Clifton Williams v. William Stephens, Director

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 13-70015 FILED

August 1, 2014

Lyle W. Cayce

CLIFTON LAMAR WILLIAMS, Clerk

Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

Before JONES, DENNIS, and HAYNES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

A jury found Clifton Lamar Williams guilty and sentenced him to death

for the brutal robbery and murder of a 93-year-old woman. After exhausting

his state remedies, Williams filed a federal habeas petition under

28 U.S.C. § 2254, claiming ineffective assistance of counsel and that he is

intellectually disabled 1 and therefore ineligible for execution under Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002). In a thorough opinion, the

district court rejected the petition. Williams now seeks a certificate of

1We have substituted “intellectual disability” for “mental retardation,” the term used

by the parties and the Supreme Court in Atkins. Hall v. Florida, 572 U.S. ___, 134 S. Ct.

1986, 1990 (2014).

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appealability (COA) under 28 U.S.C. § 2253(c)(2). For the following reasons,

we DENY the COA application.

Background

1. Facts

On July 9, 2005, then 21-year old Williams broke into the home of Cecilia

Schneider, beat, strangled, and stabbed her to death. Williams laid

Schneider’s dead body on her bed and set it afire, destroying incriminating

evidence of the crime. He then fled in the victim’s car, disposed of the murder

weapon and the clothes he was wearing, and denied any connection to the

murder. Eventually, Williams told the Tyler, Texas police that Jamarist

Paxton, an acquaintance, forced him to participate in the offense and that his

own involvement was minimal. At Williams’s trial, however, Paxton testified

that he was not involved in the offense, and the police were unable to find any

evidence to substantiate Williams’s claim that someone else was involved in

Schneider’s murder. The jury found Williams guilty of capital murder and

sentenced him to death.

2. Procedure

Williams filed a direct appeal with the Texas Court of Criminal Appeals

(“CCA”), raising seven points of error. The CCA affirmed the trial court on all

points. Williams did not seek Supreme Court review. While his direct appeal

was pending before the CCA, Williams sought habeas corpus under TEX. CODE

CRIM. PROC. ART. 11.071. The state trial court conducted an evidentiary

hearing, and issued a report and findings recommending denial of habeas

relief. The CCA approved the trial court’s findings and denied habeas relief.

Williams then filed a federal habeas petition, raising ten claims for relief, along

with a motion to stay and abate the federal action because his petition asserted

a previously unexhausted claim. The district court denied the motion, and

Williams amended his petition to omit the unexhausted claim. After the

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district court denied relief, Williams sought a Certificate of Appealability

(COA), which the district court also denied. The motion for COA has been

renewed in this court.

Standard of Review

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

state court prisoner must obtain a COA before appealing a federal district

court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). This is warranted

upon a “substantial showing of the denial of a constitutional right.” Id.

§ 2253(c)(2). Where, as here, the district court rejects the Petitioner’s

constitutional claims on the merits, this court will issue a COA only if the

petitioner demonstrates that reasonable jurists could debate whether the

district court’s resolution of his constitutional claims was correct, or could

conclude that the issues presented “deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003)

(internal quotation marks and citation omitted). In cases involving the death

penalty, “[A]ny doubt as to whether a COA should issue in a death–penalty

case must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d

782, 787 (5th Cir. 2005).

In determining whether the district court’s denial of a prisoner’s petition

is debatable, this court “must be mindful of the deferential standard of review

the district court applied to [the habeas petition] as required by the AEDPA.”

Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003). AEDPA requires the

petitioner to prove that the adjudication by the state court “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 “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.” 28 U.S.C. § 2254(d). The focus of the “unreasonable application”

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inquiry is on whether the state court’s application of clearly established federal

law was objectively unreasonable. Williams v. Taylor, 529 U.S. 362, 411,

120 S. Ct. 1495, 1522 (2000). Accordingly, a state court’s application of a

federal law may be reasonable for the purposes of § 2254(d) even though

another court has applied the same law differently. Id. In sum, “[a] state

court’s determination that a claim lacks merit precludes federal habeas relief

so long as fairminded jurists could disagree on the correctness of the state

court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal

quotation marks and citation omitted).

