Virgilio Maldonado v. Rick Thaler, Director

Filing

REVISED PUBLISHED OPINION FILED. [6662560-2] [10-70003]

Virgilio Maldonado v. Rick : 10-70003 Document: 00511304885 CaseThaler, Director

Page: 1 Date Filed: 11/29/2010

Doc. 0

REVISED NOVEMBER 26, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

FILED
N o . 10-70003 October 29, 2010 Lyle W. Cayce Clerk P e t it io n e r - Appellant v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, R e s p o n d e n t - Appellee

V I R G I L I O MALDONADO,

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. K I N G , Circuit Judge: T h e petitioner­appellee, Virgilio Maldonado, was sentenced to death in 1 9 9 7 in Texas state court for a murder committed during the course of a robbery i n 1995. After exhausting state-court avenues for postconviction relief, he

s o u g h t habeas relief under 28 U.S.C. § 2254 in federal district court. The district c o u r t denied the petition for habeas relief and denied a certificate of a p p e a la b ilit y (COA). We granted a COA as to Maldonado's claim that he is m e n ta lly retarded and therefore ineligible for the death penalty under Atkins v. V ir g in ia , 536 U.S. 304 (2002), and ordered supplemental briefing on that issue.

Dockets.Justia.com

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No. 10-70003 W e denied a COA as to all other issues. We now address the Atkins claim and a ffir m the district court's denial of habeas relief. I. A. BACKGROUND

F a c t u a l and Procedural Background M a ld o n a d o , a Mexican national, was tried and convicted of capital murder

in Texas state court in 1997 for the November 1995 robbery and murder of Cruz S a u c e d o . Saucedo was found shot twice in the head with a .45-caliber semia u t o m a t ic weapon, his hands bound with the electric cord of a Black & Decker ir o n . The murder went unsolved until several months later, when Maldonado c o n fe s s e d to the murder after being arrested for an unrelated bank robbery. According to Maldonado's confession, he entered Saucedo's house with another m a n while a third accomplice waited in a car. Maldonado's companion wanted t o borrow an AK-47 from Saucedo. When Saucedo refused the loan, they bound h im and demanded to know where the weapon and some marijuana were kept. Maldonado's companion retrieved these items and told Maldonado to kill S a u c e d o . Maldonado did so, using a pillow to muffle the sound of the gunshots. The State of Texas charged and tried Maldonado for murder in the course of a r o b b e r y . The jury convicted Maldonado of capital murder and determined that h e should receive a death sentence. M a ld o n a d o filed an automatic direct appeal of his conviction with the T e x a s Court of Criminal Appeals (TCCA), which affirmed his conviction and s e n te n c e after considering his points of error on the merits. See Maldonado v. S ta te , 998 S.W.2d 239 (Tex. Crim. App. 1999). While that appeal was pending, h e filed his first application for a writ of habeas corpus, which the TCCA denied. Ex parte Maldonado, No. 51,612-01 (Tex. Crim. App. 2002). After the Supreme C o u r t concluded, in Atkins v. Virginia, 536 U.S. 304, that the Eighth A m e n d m e n t precludes the execution of mentally retarded persons, Maldonado file d a subsequent state habeas application in the TCCA in which he claimed 2

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No. 10-70003 t h a t he was mentally retarded and therefore ineligible for the death penalty. Ex p a r te Maldonado, No. 51,612-02 (Tex. Crim. App.). The TCCA remanded to the s t a t e habeas trial court to take evidence and enter findings of fact and c o n c lu s io n s of law on the Atkins claim. Ex parte Maldonado, No. 51,612-02 (Tex. C r im . App. 2003). After a live evidentiary hearing, the state habeas trial court entered fin d in g s of fact and conclusions of law recommending that relief be denied on M a ld o n a d o 's Atkins claim. The TCCA adopted the state habeas trial court's fin d in g s of fact and conclusions of law and denied relief. See Ex parte

M a ld o n a d o , Nos. 51,612-02, 51,612-03, 2007 WL 2660292, at *1 (Tex. Crim. App. S e p t . 12, 2007). Maldonado challenged this ruling and others in a federal habeas p e t it io n under 28 U.S.C. § 2254. The district court denied all of Maldonado's c la im s and sua sponte denied a COA. Maldonado v. Thaler, 662 F. Supp. 2d 684 (S .D . Tex. 2009). We granted a COA only as to the Atkins issue--the subject of t h e instant appeal. Maldonado v. Thaler, No. 10-70003, 2010 WL 3155236 (5th C ir . Aug. 10, 2010). B. T h e Atkins Decision and Briseno Framework I n Atkins v. Virginia, 536 U.S. 304, the Supreme Court held that the E ig h t h Amendment forbids the execution of mentally retarded persons. The A tk in s Court, however, "le[ft] to the State[s] the task of developing appropriate w a y s to enforce the constitutional restriction upon their execution of sentences." Id. at 317 (alterations and internal quotation marks omitted). The relevant s t a n d a r d in Texas was set out by the TCCA in Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004). The Briseno court held that mental retardation claims s h o u ld be adjudicated under the framework established by the American A s s o c ia t io n on Mental Retardation (AAMR), in conjunction with the standard s u p p lie d by the Texas Persons with Mental Retardation Act, TEX. HEALTH & S AFETY CODE § 591.003(13) ("`Mental retardation' means significantly 3

