Rivera v. Quarterman

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 18, 2007

No. 06-70022 Charles R. Fulbruge III

Clerk

Jose Alfredo RIVERA

Petitioner-Appellee

v.

Nathaniel QUARTERMAN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division

Respondent-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is a death penalty case from Cameron County, Texas. Texas appeals

from a federal grant of habeas relief on Jose Rivera’s Atkins claim, arguing that

the district court erred in not dismissing his habeas petition as untimely and in

finding that Rivera is mentally retarded. We affirm in part, vacate in part, and

remand for further proceedings.

I

The dates and sequence of events are important in this appeal. In May

1994, Rivera was convicted and sentenced to death for murdering three-year-old

Luis Daniel Blanco. The Texas Court of Criminal Appeals (“CCA”) affirmed his

No. 06-70022

conviction and sentence. His first state habeas petition was denied by the CCA

on December 16, 1998; the federal district court denied his first federal habeas

petition on October 3, 2001. This court denied a Certificate of Appealability on

November 27, 2002. Rivera’s execution date was set for August 6, 2003.

On June 20, 2003, Rivera filed a state habeas petition raising an Atkins1

claim for the first time. That was the last day to bring an Atkins claim under

AEDPA’s one-year statute of limitations period.2 The CCA dismissed Rivera’s

habeas petition on July 25, 2003. Rivera submitted a suggestion for rehearing

to the CCA on August 1, 2003, which the CCA rejected on August 5, 2003.

Rivera filed, and the state courts rejected, a final state habeas petition on

Wednesday, August 6, 2003.

Rivera also sought relief in federal court on his Atkins claim. On Tuesday,

August 5, 2003, he filed a motion for authorization to file a successive petition

in this court, as required by 28 U.S.C. § 2244(b)(3)(A). Rivera submitted a

proposed successive application for habeas corpus to be attached to the motion

for authorization. This court denied his first motion on August 6 as failing to

make a prima facie showing of mental retardation; this court could not consider

all of the evidence of mental retardation Rivera presented because he had not

presented that evidence to the state courts. Rivera then filed another habeas

petition with the state court on August 6, presenting the evidence of mental

retardation that this court refused to consider.

The state courts rejected his petition the same day, and Rivera filed a

second motion for authorization to file a successive petition with this court. Now

able to consider all of Rivera’s evidence, this court concluded that Rivera had

made a prima facie showing of mental retardation, authorized the successive

1

See Atkins v. Virginia, 536 U.S. 304 (2002).

2

In re Hearn, 376 F.3d 447, 456 n. 11 (5th Cir. 2004); see 28 U.S.C. § 2244(d)(1)(C).

2

No. 06-70022

petition on that issue only, and stayed his execution. Rivera filed his habeas

petition with the district court on Monday, August 11, 2003.

II

After Rivera filed his habeas petition in the federal district court, the state

moved to dismiss the petition as being untimely. The state argued that Rivera

“should have filed the writ in federal court at the absolute latest on Thursday,

August 7, 2003.” The state also argued in its motion that Rivera was not

entitled to any equitable tolling of the statute of limitations.

The district court summarily denied the state’s motion to dismiss the

petition during a status conference in September 2003, stating: “Denied. You

will preserve your exception. We will revisit those matters.” At the end of the

conference, the state sought to clarify the nature of Judge Vela’s denial of its

motion to dismiss. The following exchange occurred:

TEXAS: Your Honor, do I understand that the Court has denied the

motion to dismiss filed by the state in its entirety?

COURT: If the state wants to, they can favor me with briefs and the

like. I will revisit it. But for right now it stands denied.

TEXAS: That was just what I was going to ask, if you would

reconsider

COURT: Yes.

Following the status conference, the parties briefed the mental retardation issue,

and Judge Vela held an evidentiary hearing in January 2004. Judge Vela died,

however, before rendering a decision. The case was transferred to Judge Hanen,

who held a second evidentiary hearing in January 2005. Another round of

briefing followed, and Judge Hanen issued a Memorandum Opinion and Order

on March 31, 2006, finding Rivera mentally retarded, granting habeas relief, and

permanently enjoining him from being executed. However, Judge Hanen did not

revisit Judge Vela’s timeliness ruling.

3

No. 06-70022

III

The state first argues that Rivera’s petition is time-barred under AEDPA.

A

While Rivera’s state habeas petitions were pending, AEDPA’s statute of

limitations was tolled.3 Thus, the statute of limitations on Rivera’s Atkins claim

was tolled through Wednesday, August 6, 2003, the day on which state

proceedings ended.4 However, because Rivera did not file his state Atkins claims

until the last day under AEDPA, none of the statute of limitations period

remained. Although this court authorized Rivera to file a successive petition

raising his Atkins claim on Wednesday, August 6, he waited over the weekend

to file the application with the district court – filing on Monday, August 11.