Discussion

Williams advances nine claims for relief. The first eight claims assert

that Williams’s trial counsel were ineffective. The ninth contests the jury’s

finding that Williams is not intellectually disabled. Williams pressed the same

nine theories in his petition to the district court. Because the ineffective

assistance claims comprise the vast bulk of Williams’s appeal, the principles

controlling these claims are set forth first. We then address each of Williams’s

claims in turn.

It is noteworthy that the State afforded Williams highly experienced

defense counsel and access to investigators and multiple experts, as reflected

in the state habeas findings. The punishment phase of trial lasted for days,

and the trial court’s attentiveness to detail is reflected in the paucity of

challenges to trial procedure.

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1. Ineffective assistance of counsel

To establish that he was denied constitutionally effective assistance of

counsel, Williams must demonstrate that (1) counsel rendered deficient

performance, and (2) counsel’s actions resulted in prejudice. Strickland v.

Washington, 466 U.S. 668, 687–88, 690, 104 S. Ct. 2052, 2064-65 (1984). Both

of these prongs must be proven, and the failure to prove one of them will defeat

the claim, making it unnecessary to examine the other prong. Id. at 687,

104 S. Ct. at 2064. The deficient performance prong requires proof that, in

light of all the circumstances, counsel’s performance fell below an objective

standard of reasonableness. Id. at 687–88. In determining whether counsel’s

performance was deficient, courts must “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial

strategy.” Id. at 689 (internal quotation marks omitted). The Supreme Court

has admonished that judicial scrutiny of counsel’s performance “must be highly

deferential,” and avoid “the distorting effect of hindsight.” Id. at 689–90. To

demonstrate prejudice, the second prong, Williams must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. The Supreme Court has

further held that the likelihood of a different outcome must be “substantial,

not just conceivable.” Harrington, 131 S. Ct. at 792.

Viewing the Strickland test from the narrow perspective afforded federal

courts by AEDPA results in even greater deference to the state courts’

judgment. This is because , “[t]he standards created by Strickland and

§ 2254(d) are both ‘highly deferential,’... and when the two apply in tandem,

review is ‘doubly so.’ “ Harrington, 131 S. Ct. at 788 (citations omitted).

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2. Williams’s admission that he was in possession of a razor blade

Williams asserts that his trial counsel was constitutionally ineffective

because they allowed Williams to admit in open court that, while awaiting

trial, he had impermissibly taken a razor blade from the shower area back to

his cell. Williams argues that this admission had a prejudicial effect on the

testimony of Dr. Tynus McNeel, a State’s expert, and the jury’s decision

regarding future dangerousness.

Williams disputes the district court’s reading of the trial court record.

Assuming, arguendo, that Williams’s counsel was deficient for allowing the

“uncounseled” admission, Williams cannot establish prejudice. Dr. McNeel

explained that he formed his final opinion that Williams was a future threat

based on considerably more than just the razor blade incident. He also

considered all the evidence of Williams’s disruptive behavior in jail.

Dr. McNeel read a transcript of Williams’s testimony regarding the razor

blade, which showed that Williams became agitated by a prison guard’s

testimony and uttered an audible profanity in open court, prompting the trial

judge to excuse the jury and admonish him about his courtroom behavior.

There was plenty of testimony and evidence unrelated to the razor blade

incident that supported the state’s expert witnesses and the verdict. Various

witnesses described Williams as a volatile and aggressive inmate. According

to their testimony:

[Williams] had been involved in several other disruptive events

while in jail including being disrespectful and using profanity

toward a female guard, a plan to fight with another inmate, an

altercation with an inmate over a cup of coffee, a threat to slap a

jailer, the discovery of a trustee [sic] jacket in [Williams]’s cell, as

well as a physical altercation with another inmate that required

the other inmate to be taken to a jail clinic.

