Rape - Robbery
Number of victims: 1
Date of murder:
Date of arrest:
3 days after
Date of birth: July
Victim profile: George
Ray Newman, 45
Method of murder:
Location: Smith County, Texas, USA
Status: Sentenced to death on May 6, 1994. Executed by lethal
injection in Texas on April 9, 2013
United States Court of
For the Fifth Circuit
According to Connie Hilton, her barking dog woke her during the
night. She got out of bed and saw a man in the hallway with a
shotgun. Her fiance, 45 year old George Newman, responded to her
scream and was shot in the face. The dog was also killed.
After Hilton attempted to hide in the bathroom,
a man aimed a gun at her, saying, “Shut up or I’ll shoot you,
too.” Hilton began struggling with that man, and was struck in the
head at least twice before submitting. She was then lifted by two
individuals, who told her to cover her eyes. Hilton was led
outside and later directed into the living room, where she was
sexually assaulted by the man who found her in the bathroom. That
man took Hilton into the kitchen, where he tied her hands and
feet; she heard sounds indicating the house was being ransacked.
Finally, Hilton felt a gun barrel placed
between her legs, and the same man told her: “Quit whimpering,
somebody will find you in the morning.” She was left in the
kitchen, hands and feet bound, as Lewis and his partners fled in
her truck. She managed to free herself, crawled to Newman to find
him dead, then climbed out a window to seek help.
Lewis was arrested three days later after he
was seen with some of the stolen items. Through DNA analysis,
samples of blood from Lewis were matched with traces of blood
found both in the house and in the victim’s car (recovered the
next morning), and also with semen recovered from the house and
In re Lewis, Not Reported in S.W.3d, 2003 WL 21751491
(Tex.Crim.App. 2003). (State Habeas)
Lewis v. Quarterman, 541 F.3d 280 (5th Cir. 2008). (Federal
Lewis v. Thaler, 701 F.3d 783 (5th Cir. 2012). (Federal
Texas no longer offers a special "last meal" to condemned inmates.
Instead, the inmate is offered the same meal served to the rest of
"Ms. Connie Hilton, I'm sorry for what happened to you. If I
hadn't raped you, then you wouldn't have lived. If you look at the
transcripts, I didn't kill Mr. Newman and I didn't rob your house.
There are two people still alive. I was just there. When I saw you
in the truck driving away, I could have killed you but I didn't.
I'm not a killer. My momma was abused. I'm sorry for what you've
gone through. It wasn't me that harmed and stole all of your
stuff. If you look at the transcripts you will see. I ask the good
Lord to forgive me." Lewis then thanked his friends for their love
and support and asked them to "get the transcripts, let the truth
come out so that I do not die in vain. I thank the Lord for the
man I am today. I have done all I can do to better myself, to
learn to read and write. Take me to my King. OK, let me rest." As
the drug began taking effect, he said he could feel it "burning my
arm. I feel it in my throat. I'm getting dizzy...."
Texas Department of Criminal Justice
Rickey Lynn Lewis
Date of Birth: 07-21-62
Date Received: 05-06-94
Education: 9 years
Date of Offense: 09-17-90
County of Offense: Smith
Native County: Smith
Hair Color: Black
Eye Color: Brown
Height: 5' 03"
Prior Prison Record: TDCJ #366116, rec.
11/3/83, Smith County, 3 years, Burglary of Bldg., paroled
04-11-84. ret'd 3-28-85 as violator, MS 8/30/85, ret'd 3/7/86 as
violator, MS to hold for Smith County SO 6/6/86. TDCJ #426782,
ret'd from MS 7/18/86 w/5 years, Burglary of Vehicle, MS to Smith
County 5/15/87. TDCJ #483249, rec. 6/10/88, Smith County, 25
years, Burglary of Bldg., paroled 3/19/90.
Summary of Incident: Convicted in the murder of
George Ray Newman, 45, at the victim's home in northwest Smith
County. Lewis entered the home and shot Newman when he responded
to the screams of his fiancee. Lewis then raped Newman's fiancee
and stole her vehicle. She later climbed out of a bathroom window
and drove to a store to call police.
Texas Attorney General
Wednesday, April 3, 2013
Media Advisory: Rickey Lynn Lewis scheduled for
AUSTIN – Pursuant to a court order by the 114th
Judicial District Court of Smith County, Texas, Rickey Lynn Lewis
is scheduled for execution after 6 p.m. on April 9, 2013. On April
26, 1994, a Smith County jury found Lewis guilty of the 1990
capital murder of George Newman while in the course of committing
the felony offenses of burglary of Newman’s home and aggravated
sexual assault of Newman’s fiancée, Connie Hilton.