Therefore, his application was untimely.5

B

Nevertheless, as we have explained, “[a] court can allow an untimely

petition to proceed under the doctrine of equitable tolling ‘in extraordinary

circumstances.’ We and the district courts, guided by precedent, must examine

each case on its facts to determine whether it presents sufficiently ‘rare and

exceptional circumstances’ to justify equitable tolling.”6 “The doctrine of

equitable tolling preserves a plaintiff’s claims when strict application of the

statute of limitations would be inequitable.”7

3

See 28 U.S.C. § 2244(d)(2).

4

See Lookingbill v. Cockrell, 293 F.3d 256, 261 (5th Cir. 2002). The state asks us to

limit or distinguish Lookingbill. As doing so is not necessary to the outcome of this case and

the state did not raise the argument below, we decline to accept the invitation.

5

This court previously held that filing a motion for authorization to file a successive

petition does not satisfy AEDPA’s statute of limitations. See Fierro v. Cockrell, 294 F.3d 674

(5th Cir. 2002).

6

Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (quoting Davis v. Johnson, 158

F.3d 806, 810, 811 (5th Cir. 1998)) (citations omitted).

7

Davis, 158 F.3d at 810 (quoting Lambert v. United States, 44 F.3d 296, 298 (5th Cir.

1995)).

4

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Both the state and Rivera would have us decide in the first instance

whether equitable tolling is available in this case.8 Rivera advances three

grounds in support of applying the doctrine: (1) that Texas’ former two-forum

rule delayed by five months the time he could file in state court; (2) that he had

no right to counsel, lacked the financial resources to hire counsel, lacked the

resources to develop adequately his Atkins claim, and lacked the mental capacity

to represent himself pro se; and (3) that a proved Eighth Amendment claim

requires that AEDPA’s statute of limitations give way or that it justifies

equitable tolling. We, however, decline the parties’ invitation to decide now

whether equitable tolling applies.

The record before the court is not sufficiently developed for us to engage

in the fact-intensive determination of whether equitable tolling is appropriate.

Judge Vela denied the state’s motion to dismiss summarily. Despite his explicit

invitation to the state to brief and raise again the timeliness issue, the state did

not do so before either him or Judge Hanen. Rather, the state switched

litigation strategies and focused on the merits of Rivera’s Atkins claim. The

consequence of the state’s choice is that a factual record upon which this court

could base an equitable tolling decision was not developed before either judge.

Considering that we affirm the finding that Rivera is mentally retarded, as

discussed below, it would be imprudent for us to proceed in the first instance on

the question of equitable tolling, decidedly so given Rivera’s second bundle of

arguments in favor of equitable tolling – that is, the relationship between his

retardation and his ability to pursue habeas relief.

The state baldly asserts that Rivera has never been without counsel since

the Supreme Court decided Atkins, and thus we need not concern ourselves with

the “hypothetical” problem of a mentally retarded person trying to represent

himself pro se. The record, however, is not so certain. It does not clearly reflect

whether Rivera had counsel through the entire relevant time period; whether

8

See In re Lewis, 484 F.3d 793, 796 n. 8 (5th Cir. 2007).

5

No. 06-70022

there were gaps in his representation; if there were gaps, why he was without

counsel; and the effects of any gaps in representation on Rivera’s ability to

complete his Atkins petition. Because of that uncertainty, Lewis, where the

court declined to apply equitable tolling, is distinguishable: “Lewis obtained his

pro bono counsel on or soon after the day he received notice of his previous

counsel’s withdrawal, which was March 10, 2003, leaving Lewis with over three

months to file his state application.”9

Nor can we discern why it took over five months for Rivera to file his

Atkins claim in the state courts. Perhaps the state is correct in its answer, but

it assumes attorney error or lack of diligence – an assumption not tested in a

hearing. Nor does the record sufficiently develop what particular obstacles

Rivera encountered in assembling his Atkins claim. For example, it is unclear

to what extent he was able to access medical records in the state’s control, or

exactly how his indigence impacted his ability to develop his claim.

All that is clear is that what occurred during the nearly six months

between the end of the first federal habeas proceedings and the filing of Rivera’s

state petition raising his Atkins claim is unclear. Until the underpinnings of

what happened and why are made clear, we cannot rule on equitable tolling.

Our examples of uncertainties that remain are meant to be illustrative but not

exhaustive of what the parties should explore before the district court.

