Rickey Lewis v. Rick Thaler, Director

Case: 10-70031 Document: 00512059557 Page: 1 Date Filed: 11/20/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

November 20, 2012

No. 10-70031 Lyle W. Cayce

Clerk

RICKEY LYNN LEWIS,

Petitioner-Appellant

v.

RICK THALER, 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 JOLLY, DAVIS, and GARZA, Circuit Judges.

GARZA, Circuit Judge:

Petitioner Rickey Lynn Lewis filed a successive federal habeas petition,

contending he is mentally retarded and ineligible for execution under Atkins v.

Virginia, 536 U.S. 304 (2002) (holding that execution of mentally retarded

criminals is “cruel and unusual punishment” prohibited by Eighth Amendment).

The district court denied relief, but granted a certificate of appealability (“COA”)

on the issue of whether the state court’s determination that Lewis did not

establish by a preponderance of the evidence that he had significantly

subaverage general intellectual functioning was unreasonable. We conclude that

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the state court’s determination was not unreasonable, and we AFFIRM the

judgment of the district court.

I

In 1993, a state court jury convicted Lewis of capital murder and

sentenced him to death. State v. Lewis, No. 13160, 1993 WL 13634358 (217th

Dist. Ct., Angelina County, Tex. June 24, 1993). Lewis appealed, and the Texas

Court of Criminal Appeals (“TCCA”) upheld the conviction but remanded for

resentencing. Lewis v. State, No. 71,887 (Tex. Crim. App. June 19, 1996)

(unpublished). On remand, the trial court again sentenced Lewis to death, and

the TCCA affirmed. Lewis v. State, No. 71,877 (Tex. Crim. App. June 23, 1999)

(unpublished). Lewis did not petition for review by the United States Supreme

Court.

In 2000, Lewis was denied state habeas relief. Ex parte Lewis, No. 44,725-

01 (Tex. Crim. App. Apr. 19, 2000) (unpublished). Lewis was also denied federal

habeas relief, and we affirmed the denial. Lewis v. Cockrell, 58 F. App’x 596 (5th

Cir. 2003). The Supreme Court denied Lewis’s petition for certiorari. Lewis v.

Dretke, 540 U.S. 841 (2003).

In 2002, the Supreme Court held for the first time that execution of

mentally retarded criminals is “cruel and unusual punishment” prohibited by

the Eighth Amendment. Atkins, 536 U.S. at 321. Lewis subsequently filed a

successive state habeas application, citing Atkins and contending that he is

mentally retarded. Texas law defines mental retardation as “(a) significantly

subaverage general intellectual functioning (proven by showing an IQ below 70)

and (b) deficits in adaptive behavior that (c) originated during the developmental

period (before age 18).” Chester v. Thaler, 666 F.3d 340, 346 (5th Cir. 2011)

(citation omitted); accord Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App.

2004)); see also Atkins, 536 U.S. at 317 (“[W]e leave to the State[s] the task of

developing appropriate ways to enforce the constitutional restriction upon [their]

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execution of sentences.” (quoting Ford v. Wainwright, 477 U.S. 399, 416–417

(1986)).

The TCCA stayed Lewis’s scheduled execution and ordered the state trial

court to conduct a hearing regarding Lewis’s Atkins claim. Ex parte Lewis, No.

44725-02, 2003 WL 21751491 (Tex. Crim. App. July 24, 2003). The parties

presented large amounts of documentary evidence as well as expert testimony

on the issue of Lewis’s alleged mental retardation. Central to this appeal are the

testimonies of four experts, summarized as follows:

(1) Dr. Susana A. Rosin is a clinical psychologist with a Ph.D. and is

licensed to administer cognitive tests to diagnose mental retardation. The State

of Texas retained Dr. Rosin to evaluate Lewis, and she administered to him the

Stanford-Binet Fifth-Edition (“SB 5”) test, accepted in the psychological

community as an accurate method of ascertaining IQ. Dr. Rosin determined that

Lewis has an IQ of 79. (2) Dr. Stephen Martin is a neuropsychologist in private

practice with Health South Rehabilitation Hospital. He administered the

Wechsler Adult Intelligence Scale III (WAIS III) to Lewis and determined that

Lewis has an IQ of 59. (3) Dr. Richard Garnett is not a licensed psychologist but

has a Ph.D. in psychology. He testified that Dr. Rosin’s test results were scored

incorrectly and, based on the same data used by Dr. Rosin, concluded that Dr.

Rosin’s score should have been 75. He also testified that Lewis has a “third

grade” intellectual level and that he could not rule out a score of 79. (4) Dr.

