
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`from a group home, and possessed a knife while absent without leave from the group
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`home. Sixth, the State relied upon a psychiatric evaluation that concluded Mr. Tryon
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`was “not capable of forming a close emotional bond with anyone and would not be
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`able to experience appropriate guilt or remorse for what he does.” Id. at 1114.
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`Seventh, and finally, the State alleged Mr. Tryon was “physically abusive towards
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`[Ms.] Bloomer in the days prior to her death,” including that, three days prior to the
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`murder, he choked her until she passed out. Id. at 1114.
`
`Mr. Tryon filed a Notice of Intent to Raise Intellectual Disability/Mental
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`Retardation as a Defense to the Death Penalty and Motion to Quash Bill of
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`Particulars.2 In the motion, Mr. Tryon cited Atkins v. Virginia, 536 U.S. 304 (2002),
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`for the proposition that “the Eighth Amendment prohibits inflicting the death penalty
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`on mentally retarded defendants.” Id. at 917. Mr. Tryon further argued he satisfied
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`Oklahoma’s definition of intellectually disabled because he scored a 68 on a recent
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`IQ test. Mr. Tryon additionally asserted he suffered from “deficits in adaptive
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`functioning throughout childhood, learning disabilities, and difficulties with the
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`social requirements of school.” Id. at 918. And, in support of his motion, Mr. Tryon
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`requested a hearing on the issue of intellectual disability. Further, in a footnote,
`
`
`2 At the time of Mr. Tryon’s case, the controlling Oklahoma statute used the
`phrase “mentally retarded.” Okla. Stat. tit. 21, § 701.10b(A–C) (2006). In 2019, the
`Oklahoma Legislature amended the statute, replacing “mentally retarded” with
`“intellectually disabled.” See Okla. Stat. tit. 21, § 701.10b(A–C) (2019). We use the
`phrase “intellectually disabled” in this opinion, except when quoting case law or
`documents that use “mentally retarded.”
`
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`Mr. Tryon indicated an intent to challenge the constitutionality of Section 701.10b of
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`Title 21 of the Oklahoma Statutes, which governs the criteria for intellectual
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`disability for purposes of exclusion from the death penalty. Finally, before the
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`presentation of evidence at the sentencing stage of the trial, Mr. Tryon argued:
`
`going forward without having had an Atkins hearing or the ability to put
`forward such evidence, that subjecting Mr. Tryon to potential death
`penalty in this case is improper and a violation of Hall v. Florida[3] and
`everything prior to that. And also that the statute for which the State
`was relying upon, the language of the statute, is unconstitutional as it
`stands given the ruling in the Hall v. Florida.
`
`Vol. V, Tr. Transcript at 1191.
`
`The district court denied Mr. Tryon’s motion and overruled his constitutional
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`challenge to Section 701.10b of Title 21 of the Oklahoma Statutes. Id. at 1192.
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`Mr. Tryon’s case, therefore, proceeded to the sentencing phase of trial.
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`2.
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`Expert Reports & Witness Testimony
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`In this subsection, we review the evidence presented during the sentencing
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`phase of trial. We begin by summarizing the pre-trial expert reports and then describe
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`the testimony offered by the state and Mr. Tryon during the second stage, including
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`sentencing witnesses.
`
`a.
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`Expert witness reports
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`Three reports helped frame trial counsel’s development of a mitigation
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`strategy. We discuss each in turn.
`
`
`3 572 U.S. 701 (2014).
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`i.
`
`Assessment report of Nelda Ferguson, licensed psychologist
`
`Nelda Ferguson was an independent licensed psychologist who evaluated
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`Mr. Tryon when he was fourteen-and-a-half years old, following a transfer from
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`juvenile detention to an inpatient medical center after he allegedly attempted to hang
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`himself.4 Ms. Ferguson administered a battery of performance tests, yielding the
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`following results. On a Wechsler Intelligence Scale for Children III test, Mr. Tryon
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`scored an 81 for a full-scale IQ, with a Verbal IQ of 87 and a Performance IQ of 78.
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`The test also revealed a (1) verbal comprehension of 88, which equated to the 21st
`
`percentile; (2) perceptual organization score of 85, placing Mr. Tryon in the 16th
`
`percentile; (3) freedom from distractibility rating of 87, placing Mr. Tryon in the 19th
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`percentile, and (4) processing speed score of 77, equating to the 6th percentile. A
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`Bender Gestalt test suggested Mr. Tryon had “poor impulse control.” ROA Vol. 2
`
`at 460. Further, an academic achievement test showed Mr. Tryon, who was then in
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`eighth grade but was old enough to be in ninth grade, had (1) an oral reading
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`percentile of 42, equating to an eighth-grade level; (2) a spelling percentile of 45,
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`equating to a seventh-grade level; and (3) an arithmetic percentile of 12, placing him
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`at the fifth-grade level. Ms. Ferguson summarized these results by stating Mr. Tryon
`
`had “good academic skills” but his “achievement in math is somewhat lower than
`
`reading and spelling.” Id. at 461.