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No. 10-70003 s u b a v e r a g e general intellectual functioning that is concurrent with deficits in a d a p t iv e behavior and originates during the developmental period."). As quoted in Atkins, the AAMR supplies the following definition of mental retardation: M e n t a l retardation refers to substantial limitations in present fu n c t io n in g . It is characterized by significantly subaverage in t e lle c t u a l functioning, existing concurrently with related lim it a t io n s in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, c o m m u n it y use, self-direction, health and safety, functional a c a d e m ic s , leisure, and work. Mental retardation manifests before a g e 18. A tk in s , 536 U.S. at 309 n.3 (quoting AAMR, MENTAL RETARDATION: DEFINITION, C LASSIFICATION, AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992)). Briefly stated, B r is e n o requires three elements for a finding of mental retardation: (1)

s ig n ific a n t ly subaverage intellectual functioning (generally, a full-scale IQ score o f 70 or below); (2) deficits in adaptive functioning; and (3) onset before age 18. See Briseno, 135 S.W.3d at 7. I n Briseno, the TCCA made clear that although the determination of w h e t h e r an applicant meets this three-prong standard requires careful c o n s id e r a t io n of the relevant psychological standards--and expert testimony ob v iou s ly assists with this assessment--the ultimate determination as to mental r e t a r d a t io n must be made by the court, based on what the Constitution requires. The TCCA explained: A lt h o u g h experts may offer insightful opinions on the question of w h e t h e r a particular person meets the psychological diagnostic c r it e r ia for mental retardation, the ultimate issue of whether this p e r s o n is, in fact, mentally retarded for purposes of the Eighth A m e n d m e n t ban on excessive punishment is one for the finder of f a c t , based upon all of the evidence and determinations of c r e d ib ilit y . I d . at 9.

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No. 10-70003 C. M a ld o n a d o 's Atkins Claim M a ld o n a d o 's Atkins claim received extensive consideration in the state h a b e a s court. Maldonado submitted to psychological testing by the State's e x p e r t , Dr. George Denkowski, a clinical psychologist, and by two of his own e x p e r t s , Dr. Ricardo Weinstein, a forensic neuropsychologist, and Dr. Antonio P u e n t e , a professor of psychiatry and neuropsychologist. Each of these experts s u b m it t e d an affidavit to the state habeas trial court. To supplement these a ffid a v it s with live testimony, and to provide an opportunity for crosse x a m in a t io n , the state habeas trial court conducted an extensive, seven-day e v id e n t ia r y hearing on the Atkins issue on September 11, 13, 14, and 15 and N o v e m b e r 16, 17, and 27, 2006. Dr. Denkowski testified for the State and Dr. P u e n t e testified on behalf of Maldonado. Dr. Weinstein did not testify.

Maldonado called an additional expert, Dr. Jack Fletcher, who had not examined M a ld o n a d o but who provided additional testimony intended to rebut Dr. D e n k o w s k i's testimony. Both sides also called lay witnesses to testify as to M a ld o n a d o 's adaptive behavior. A fte r considering the expert affidavits and testimony, the lay testimony, a n d numerous exhibits, the state habeas trial court concluded that Maldonado h a d not met his burden of presenting evidence sufficient to satisfy any of the t h r e e prongs of the Briseno test. Accordingly, it entered findings of fact and c o n c lu s io n s of law recommending that Maldonado be found not mentally reta rd ed . Although these findings credited and cited extensively to Dr.

D e n k o w s k i's testimony, they were also structured such that the result would not c h a n g e if the results of the tests administered by Dr. Denkowski were d is r e g a r d e d . The findings and conclusions did, however, rely on Dr. Denkowski's c r it iq u e s of other experts' evidence, and were not specifically structured to stand i f Dr. Denkowski's critiques were discounted. The TCCA adopted the state h a b e a s trial court's findings and conclusions in their entirety and accordingly 5

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No. 10-70003 d e n ie d Maldonado's subsequent habeas application. See Ex parte Maldonado, N o s . 51,612-02, 51,612-03, 2007 WL 2660292, at *1 (Tex. Crim. App. Sept. 12, 2 0 0 7 ). Maldonado then filed the instant federal habeas petition. While Maldonado's federal habeas application was pending, the TCCA is s u e d an opinion, Ex parte Plata, No. AP-75820, 2008 WL 151296, at *1 (Tex. C r im . App. Jan. 16, 2008), in which it refused to credit Dr. Denkowski's t e s t im o n y in connection with another habeas case. The state habeas trial court, w h o s e recommendations the TCCA adopted in full, concluded that there were " fa t a l errors in Denkowski's administration and scoring of Plata's IQ and a d a p t iv e deficit tests." See id.; Ex parte Plata, No. 693143-B (Tex. 351st Dist. S e p t . 28, 2007). The Texas State Board of Examiners of Psychologists ("State B o a r d " ) subsequently filed a complaint against Dr. Denkowski with the State O ffic e of Administrative Hearings (SOAH), attaching the state habeas trial c o u r t's findings in Plata and seeking to sanction him for intentionally m is a p p ly in g psychiatric testing methods in that case. See SOAH Docket No. 5 2 0 -0 9 -2882. The Board's complaint also alleges that Dr. Denkowski

" in te n tio n a lly misused or abused psychological testing . . . in connection with [h is ] forensic assessments of . . . Maldonado." It contends, in relevant part, that: 6 4 . The Respondent failed to properly address language and c u lt u r a l issues with Maldonado, a native of Mexico. 6 5 . Respondent administered the self-report portion of the Adaptive B e h a v io r Assessment System (ABAS) to Maldonado using a S p a n is h -la n g u a g e interpreter from the court system to translate q u e s t io n s due to the subject's limited ability to speak English and R e s p o n d e n t 's inability to speak Spanish. 6 6 . Respondent deviated from established testing protocols in the e v a lu a t io n and scoring of Maldonado's intellectual functioning. 6 7 . The adjustments Respondent made to Maldonado's adaptive b e h a v io r scores were not scientifically valid. 6 8 . Respondent used maladaptive behavior to assess adaptive b e h a v io r . 6