Edward Gripon is a licensed psychiatrist with a sub-specialty in forensic

psychiatry. After evaluating Lewis and reviewing all of the documentation

available to him, he testified that an IQ of 59 was not consistent with his

evaluation and Lewis’s intellectual potential was more consistent with an IQ of

70. The state court found Drs. Gripon and Rosin more credible than Drs. Martin

and Garnett, and, considering all of the evidence in the record, concluded that

Lewis had not proven by a preponderance of the evidence that he had

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significantly subaverage general intellectual functioning. See Ex parte Lewis,

No. 01-91-32 (114th Dist. Ct., Smith County, Tex. Feb. 14, 2005) (Findings of

Fact and Conclusions of Law) (hereinafter, “FFCL”). The TCCA agreed with the

trial court and denied relief. Ex parte Lewis, No. 44725-02 (Tex. Crim. App. Jun.

29, 2005).

After the state habeas trial court’s decision, but before the TCCA’s

decision, we permitted Lewis to file a successive federal habeas application

under 28 U.S.C. § 2254, conditioned on denial of relief by the TCCA. When the

TCCA denied relief, the federal district court granted Lewis’s motion to stay the

execution, and Lewis filed the successive federal habeas petition at issue.

On habeas review, the district court refused to consider the affidavit of Dr.

Gale Roid, who testified that Dr. Susana Rosin’s IQ score of 79 was invalid. The

district court reasoned that § 2254 prevented Lewis from presenting the

affidavit for the first time on federal habeas review. The district court

ultimately concluded that the state court’s determination that “Lewis had failed

to prove by a preponderance of the evidence that he had significantly subaverage

general intellectual functioning” was not “based on an unreasonable

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

proceedings.” Lewis v. Quarterman, No. 5:05CV70, 2007 WL 1830748, at *3–4

(E.D. Tex. Jun. 22, 2007). Accordingly, it did not examine the other two

elements of Lewis’s mental retardation claim (deficits in adaptive behavior and

onset before age 18).

On appeal, we vacated the district court’s judgment and remanded for

rehearing, concluding that the district court erred by excluding Dr. Roid’s

affidavit. Lewis v. Quarterman, 541 F.3d 280 (5th Cir. 2008). We reasoned that

where evidence introduced for the first time on federal review supplements,

rather than fundamentally alters, the claims made in state court, we analyze

such evidence under the “exhaustion” rubric of § 2254(b), rather than as an issue

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of “factual development” under § 2254(d). Id. at 284 (citing Dowthitt v. Johnson,

230 F.3d 733, 745 (5th Cir. 2000)). We reasoned that Dr. Roid’s testimony was

“not material additional evidence,” and that Lewis therefore had met the

requirements of § 2254(b). Id. at 285.

On remand, the district court reconsidered Lewis’s claims in light of all the

evidence, including Dr. Roid’s affidavit, and again denied relief. Lewis v. Thaler,

No. 5:05CV70, 2010 WL 4119239 (E.D. Tex. Oct. 19, 2010). The district court

granted a COA with respect to whether the State court’s determination that

Petitioner did not establish by a preponderance of the evidence that he had

significantly subaverage general intellectual functioning was reasonable.

Lewis’s appeal of that decision is now before us.

II

“In a habeas corpus appeal, we review the district court’s findings of fact

for clear error and its conclusions of law de novo, applying the same standards

to the state court’s decision as did the district court.” Busby v. Dretke, 359 F.3d

708, 713 (5th Cir. 2004).

Section 2253(c) strictly limits our appellate jurisdiction to the issues on

which the applicant has been granted COA. See 28 U.S.C. § 2253(c) (“Unless a

circuit justice or judge issues a certificate of appealability, an appeal may not be

taken to the court of appeals from [ ] the final order in a habeas corpus

proceeding . . . .”); Carty v. Thaler, 583 F.3d 244, 266 (5th Cir. 2009) (“Because

neither we nor the district court granted Carty a COA on this issue, we lack

jurisdiction to consider this claim.”). Accordingly, we ask only whether the State

court’s determination that Petitioner did not establish by a preponderance of the

evidence that he had significantly subaverage general intellectual functioning

was unreasonable.1 In order to answer this question, we must first discuss the

1

Lewis contends we should order our analysis to first determine whether there was a

constitutional violation in his case, and then, if so, to inquire whether AEDPA permits relief.

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habeas statute generally and the Supreme Court’s recent construction of it in

Cullen v. Pinholster, 131 S. Ct. 1388 (2011).