FACTS OF THE CRIME
The United States Court of Appeals for the
Fifth Circuit described George Newman’s murder as follows: In the
early morning of September 17, 1990, after walking into the
bathroom, Connie Hilton noticed an armed man walk past the
doorway; immediately screamed to her sleeping fiancé (the victim);
and heard a gunshot. After Hilton attempted to hide in the
bathroom, a man aimed a gun at her, saying, “Shut up […], or I’ll
shoot you, too.” Hilton began struggling with that man; was struck
in the head at least twice; finally submitted; and was lifted by
two individuals, who told her to cover her eyes.
Hilton was led outside and later directed into
the living room, where she was sexually assaulted by the man who
found her in the bathroom. That man took Hilton into the kitchen,
where he tied her hands and feet; she heard sounds indicating the
house was being ransacked. Finally, Hilton felt a gun barrel
placed between her legs, and the same man told her: “Quit
whimpering, […]. Somebody will find you in the morning.” Hilton
testified that, because of the voice, she knew it was the man who
remained with her from when she was discovered in the bathroom
until when she was left in the kitchen.
During a search of the room where the sexual
assault occurred, investigators collected pubic hairs that were
consistent with samples taken from Lewis. Through DNA analysis,
samples of Lewis’s blood were matched with traces of blood found
both in the house and in the victim’s car (recovered the next
morning) and also with semen recovered from the house and Hilton.
PRIOR CRIMINAL HISTORY
Under Texas law, the rules of evidence prevent
certain prior criminal acts from being presented to a jury during
the guilt-innocence phase of the trial. However, once a defendant
is found guilty, jurors are presented information about the
defendant’s prior criminal conduct during the second phase of the
trial – which is when they determine the defendant’s punishment.
During Lewis’s second sentencing, jurors learned that in January
of 1986, Lewis was arrested and convicted after assaulting an
18-year-old girl who had thwarted his attempt to burglarize her
family’s vehicles. That same year, Lewis became very “combative”
with police after his arrest for the theft of a small refrigerator
from a local hospital. The theft was never prosecuted. Lewis again
violated the law in April of 1988 and received a 25-year prison
sentence for burglary of a building.
By 1990, Lewis was released back onto the
streets. In July 1990, Lewis stole a pick-up truck and, after a
chase by police, crashed the truck into a tree. Lewis fled from
the accident scene but was captured a short time later. Two months
later, on September 13, 1990, Lewis used a sawed-off shotgun and
expressed a willingness to kill in order to carry out the robbery
of a Tyler retail store. He left with some of the store’s cash
and, as a hostage, the store’s elderly manager. Once outside,
Lewis directed his hostage to the side of a nearby building and,
while in relative seclusion, told her to turn her back to him as
he raised the gun. Just as the manager believed she was about to
be shot, a car drove past, and Lewis, at that moment, fled into a
nearby field. He was identified as the perpetrator of this
aggravated robbery and aggravated kidnaping shortly after his
arrest for capital murder.
In January 1991, a Smith County grand jury
indicted Lewis for the offense of capital murder.
On April 26, 1994, a jury convicted Lewis of
capital murder. After the jury recommended capital punishment, the
trial court sentenced Lewis to death by lethal injection.
On June 19, 1996, the Texas Court of Criminal
Appeals reversed the death sentence and remanded the case to the
trial court for a new punishment hearing.
On February 27, 1997, a second Smith County
jury recommended capital punishment, and the trial court again
sentenced Lewis to death by lethal injection.
On June 23, 1999, the Texas Court of Criminal
Appeals affirmed Lewis’s sentence.
On April 19, 1990, the Texas Court of Criminal Appeals denied
state writ of habeas corpus.
On June 20, 2002, the U.S. District Court denied petition for a
federal writ of habeas corpus.
On January 22, 2003, the U.S. Court of Appeals for the Fifth
Circuit affirmed the denial.
In May 2003, Lewis’s execution was scheduled to take place on
August 7, 2003.
On June 20, 2003, Lewis’s filed a subsequent state habeas
application alleging mental retardation.
On July 24, 2003, the Texas Court of Criminal Appeals remanded and
granted a stay of execution.