Memorandum Opinion at 25, Williams v. Thaler, No. 1:09-CV-00271 (E.D. Tex.

Mar. 26, 2013), ECF No. 31. Two expert witnesses, Dr. McNeel and

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Dr. Edward Gripon, testified that Williams was a future threat to society.

Williams’s criminal history, which included the brutality of Ms. Schneider’s

murder and Williams’s lack of remorse, a prior conviction for criminal trespass,

and an arrest and his confession to unauthorized use of a motor vehicle, was

also submitted to the jury. And unlike Dr. McNeel, who merely read the

transcript of Williams’s courtroom outburst, the jury witnessed the profanity

and agitation firsthand and was able to draw its own conclusions regarding

Williams’s future dangerousness.

In sum, because Williams has failed to show prejudice, reasonable jurists

could not debate the district court’s conclusion that the state courts did not

unreasonably apply Strickland in holding that trial counsel were not

ineffective for allowing Williams to admit, or not preventing his admission,

that he removed the razor blade to his jail cell.

3. State’s access to Williams

Williams argues that trial counsel were ineffective in allowing

Dr. Gripon to interview Williams. During cross–examination in the penalty

phase, trial counsel questioned Dr. McNeel about his failure to interview

Williams. Outside of the jury’s presence, the State objected that Dr. McNeel

could not have interviewed Williams without counsel’s permission, which had

not been granted. The State asserted the jury had been misled. Trial counsel

replied that he had not denied access to Williams, but had insisted that he not

be interviewed until after the defense had presented evidence negating

Williams’s future dangerousness. Further, he did not object to Williams’s

being interviewed at the appropriate time. As a result, Dr. Gripon interviewed

Williams that evening. Before the interview, Dr. Gripon had testified to the

jury that Williams was a future danger. Dr. Gripon testified during the State’s

rebuttal that the interview strengthened his opinion that Williams would be a

future danger. He also opined, responding to Williams’s mitigation

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contentions, that Williams is not intellectually disabled or paranoid

schizophrenic.

Williams contends that trial counsel erred by “opening the door” to the

interview, and then compounded the error by allowing the expert to opine on

Williams’s future dangerousness as well as his lack of intellectual disability.

Estelle v. Smith holds that a “criminal defendant, who neither initiates a

psychiatric evaluation nor attempts to introduce any psychiatric evidence, may

not be compelled to respond to a psychiatrist if his statements can be used

against him at a capital sentencing proceeding.” 451 U.S. 454, 468, 101 S. Ct.

1866, 1876 (1981). Here, however, Williams placed his mental state at

issue before and during trial. Before trial, counsel were aware that

examination by a State’s psychiatrist would be required when Williams

presented his own expert defense testimony on mental retardation, paranoid

schizophrenia and future dangerousness. Indeed, Dr. Gripon testified about

these issues only after Williams had presented two psychological experts who

testified that he was not a future threat to society. Thus, Dr. Gripon’s

testimony does not run afoul of Smith.

Assuming, arguendo, that trial counsel erred in allowing Dr. Gripon to

examine Williams, any error was harmless. In its punishment phase case in

chief, the State’s two experts testified extensively concerning Williams’s future

dangerousness and a separate expert testified on mental retardation.

Dr. Gripon had already testified that there was a probability that Williams

constituted a continuing threat to society. His rebuttal testimony, moreover,

was limited in comparison to his earlier testimony, which was based on a

comprehensive review of Williams’s background and the circumstances of the

murder. Williams makes no effort to explain how Dr. Gripon’s rebuttal

testimony adversely affected his intellectual disability claim beyond the

evidence already presented by the State. Prejudice has not been shown. For

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these reasons, reasonable jurists could not debate the district court’s holding

that the state court did not unreasonably apply Strickland in concluding that

trial counsel were not ineffective for “opening the door” to Dr. Gripon’s

interview and rebuttal testimony.