III

Section 2254, as amended by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), sets certain limits on a federal court’s power to grant a

state prisoner’s application for a writ of habeas corpus. Section 2254(a) provides

that a federal court may entertain an application for a writ of habeas corpus

“only on the ground that [an applicant] is in custody in violation of the

Constitution or laws or treaties of the United States.” § 2254(a). Sections

2254(b) and (c) prohibit a federal court from granting such an application unless,

with certain exceptions, the applicant has exhausted state remedies. If these

first hurdles have been cleared, § 2254(d) applies some additional restrictions,

requiring that the application,

[S]hall not be granted with respect to any claim that was adjudicated on

the merits in State Court proceedings unless adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

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

State court proceeding.

§ 2254(d). Section 2254(e)(1) also requires that a State court’s factual

determinations “shall be presumed to be correct” and that a federal court shall

not hold an evidentiary hearing unless the applicant shows that the claim relies

In support, he cites Berghuis v. Thompkins, 130 S. Ct. 2250 (2010). However, Thompkins

merely stands for the proposition that a federal habeas court may, when it is unclear whether

AEDPA deference applies, engage in de novo review and deny § 2254 relief because an

applicant who is not entitled to relief under a de novo standard of review necessarily will not

be entitled to relief under the less favorable standard of AEDPA deference. See id. at 2265

(“Courts can, however, deny writs of habeas corpus under § 2254 by engaging in de novo

review when it is unclear whether AEDPA deference applies, because a habeas petitioner will

not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review, see

§ 2254(a).”).

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on a new rule of constitutional law made retroactive by the Supreme Court, or

relies on a factual predicate that could not have been previously discovered.

§ 2254(e); Williams v. Taylor, 529 U.S. 420, 431–35 (2000).

Lewis contends that the district court incorrectly merged §§ 2254(a), (d)(1),

and (e)(1) by requiring Lewis to show by clear and convincing evidence that the

state court’s factual determinations were unreasonable. According to Lewis, this

requirement contravened the Supreme Court’s decision in Miller-El v. Cockrell,

537 U.S. 322 (2003). In Miller-El, the circuit court interpreted § 2254 as

requiring petitioner to prove that the state-court decision was objectively

unreasonable by clear and convincing evidence. Id. at 325. The Supreme Court

reversed, explaining:

It was incorrect for the Court of Appeals, when looking at the

merits, to merge the independent requirements of §§ 2254(d)(2) and

(e)(1). AEDPA does not require a petitioner to prove that a decision

is objectively unreasonable by clear and convincing evidence. The

clear and convincing evidence standard is found in § 2254(e)(1), but

that subsection pertains only to state-court determinations of

factual issues, rather than decisions.

Id. at 341.

Although we note that the district court in this case at times used the

terms “decision” and “findings” loosely, we do not read its opinion as extending

the clear and convincing evidence standard beyond its appropriate reach. See

Lewis, No. 5:05-CV-70, 2010 WL 4119239 at *2 (“The AEDPA requires this Court

to presume the correctness of the state court’s factual findings unless Petitioner

rebuts this presumption with ‘clear and convincing evidence.’”) (emphasis

added). The district court treated the state court’s determination that Lewis

failed to show subaverage intellectual functioning as a fact finding subject to §

2254(e)(1) deference, an approach which is consistent with our precedents. See,

e.g., Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir. 2010) (“The question of

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whether a defendant suffers from mental retardation involves issues of fact, and

thus is subject to a presumption of correctness that must be rebutted by clear

and convincing evidence under § 2254(e)(1).”); Woods v. Quarterman, 493 F.3d

580, 587 (5th Cir. 2007) (“[T]o the extent Woods argues that the state court’s

decision was ‘based on an unreasonable determination of the facts in light of the

evidence presented,’ 28 U.S.C. 2254(d)(2), he has failed to rebut, by clear and

convincing evidence, the presumption that the state court’s factual findings are

correct.”) (citing § 2254(e)(1)).

In short, for Lewis to prevail on a claim of factual error, he must both (1)

rebut the state court’s finding that Lewis failed to show subaverage intellectual

functioning with clear and convincing evidence, § 2254(e)(1), and show the state

court’s decision “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” § 2254(d)(2).

IV

Also at issue on appeal is whether § 2254 allows a federal habeas court to

consider Dr. Roid’s affidavit. This question is before us again because of the

Supreme Court’s recent decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011).