Accordingly, we vacate Judge Vela’s order denying the state’s motion and

remand to the district court with instruction to hold an evidentiary hearing,

make specific findings, and rule on the issue of equitable tolling.

IV

Although the statute of limitations remains potentially dispositive and we

ordinarily would not decide the merits under these circumstances, there are

compelling reasons for us to address the merits of Rivera’s claim now. First, the

merits are squarely before us: we have a developed record, an opinion by the

9

Id. at 797.

6

No. 06-70022

district court, and the parties have fully briefed and argued the merits. Judicial

economy favors addressing the merits now. Second, the issue of Rivera’s

retardation is potentially determinative just as the statute of limitations is. We

think it unfair to have the district court and the parties grapple with the difficult

question of equitable tolling under the looming possibility that it is all for nought

as we might later reverse the finding that Rivera is retarded.

Third, and perhaps most important, the merits blend inseparably into the

question of equitable tolling here. The bases for equitable tolling that prompt

us to remand – in particular the relationship between Rivera’s retardation and

his ability to pursue habeas relief – are made the more compelling precisely

because Rivera has been adjudicated to be retarded. That is, answering whether

Rivera is retarded is logically antecedent – if not a core element itself – to

determining whether equitable tolling is available. With this entanglement,

leaving Rivera’s retardation as an unaffirmed hypothetical risks obscuring the

issue of equitable tolling on remand, and has the possibility of detrimentally

compromising the record needed to review the district court’s decision on remand

should the case come back to this court.

Finally, because of the case’s procedural posture, we cannot avoid deciding

whether the district court erred by not giving AEDPA deference to the CCA’s

decisions. This inquiry takes us far down the road of examining the merits of

Rivera’s claim because, as the district court observed, the evidence before it was

quite similar to the evidence before the CCA.

A

Before considering the district court’s findings, we address the state’s

argument that Judge Hanen “was not empowered to apply a de novo standard”10

to Rivera’s Atkins claim, and was instead required to give AEDPA deference to

the CCA’s decisions.

10

State-Appellant’s Brief at 51.

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No. 06-70022

The CCA denied both of Rivera’s Atkins petitions as abuses of the writ,

concluding that neither the first petition11 nor the second supplemented

petition12 made a prima facie showing of retardation. In granting Rivera’s

motion to file a successive petition after the CCA denied his second petition, this

court explained that “characterizing the failure to meet the threshold

requirement as an abuse of the writ does not foot the ruling on an independent

state ground. This is a determination on the merits.”13 The state argues that,

because the CCA’s decision was on the merits, AEDPA’s deference standards

apply. The district court’s opinion does not address this issue.

Rivera contends that Morris v. Dretke14 controls whether deference is due;

however, this is not so. Morris held that where new evidence merely

supplements an Atkins claim that was presented to the state courts, AEDPA’s

exhaustion requirement is satisfied. We also noted that, “[i]n cases where the

legal question is whether the new evidence a petitioner puts forth for the first

time on federal habeas on a particular claim already asserted on state habeas

is exhausted under § 2254(b), subparts (d) and (e) of § 2254 concerning ‘factual

development’ are not implicated.”15 This, however, does not mean deference is

not due: “The State is correct to argue that our review of the Court of Criminal

Appeals’ judgment must be conducted under [AEDPA’s] deferential standard.”16

Under AEDPA, if a state court has adjudicated a habeas petitioner’s

claims on the merits, he may receive relief in the federal courts only where the

state court decision “resulted in a decision that was contrary to, or involved an

11

Ex parte Rivera, No. 27065-02, 2003 WL 21752841 (Tex. Crim. App. July 25, 2003).

12

Ex parte Rivera, No. 27065-03 (Tex. Crim App. Aug. 6, 2003).

13

In re Rivera, No. 03-41069 (5th Cir. Aug. 6, 2003).

14

413 F.3d 484 (5th Cir. 2005).

15

Id. at 498.

16

Id. at 501 (Higginbotham, J., concurring); see, e.g., Moreno v. Dretke, 450 F.3d 158

(5th Cir. 2006).

8

No. 06-70022

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.”17 We apply the same standards as the

district court in reviewing a decision of the state court.18

A state court’s decision is “contrary to” clearly established federal law if

“the state court applies a rule that contradicts the governing law announced in

Supreme Court cases, or . . . the state court decides a case differently than the

Supreme Court did on a set of materially indistinguishable facts.”19 “A state

court decision constitutes an ‘unreasonable application’ of clearly established

federal law . . . if the court ‘identifies the correct governing legal principle from

Supreme Court precedent, but applies that principle to the case in an objectively

unreasonable manner.’”20 If the state court’s decision runs afoul of these limits,

then federal court review “is unencumbered by the deference AEDPA normally

requires.”21 We conclude that the CCA’s dismissal of Rivera’s second

supplemented petition as failing to make a prima facie showing was an

unreasonable application of clearly established federal law.