4. Insanity defense

Williams argues that trial counsel’s handling of an insanity defense was

incompetent for two reasons. First, Williams contends that trial counsel

blundered by raising the insanity defense four months after the initial pretrial

hearing. Second, he claims that there was no colorable insanity defense in

this case, and trial counsel prejudiced Williams by alleging this defense.

The discussion that occurred after trial counsel filed a notice of insanity

defense is fatal to Williams’s first contention. When the matter was taken up,

trial counsel informed the trial court that he did not believe that the filing was

late. The State objected that the filing was untimely. After the trial court

commented that it would be inclined to allow the filing absent a showing by

the State of “some strong basis for not doing so,” the State withdrew its

objection, and the notice was deemed timely filed. Thus, there is no support

for Williams’s argument that trial counsel were deficient for not raising the

insanity defense at the initial pretrial hearing.

As to the second argument, Williams notes that under Texas law,

“[i]nsanity is an affirmative defense to prosecution when, at the time of the

conduct charged, the actor, as a result of a severe mental disease or defect, did

not know that his conduct was wrong.” TEX. PEN. CODE § 8.01(a) (emphasis

added). Williams then points to various actions he took after he murdered

Schneider, including that he burned the victim’s body, fled the scene, disposed

of the murder weapon, and initially lied to the police. According to Williams,

all of the post–murder evidence shows that he knew he knew that his conduct

was wrong. Williams’s conduct after the murder, however, does not preclude

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a finding of insanity at the time of the murder. Further, when trial counsel

gave notice, they knew that Williams had been previously diagnosed with

paranoid schizophrenia but had not yet received the defense psychologist’s

report. Taken in context, trial counsel’s decision to raise the insanity defense,

even though they did not ultimately pursue it, cannot form the basis of habeas

relief. Ransom v. Johnson, 717 F.2d 199, 206 (5th Cir. 1983) (holding that trial

counsel’s informed and reasoned practical judgments “will not be second-

guessed”).

Even if Williams could establish deficient performance, he cannot show

prejudice. Williams contends that, as a result of counsel’s pleading the

insanity defense, he was ordered to submit to examinations by court–appointed

experts, who later rendered opinions contrary to Williams’s claims that he is

intellectually disabled and does not constitute a continuing threat to society.

Trial counsel, however, had already agreed to allow the State’s mental

retardation expert to examine Williams in return for the State’s assurance that

it would withdraw its notice of intent to seek the death penalty if its expert

concluded that Williams is intellectually disabled. Indeed, the State’s mental

retardation expert had examined Williams four times before trial counsel filed

the notice regarding the insanity defense. Thus, reasonable jurists could not

debate the district court’s holding that the state courts did not unreasonably

apply Strickland in concluding that trial counsel were not ineffective in the

manner in which they pursued the insanity defense.

5. Literacy Council records

When he was 20 years old, Williams took an Adult Basic Education test

at the Literacy Council of Tyler. Williams scored on a second grade level for

reading and a fifth grade level for math. According to Williams, his poor test

scores at the Literacy Council would have shown that his school grades were

misleading and would have fortified the argument that he had received several

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decent marks only due to the school’s reluctance to fail or hold back students,

rather than because Williams had a higher aptitude than an intellectually

disabled individual. Williams contends that his trial counsel were ineffective

in failing to publish to the jury evidence of his Literary Council test scores.

The Council records, however, were cumulative and had limited

probative value. At the evidentiary hearing in the state habeas action, trial

counsel stated that they did not find the records significant in light of

Williams’s school records, because his performance on standardized tests

indicated his diminished intellectual functioning better than his grades. As to

the probative value of the Council records, Nancy Crawford, head of the

Council and its records custodian, explained that the Adult Basic Education

test was designed as a placement tool so that the Council would know where

to start GED instruction with a given student. Crawford further indicated that

the testing conditions at the Council were far from optimal; the entire amount

of time Williams spent at the Council was 10.75 hours over approximately one

year; and he never attended a single class at the Council. This record showed

the records’ low probative value. Accordingly, reasonable jurists could not

debate the district court’s conclusion that the state courts did not unreasonably

apply Strickland in concluding that trial counsel were not ineffective for failing

to emphasize the Literary Council test scores.