In Pinholster, a California defendant who was convicted of first-degree murder

and sentenced to death sought habeas relief in the California Supreme Court,

alleging that his trial counsel failed to adequately investigate and present

mitigating evidence during the penalty phase. Id. at 1396–97. After the State

Supreme Court denied Pinholster’s claims on the merits, he filed a federal

habeas application. Id. at 1397. The district court held an evidentiary hearing,

during which Pinholster and the State each presented medical expert testimony

on Pinholster’s mental health. Id. The district court granted Pinholster habeas

relief. Id. On appeal, an en banc court of the Ninth Circuit considered the new

evidence adduced at the evidentiary hearing and affirmed the district court’s

judgment. Pinholster v. Ayers, 590 F.3d 651, 666 (9th Cir. 2009) (en banc)

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(“Congress did not intend to restrict the inquiry under § 2254(d)(1) only to the

evidence introduced in the state habeas court”). The Supreme Court reversed,

holding that federal courts are limited to the state court record on habeas

review:

We now hold that review under § 2254(d)(1) is limited to the record

that was before the state court that adjudicated the claim on the

merits. Section 2254(d)(1) refers, in the past tense, to a state-court

adjudication that “resulted in” a decision that was contrary to, or

“involved” an unreasonable application of, established law. This

backward-looking language requires an examination of the state-

court decision at the time it was made. It follows that the record

under review is limited to the record in existence at that same time

i.e., the record before the state court.

Pinholster, 131 S. Ct. at 1398.

In Dowthitt v. Johnson, 230 F.3d 733, 745–46 (5th Cir. 2000), we

entertained a similar question to the one before the Pinholster Court. In

Dowthitt, we explained that affidavits presented for the first time on federal

habeas review presented an issue “more accurately analyzed under the

‘exhaustion’ rubric of § 2254(b),” rather than as an issue of “factual development”

under §§ 2254(d) and (e). Id. at 745. We concluded that the district court could

consider the affidavits because “Dowthitt had presented to the state habeas

court his assertions of mental illness” and “[t]he [new] affidavits add[ed] little

to those claims.” Id. at 746. More recently, in Morris v. Dretke, 413 F.3d 484

(5th Cir. 2005), we concluded that a district court could consider “IQ scores and

expert assessment of those scores” which were not previously presented to the

state habeas court because “Morris’s Atkins claim was not presented to the

federal court in a significantly different legal posture than in the state courts.”

Morris, 413 F.3d at 498. We explained that “this Circuit classifies these specific

cases as presenting the question whether the new evidence, not previously

presented to the state courts but presented for the first time to the federal court,

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has met the exhaustion requirement of § 2254(b)(1)(A).” Id. (internal citations

omitted). As discussed above, we reached the same conclusion regarding Dr.

Roid’s affidavit, citing both Dowthitt and Morris, in our previous decision to

remand. Lewis, 541 F.3d at 285.

However, the Pinholster Court rejected the argument that a federal court

can consider evidence for the first time on habeas review when determining

whether an applicant has shown error under § 2254(d)(1) as long as it “simply

supports” an adjudicated claim:

[The State] asserts that some of the evidence adduced in the

federal evidentiary hearing fundamentally changed Pinholster’s

claim so as to render it effectively unadjudicated. Pinholster

disagrees and argues that the evidence adduced in the evidentiary

hearing simply supports his alleged claim.

We need not resolve this dispute because, even accepting

Pinholster’s position, he is not entitled to federal habeas relief.

Pinholster has failed to show that the California Supreme Court

unreasonably applied clearly established federal law on the record

before that court, which brings our analysis to an end. Even if the

evidence adduced in the District Court additionally supports his

claim, as Pinholster contends, we are precluded from considering it.

Id. at 1402 n.11 (internal citations omitted). Moreover, the Pinholster Court

explained that the exhaustion requirement of § 2254(b) is a reinforcement of,

rather than an escape hatch from, the rule that a federal habeas court’s review

is limited to the state court record:

This understanding of the text is compelled by “the broader

context of the statute as a whole,” which demonstrates Congress’

intent to channel prisoners’ claims first to the state courts.

Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, 136 L.

Ed. 2d 808 (1997). “The federal habeas scheme leaves primary

responsibility with the state courts . . . .” Visciotti, supra, at 27, 123

S. Ct. 357. Section 2254(b) requires that prisoners must ordinarily

exhaust state remedies before filing for federal habeas relief. It

would be contrary to that purpose to allow a petitioner to overcome

an adverse state-court decision with new evidence introduced in a

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federal habeas court and reviewed by that court in the first instance

effectively de novo.

Pinholster, 131 S. Ct. at 1398–99. While the Court acknowledged that “state

prisoners may sometimes submit new evidence in federal court[,]” it also tacitly

counseled against circumventing the requirements of § 2254(d) and (e) in order

to bring in the new evidence. Id. at 1401 (“Provisions like §§ 2254(d)(1) and

(e)(2) ensure that ‘[f]ederal courts sitting in habeas are not an alternative forum

for trying facts and issues which a prisoner made insufficient effort to pursue in

state proceedings.’” (quoting Williams, 529 U.S. at 437).