Rivera’s second petition contained a report by Dr. Richard Garnett.

Garnett analyzed the then-available evidence of Rivera’s retardation, which

included various TDCJ medical records; records from treatment at a MHMR

facility for alcohol and drug abuse; records from the Windham School District;

Brownsville public school records; affidavits of teachers at Rivera’s school;

affidavits of family members of Rivera; letters written by Rivera to family

17

28 U.S.C. § 2254(d).

18

Woods v. Quarterman, 493 F.3d 580, 584 (5th Cir. 2007).

19

Id. (quoting Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006)) (internal

quotations omitted).

20

Id. (quoting Nelson, 472 F.3d at 292).

21

Panetti v. Quarterman, 127 S. Ct. 2842, 2855 (2007).

9

No. 06-70022

members; and reports from medical, psychological, and educational sources.

Garnett concluded that this evidence “suggest[s] that Mr. Rivera is mentally

retarded and there is no information which could rule out the diagnosis.”

Garnett explained that Rivera had never taken a valid, full length IQ test,

and that the tests he had taken to date were “not valid indicators of intellectual

functioning.” Based on a review of Rivera’s school records and achievement

testing, Garnett stated that “as an adult, Mr. Rivera was performing

academically at the level of a 10 year old.” Garnett specifically noted that Rivera

needed to take a full length, reliable IQ test.

Garnett’s report also indicated that the evidence suggested that Rivera

had deficits in adaptive functioning in multiple areas, including: functional

academic skills, work, self direction, communication, health, and self care. The

evidence further indicated onset prior to age 18.

The report was directly responsive to the gaps that the CCA identified in

denying Rivera’s first Atkins habeas petition. As to intellectual functioning, the

report went beyond mere recitation of grades to describe Rivera’s sustained

pattern of academic difficulties, and it analyzed Rivera’s performance on various

achievement tests while in school. The report explained why the IQ tests Rivera

had taken to date could not be relied on, and also detailed deficits in adaptive

functioning beyond Rivera’s work problems.22

The then-available evidence and Dr. Garnett’s report raised serious

questions about Rivera’s possible retardation. Faced only with the threshold

question of whether to allow Rivera’s claim to proceed, it was unreasonable on

the record before the CCA to reject Rivera’s Atkins claim as failing to even

establish a prima facie case – especially when viewed through the prism of

22

In dismissing Rivera’s first Atkins petition, the CCA described the evidence regarding

Rivera’s adaptive functioning as follows: “Other than allegations that he did not work much,

there is no evidence of deficits in adaptive behavior.”

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No. 06-70022

Atkins’ command that “the Constitution ‘places a substantive restriction on the

State’s power to take the life’ of a mentally retarded offender.”23

The district court’s ruling that Rivera had exhausted his Atkins claim

before the state court – which the state understandably does not discuss –

strengthens the conclusion that the CCA’s decision was unreasonable. We

explained in Morris that the presentation of “evidence [in the federal courts] that

places [a petitioner’s] claims in a significantly different legal posture must first

be presented to the state courts.”24 Here, the district court held that although

it had evidence before it that was not presented to the state court, there was no

exhaustion problem:

[T]he quality of the evidence presented in support of Rivera’s habeas

petition is strikingly similar both in terms of the type and the

amount of factual presentations made in state court, and in terms

of the qualitative improvement in the evidence made in the federal

Atkins presentation due to the additional evidence obtained after

the state habeas proceedings had concluded.

In short, the district court was considering a body of evidence that did not

“fundamentally alter”25 Rivera’s retardation claim. From the “strikingly similar”

evidence, the district court found that Rivera was retarded. That this body of

evidence can support a finding of retardation, which we affirm below, points

strongly to the conclusion that the CCA’s decision that Rivera had not made a

prima facie showing was unreasonable.

The unreasonableness of the CCA’s decision is further compounded by its

procedural effect: the finding that Rivera had not made a prima facie showing

deprived Rivera of the opportunity to develop fully the substance of his claim

before the state courts. Atkins, like Ford v. Wainwright,26 “[left] to the State[s]

23

Atkins, 536 U.S. at 321.

24

413 F.3d at 491 (quoting Anderson v. Johnson, 338 F.3d 382, 387 (5th Cir. 2003)).

25

Id.