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No. 10-70003 6 9 . Respondent also used the interpreter as a translator to a d m in iste r the Weschler Adult Intelligence Scale 3rd Ed. (WAIS-III) t o Maldonado and doing so rendered the test scores invalid. F ir s t Amended Complaint, SOAH Docket No. 520-09-2882 (Feb. 9, 2010). The c o m p la in t has not yet been resolved. Proceedings before the SOAH are pending; d is c o v e r y is ongoing; and counsel represented at oral argument that a hearing is not to occur before May 2011.1 Maldonado timely notified the federal district c o u r t about the Plata case and about the State Board's proceedings against Dr. D e n k o w s k i. T h e district court conducted a careful and detailed review of the record, a n d in particular considered whether the new revelations about Dr. Denkowski's w o r k in the Plata case and the pending State Board complaint against him in t h e SOAH provided a basis to question or reject the state habeas court's a n a ly s is . The district court noted that many of the errors that Dr. Denkowski a p p a r e n t ly committed in the Plata case did not appear to have been repeated in h is assessment of Maldonado, but allowed that the Plata errors might raise is s u e s as to Dr. Denkowski's credibility. Maldonado v. Thaler, 662 F. Supp. 2d a t 715 n.31, 729 n.51. The district court also noted, however, that "[t]he state c o u r t's adjudication denied relief independent of Dr. Denkowski's testing,

The complaint alleges that Dr. Denkowski violated the following State Board rules in connection with his evaluation of Maldonado: Rule 465.9(a)­(e), (h)­(j) (requiring that licensees provide "only services for which they have the education, skills, and training to perform competently"; take into account subjects' "age, gender, ethnicity, national origin, disability, language, and socio-economic status"; "maintain current knowledge of scientific and professional information"; employ "new techniques only after first undertaking appropriate study and training"; and withdraw from providing services if lacking the appropriate skills); Rule 465.10 (requiring that "[l]icensees rely on scientifically and professionally derived knowledge when making professional judgments"); Rule 465.16(b)(1), (2) (requiring that licensees use assessment techniques or tests "only if they are familiar with the reliability, validation and related standardization or outcome studies of, and proper applications of, the[se] techniques"); Rule 465.18(a)(2)­(4), (b)(1),(2) (requiring that licensees base all assessments and recommendations upon "information and techniques sufficient to provide appropriate substantiation for each finding" and decline to render opinion in areas "about which the licensee does not have the appropriate knowledge and competency").

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No. 10-70003 p o s s ib ly in recognition [of] the concerns raised by Maldonado's experts." Id. at 7 2 4 ­ 2 5 , 729. The district court concluded, in agreement with the state habeas c o u r t, that even if the results of Dr. Denkowski's testing of Maldonado were d is r e g a r d e d completely, Maldonado could not meet his burden of establishing m e n ta l retardation. Id. at 724, 729. Like the state habeas court, however, the d is t r ic t court did rely on criticisms supplied by Dr. Denkowski in reaching this c o n c lu s io n . The district court held that "the state habeas court was [not]

u n r e a s o n a b le in finding that Maldonado was not mentally retarded as u n d e r s t o o d by Atkins." Id. at 735. T h is appeal followed. Maldonado contends that the district court erred in c o n c lu d in g that Dr. Denkowski's alleged administrative and scoring errors, p a r tic u la r ly in light of the Plata case and the State Board proceedings against D r . Denkowski, did not provide a basis for disregarding Dr. Denkowski's t e s t im o n y in its entirety. Maldonado argues in particular that the court's

a s s e s s m e n t of the other experts' testimony relied too heavily on criticisms by Dr. D e n k o w s k i. II. STANDARD OF REVIEW

T h is habeas proceeding is subject to the Antiterrorism and Effective Death P e n a lt y Act (AEDPA), 28 U.S.C. § 2254, because Maldonado filed his federal p e t it io n on May 9, 2007, well after AEDPA's effective date. See Lindh v.

M u r p h y , 521 U.S. 320, 335­36 (1997). "Under AEDPA, if a state court has a d ju d ic a t e d a habeas petitioner's claims on the merits, he may receive relief in t h e federal courts only where the state court decision `resulted in a decision that w a s contrary to, or involved an unreasonable application of, clearly established F e d e r a l law, as determined by the Supreme Court of the United States,' or `r e s u lt e d in a decision that was based on an unreasonable determination of the fa c t s in light of the evidence presented in the State court proceeding.'" Rivera v . Quarterman, 505 F.3d 349, 356 (5th Cir. 2007) (quoting 28 U.S.C. § 2254(d)). 8

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No. 10-70003 " A state court's decision is deemed contrary to clearly established federal la w if it reaches a legal conclusion in direct conflict with a prior decision of the S u p r e m e Court or if it reaches a different conclusion than the Supreme Court b a s e d on materially indistinguishable facts." Gray v. Epps, 616 F.3d 436, 439 (5 t h Cir. 2010) (citing Williams v. Taylor, 529 U.S. 362, 404­08, 120 S. Ct. 1495 (2 0 0 0 )). To merit habeas relief, a state habeas court's application of federal law m u s t be not only incorrect but "objectively unreasonable." Renico v. Lett, 130 S . Ct. 1855, 1865 (2010). A state court's factual findings are "presumed to be c o r r e c t ," although a habeas petitioner may rebut this presumption by "clear and c o n v in c in g evidence." 28 U.S.C. § 2254(e)(1). We review the district court's c o n c lu s io n s of law de novo, applying the same standard of review that the d is t r ic t court applied to the state court decision. Jones v. Cain, 600 F.3d 527, 5 3 5 (5th Cir. 2010). T h e question of whether a defendant suffers from mental retardation in v o lv e s issues of fact, and thus is subject to a presumption of correctness that m u s t be rebutted by clear and convincing evidence under § 2254(e)(1). Clark v. Q u a r te r m a n , 457 F.3d 441, 444, 447 (5th Cir. 2006). On appeal, as in the district c o u r t, Maldonado bears the burden of establishing by a preponderance of the e v id e n c e that he is mentally retarded. Briseno, 135 S.W.3d at 12; Woods v. Q u a r te r m a n , 493 F.3d 580, 585 & n.3 (5th Cir. 2007). III. DISCUSSION