In October 2003, Lewis moved the trial court for appointment of
counsel and for permission to obtain investigative and expert
assistance to pursue his mental retardation claim. When the court
denied his request, Lewis sought a writ of mandamus, but on April
28, 2004, the Texas Court of Criminal Appeals upheld the lower
On October 6, 2003, the U.S. Supreme Court denied Lewis’s petition
for a writ of certiorari.
On April 15, 2005, the Fifth Circuit granted Lewis leave to file a
successive federal habeas petition.
On June 29, 2005, the Texas Court of Criminal Appeals denied
Lewis’s subsequent state writ.
On June 22, 2007, the federal district court denied Lewis’s second
federal habeas petition.
On August 12, 2008, the Fifth Circuit remanded for rehearing.
On October 19, 2010, the federal district court again denied
On November 20, 2012, the Fifth Circuit affirmed the district
court’s denial of relief.
On January 11, 2013, the Trial Court of Smith County set Lewis’s
execution for April 9, 2013.
On February 18, 2013, Lewis filed a second petition for certiorari
with the U.S. Supreme Court.
Texas executes inmate convicted in 1990
murder and rape
By Corrie MacLaggan - Reuters.com
April 9, 2013
(Reuters) - Texas executed a convicted murderer
on Tuesday by lethal injection for killing a man then raping the
victim's fiancée, even as he maintained to the end that he was
"not a killer," according to the Texas Department of Criminal
Justice. Eleven other convicts are scheduled to be executed before
the end of July in Texas, which has put to death more people than
any other U.S. state since the death penalty was reinstated in
1976. Last year, it executed 15 people.
Rickey Lewis was convicted of shooting to death
George Newman, 45, in 1990 while burglarizing Newman's home in
East Texas. After the shooting, Lewis, then 28, raped Newman's
fiancée and stole her vehicle, according to the criminal justice
department. The fiancée later climbed out of a bathroom window and
drove to a store to call police, the department said.
In his last statement, Lewis said he was sorry
for what happened to the woman, but then said, "If I hadn't raped
you then you wouldn't have lived." He denied killing Newman and
robbing the house. "When I saw you in the truck driving away, I
could have killed you but I didn't," said Lewis, according to a
statement provided by prison officials. "I'm not a killer." DNA
analysis showed that Lewis' blood and semen matched traces found
at the scene, according to an account of the case from the state
attorney general's office.
Lewis already had a long criminal record,
including a conviction for assaulting an 18-year-old woman who had
gotten in the way of his attempt to burglarize her family's
vehicles. Lewis had said that he had mental disabilities, and
those claims delayed a 2003 execution date, but his execution was
later rescheduled. His death marks the second execution this year
in Texas and the sixth in the United States, according to the
Death Penalty Information Center.
Texas executes man for 1990 fatal shooting,
By Michael Graczyk - Associated Press
April 9, 2013
HUNTSVILLE, Texas (AP) — A Texas convict with a
lengthy criminal history was executed Tuesday evening for fatally
shooting a man and raping the slain man's fiancee during a home
break-in more than 22 years ago. Rickey Lynn Lewis already had
been in and out of prison five times in less than seven years when
he was arrested three days after the killing of 45-year-old George
Newman and attack on Newman's fiancee in 1990 at their home in a
rural area of Smith County, about 90 miles east of Dallas.
Lewis, 50, acknowledged the rape, but not the
killing. "If I hadn't raped you, you wouldn't have lived," he told
Newman's fiancee, Connie Hilton, in the moments before the single
lethal dose of pentobarbital was administered. "I didn't kill Mr.
Newman and I didn't rob your house. "I was just there. ... I'm
sorry for what you've gone through. It wasn't me that harmed and
stole all of your stuff," he said to Hilton, who stood behind a
glass window a few feet away. The Associated Press normally does
not name rape victims, but Hilton, 63, agreed to be identified.
Lewis said the two people responsible for Newman's killing are
still alive. He didn't identify them. He told Hilton he watched
her flee the house to get help. "When I saw you in the truck
driving away, I could have killed you, but I didn't," he said.
"I'm not a killer." Lewis thanked his friends who watched through
a nearby window "for the love you gave me." "I thank the Lord for
the man I am today. I have done all I can to better myself, to
learn to read and write," he said, appearing to choke back tears.
"Take me to my king."
As the drug began taking effect, he said he
could feel it "burning my arm." "I feel it in my throat. I'm
getting dizzy," Lewis said before he started to snore and, seconds
later, lost consciousness. He was pronounced dead 14 minutes after
the lethal dose began.