26

477 U.S. 399 (1986).

11

No. 06-70022

the task of developing appropriate ways to enforce the constitutional restriction

upon [their] execution of sentences.”27 Ford is instructive because of the

similarity of the competency and mental retardation issues: both decisions

affirmatively limit the class of persons who are death penalty eligible. While

Atkins itself did not specifically impose the sort of procedural requirements that

Ford mandates, neither did Atkins purport to sweep away the protections of due

process.

Under Ford, “[o]nce a prisoner seeking a stay of execution has made a

‘substantial threshold showing of insanity,’ the protection afforded by procedural

due process includes a ‘fair hearing’ in accord with fundamental fairness.”28 As

Justice Powell explained, due process does not require a full trial on the merits,

but a process that affords the prisoner an “opportunity to be heard.”29

For our purposes, we are concerned with the Supreme Court’s application

of Ford in Panetti v. Quarterman. In Panetti, the prisoner had made a

“substantial showing of incompetency,” but according to the prisoner, the state

failed to provide him with procedures in conformity with Ford to develop his

claim. This failure, the prisoner argued, rendered the state’s decision denying

his incompetency claim an unreasonable application of clearly established

federal law. The Supreme Court agreed:

The state court’s failure to provide the procedures mandated by

Ford constituted an unreasonable application of clearly established

law as determined by this Court. It is uncontested that petitioner

made a substantial showing of incompetency. This showing entitled

him to, among other things, an adequate means by which to submit

expert psychiatric evidence in response to the evidence that had

been solicited by the state court. And it is clear from the record that

the state court reached its competency determination after failing

27

Atkins, 536 U.S. at 317 (quoting Ford, 477 U.S. at 405, 416-17).

28

Panetti, 127 S. Ct. at 2856 (quoting Ford, 477 U.S. at 426 (Powell, J., concurring in

part and concurring in the judgment)).

29

Ford, 477 U.S. at 424 (Powell, J., concurring in part and concurring in the judgment).

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No. 06-70022

to provide petitioner with this process . . . . As a result of this error,

our review of petitioner’s underlying incompetency claim is

unencumbered by the deference AEDPA normally requires.30

Even though Atkins did not specifically mandate any set of procedures, it was

decided against the backdrop of the Supreme Court’s and lower court’s due

process jurisprudence. The lesson we draw from Panetti is that, where a

petitioner has made a prima facie showing of retardation as Rivera did, the state

court’s failure to provide him with the opportunity to develop his claim deprives

the state court’s decision of the deference normally due.31

The Court’s decision in Ake v. Oklahoma32 is relevant to the extent that

Texas’ abuse of the writ doctrine is potentially a procedural bar to our review.33

The substantive issue in Ake was whether the Constitution requires a state to

provide assistance to an indigent defendant when there is a serious question

about the defendant’s sanity at the time of the offense. However, the Court faced

a threshold issue of whether an adequate and independent state ground – the

state’s waiver rule – deprived it of jurisdiction. The Court held that it did have

jurisdiction as the application of the state’s procedural rule turned on an

antecedent determination of federal law: “Before applying the waiver doctrine

to a constitutional question, the state court must rule, either explicitly or

30

Panetti, 127 S. Ct. at 2855.

31

See also id. at 2859 (“Here, due to the state court’s unreasonable application of Ford,

the factfinding procedures upon which the court relied were ‘not adequate for reaching

reasonably correct results’ or, at a minimum, resulted in a process that appeared to be

‘seriously inadequate for the ascertainment of the truth.’ We therefore consider petitioner’s

claim on the merits and without deferring to the state court’s finding of competency.” (citation

omitted)); Taylor v. Horn, __ F.3d __, No. 04-9016, 2007 WL 2728668, at *34 n.12 (3d Cir. Sept.

20, 2007) (“We appreciate that if a competency hearing was not held when it ought to have

been, in accordance with minimal federal standards of procedural due process, then no

deference is due to a state court’s competency determination.”).

32

470 U.S. 68 (1985).

33

The state did not raise the issue. However, because it implicates our jurisdiction, we

address the question.

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No. 06-70022

implicitly, on the merits of the constitutional question.”34 The necessity of

examining the merits of the federal law issue to decide the applicability of the

state procedural rule meant that “the state-law prong of the court’s holding is

not independent of federal law.”35

The application of Texas’ abuse of the writ doctrine to Atkins claims is

entangled in federal law in much the same way as Oklahoma’s waiver doctrine

was in Ake; “in the Atkins context, Texas courts have imported an antecedent

showing of ‘sufficient specific facts’ to merit further review, rendering dismissal

of such claims [as abuses of the writ] a decision on the merits.”36 That is, to

decide whether an Atkins claim is an abuse of the writ, the CCA examines the

substance of the claim to see if it establishes a prima facie case of retardation,

and only upon deciding that question can the state court decide whether remand

is appropriate.37 Thus, a decision that an Atkins petition does not make a prima

facie showing – and is, therefore, an abuse of the writ – is not an independent

state law ground.