M a ld o n a d o 's chief contention on appeal is that Dr. Denkowski's testing a n d scoring methodologies were egregiously and fatally flawed. Although

M a ld o n a d o does not dispute that the state habeas court structured its opinion s o as not to rely on Dr. Denkowski's test results, he argues that Dr. Denkowski's m e t h o d o lo g y in administering and scoring those tests was so flawed that all of D r . Denkowski's testimony--including his critiques of other evidence in the r e c o r d -- s h o u ld be disregarded in its entirety as non-credible. As discussed 9

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No. 10-70003 b e lo w , we do not agree that the specific challenges that Maldonado has raised r e g a r d in g Denkowski's methodology in calculating the raw WAIS-III score p r o v id e a basis for concluding that the state habeas court was unreasonable in c o n s id e r in g that score. More troubling, however, are the scoring enhancements th a t Dr. Denkowski applied to Maldonado's WAIS-III and ABAS

r e s u lt s -- e n h a n c e m e n ts that are presently a subject of the State Board complaint a g a in s t Dr. Denkowski, and that are similar to those that the TCCA declined to c r e d it in Plata. As discussed below, however, assuming without deciding that t h is evidence rebuts the presumption of correctness that attaches to the state h a b e a s court's decision to credit Dr. Denkowski's testimony, Maldonado is not e n tit le d to habeas relief because even disregarding that testimony, he cannot m e e t his burden of showing that the state court's finding that he is not mentally r e t a r d e d was either an unreasonable application of Atkins or an unreasonable d e t e r m in a t io n of the facts in light of the evidence presented in state court. A. Dr. Denkowski's Results D r . Denkowski examined Maldonado on May 23 and 24, 2005. Along with a number of other tests, he administered the Wechsler Adult Intelligence Scale, T h ir d Edition (WAIS-III) to measure Maldonado's intellectual functioning and t h e Adaptive Behavior Assessment Scale (ABAS) to measure Maldonado's a d a p t iv e functioning. The parties agreed that, when administered under proper c o n d itio n s , the WAIS-III is the "gold standard" for evaluating intellectual fu n c tio n in g . Both tests were administered with the assistance of an interpreter w h o , though State licensed in Spanish­English translation, did not have a b a c k g r o u n d in psychology and had never translated a written psychological in s t r u m e n t before Maldonado's examination. Dr. Denkowski concluded, based o n that examination and relying in particular on the results of the WAIS-III and A B A S , that Maldonado was not mentally retarded. Maldonado challenges both

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No. 10-70003 h is raw WAIS-III score and the upward enhancements that D r . D e n k o w s k i a p p lie d to both the WAIS-III and ABAS scores. 1. T h e Raw WAIS-III Score

D r . Denkowski's administration of the WAIS-III yielded a raw score of 74 o n the verbal portion, 74 on the performance portion, and a full-scale IQ of 7 2 -- a ll above the threshold of 70 typically required to establish a showing of s ig n ific a n t ly subaverage intellectual functioning, although the low end of the c o n fid e n c e band for these scores could potentially qualify. Maldonado contends t h a t Dr. Denkowski's use of an interpreter invalidates these raw scores because " t h e use of a translator renders data and conclusions generated from an e x a m in a t io n [per se] unreliable." This argument is not persuasive. As the d is t r ic t court noted, the WAIS-III manual states that "administering the test w it h the assistance of a translator" is one "useful" approach employed by ex p e r ie n c e d examiners "when testing individuals who are not fluent in English." Maldonado v. Thaler, 662 F. Supp. 2d at 714 (internal quotation marks omitted; q u otin g David Wechsler, WAIS-III ADMINISTRATION AND SCORING MANUAL 34 (3d e d . 2003)). Furthermore, the evidence at the state evidentiary hearing showed t h a t two of Maldonado's own experts, Drs. Puente and Fletcher, have endorsed t h e use of translators in psychological testing at least in certain contexts. Maldonado's arguments do not demonstrate unreasonableness in the state h a b e a s court's conclusion that Dr. Denkowski's use of a translator did not render t h e WAIS-III results per se invalid. M a ld o n a d o urges, however, that the particular way in which Dr. D e n k ow sk i used the interpreter rendered the test results unreliable, because the in te r p r e t e r was required to translate the test contemporaneously and informally, w it h o u t advance preparation, and because the interpreter did not have a b a c k g r o u n d in psychology. At the evidentiary hearing, Maldonado's experts t e s t ifie d that the interpreter's lack of advance preparation and lack of 11

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No. 10-70003 p s y c h o lo g ic a l expertise could--and in Maldonado's case, did--result in s ig n ific a n t translation errors. But Maldonado's own experts disagreed as to w h e t h e r these problems could have artificially increased his score. Dr. Puente t e s t ifie d , in agreement with Dr. Denkowski, that translation problems would o n ly tend to lower the resulting score. Dr. Fletcher, however, opined that errors c o u ld also raise the score. The state habeas court discounted Dr. Fletcher's t e s t im o n y , concluding that to the extent that the use of a translator might have a ffe c t e d Maldonado's score, "such impact would most likely interfere with [his] o p t im a l performance and suppress [his] IQ scores." The state habeas court c o n c lu d e d that because translation errors would have had, if anything, a s u p p r e s s i v e effect, they did not provide a basis for concluding that Dr. D e n k o w s k i's administration of the WAIS-III resulted in an artificially high raw s c o r e . Particularly because Maldonado's own experts conflicted as to the effect o r significance of translation errors, we agree with the district court that M a ld o n a d o 's arguments do not rebut the presumptive correctness of the state h a b e a s court's conclusion. Cf. Moore v. Quarterman, 517 F.3d 781, 784 (5th Cir. 2 0 0 8 ) (declining to find the state habeas court even arguably unreasonable in c r e d it in g one side of conflicting expert testimony, when that testimony was s u ffic ie n t to sustain the state habeas court's finding).2 M a ld o n a d o also argues that this court should not credit Dr. Denkowski's t e s t im o n y because he failed to take account of the "Flynn Effect," which "posits t h a t , over time the IQ scores of a population rise without corresponding in c r e a s e s in intelligence and thus the test must be re-normalized over time." In r e Mathis, 483 F.3d 395, 398 n.1 (5th Cir. 2007). As the district and state habeas