The U.S. Supreme Court last week refused to
review Lewis' case and the Texas Board of Pardons and Paroles
unanimously voted against a clemency request. No last-day appeals
were filed by his attorneys to try to halt the execution, the
second this year in Texas.
Earlier appeals focused on whether Lewis, a
ninth-grade dropout who worked as a laborer, was mentally impaired
and ineligible for the death penalty under Supreme Court rulings.
The claims included a suggestion from Lewis' attorneys that the
court reconsider a denial it made in his case in 2005. The Texas
Court of Criminal Appeals refused that recommendation on Monday.
Hilton declined to speak with reporters after
the execution. In a first-person account she wrote of the attack,
she said she got out of bed the night of Sept. 17, 1990, after her
barking dog woke her and saw a man in the hallway with a shotgun.
She screamed, and Newman responded and was shot in the face. A dog
in the home was also killed. Hilton tried hiding in a bathroom,
was struck at least twice in the head and then assaulted for over
an hour by Lewis while the other two people Lewis claims were
there stole items from the house. She testified she was ordered to
"quit whimpering," felt a gun barrel on her and was told someone
would find her in the morning. According to court documents, she
was left in the kitchen with her hands and feet bound. As Lewis
and his partners fled in her truck, she managed to free herself,
crawled to Newman to find him dead and then climbed out a window
to seek help. Lewis was arrested three days later after he was
seen with some of the items stolen from the house. DNA evidence
linked him to the attack.
"There's still a lot of fear in the back of my
mind because the other two men never were caught," Hilton told the
AP last week. "You never know if there's going to be retaliation.
"He's never told anyone and as far as I'm aware of, nobody knows.
On the other hand, if he were to tell who was with him, that would
confirm his guilt, and he's not going to do that."
The Texas Court of Criminal Appeals in 1996
upheld Lewis' conviction but reversed his death sentence, finding
jurors had faulty instructions when considering his sentence. At a
new punishment trial the following year, Lewis again was sentenced
to die. Lewis' mother, who has since died, testified a 10-year-old
Lewis shot his father to protect her. Testimony indicated Lewis'
father had abused him as a child.
Records showed Lewis first went to prison in
1983 for burglary, was paroled and returned to prison as a parole
violator. He continued to be a repeat offender and parole
violator. His arrest on capital murder charges for Newman's
slaying came six months after his most recent release. Evidence
showed two months before the Newman shooting he stole a truck and
led police on a chase. Then four days before the attack, Lewis
used a sawed-off shotgun during a store robbery in Tyler.
At least 11 other Texas inmates have executions
scheduled through July, including three more this month.
Texas executes man for 1990 shooting, rape
By Adriana Acosta - ItemOnline.com
April 10, 2013
HUNTSVILLE — Connie Hilton, who was raped and
her fiancé George Newman fatally shot more than 22 years ago, got
an apology from the man responsible minutes before his own death
Tuesday night. Rickey Lewis, 50, said he was sorry for what
happened, acknowledging the rape, but not the killing. Lewis was
pronounced dead at 6:32 p.m., 14 minutes after the lethal dose was
administered. He became the second inmate executed this year in
“If I hadn’t raped you, you wouldn’t have
lived,” he told the rape victim in the moments before the single
lethal dose of pentobarbital was administered. “I didn’t kill Mr.
Newman and I didn’t rob your house. “I was just there. ... I’m
sorry for what you’ve gone through. It wasn’t me that harmed and
stole all of your stuff.” Lewis urged Hilton to look at the
transcripts to prove his innocence. “I ask the good lord to
forgive me…Y’all pray for me, keep up the fight,” he said to his
family. “Get the transcripts, let the truth come out so that I do
not die in vain.” Friends of Lewis, Daniel Sirven, Rene Sirven and
Shenna Dewan sobbed as they witnessed the execution. The U.S.
Supreme Court last week refused to review Lewis’ case and the
Texas Board of Pardons and Paroles unanimously voted against a
Hilton said her barking dog woke her the night
of Sept. 17, 1990. She got out of bed and saw a man in the hallway
with a shotgun. Newman responded to her scream and was shot in the
face. The dog was also killed. Hilton tried hiding in a bathroom
but was struck at least twice in the head and then assaulted for
more than an hour by Lewis while two partners, who never were
identified or found, stole items from the house. She later would
testify she was ordered: “Quit whimpering,” felt a gun barrel on
her and was told someone would find her in the morning. She was
left in the kitchen, hands and feet bound, as Lewis and his
partners fled in her truck. She managed to free herself, crawled
to Newman to find him dead, then climbed out a window to seek
Lewis was arrested three days later after he
was seen with some of the stolen items. DNA evidence linked him to
the attack. No last-day appeals were filed by his attorneys to try
to halt the execution, the second this year in Texas. Earlier
appeals focused on whether Lewis, a ninth-grade dropout who worked
as a laborer, was mentally impaired and ineligible for the death
penalty under Supreme Court rulings. The claims included a
suggestion from Lewis’ attorneys that the court reconsider a
denial it made in his case in 2005. The Texas Court of Criminal
Appeals refused that recommendation on Monday.