This does not mean that states may not use procedural devices and

doctrines – independent and adequate state law grounds – to ferret out frivolous

34

Ake, 470 U.S. at 75.

35

Id.

36

Morris, 413 F.3d at 500 n. 4 (Higginbotham, J., concurring).

37

For example, in rejecting Rivera’s first petition presenting his Atkins claim, the CCA

concluded by stating that “[a] remand of a subsequent application raising an Atkins claim is

appropriate when an applicant sets out sufficient facts to rase a bona fide claim of mental

retardation, but in the instant cause [Rivera] has failed to make this threshold showing.

Because of [Rivera’s] failure to produce ‘sufficient specific facts’ to support an Atkins claim, we

dismiss [Rivera’s] subsequent writ application as an abuse of the writ . . . .” Of course, this

court has held in other circumstances that Texas’ abuse of the writ doctrine is an adequate and

independent state law ground, see Barrientes v. Johnson, 221 F.3d 741, 759-61 (5th Cir. 2000);

Emery v. Johnson, 139 F.3d 191, 195-96 (5th Cir. 1997), but the merits showing now

incorporated for Atkins claims changes the character of the doctrine.

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No. 06-70022

or meritless claims, thereby preventing federal review.38 Nor does it mean that

states must give hearings to persons with such claims as Ford makes clear. But

it does mean that, where the threshold a state sets turns on a merits

determination of federal law or fails to make clear that it is procedural in nature,

that decision is reviewable.39 Although Texas’ abuse of the writ doctrine is

superficially procedural in that it has a procedural effect, determining which

claims are remanded to the state trial courts for further development, it steps

beyond a procedural determination to examine the merits of an Atkins claim.

For an Atkins claim, the merits determination is at a minimum “interwoven”

with the constitutional prohibition against executing the mentally retarded.40

This case stands in contrast to Moreno v. Dretke.41 The CCA concluded

that Moreno failed to make a prima facie showing of retardation, dismissing his

petition as an abuse of writ. This court affirmed the district court’s holding that

the CCA’s decision was entitled to AEDPA deference. Moreno attempted to show

subaverage intellectual functioning by submitting an IQ test taken in 2003 on

which he scored a 64.42 The test administrator, however, qualified his test score,

38

See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Wright v. Quarterman, 470

F.3d 581, 586 (5th Cir. 2006) (“A federal court may not grant a petition for a writ of habeas

corpus where the state court expressly denied the claim based on an independent and adequate

state procedural rule.”).

39

See Harris v. Reed, 489 U.S. 255, 263-65 (1989) (“Having extended the adequate and

independent state ground doctrine to habeas cases, we now extend to habeas review the ‘plain

statement’ rule for determining whether a state court has relied on an adequate and

independent state ground.”); Hogue v. Johnson, 131 F.3d 466, 492-93 (5th Cir. 1997).

40

Hogue, 131 F.3d at 493 (“In Young we likewise recognized that a necessary ‘predicate’

to the application of the Harris rule is that the decision of the last state court to which the

petitioner presented his federal claims most fairly appear to rest primarily on federal law or

to be interwoven with federal law.” (quoting Young v. Herring, 938 F.2d 543, 553 (5th Cir.

1991) (en banc)) (internal quotation marks omitted)).

41

450 F.3d 158 (5th Cir. 2006).

42

Id. at 164.

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concluding that the “results probably reflect the lowest level of his abilities.”43

The test administrator commented that Moreno may not have given his best

effort and may have “exaggerated any possible deficits.”44 The administrator

went on to comment that “Moreno’s speech was ‘free of articulation errors,’ he

expressed himself appropriately and coherently, and his ‘cognitive processing

speed was unremarkable.’”45 Moreno attempted to demonstrate deficits in

adaptive functioning through a history of substance abuse and his attendance

in special education classes. However, the “only evidentiary support for that

claim was the psychologist’s report reciting Moreno’s self-reported educational

background. He could not identify any specific special education classes or

provide documentation of those classes.”46 In contrast, there was “substantial”

evidence that Moreno did not suffer from deficits in adaptive functioning.

The evidence Rivera presented to make his prima facie showing of

retardation was much stronger than Moreno’s. As summarized in Garnett’s

report, Rivera presented school records documenting a long, sustained pattern

of academic difficulties. And, again, Rivera’s achievement scores demonstrated

that “as an adult, Mr. Rivera was performing academically at the level of a 10

year old.” Garnett also concluded that the available evidence indicated deficits

in adaptive functioning other than academic achievement, such as in work,

health, and self care. Garnett’s analysis of Rivera’s evidence and his conclusion

that it “suggest[s] that Mr. Rivera is mentally retarded and there is no

information which could rule out the diagnosis” was itself potent evidence.

