Whether the Tenth Circuit erred in concluding that Moore v. Texas I and II were mere applications of Atkins v. Virginia that could be applied retroactively on collateral review, in violation of Shoop v. Hill and creating a circuit split

QUESTIONS PRESENTED Oklahoma juries sentenced Roderick Lynn Smith to death initially and following a retrial on the penalty. Prior to Smith’s resentencing, a jury found at the conclusion of a six-day trial that he was not intellectually disabled for purposes of Atkins v. Virginia, 536 U.S. 304 (2002). In 2007, on appeal from Smith’s Atkins trial, the Oklahoma Court of Criminal Appeals (“OCCA”) upheld the jury’s verdict, finding that the State had presented persuasive evidence to refute Smith’s claim of significant limitations in his adaptive functioning prong”). Smith’s death sentences subsequently became final in 2014. The Tenth Circuit granted Smith habeas relief. The court sua sponte determined that the OCCA’s discussion of the evidence was too “cursory” to constitute a merits adjudication, such that the court would review the prong de novo. The court further concluded that application of Moore v. Texas, 137 S.Ct. 1039 (2017) “Moore I”), and Moore v. Texas, 139 S.Ct. 666 (2019) (“Moore IT’), was not barred by Teague v. Lane, 489 U.S. 288 (1989), because these cases were mere applications of Atkins that did not announce new rules. Applying Moore Iand Moore IT, the court held that no rational trier of fact could have found that Smith did not meet the prong. The questions presented are: 1. Did the Tenth Circuit err in concluding that Moore I and Moore IT were mere applications of Atkins that could be applied retroactively on collateral review, ii contrary to Shoop v. Hill, 139 S.Ct. 504, 505 (2019) (per curiam), and the Eleventh Circuit?. 2. In sua sponte holding that the OCCA did not rule on the prong because its analysis was too cursory, did the Tenth Circuit violate this Court’s precedent that forbids the imposition of opinion-writing standards, Johnson v. Williams, 568 USS. 289, 300 (2013)? 3. Whether reviewed de novo or with deference, did the Tenth Circuit err in granting habeas relief on Smith’s claim of deficits where Smith’s only expert to opine on this prong improperly administered the assessment directly to Smith, contemporaneously administered other tests to Smith that showed malingering, and relied on information that was disputed by other witnesses? iii LIST OF PROCEEDINGS Oklahoma County District Court Case No. CF-1993-3968 State v. Smith Judgment and Sentence entered on November 4, 1994 Oklahoma Court of Criminal Appeals OCCA Case No. D-94-1199 Smith v. State Mandate issued on December 9, 1996 United States Supreme Court Case No. 96-8872 Smith v. Oklahoma Petition for Certiorari denied on June 27, 1997 Oklahoma Court of Criminal Appeals OCCA Case No. PCD-1997-982 Smith v. State Order of Denial entered on March 24, 1998 United States District Court for the Western District of Oklahoma Case No. CIV-98-601-R Smith v. Gibson Judgment entered on January 10, 2002 United States Court of Appeals for the Tenth Circuit Case No. 02-6055 Smith v. Mullin Judgment entered on July 29, 2004 iv Oklahoma Court of Criminal Appeals OCCA Case No. PCD-2002-973 Smith v. State Order of Dismissal entered on November 10, 2004 Oklahoma Court of Criminal Appeals OCCA Case No. O-2006-683 Smith v. State Mandate issued on January 29, 2007 Oklahoma County District Court Case No. CF-1993-3968 State v. Smith Judgment and Sentence entered on April 14, 2010 Oklahoma Court of Criminal Appeals OCCA Case No. D-2010-357 Smith v. State Mandated issued on August 7, 2013 Oklahoma Court of Criminal Appeals OCCA Case No. PCD-2010-660 Smith v. State Mandate issued on February 13, 2014 United States Supreme Court Case No. 13-8706 Smith v. Oklahoma Petition for Certiorari denied on May 27, 2014 v United States District Court for the Western District of Oklahoma Case No. CIV-14-579-R Smith v. Royal Judgment entered on July 13, 2017 United States Court of Appeals for the Tenth Circuit Case No. 17-6184 Smith v. Sharp Judgment entered on August 26, 2019