`
`
`4 Of the experts, Ms. Ferguson was the only one to evaluate Mr. Tryon before
`he turned eighteen, the time at which an intellectual disability must have manifested
`for purposes of raising an intellectual disability defense under Oklahoma law, Okla.
`Stat. tit. 21, § 701.10b(B).
`
`
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`Ms. Ferguson also conducted a personality assessment, including a Rorschach
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`ink blot test, and advanced the following findings:
`
`[Mr. Tryon] presents as a young man who has been involved in
`numerous sociopathic and delinquent behaviors for which he exhibits no
`guilt or remorse. He talks about being depressed. ([Mr. Tryon] is
`depressed because he is locked up, but there is no evidence of any type
`of major depression.)
`
`
`* * *
`
`
`[Mr. Tryon] talks about missing his mother, but his relationship
`with her is not good. They have a dysfunctional relationship which both
`are covering up. This is a young man who can also be expected to have
`problems in most relationships. He has been suspended from school for
`fighting. His sister reportedly called and reported that he had hit her,
`and he was charged with domestic abuse (2 counts) involving a cousin.
`The absence of a human response on the Rorschach is an ominous
`indicator that [Mr. Tryon] is not capable of forming a close emotional
`bond with anyone and he will not be able to experience appropriate
`guilt or remorse for what he does.
`
`[Mr. Tryon] has such a great fear of getting out of the hospital
`and going back to the same neighborhood that he will likely continue
`doing things to keep himself in the hospital.
`
`Id. at 461 (emphasis added). Consistent with aspects of this opinion, Mr. Tryon
`
`reported to Ms. Ferguson that his suicide attempt was a ploy to get out of the
`
`detention facility.
`
`ii.
`
`Report of John Fabian, forensic & clinical psychologist
`
`Mr. Fabian, one of two experts retained by Mr. Tryon, began his report by
`
`detailing Mr. Tryon’s homelife growing up, as told by Mr. Tryon during a pair of
`
`interviews conducted by Mr. Fabian, one in 2012 and one in 2014. Mr. Tryon
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`reported that there was “significant domestic violence between his parents,” that both
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`of his parents abused crack cocaine, and that his father had a criminal history and was
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`in and out of prison. Fabian Report (Court Ex. 6) at 2. Mr. Tryon also reported that
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`his “family was very poor,” that they had to move frequently because of evictions,
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`and that his family lived with one of his aunts at times, especially when his mother
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`was too high on crack to care for the children. Id. at 4. Finally, Mr. Tryon claimed
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`that one of his aunts sexually abused him.
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`Mr. Tryon also reported several items regarding his own criminality and drug
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`usage. Mr. Tryon admitted joining the Outlaw 30s Blood Gang. Mr. Tryon further
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`admitted to using PCP and alcohol starting at age fifteen and to selling drugs in the
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`neighborhood. Finally, Mr. Tryon described incidents where his mother compelled
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`him to sell her drugs under the threat that she would call the police and return him to
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`juvenile court. This happened at times when Mr. Tryon had run away from a juvenile
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`detention group home.
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`Mr. Fabian’s report next discussed Mr. Tryon’s intellectual capacity.
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`Mr. Fabian reviewed school records that showed, in addition to the IQ test
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`administered by Ms. Ferguson, Mr. Tryon scored a 75 on an IQ test administered
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`when he was age ten. Those test records also showed Mr. Tryon had several
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`performance scores equivalent to or above the fifth-grade level, some performance
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`scores in the second- and third-grade level, and many achievement scores in the
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`“average” range. Id. at 6. School assessments, however, noted that Mr. Tryon had a
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`high “frustration level” and a “learning disability for language impairment.” Id. at 7.
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`14
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`Appellate Case: 21-6097 Document: 010110911270 Date Filed: 08/30/2023 Page: 15
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`Mr. Fabian conducted his own IQ and performance testing on Mr. Tryon,
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`which produced the following results. Mr. Tryon scored a full-scale IQ of 68, placing
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`him in the “2nd percentile and extremely low range and mild mentally retarded
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`range.” Id. at 13. Mr. Fabian opined this full-scale IQ score was significantly
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`impacted by Mr. Tryon’s processing speed score of 62, which placed him for that
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`component in the “1st percentile, extremely low range.” Id. at 13. Several other
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`aspects of the test, however, placed Mr. Tryon above the intellectually disabled
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`range, including (1) verbal comprehension in the 7th percentile; (2) perceptual
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`reasoning in the 5th percentile; and (3) working memory in the 4th percentile. Id.