The complaint filed against Dr. Denkowski in the SOAH accuses him of improperly using an interpreter in administering the WAIS-III test. We take no position as to whether the way in which Dr. Denkowski used the interpreter was in fact improper. We hold only that the state habeas court was not unreasonable in its conclusion that the use of an interpreter did not artificially increase Maldonado's raw WAIS-III full-scale IQ score.

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No. 10-70003 c o u r ts recognized, however, neither this court nor the TCCA has recognized the F ly n n Effect as scientifically valid. See id.; see also In re Salazar, 443 F.3d 430, 4 3 3 n.1 (5th Cir. 2006); Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App. 2 0 0 8 ) ("We have previously refrained from applying the Flynn effect . . . , noting t h a t it is an `unexamined scientific concept' that does not provide a reliable basis fo r concluding that an appellant has significant sub-average general intellectual fu n c tio n in g ." (quoting Ex parte Blue, 230 S.W.3d 151, 166 (Tex. Crim. App. 2 0 0 7 )). Maldonado's arguments do not show that the state habeas court

u n r e a s o n a b ly applied federal law, nor do they rebut the presumption of c o r r e c t n e s s that attaches to the state habeas court's decision to credit the raw score. 2. T h e Adjusted WAIS-III and ABAS Scores

O f different and greater concern, however, are the upward adjustments t h a t Dr. Denkowski made to Maldonado's WAIS-III and ABAS scores. In both c a s e s , Dr. Denkowski opined that "cultural and educational factors," as well as m ild anxiety and depression, could have artificially suppressed Maldonado's raw s c o r e . Applying these factors, Dr. Denkowski estimated that Maldonado's "true" W A I S -II I score was between 74 and 83. Although the WAIS-III manual

in s t r u c t s that an artificially low score may result from, among other factors, " [c ]u lt u r a l or linguistic discrepancy from the test standardization table, d is t r a c t a b ility , anxiety, deafness, poor motivation or inadequate persistence," Maldonado contends, as his experts urged at the hearing, that Dr. Denkowski's p r o p o s e d adjustments were fatally flawed because they did not result from any s t a t is t ic a l formula or established methodology, and because Dr. Denkowski la c k e d the cultural knowledge that would allow him to properly and accurately a d ju s t for the effects of Maldonado's impoverished upbringing in rural Mexico. Dr. Denkowski applied similar factors when scoring the ABAS, relying u p o n his "clinical judgment" and his purported knowledge of Mexican cultural 13

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No. 10-70003 n o r m s to revise Maldonado's raw ABAS score significantly upward to 67. The A B A S is based upon a self-reporting examination. e x p la in e d : T h e ABAS asks the subject whether he can perform certain tasks or s k ills . He rates his own abilities from 0 (the skill cannot be p e r fo r m e d ) to 3 (the skill is almost always performed correctly) on 2 3 9 skills [in 10 skill areas]. The examiner then tabulates the a n s w e r s into a composite score that, if below [70], shows deficits in a d a p t iv e behavior. M a ld o n a d o v. Thaler, 662 F. Supp. 2d at 728. Dr. Denkowski adjusted As the district court

M a ld o n a d o 's scores upward on approximately 30% of the questions and did not a d ju s t any of the scores downward. Maldonado argues that the problems with D r . Denkowski's methodology in scoring the ABAS were compounded by the facts t h a t Dr. Denkowski administered the test using an interpreter and failed to v e r ify Maldonado's self-reported responses by interviewing Maldonado's t e a c h e r s , relatives, or associates. T h e challenges that Maldonado's experts raised to these scoring e n h a n c e m e n t s at the state evidentiary hearing are echoed in the State Board's c o m p la in t against Dr. Denkowski and in Plata, in which the TCCA rejected Dr. D e n k o w s k i's testimony in its entirety as non-credible because he employed s im ila r methodology. Maldonado urges that these authorities show that the s t a t e habeas court was unreasonable in failing to disregard Dr. Denkowski's t e s t im o n y in its entirety, and further urges that if Dr. Denkowski's testimony is c o m p le t e ly disregarded, he can meet his burden of establishing mental r e t a r d a t io n . We need not decide whether these authorities are sufficient to r e b u t the presumption of correctness that attaches to the state habeas court's d e c is io n , however, because assuming without deciding they are, we conclude that M a ld o n a d o could not, with the evidence that would remain, meet his burden for o b ta in in g federal habeas relief.