This is not the first time we have recognized the rule from Dowthitt is in

contradiction with Pinholster. In Clark v. Thaler, in light of Pinholster, we

implicitly rejected the reasoning of Dowthitt and held a federal habeas court

considering a claim under 28 U.S.C. § 2254(d) could not review mitigating

evidence that was unavailable to the state trial court. 673 F.3d 410, 416–17 (5th

Cir. 2012) (holding review under § 2254(d)(1) limited to record of state court that

adjudicated claim on the merits). In Ibarra v. Thaler, we likewise implicitly

rejected the reasoning of Dowthitt when we held Pinholster barred the federal

habeas court from reviewing Atkins evidence that was not a part of the state

court record. Ibarra v. Thaler, 691 F.3d 677, 682 (5th Cir. 2010) (rejecting

petitioner’s argument that new affidavits were admissible because they

supplemented rather than fundamentally altered his state court claim). Here

we explicitly reject Dowthitt’s holding that where new affidavits supplement

rather than fundamentally alter a state court claim, they may be admissible for

review of a habeas claim under § 2254(d).

Lewis’s arguments to the contrary are unpersuasive. He contends that

Pinholster does not conflict with our previous holding because (1) a federal court

may conduct a “§ 2254(a) analysis” to determine whether Lewis can prove

mental retardation with any evidence; (2) Pinholster only affects habeas claims

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previously rejected by state courts via summary disposition and/or in the

absence of fact development later accomplished in federal court; and (3) Roid’s

affidavit merely introduces a new way of looking at the existing record evidence,

much like a law review article. Nothing in Pinholster suggests we should

construe its straightforward holding in any of these ways.

The import of Pinholster is clear: because Lewis’s claims have already

been adjudicated on the merits, § 2254 limits our review to the record that was

before the state court. Accordingly, our previous decision to remand is no longer

based on a correct statement of the law. The district court was correct in the

first instance to ignore Dr. Roid’s affidavit, and we do not consider it below.

V

We turn now to the merits of Lewis’s application. As discussed above,

§ 2254 does not permit a federal court to grant a habeas application unless the

applicant can show legal error under § 2254(d)(1) or factual error under

§ 2254(d)(2).

To establish legal error under § 2254(d)(1) , the applicant must show that

the state court adjudication “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.” § 2254(d)(1). “[A]n

unreasonable application of federal law is different from an incorrect application

of federal law,” Id. at 410, and “[a] state court’s determination that a claim lacks

merit precludes federal habeas relief so long as ‘fair-minded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter,

131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)).

To establish factual error under § 2254(d)(2), the applicant must show that

the state court adjudication “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

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State court proceeding.” § 2254(d)(2). Section 2254 also requires that

determinations of fact issued by state courts are “presumed to be correct,” and

that they not be disturbed unless an applicant rebuts the presumption with clear

and convincing evidence. § 2254(e)(1). “[A] decision adjudicated on the merits

in a state court and based on a factual determination will not be overturned on

factual grounds unless objectively unreasonable in light of the evidence

presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340

(2003) (citing § 2254(d)(2)).

A

Lewis alleges the state court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal Law, as determined by

the Supreme Court of the United States.” § 2254(d)(1). Lewis asserts the state

court’s application of Briseno factors was “unscientific” and in contradiction with

the Supreme Court’s decision in Atkins. While the state court relied heavily on

Lewis’s IQ scores when determining whether he had subaverage intelligence, the

court also considered Lewis’s school records, testimony from Lewis’s mother,

Lewis’s criminal history, Lewis’s incarceration records, and Lewis’s abilities as

a pro se litigant. Lewis maintains the district court improperly focused on

Lewis’s behavior rather than his test scores when evaluating his intellectual

functioning. Lewis alleges the state judge’s erroneous application of the Briseno

factors improperly excludes mildly mentally retarded people, such as Lewis,

from Atkins’ protection.

Although testing is the primary means for ascertaining IQ, the Briseno

court considered other evidence in evaluating the probative value of the test

scores. See Ex parte Briseno, 135 S.W.3d at 14. The Briseno court’s definition

of significantly subaverage intellectual functioning mandates the conclusion that

courts are permitted to look at factors other than IQ tests when assessing this

prong. Id. The Briseno court explained that, although an IQ of 70 is generally

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accepted as the cut off for subaverage general intellectual functioning, this cut

off is not absolute:

Significantly subaverage intellectual functioning is defined as an IQ

of about 70 or below (approximately 2 standard deviations below the

mean). Psychologists and other mental health professionals are

flexible in their assessment of mental retardation; thus, sometimes

a person whose IQ has tested above 70 may be diagnosed as

mentally retarded while a person whose IQ tests below 70 may not

be mentally retarded. Furthermore, IQ tests differ in content and

accuracy.