6. Duties at Kentucky Fried Chicken

Williams contends that trial counsel were ineffective because they did

not sufficiently controvert the State’s characterization of Williams’s work at

Kentucky Fried Chicken (KFC). At trial, the State asserted that Williams’s

job as a cook at KFC required the ability to measure spices in the proper

proportion and cook chicken appropriately. Williams argues that had trial

counsel investigated Williams’s job duties, they would have been able to

explain that all of KFC’s ingredients uses are pre–mixed, and all that Williams

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had to do was open boxes, sift various ingredients together and dredge the

chicken.

To provide effective assistance, “trial counsel must not ignore pertinent

avenues of investigation, or even a single particularly promising investigation

lead.” Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013) (per curiam).

Here, however, Williams’s trial counsel were fully aware of their client’s duties

at KFC. They obtained Williams’s employment records and interviewed his

former employers. Trial counsel ultimately made a tactical decision not to

focus on Williams’s limited duties as a KFC cook because they believed that

the jury would learn that Williams was in fact able to cook simple meals for

himself. Instead, trial counsel emphasized Williams’s unsteady work history.

As they explained, defense experts said that Williams’s inability to keep a “low

functioning” job was consistent with mental retardation.

The fact that trial counsel used Williams’s tenure at KFC to show his

inability to hold a job, and not his alleged inability to cook, is well within the

“wide latitude” that the Supreme Court has afforded criminal defense counsel

in making tactical decisions. Harrington, 131 S. Ct. at 789. Williams,

moreover, cannot show that he was prejudiced by trial counsel’s approach,

because another defense witness, Dr. Thomas Allen, gave the jury a basis for

inferring that Williams’s duties as a cook did not entail a high degree of

complexity. During the punishment phase, Dr. Allen testified that chain

restaurants such as KFC do not rely on their cooks to measure and add spices,

but use essentially pre–packaged seasoning. Thus, reasonable jurists could

not debate the district court’s conclusion that the state courts did not

unreasonably apply Strickland in holding that trial counsel’s basis for

challenging the State’s characterization of Williams’s work at Kentucky Fried

Chicken (KFC) did not render his counsel ineffective.

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7. Expert testimony on future dangerousness

Williams contends that trial counsel were ineffective for not objecting to

the testimony by the State’s psychiatric and psychological experts that he

constituted a future threat to society. Although he concedes that psychiatric

testimony about future dangerousness is currently admissible under Barefoot

v. Estelle, 463 U.S. 880 (1983), Williams argues that trial counsel should have

challenged that holding as incompatible with the Supreme Court’s later

decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),

thereby paving the way for the Supreme Court to revise the current rule.

Williams’s argument, however, does not show that the state court’s

decision was contrary to, or involved an unreasonable application of, clearly

established federal law, as determined by the United States Supreme Court.

28 U.S.C. § 2254(d)(1). Williams instead argues that trial counsel failed to

press his version of what the law on psychiatric evidence should be. His

contention that the Supreme Court may overrule Barefoot in light of Daubert

is completely speculative. This court, moreover, has held that Daubert does

not apply to the standards governing the admissibility of expert evidence at a

capital sentencing hearing, United States v. Fields, 483 F.3d 313, 341-46 (5th

Cir. 2007), and has rejected the notion that trial counsel is deficient for not

challenging the continued validity of Barefoot. Johnson v. Cockrell, 306 F.3d

249, 255 (5th Cir. 2002) (“We also disagree that Johnson could have

persuasively argued to the district court that Daubert or Robinson altered the

admissibility of this type of evidence after Barefoot.”). In light of these

holdings, reasonable jurists could not debate the district court’s ruling that

that the state courts did not unreasonably apply Strickland in concluding that

trial counsel were not deficient for failing to object to the testimony from the

State’s psychiatric and psychological experts.