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No. 10-70003 U p o n federal habeas review of a state court's adjudication, we ultimately " r e v ie w only a state court's `decision,' and not the written opinion explaining that d e c is io n ." Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc); see also S a n te lla n v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) ("The statute compels fe d e r a l courts to review for reasonableness the state court's ultimate decision, n o t every jot of its reasoning."). The state court's determination here was that M a ld o n a d o failed to meet the Briseno test for showing that he is mentally r e t a r d e d . Even if we disregard Dr. Denkowski's testimony, we conclude that M a ld o n a d o fails to show the state habeas court's decision was an unreasonable a p p lic a t io n of federal law or an unreasonable determination of the facts in light o f the remaining evidence. See § 2254(d). An analysis of this remaining

e v id e n c e , and the reasons for this conclusion, are set out below. B. The Remaining Evidence 1. Intellectual Functioning

T w o of Maldonado's experts, Drs. Weinstein and Puente, administered t e s t s of intellectual functioning to him. Dr. Weinstein administered two such t e s t s . The first was the verbal portion of a Spanish version of the WAIS-III, c a lle d the Escala Inteligencia Wechsler para Adultos (WAIS-Español). Maldonado scored an 83 on the verbal portion and scored a 90 on the c o m p r e h e n s io n , similarities, and vocabulary subsections of that verbal p o r t io n -- a ll well above the score of 70 that roughly forms the upper bound for a finding of significantly subaverage intellectual functioning. Dr. Weinstein did n o t disclose in his expert report that he had administered this test--the results w e r e only brought to the state habeas court's attention because Dr. Denkowski d is c o v e r e d the administration while researching Dr. Weinstein's testing p r o t o c o ls . We are troubled, as were the district and state habeas courts, that " D r . Weinstein never explained why he chose to administer that test, why he did

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No. 10-70003 n o t perform the entire test, or why he did not report his partial conclusions." Maldonado v. Thaler, 662 F. Supp. 2d at 718. Maldonado's experts at the evidentiary hearing, Drs. Puente and Fletcher, u r g e d that the state habeas court should not credit the WAIS-Español score. Dr. P u e n t e testified that Dr. Weinstein's use of the WAIS-Español was problematic b e c a u s e it was normed for Spanish speakers from Puerto Rico, who may have lin g u is t ic differences from Maldonado's native Mexico. Dr. Fletcher urged that t h e WAIS-Español was likely to yield scores "substantially higher than those you w o u ld get on the WAIS[-III]," but did not quantify the amount by which the r e s u lt might overstate Maldonado's IQ. Drs. Puente and Fletcher, however, m a d e no effort to explain why, given these shortcomings, Maldonado's own e x p e r t had decided to administer a portion of the WAIS-Español. We agree with t h e district court, therefore, that Maldonado fails to show that the state habeas c o u r t's reliance on the partial administration of the WAIS-Español was u n r e a s o n a b le . This reliance was one basis upon which the state court

d e t e r m in e d that Maldonado had not met his burden of demonstrating s ig n ific a n t ly subaverage intellectual functioning, and Maldonado has not p r e s e n t e d evidence sufficient to rebut the presumption of correctness in that c o n c lu s io n . D r. Weinstein also administered the Woodcock-Munoz Bateria-R ("BateriaR " ), the Spanish language version of the Woodcock-Johnson Test of Cognitive A b ilit ie s , Revised. That administration, which Dr. Weinstein did report, yielded a n IQ score of 61. As the state habeas court noted, and Maldonado does not d is p u t e , the AAMR has not cited the Bateria-R as an appropriate test for a s s e s s in g the intellectual functioning aspect of a mental retardation diagnosis. Because the AAMR has not specifically cited the test as appropriate, and b e c a u s e Dr. Weinstein never attempted to explain the discrepancy between the W A I S -E s p a ñ o l result and the Bateria-R result--or why the latter should be 16

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No. 10-70003 c r e d it e d over the former--we cannot conclude that the state habeas court's d e c i s io n to accord little weight to the Bateria-R result was unreasonable. See W o o d s , 493 F.3d at 586­87 (state habeas court was not unreasonable in deciding t o accord less weight to certain test results, where testimony supported the c o n c lu s io n that those results were less reliable). D r . Puente also administered two tests, the Beta-III and the C o m p r e h e n s iv e Test of Nonverbal Intelligence (CTONI). Dr. Puente testified t h a t both are neuropsychological tests that measure nonverbal ability. As with t h e Bateria-R, the state habeas court noted and Maldonado does not dispute that t h e AAMR does not cite these tests as providing a basis for assessing intellectual fu n c tio n in g . Another of Maldonado's experts, Dr. Fletcher, testified on crosse x a m in a t io n that neither of these testing instruments could be used to produce a full-scale IQ score. In a recent decision, the TCCA has indicated that a fulls c a le IQ score should provide the basis for any assessment of intellectual f u n c t io n in g . See Ex parte Hearn, 310 S.W.3d 424, 431 (Tex. Crim. App. 2010) (" [N ]e u r o p s y c h o lo g ic a l measures [may not] wholly replace full-scale IQ scores in m e a s u r in g intellectual functioning."); see also Moore v. Quarterman, 342 F . App'x 65, 81 n.27 (5th Cir. 2009) (noting the "standard professional view" that t h e CTONI is not a measure of general intelligence). Dr. Puente's

a d m in is t r a t io n of the Beta-III yielded an IQ score of 70--which Dr. Puente a g r e e d did not, by itself, qualify Maldonado for a diagnosis of mental r e t a r d a t io n . Dr. Puente's administration of the CTONI yielded an IQ score of 61. Because the AAMR has not cited either test as providing a basis for assessing in t e lle c tu a l functioning; because Maldonado's own expert, Dr. Fletcher, opined t h a t neither of these tests was an appropriate method of calculating a full-scale I Q score; and because Dr. Puente conceded that the Beta-III results would not s u p p o r t a diagnosis of mental retardation, Maldonado has not shown that the s t a t e habeas court unreasonably determined that he lacked subaverage 17