As the CCA’s decision was an unreasonable application of federal law, the

district court did not err by considering Rivera’s claim without deference to it.

43

Id.

44

Id.

45

Id.

46

Id. (emphasis added).

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No. 06-70022

B

The state next argues that the district court erred in finding that Rivera

was mentally retarded. The test for mental retardation is (1) significantly

subaverage intellectual functioning; (2) accompanied by related limitations in

adaptive functioning; and (3) onset prior to the age of eighteen.47 We review the

district court’s factual determinations for clear error, while we review de novo

conclusions of law.48 “A finding is clearly erroneous only if it is implausible in

the light of the record considered as a whole.”49

C

The district court did not clearly err in finding that Rivera suffered from

significantly subaverage intellectual functioning. Rivera scored a 68 on the

Wechsler Adult Intelligence Scales (WAIS-III) IQ test, a test which both parties

agree is the best full-scale IQ test available in English.50 Texas argues that

Rivera’s expert misinterpreted this score. According to Texas, Rivera’s verbal

IQ score of 66 is unreliable, and dragged down his overall result. Texas concedes

that Rivera speaks English, but explains that because Rivera is bilingual, he

“processes English and Spanish in competition.” This competition, Texas’ expert

argued, made Rivera’s verbal score unreliably low. Texas’ expert conceded that

the IQ test was properly given in English, but then testified that a responsible

clinician would have “qualified” the results in light of cultural factors, such as

language. In support, he noted that the WAIS-III record form includes a section

titled “Behavior Observations,” which asks, “Is English native language? If not,

47

See Atkins, 536 U.S. at 308 n. 3, 318; In re Salazar, 443 F.3d 430, 432 (5th Cir. 2006);

Ex parte Briseno, 135 S.W.3d 1, 7-8 (Tex. Crim. App. 2004).

48

Woods, 493 F.3d at 584.

49

St. Aubin v. Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006).

50

See also Atkins, 536 U.S. at 309 n. 5 (describing “the Wechsler Adult Intelligence

Scales test (WAIS-III)[ as] the standard instrument in the United States for assessing

intellectual functioning”).

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No. 06-70022

indicate examinee’s level of fluency; indicate expressive/receptive problems,

unusual verbalizations.”

The district court rejected this testimony, crediting instead the testimony

of Dr. Gilda Kessner, the psychiatrist who administered the IQ test. Kessner

testified that she followed the appropriate process for determining whether the

test could be administered in English. She testified that she spoke with Rivera

before the test, discussing his background, his substance abuse history, his work

history, and his ability to communicate with the guards. She testified that

during the test he spoke in English, she had no communication problems with

him, and that if she thought his English was a problem, she would not have

given him the test. Garnett offered testimony that supported Kessner’s

testimony, and three state witnesses, prison guards and counselors, also testified

that they converse with Rivera in English and without communication

difficulties.

Rivera also notes that the WAIS-III takes into account bilingual

examinees, as it was normed to include age groups, geographic regions, gender,

and Hispanic and Black Americans. Because of this, Rivera argues, it would

alter the reliability of the test to “qualify” the verbal score.

The district court did not clearly err in crediting the testimony of the

doctor who administered the IQ test. As Texas’ expert acknowledged, “the

clinician must ultimately make the decision . . . . It must come down to clinical

judgment”; “it has to come down to a clinician’s decision, even with test scores,

even with the history.”

Texas next argues that the district court erred in rejecting four pre-Atkins

IQ scores of 70, 85, 92, and 80. The scores were not from full-scale Wechsler

tests. The latter three scores resulted from screening tests used in the prison

system, and the score of 70 was mentioned in Rivera’s school records. Texas

concedes that the two Beta-II scores, 85 and 92, correlate only moderately with

the Wechsler tests. According to the state’s expert, “[T]he correlation coefficients

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No. 06-70022

between the Beta-II IQs and WAIS Full Scale IQs ranged between .64 and .66.

These moderate range coefficients are quite acceptable, especially when used as

a screening instrument.” Texas’ expert also cited a study that found that Beta

tests tend to underestimate intelligence. Texas defends the short form Wechsler

score of 80, noting that although the short form is “considered less reliable,” its

scores correlates closely with long form scores.