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8. Mistaken belief as to Dr. Patton

Williams claims that trial counsel were ineffective because they

mistakenly believed that defense expert, Dr. James Patton, was not qualified

to render an opinion that Williams is intellectually disabled. Had Dr. Patton

opined on the issue, Williams notes, the defense would have presented three

experts versus the two presented by the State. Williams contends that by

presenting more expert witnesses, his counsel would have met the

preponderance of evidence standard set out in Ex parte Briseno, 135 S.W.3d 1

(Tex. Crim. App. 2004), and thereby proved that he is intellectually disabled.

Williams’s trial counsel called Dr. Patton to testify solely on the issue of

adaptive deficits, one component of a mental retardation diagnosis, and not to

render an opinion on whether Williams is intellectually disabled. Before

Patton’s testimony, during the State’s voir dire of the expert witness, the

prosecutor questioned Patton’s credentials to make a diagnosis of mental

retardation. Williams argues that trial counsel erred by not rebutting this line

of questioning by citing In re Hearn, 418 F.3d 444 (5th Cir. 2005), where the

court held that Dr. Patton is qualified to diagnose intellectual disability.

In re Hearn is irrelevant, however, because the purpose of Dr. Patton’s

testimony in this case was to offer his opinion on Williams’s adaptive deficits,

not to make an intellectual disability diagnosis. Further, the record

establishes that this decision to focus Dr. Patton’s testimony was reasonable

trial strategy. Dr. Patton testified after the other two defense experts had

opined that Williams is intellectually disabled. Dr. Patton’s testimony would

have been cumulative, and may also have carried less weight with the jurors

given his lesser credentials. Finally, Williams’s claim that the presence of a

third witness would have convinced the jury that he is intellectually disabled

is entirely speculative and does not accurately describe the preponderance

standard. Conflicting expert testimony invites juries to make a credibility

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determination, not to tally which side produced more experts. See Chester v.

Thaler, 666 F.3d 340, 349 (5th Cir. 2011), cert. denied, 133 S. Ct. 525 (2012).

Accordingly, reasonable jurists could not debate the district court’s conclusion

that the state courts did not unreasonably apply Strickland in holding trial

counsel were not ineffective for focusing Dr. Patton’s testimony on adaptive

deficits.

9. Atkins challenge

In his ninth and final challenge, Williams contends that because he is

intellectually disabled, he is ineligible for the death penalty under Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002).

Texas follows the American Association on Mental Retardation

(“AAMR”) definition of intellectual disability for Atkins claims presented in

death–penalty cases. Under this definition, intellectual disability is

characterized by: (1) “significantly subaverage” general intellectual

functioning; (2) accompanied by “related” limitations in adaptive functioning;

(3) the onset of which occurs prior to the age of 18. Briseno, 135 S.W.3d at 7.

In Briseno, the CCA created seven evidentiary factors to assist the factfinder

in determining, within the AAMR framework, whether a particular defendant

is in fact intellectually disabled. Id. at 8.

Williams’s argument has three parts. First, Williams takes issue with

the CCA’s use of several of the Briseno factors. This court, however, has

previously upheld the Briseno factors as an appropriate mechanism for

enforcing Atkins’s prohibition against executing intellectually disabled capital

defendants. Chester, 666 F. 3d at 347 (concluding that the Briseno factors do

not contradict Atkins). Thus, the CCA’s use of the Briseno framework to

evaluate Williams’s claim was not an unreasonable application of federal law.