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No. 10-70003 in t e lle c tu a l functioning. This is particularly true in light of the TCCA's recent p r o n o u n c e m e n t in Hearn, 310 S.W.3d at 429. I n sum, the state habeas court's decision was not contrary to or an u n r e a s o n a b le application of Atkins, and Maldonado did not rebut the p r e s u m p t io n of correctness that attaches to the state habeas court's conclusion t h a t Maldonado did not meet his burden of showing significantly subaverage in t e lle c tu a l functioning under the first prong of the Briseno mental retardation sta n d a rd . He therefore cannot show that the state habeas court's factual

d e t e r m in a t io n was unreasonable. See Woods, 493 F.3d at 587 ("[T]o the extent W o o d s argues that the state court's decision was `based on an unreasonable d e t e r m in a t io n of the facts in light of the evidence presented,' 28 U.S.C. 2 2 5 4 (d )(2 ), he has failed to rebut, by clear and convincing evidence, the p r e s u m p t io n that the state court's factual findings are correct."). And because fu lfillm e n t of each prong is necessary to a finding of mental retardation, this c o n c l u s io n ends the inquiry. As discussed below, however, we also find that M a ld o n a d o did not present evidence sufficient to rebut the presumed correctness o f the state habeas court's decision that Maldonado did not meet the second B r is e n o prong. 2. Adaptive Deficits

M a ld o n a d o 's experts extensively criticized Dr. Denkowski's methodology in administering and scoring the ABAS. They did not, however, themselves a d m in is t e r to Maldonado the ABAS or any other formal testing instrument for a d a p t iv e deficits. Dr. Weinstein's affidavit did not discuss the adaptive behavior p r o n g at all. Dr. Fletcher addressed adaptive behavior only to the extent of c r it ic iz in g Dr. Denkowski's administration of the ABAS. The only non-rebuttal t e s t im o n y as to Maldonado's adaptive deficits came from Dr. Puente, who t e s t ifie d , based on affidavits prepared by Maldonado's father and others who k n e w him, that Maldonado had exhibited some adaptive deficits, particularly in 18

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No. 10-70003 h is formative years. Dr. Puente found deficits in functional academics

(M a ld o n a d o was slow in school); banking (when Maldonado and his wife finally o p e n e d a checking account after immigrating to the United States, it was not c le a r that he knew how to use it); public transportation (before age 18, M a ld o n a d o 's use of public transportation apparently was limited); leisure (M a ld o n a d o did not report any hobbies beyond recreational drug use); and social r e la t io n s h ip s (before age 18, his romantic relationships with females were u n s u c c e s s fu l and his closest relationship was with his stepfather, with whom he liv e d only briefly). Dr. Puente explained that he had not conducted any

s t a n d a r d iz e d testing for adaptive deficits because there were no standardized t e s t s written in Spanish and he believed translating would be inappropriate. The state habeas court relied primarily on lay testimony provided by witnesses fo r both parties in concluding that Maldonado had not shown adaptive deficits s u ffic ie n t to satisfy the second Briseno prong. A lt h o u g h the AAMR contemplates that adaptive deficits, defined as " s ig n ific a n t limitations in an individual's effectiveness in meeting the standards o f maturation, learning, personal independence, and/or social responsibility that a r e expected for his or her age level and cultural group," will be "determined by c lin ic a l assessment and, usually, standardized scales," Briseno, 135 S.W.3d at 7 n.25, Briseno does not require that an assessment of adaptive deficits be p r e m is e d upon the results of standardized tests or expert opinion, id. at 8; see a ls o Hearn, 310 S.W.3d at 428 ("[S]tandardized tests are not the sole measure o f adaptive functioning, [but] they may be helpful to the factfinder, who has the u lt im a te responsibility for determining mental retardation."). Indeed, the

B r is e n o court emphasized that "[a]lthough experts may offer insightful opinions . . . the ultimate issue of whether [a] person is, in fact, mentally retarded for p u r p o s e s of the Eighth Amendment ban on excessive punishment is one for the fin d e r of fact." 135 S.W.3d at 9. Briseno cites the following considerations as 19

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No. 10-70003 b e in g particularly important to determining whether the adaptive deficit prong h a s been met: · D id those who knew the person best during the developmental s t a g e -- h i s fam i l y , frien d s , tea c h e r s , em p l o y e r s , a u t h o r it ie s -- t h in k he was mentally retarded at that time, and if so, act in accordance with that determination? H a s the person formulated plans and carried them through or is his conduct impulsive? D o e s his conduct show leadership or does it show that he is le d around by others? I s his conduct in response to external stimuli rational and a p p r o p r ia te , regardless of whether it is socially acceptable? D o e s he respond coherently, rationally, and on point to oral or w r it t e n questions or do his responses wander from subject to s u b je c t? C a n the person hide facts or lie effectively in his own or o t h e r s ' interests? P u t t in g aside any heinousness or gruesomeness surrounding t h e capital offense, did the commission of that offense require fo r e t h o u g h t , planning and complex execution of purpose?

· · · ·

· ·

I d . at 8­9. T h e state habeas court found, after hearing the lay testimony presented a t the evidentiary hearing, that "there [wa]s no indication that [Maldonado] was c o n s id e r e d or treated as mentally retarded by those who knew him best, either d u r in g [the] developmental period or as an adult." As the district court

o b s e r v e d , most of the "[t]estimony about what Maldonado could not do came . . . fr o m . . . his childhood." Maldonado v. Thaler, 662 F. Supp. 2d at 733. This t e s t im o n y consisted primarily of evidence that Maldonado was "slow to learn" a n d "did not understand much" in school. Id. at 731. The testimony also

r e v e a le d , however, that Maldonado had managed to support himself on the s t r e e t s from age nine, panhandling and selling illegal drugs. The district court o b s e r v e d that in adulthood, despite this "disadvantaged and inhibiting 20