Rivera replies that the district court did not “reject” these pre-Atkins tests,

but it simply gave them less weight. The district court stated that “each score

should be of some, but not controlling, weight” because of the “paucity of details

surrounding their administration and scoring.” The district court “note[d] that

the circumstances surrounding the[] administration [of the four tests] are either

totally unknown or were less than ideal.” The expert testimony and literature

before the court “suggest[ed] that one sacrifices accuracy for speed when one

administers tests designed for screening purposes.” Garnett testified that IQ

tests given in the criminal justice system “don’t hold much weight” because of

the wide variation.

The district court concluded that the pre-Atkins IQ tests did not have “a

degree of sufficient reliability to satisfy this Court,” but that does not mean the

court “rejected” the tests. Rather, the district court considered the available IQ

test data and offered a reasoned basis for how it weighed the tests in its

analysis. We find no clear error in the district court’s determination that Rivera

has significantly subaverage intellectual functioning.

D

The district court did not clearly err in finding that Rivera suffered from

related limitations in adaptive functioning. There was evidence that Rivera was

always dirty, slept outside underneath his house, did not play games or read,

consistently had academic problems, and was unemployed. The district court

found that Rivera displayed adaptive deficits prior to the age of 18 in the areas

of self-care, social skills, home living, and functional academics.

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No. 06-70022

The state does not dispute that Rivera has adaptive limitations.51 As its

expert testified, Rivera has adaptive limitations in more than two categories.

Rather, Texas argues that these adaptive deficits might have been attributable

to Rivera’s abuse of inhalants, not to his mental retardation, and that the

district court did not find otherwise. Texas argues that there is no proof that

Rivera’s drug use caused his mental retardation before the age of 18, and that

it is just as likely that his early adaptive deficits were manifestations of an

intelligent man on drugs. Even the district court acknowledged this, Texas

argues, when it stated that “deficits may or may not have been caused by

Rivera’s diminished intellectual capacity. It is just as likely that these adaptive

deficits were caused by his long-term drug abuse.”

We read this quote charitably, in support of the district court’s own ruling.

The district court was likely distinguishing only between etiologies, remarking

that some of the deficits were caused by mental retardation from inhalants, and

some were caused by mental retardation from other factors. Retardation has,

as the experts in this case all agreed, a number of etiologies.52

As the CCA has noted, the adaptive behavior criteria are “exceedingly

subjective.”53 The district courts each held extensive evidentiary hearings, which

included testimony on this issue from, among other witnesses, Rivera’s family

members and teachers, and multiple experts. That this case presents, in Judge

Hanen’s words, “a close call” strengthens the need to be mindful of the district

51

See State-Appellant’s Brief at 47 (“Although the Director agrees that Rivera’s drug

history helps explain, in part, his adaptive deficits . . . the court errs in overstating the impact

of the record evidence.”); id. at 48 (“The Director has always maintained that two chief factors

– Rivera’s inhalant abuse and his antisocial personality – negatively impacted almost all

categories of adaptive functioning.”).

52

The Supreme Court noted in Atkins that mental retardation “has many different

etiologies and may be seen as a final common pathway of various pathological processes that

affect the functioning of the central nervous system.” 536 U.S. at 309 n. 3 (quoting Diagnostic

& Statistical Manual of Mental Disorders 41 (4th ed. 2000)).

53

Briseno, 135 S.W.3d at 8.

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No. 06-70022

court’s conclusions. Judge Hanen, having actually presided over the second

evidentiary hearing, is in a better position than this court to judge and weigh the

credibility of the witnesses who testified on the extent, duration, and causes of

Rivera’s adaptive functioning limitations.54

Based on the expert testimony, testimony of teachers and family, and the

documentary evidence, the district court’s determination is not implausible and,

therefore, survives clear error review.

E

Nor did the district court clearly err in finding onset before age 18. The

district court specifically found that “Rivera displayed adaptive deficits prior to

the age of 18.” And, although Rivera did not take the WAIS-III test prior to age

18, the district court found that the combination of his score of 68, other evidence

of Rivera’s intellectual functioning, and his performance in school “establish that

Rivera had significantly subaverage intellectual functioning prior to the age of

18.” The record provides sufficient support for both findings.

As the district court did not clearly err in determining Rivera had

significantly subaverage intellectual functioning, related adaptive functioning

deficits, and onset before 18 – in short, that Rivera satisfied all three prongs for

demonstrating mental retardation under Briseno – we affirm the finding that

Rivera is mentally retarded.

V

For the foregoing reasons, we AFFIRM in part, VACATE in part, and

REMAND for further proceedings.

54

See id. at 9 (recognizing the role of experts in determining mental retardation, but

cautioning that “the ultimate issue of whether this person is, in fact, mentally retarded for

purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact,

based upon all of the evidence and determinations of credibility” (emphasis added)).

21