Ex parte Briseno, 135 S.W.3d at 7 n.24 (internal citations and quotation marks

omitted). The Briseno court adopted the trial court’s finding that “[t]he

preponderance of the evidence does not show that these test scores over-state the

actual intellectual functioning of Applicant; the evidence in fact showed that

there are good indications that the test scores understated Applicant’s

intellectual functioning.” Id. at 14. The applicant’s two most recent IQ scores

were 72 and 74, and the experts disagreed about whether “the standard plus or

minus 5 points to accommodate the statistical standard error of measurement

should apply.” Id. at 14, n.53 (internal quotation marks omitted). The court

held there was “not enough evidence in [the] record” to prove, by a

preponderance of the evidence, that the applicant’s true IQ was “lower than 72-

74 rather than higher than 72-74.” Id. Therefore, under Texas law, courts may

consider other evidence in the record when determining if IQ scores are reliable

indicators of intelligence.

When the Briseno court set forth a list of factors courts might look to when

“weighing evidence indicative of mental retardation,” the court was ambiguous

as to whether these factors applied only to the “adaptive deficit” inquiry or also

to the two other prongs of the analysis.2

2

The factors the Ex parte Briseno court listed are:

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The adaptive behavior criteria are exceedingly subjective, and

undoubtedly experts will be found to offer opinions on both sides of

the issue in most cases. There are, however, some other evidentiary

factors which factfinders in the criminal trial context might also

focus upon in weighing evidence as indicative of mental retardation

or of a personality disorder.

Ex parte Briseno, 135 S.W.3d 1, 8–9 (Tex. Crim. App. 2004) (emphasis added).

Courts have subsequently interpreted the factors the Briseno court enumerated

as applying to all three prongs of Texas’s Atkins analysis. See, e.g., Ex parte

Butler, No. WR-41,121-02, 2012 WL 2400634, at *6–7 (Tex. Crim. App. June 27,

2012) (considering applicant’s school records as evidence applicant did not have

significantly subaverage intellectual functioning); Neal v. State, 256 S.W.3d 264,

272–73 (Tex. Crim. App. 2008) (listing the Briseno factors as “[f]actors relevant

to evaluating the three prongs” of Texas’s Atkins analysis). The Briseno factors

are therefore applicable to all three prongs of Texas’s Atkins analysis.

Lewis’s allegation that applying the Briseno factors to the first prong of

our Atkins analysis somehow contradicts Atkins is unfounded. We have

• Did those who knew the person best during the developmental

stage—his family, friends, teachers, employers, authorities—think he

was mentally retarded at that time, and, if so, act in accordance with

that determination?

• Has the person formulated plans and carried them through or is his

conduct impulsive?

• Does his conduct show leadership or does it show that he is led around

by others?

• Is his conduct in response to external stimuli rational and appropriate,

regardless of whether it is socially acceptable?

• Does he respond coherently, rationally, and on point to oral or written

questions or do his responses wander from subject to subject?

• Can the person hide facts or lie effectively in his own or others'

interests?

• Putting aside any heinousness or gruesomeness surrounding the capital

offense, did the commission of that offense require forethought,

planning, and complex execution of purpose?

Ex parte Briseno, 135 S.W.3d at 8–9.

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previously rejected assertions that the Briseno factors are in conflict with Atkins.

“The Briseno court, in other words, fashioned these evidentiary factors as a

means of developing appropriate ways to enforce the constitutional restriction

set out in Atkins. And on their face, nothing about them contradicts Atkins, as

they were developed explicitly to comply with Atkins.” Chester v. Thaler, 666

F.3d 340, 346–47 (5th Cir. 2011) (internal quotation marks omitted) (rejecting

petitioner’s argument that Texas courts must follow AAMR procedures when

determining subaverage intelligence).

Therefore, we hold the state court’s application of the Briseno factors to

inform its analysis of Lewis’s competing IQ scores was not contrary to nor an

unreasonable application of clearly established federal law.

B

Lewis also alleges factual error under § 2254(d)(2). Lewis maintains the

state court decision was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding. Specifically, Lewis

contends (1) there are no circumstances in which a state court could reasonably

rely on Dr. Rosin’s IQ score of 79; (2) exclusion of Dr. Martin’s testimony was

objectively unreasonable; (3) exclusion of Dr. Garnett’s testimony was objectively

unreasonable; (4) reliance on Dr. Gripon’s opinions about mental retardation was

objectively unreasonable; (5) the state court’s rejection of other testimony was

unreasonable; and (6) the state court’s embrace of anonymously scored prison IQ

tests was unreasonable.