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No. 10-70003 b a c k g r o u n d , Maldonado sought better life opportunities" and in fact managed t o better his life in many respects. Id. at 733. T h e testimony at the hearing showed that Maldonado married in Mexico a n d fathered a child. He crossed the United States border with the aid of a " c o y o t e " to whom he paid $300. In the United States, he worked with his father a t Greenspoint Dodge in Houston, Texas, washing and waxing cars. He made " s u b s t a n t ia l money" there, including a significant amount in tips. He later o b ta in e d a second job working with his father at an apartment complex. Maldonado then returned to Mexico to retrieve his wife and child; the family s u c c e s s fu lly entered the United States illegally. The family lived together in an a p a r t m e n t and Maldonado was, for a time, the sole breadwinner. Maldonado s u b s e q u e n t l y worked for his cousin for several months as the cashier at a ta q u e r ia . Maldonado's work in Houston ended when he was arrested for

s m u g g lin g marijuana from Mexico and was sentenced to two and a half years in a federal penitentiary. When he was released, he moved to Chicago, where he jo in e d his wife and her family and obtained a factory job. Although the

t e s t im o n y showed that he did not perform his various jobs perfectly, we agree w it h the district court that the testimony showed that his performance was at le a s t to a level that "belie[d] mental retardation." Id. A fte r Maldonado returned to Houston and was arrested for capital murder, h e regularly wrote to his father from prison. Maldonado's experts did not review t h e s e letters, but we agree with the district court's conclusion that these, though "by no means . . . literary masterpieces, do not facially give an impression of s u b s t a n t ia l intellectual impairments." Id. Prison guards testified at the

e v id e n t ia r y hearing that Maldonado kept his cell neat and "very organized"; that h e was always well-groomed; and that he properly filled out commissary r e q u e s ts and took good care managing that account. Maldonado also properly c o m p le t e d prison grievance forms. 21

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No. 10-70003 B a s e d on this record, we find no evidence sufficient to rebut the presumed c o r r e c t n e s s of the state habeas court's factual findings that Maldonado " fo r m u la t e d and carried through plans for living, i.e., panhandling as a child; c o m in g to the United States from Mexico; working at a car dealership, an a p a r t m e n t complex, and a factory; transporting marijuana to the United States; a n d engaging in robbery and murder, albeit criminal activities." Nor does the e v id e n c e rebut the presumed correctness of the state habeas court's conclusion t h a t Maldonado "fail[ed] to show adaptive deficits in adaptive behavior based, in part, on the applicant's history of driving, procuring and transporting drugs, s o m e t im e s working in legitimate jobs, attempting to escape detection during his c r im in a l offenses, his interactions with others [in prison], his correspondence w it h others, his maintaining his commissary account [in prison], and his use of t h e grievance system [in prison]."3 In short, Maldonado has not presented

A different result is not required by our recent decision in Wiley v. Epps, __ F.3d __, No. 09-70037, 2010 WL 4227405 (5th Cir. Oct. 27, 2010), a case originating in Mississippi in which lay evidence was present about the defendant's ability to drive, work, and support his family, but we affirmed the district court's holding that Wiley was mentally retarded. Courts are often confronted with similar evidence that a defendant claiming to be mentally retarded under Atkins can perform various activities. But the mental retardation question is very much case-specific and fact-intensive, and there are critical differences between Wiley and Maldonado's case. Most important, unlike the instant case, we determined in Wiley that the district court was not bound by the AEDPA's deferential standards and so reviewed the district court's conclusions only for clear error. See id., slip op. at 20. Here we consider the reasonableness of the state habeas court's decision. We also determined in Wiley that the State had failed to brief, and so waived, the district court's findings on adaptive deficits. Id. at 30. Furthermore, Wiley presented expert evidence that mentally retarded persons could perform certain minimal functions, which did not preclude a mental retardation finding in his case, and he supported his claim of adaptive deficits with expert testing and assessments, as well as with work, school, and military records. Id. at 27, 30­34. In contrast, the state court in Maldonado's case was faced with only limited evidence about Maldonado's adaptive skills, no formal adaptive testing by his experts, and lay evidence that was contrary to his claims. Maldonado's case is also governed by the Texas standards for mental retardation established by Briseno, which specifically contemplate consideration of how the defendant is viewed by friends and family and how he has generally functioned and conducted himself. In light of the foregoing, the state court's determination in this case was neither contrary to nor an unreasonable application of federal law, nor an unreasonable determination of the facts. See § 2254(d).

3

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No. 10-70003 e v id e n c e sufficient to rebut the presumption of correctness that attaches to the s t a t e habeas court's conclusion that Maldonado did not meet his burden of s a t is fy in g the second prong of the Briseno test. Cf. Woods, 493 F.3d at 587 (c o n c lu d in g that presumption of correctness was not overcome where the p e t it io n e r himself had submitted little evidence of deficits, and the p e r s u a s iv e n e s s of even that evidence was "significantly diminished by the e v id e n c e of [the defendant's competent] performance" at his job). I V . CONCLUSION A t the evidentiary hearing on the Atkins issue and in his federal habeas p e t it io n and appeal, Maldonado has emphasized the shortcomings of Dr. D e n k o w s k i's testimony. Whatever the validity of these criticisms, however, we c o n c lu d e that, discounting Dr. Denkowski's testimony in its entirety and c o n s id e r in g only the evidence and testimony remaining in the record, this e v id e n c e does not rebut the presumption of correctness that attaches to the state h a b e a s court's conclusion that Maldonado did not meet his burden of e s t a b lis h in g mental retardation. Therefore, the state court's denial of relief was n e i t h e r an unreasonable application of federal law nor an unreasonable d e t e r m in a t io n of the facts in light of the evidence. We AFFIRM the district c o u r t's denial of habeas relief on Maldonado's Atkins claim. Maldonado's motion fo r a stay is DENIED. A F F I R M E D . MOTION DENIED.

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