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`at 13. Further, Mr. Tryon performed better on a neuropsychological and cognitive
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`functioning test, on which he placed in the 21st percentile. Finally, Mr. Fabian placed
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`Mr. Tryon’s readings skills between sixth and ninth grade and his arithmetic skills in
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`the third- or fourth-grade range. Based on all the available data regarding
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`Mr. Tryon’s intellect, Mr. Fabian opined that “I cannot say that Mr. Tryon is
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`mentally retarded by history developmentally, but he is functioning in that range
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`currently.” Id. at 35 (emphasis added). Mr. Fabian did, however, recommend that
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`“[g]iven Mr. Tryon’s low intelligence and current IQ of 68, he should be considered
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`for an Atkins v. Virginia mental retardation/intellectual disability evaluation.” Id.
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`at 38.
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`Regarding Mr. Tryon’s mental health, Mr. Fabian reviewed Mr. Tryon’s
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`records and noted that, in 2004, Mr. Tryon was diagnosed with Major Depressive
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`Disorder, Conduct Disorder, Impulse Control Disorder, and Cannabis Abuse.
`15
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`Appellate Case: 21-6097 Document: 010110911270 Date Filed: 08/30/2023 Page: 16
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`Furthermore, Mr. Fabian discussed Mr. Tryon having reported three suicide attempts
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`and that for much of his teenage years there was concern that, in the absence of
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`mental health services, he would attempt to inflict serious bodily harm on himself or
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`another person. Additionally, Mr. Fabian noted that Mr. Tryon’s reported mental
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`health symptoms were consistent with Major Depressive Disorder. Based on his
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`evaluation, Mr. Fabian diagnosed Mr. Tryon as suffering from (1) Major Depressive
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`Disorder; (2) probable Bipolar Disorder; (3) Attention Deficit/Hyperactivity Disorder
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`(“ADHD”); (4) substance dependence to PCP, alcohol, and cannabis; and
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`(5) Antisocial Personality Disorder. Mr. Fabian also concluded that Mr. Tryon “likely
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`has a longstanding condition of . . . frontal damage and dysfunction in the brain.” Id.
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`at 35. And Mr. Fabian noted that there was evidence of Post-Traumatic Stress
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`Disorder (“PTSD”) but that Mr. Tryon was exaggerating his reports and symptoms.
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`Specific to the mitigation effort, Mr. Fabian offered nine factors on which the
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`defense could focus:
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`1) Intellectual deficiency (IQ’s around 80 indicating borderline range
`of intelligence)
`2) Low commitment to school and poor academic success
`3) Head injury, neurological injury, and organic brain impairment
`4) Neuropsychological and cognitive deficit
`5) Psychiatric disorders, primarily schizophrenia and affective
`disorders
`6) History of familial family abuse/neglect
`7) Parental substance abuse
`8) Family separation
`9) History of substance dependence
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`16
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`Appellate Case: 21-6097 Document: 010110911270 Date Filed: 08/30/2023 Page: 17
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`Id. at 19–20 (emphasis added). But, as emphasized in the first factor, Mr. Fabian
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`concluded Mr. Tryon’s real IQ was “around 80” and that he functioned in the
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`“borderline range,” rather than the intellectually disabled range. Id. at 19.
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`iii. Report of Robert Musick, sociology professor
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`Professor Musick reviewed a similar set of records as Mr. Fabian and also
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`interviewed Mr. Tryon, Mr. Tryon’s mother, and one of Mr. Tryon’s brothers, Rico
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`Wilson. Professor Musick commenced his report by summarizing Mr. Tryon’s
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`upbringing and familial situation, making several observations similar to
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`Mr. Fabian’s but doing so in greater detail. From interviewing Rico Wilson,
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`Professor Musick learned that Mr. Tryon’s father not only beat Mr. Tryon’s mother
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`but also beat Mr. Tryon and Mr. Tryon’s male siblings. Professor Musick also
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`discussed the impact the death of Mr. Tryon’s maternal grandmother had on the
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`family, as she was a “stabilizing force” in Mr. Tryon’s life. ROA Vol. 2 at 744.
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`Professor Musick concluded that Mr. Tryon’s behavior at school became more
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`disruptive following the death of his grandmother and that Mr. Tryon turned to a
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`gang member as a mentor and role model. Professor Musick also drew a temporal
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`correlation between the passing of Mr. Tryon’s grandmother and Mr. Tryon’s abuse
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`of marijuana, alcohol, and PCP.
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`Professor Musick next discussed several head injuries Mr. Tryon reported
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`sustaining: (1) a 2001 or 2002 incident where he was hit by a car while riding a bike;
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`(2) a 2008 incident when he fell over a bike; (3) a 2010 incident where he was a
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`passenger in a