Lewis first contends that the state court’s reliance on Dr. Rosin’s score was

unreasonable because the court’s findings conceded that Dr. Rosin “did not

exactly follow all of the instructions for the application of the assessment

instrument,”3 FFCL at 14, and because she scored Lewis’s “abbreviated IQ” at

3

In her trial testimony Dr. Rosin admitted to making several errors during the

administration of the exam. In Dr. Rosin’s opinion the errors she made did not have a

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58.4 While the errors Dr. Rosin made in administering the exam call into

question the reliability of Lewis’s score on the exam, the state court’s conclusion

that a score of 79 was reliable was based on “all appropriate evidence before the

Court” after the state court “determined the credibility and weight to be given

such evidence.” Id. at 34. The state court did not, as Lewis contends, “pin” its

determination on Dr. Rosin’s score alone, but relied also on Dr. Gripon’s score of

70, id. at 26; Dr. Garnett’s re-score of 75, id. at 18; Dr. Garnett’s testimony that

he could not say for sure that Dr. Rosin’s score of 79 was invalid, id.; Lewis’s

education records, id. at 31; his spoken and written coherence in court

proceedings and legal documents, id. at 32–33; and his history of committing

crimes requiring premeditation and deliberation, id. at 32.

substantial impact on the validity of Lewis’s IQ score. (Rosin Test. 323:2–10, Dec. 6, 2004).

The errors Dr. Rosin admitted to making include (1) giving Lewis two points for the definition

he provided for “eyelash” when his answer only deserved one point, id. at 55:16–56:10, (2) not

precisely following the instructions for a block exercise, id. at 60:19–63:9, and (3) giving Lewis

a point more than he deserved on a math problem, id. at 66:4–67:18. Dr. Rosin also admitted

she might not have followed the instructions for one of the subtests correctly. Id. at 74:5–19.

Dr. Rosin’s judgment in scoring other questions was at least questionable. For

example, when Dr. Rosin asked Lewis to define puddle he said “water in a spot.” The scoring

manual defined a puddle as, “[w]ater left over after it rains; water on the sidewalk; a small

depression filled with water; a small pool of liquid water.” Id. at 52:23–55:6. Dr. Rosin gave

Lewis full credit for his response though his answer had substantially less nuance than the

scoring manual’s definition. Id. When Dr. Rosin asked Lewis to define curiosity, he stated,

“to be thinking about something you search or look at it.” Id. at 56:11–57:10. The scoring

manual’s definition of curiosity was “wanting to know about something, wondering about

something that might happen, a strange, rare, or unusual thing.” Id. Dr. Rosin gave Lewis

full credit for his response, id., even though Lewis’s definition arguably provided less depth

of information than the scoring manual required for a full credit response.

4

Lewis explains that there are two abbreviated IQ tests contained within the SB 5 that

may be scored separately and are used to verify the accuracy of the overall SB 5 score. He

contends that his abbreviated IQ of 58 should have alerted Dr. Rosin that she had

misadministered the test and that reliance on a score of 79 by the state court was objectively

unreasonable. Dr. Rosin contends short form IQ tests are not valid or reliable. (Rosin Test.

339:1–14, Dec. 6, 2004).

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Similarly unsatisfying is Lewis’s argument that Dr. Rosin, a clinical

psychologist licensed to administer tests for mental retardation, was so

unqualified as to make the state court’s reliance on her testimony unreasonable.

Dr. Rosin is familiar with a variety of instruments for psychological testing

including the WAIS and Standford-Binet. FFCL at 24. While Dr. Rosin had

only administered the SB 5 to her husband and two children before she

administered the exam to Lewis, she had administered the previous version of

the exam, the SB 4, “about a hundred times.” (Rosin Test. 310:1–4, Dec. 6,

2004).

Lastly with respect to Dr. Rosin, Dr. Garnett’s testimony does not, as

Lewis contends, undermine Dr. Rosin’s testimony so far as to render

unreasonable the court’s reliance on her administration of the SB 5. Dr. Garnett

scored Dr. Rosin’s test results at 75, which was still above the generally accepted

cut-off of 70 and which was not inconsistent with the state court’s ultimate

conclusion that “the Applicant has failed to prove . . . that [his] true score is

lower than 75.” FFCL at 34. Lewis contends that the most reasonable

interpretation of Dr. Garnett’s testimony is that Dr. Rosin’s test score was, in

Lewis’s words, “junk science.” Of course, the question for our court is not what

is most reasonable, but whether the state court’s determination of the facts was

unreasonable. We disagree with Lewis’s characterization of Dr. Garnett’s

testimony. Although he expressed doubts about the validity of Dr. Rosin’s score,

Dr. Garnett also testified that he could not rule out Dr. Rosin’s score of 79. Id.

at 18. In sum, the state court concluded that, whatever errors were made by Dr.