Second, Williams argues that the jury’s conclusion that he is not

intellectually disabled ignores lay testimony that he is mentally unstable as

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well as expert opinion that his disciplinary problems at school and failure to

hold a steady job could be explained by schizophrenia. Is it unclear how helpful

these arguments are to Williams, since he acknowledges that mental

retardation and paranoid schizophrenia are distinct diagnoses. Under

AEDPA, Williams can prevail on this argument only by showing that the jury’s

finding that he is not intellectually disabled “was based upon an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings.” 28 U.S.C. § 2254(d)(2). See also Hooks v. Workman, 689 F.3d

1148, 1166 (10th Cir. 2012) (holding that jury verdict must be upheld where

rational trier of fact could have found that petitioner failed to establish by a

preponderance of the evidence that he is intellectually disabled). Significantly,

this court must presume the jury’s finding to be correct “absent clear and

convincing evidence to the contrary.” 28 U.S.C. § 2254(e)(1). Here, the jury

determined that Williams is not intellectually disabled after considering the

“testimony of psychological experts from both sides in the field of mental

retardation and others such as teachers, counselors and mental health

providers who had contact with appellant before and after his incarceration.”

Williams, 270 S.W.3d at 132. Although there is some evidence in the 1,900

page record that Williams is intellectually disabled, it does not amount to clear

and convincing proof that the jury’s determination was incorrect. Thus,

Williams’s second argument fails.

Third, Williams argues that the evidence presented at trial proves that

he met each of the three criteria for intellectual disability set forth in the

AAMR definition. We need not go beyond two of these criteria regarding

whether he has an IQ below 70. Williams points out that two of his experts—

Dr. Robert McClure and Dr. Allen—both tested him and obtained IQ results

below the AAMR’s benchmark of 70. The CCA, however, found that the jury

could have reasonably questioned the reliability of both diagnoses. There was

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testimony that Williams misled and misrepresented his background to

Dr. McClure, who examined Williams to determine his eligibility for Social

Security benefits, and that Dr. McClure’s assessment that Williams was

“mildly” intellectually disabled was accordingly based on incomplete and

inaccurate information. The CCA also found that Dr. Allen was not a credible

witness because he based his opinion on information provided by Williams and

his family members, and did not interview any of Williams’s school teachers.

Importantly, Dr. Timothy Proctor, an expert retained by the State, gave

Williams a total of five IQ tests with scores of 70, 71, 73–74, 78, and 83. Even

with the recognized, five–point standard error of measurement, Williams

scored over 70 on two of these tests.

Williams also contends that he proved that he possessed adaptive

deficits, the second AAMR factor. Dr. Proctor testified, however, that

Williams’s deficits in adaptive behavior were not in the intellectual disability

range. Williams does not contradict this finding.

Reasonable jurists could not debate the district court’s resolution of

Williams’s claim of intellectual disability.

Conclusion

For the reasons herein stated, Williams’s COA request is DENIED.

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Case: 13-70015 Document: 00512719312 Page: 18 Date Filed: 08/01/2014

No. 13-70015

JAMES L. DENNIS, Circuit Judge, concurring in the judgment:

Based on the evidence of intellectual disability that was presented to the

jury in this case, I concur in the denial of a certificate of appealability on the

petitioner’s claim of ineligibility for the death penalty under Atkins v. Virginia,

536 U.S. 304 (2002). However, with respect to the so-called “Briseno factors”

that Texas applies to Atkins claims, see Ex parte Briseno, 135 S.W.3d 1, 8-9

(Tex. Crim. App. 2004), which the majority says are “appropriate,” ante, at 15,

I adhere to my views expressed in Chester v. Thaler, 666 F.3d 340 (5th Cir.

2011) (Dennis, J., dissenting), namely, that such factors may, depending on

how they are applied, run afoul of Atkins. But in this case, the Briseno factors

are simply irrelevant because the jury, to which the petitioner’s Atkins claim

was submitted and rejected, was not instructed as to the Briseno factors, and,

thus, such factors did not and could not have affected the rejection of the Atkins

claim. See Williams v. State, 270 S.W.3d 112, 133-34 (Tex. Crim. App. 2008)

(jury instruction). And, in affirming the jury’s conclusion, the Texas Court of

Criminal Appeals did not purport to apply the Briseno factors in any manner

either. In short, this case provides no occasion for us to opine in the abstract

on whether the Briseno factors are generally “appropriate,” and I do not join

the majority’s advisory opinion to that effect.

As for the petitioner’s ineffective-assistance-of-counsel claims, I concur.

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