Rosin, the entire record supports an IQ of 79. Our review of the record does not

suggest that this was an “unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” § 2254(d)(2).

Lewis contends that the “exclusion” of Dr. Garnett’s and Dr. Martin’s

testimony was unreasonable. Our review of the record suggests that “exclusion”

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misrepresents the state court’s treatment of the two testimonies. The court’s

FFCL contains substantial discussion of both and concludes the testimony of

Drs. Garnett and Martin was less credible than that of other witnesses. FFCL

at 17–19. Neither were the state court’s adverse credibility determinations with

respect to Drs. Martin and Garnett objectively unreasonable. See Galvan v.

Cockrell, 293 F.3d 760, 764 (5th Cir. 2002) (“This Court defers to the trier of fact

in resolving conflicts requiring credibility determinations.”). The state court

noted that neither expert reviewed all of the materials made available to them

by the State, including facts surrounding the underlying offense, Lewis’s prison

record, and documentary evidence linked to a failed pro se civil rights suit filed

by Lewis. FFCL at 18. Lewis responds that the evidence that the two experts

ignored was irrelevant to determining Lewis’s IQ. In any event, the state court

determined that Dr. Garnett “was extremely selective in pointing to evidence

that supported an opinion pointing toward a diagnosis of mental retardation and

quickly or summarily discount[ed] evidence contradictory to an opinion pointing

toward a diagnosis of mental retardation.” FFCL at 18–19. Lewis has not

shown that the state court’s adverse credibility determinations were

unreasonable.

We also reject Lewis’s contention that it was objectively unreasonable for

the state court to rely on Dr. Gripon’s opinions about mental retardation. Lewis

contends Dr. Gripon was not an adequate expert on mental retardation,

particularly mild mental retardation, to diagnose mild mental retardation. The

state court found Dr. Gripon to be “fair, unbiased, reliable, and worthy of

weighty consideration.” FFCL at 24. While Dr. Gripon did not personally

administer an IQ test to Lewis, he evaluated Lewis and reviewed the IQ tests

and all the documents and materials supplied to him. Id. at 24–26. The state

court’s finding of credibility is entitled to a presumption of correctness that

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Lewis had the burden of rebutting with clear and convincing evidence, 28 U.S.C.

§ 2254(e)(1), and Lewis failed to do so.

Lewis further contends the state court’s rejection of other testimony was

unreasonable. Lewis alleges the state court unreasonably rejected the testimony

of Jeff Baynham, Lewis’s original trial attorney, who testified he needed to speak

to Lewis on a second grade level. The state court permitted Baynham to testify

and weighed his testimony along with the other evidence. FFCL at 20. Lewis

also alleges the state court unreasonably ignored the testimony of a special

education teacher, Louise O’Sullivan, and a special education school

administrator, Martha Surles, both from the school Lewis attended, who

testified Lewis’s presence in the special education program was strong evidence

that he was mentally retarded. Martha Surles testified, however, that students

in the special school were not necessarily mentally retarded: she testified

learning disabled and autistic students also attended the school. Id. at 16.

Moreover, Louise O’Sullivan testified that though she recognized Lewis as a

student at the special school, she did not remember what kind of student he was.

Id.

Finally, Lewis contends the state court’s embrace of anonymously scored

prison IQ tests was objectively unreasonable. Some prison documents contained

anonymously scored IQ score results that Lewis maintains the state court should

not have relied on because there was no evidence the tests were properly

administered by trained psychologists. We have held courts do not err by

assigning less weight to prison IQ scores than full-length scores, Rivera v.

Quarterman, 505 F.3d 349, 362 (5th Cir. 2007), but we have not held that it is

objectively unreasonable to assign any weight to prison IQ scores. We cannot

say it was objectively unreasonable for the state court to assign some weight to

Lewis’s prison IQ scores.

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In light of the substantial corroborating evidence, we cannot hold Lewis

rebutted the trial court’s finding that Lewis does not have significantly

subaverage intelligence with “clear and convincing evidence,” nor can we hold

that the trial court’s decision was objectively unreasonable in light of the

evidence presented in the state-court proceeding.

VI

For these reasons, we AFFIRM.

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