Rickey Lynn Lewis
Rickey Lynn Lewis murdered a Smith County man
during a home burglary and raped the man's fiancée. Lewis received
the death penalty in 1997 after jurors decided he shot George
Newman in the face after the 45-year-old victim confronted Lewis
during a home invasion. Newman's longtime fiancée, Connie Hilton,
was sexually assaulted. George Newman died Sept. 17, 1990, when he
confronted three men who were burglarizing his home.
Connie Hilton recently retold the story to a
local Tyler news station. "I had gotten up to check the dogs
because of the way they were barking, and I saw a man in the
hallway with a shotgun. And, I started screaming," said Connie.
Connie's screams brought her fiancé, George Newman, rushing to her
aid. But Lewis shot and killed him, then put Connie through a
violent hour of torture. "I could hear the other two men talking
while they were taking things out of the house and he was raping
me while they were doing that. I was taken into the kitchen and
tied with my hands and legs behind me and told that somebody would
find us in the morning," Connie said Lewis didn't leave then. He
assaulted Connie again, killed her dog and stole her truck. Connie
eventually was able to get loose and crawl to her fiance, but he
was dead. Determined to do something, Connie crawled out of a
window, got in a truck and drove to a local store. "I ran into a
few trees because I was afraid to turn the lights on," Connie
Law officers arrested Lewis 3 days later after
discovering he had been seen with some of Newman's possessions.
DNA evidence linked Lewis to the incident but two other men
involved were never brought to justice. Seeing Lewis in court when
his execution date was set leaves Connie hoping that this time
will be the last time he walks away. Even after all these years,
Connie said, "I'm determined to be a victor, not a victim. It's
the justice system. Justice. For victims. It's taken entirely too
long," Connie said.
When then-district attorney Jack Skeen, Jr.,
first prosecuted the case, Lewis was sentenced to death row twice.
Then, Lewis claimed he was mentally challenged in hopes of halting
his execution. "He has now had two state courts and he has had two
federal courts look at this and say, 'We've looked at this, we've
reviewed the evidence and clearly you're not mentally retarded,'"
said Smith County District Attorney Matt Bingham. Bingham says
Lewis' decades of appeals have cost Smith County tax payers a
significant amount of money, including Connie. "I'm a taxpayer.
I'm supporting the man that killed my fiance," Connie said. "We're
ready, finally, for this to be over with and for him to be
executed," said Bingham. But for Connie, Lewis' execution won't be
the end. "It's just one chapter closing, but not it will never be
total closure... never be over," she said. Connie credits God, her
family and friends for helping her make it through, but she says
she will always feel like she never got a chance to tell her
Smith County District Attorney Matt Bingham
says they're very thankful Judge Kennedy set Lewis' execution for
as soon as she did. Connie Hilton says she will attend the
execution. Since the 1990 incident, she has married but keeps a
special place in her heart for George Newman. What she remembers
most about him is "his smile, his caring attitude and his
compassion for life. We were friends for years," she recalled.
"We'd been through previous marriages and everything else." Since
the heinous crime forced her into the justice system, Ms. Hilton
has fought to prevent others from being victimized. She has become
a leader in the statewide program, Bridges to Life, which is
geared toward offenders preparing for release from prison. Through
the program, Ms. Hilton and other victims visit prisons to meet
with pre-release inmates and discuss the impact of crime on
families of victims and offenders. Participants have recorded an
8.6-percent recidivism rate after two years in society.
Although she has talked with numerous prison
inmates, Ms. Hilton has had no contact with Lewis. He has not
tried to contact her and has shown no remorse, Ms. Hilton said.
When he was given a previous execution date in 2003, "...he just
stood there with no emotion. It put me back to the time it
happened. It brings back a lot of memories." Ms. Hilton said she
has no desire to speak to Lewis because there are no questions in
her mind about the attack. "I was there when it happened so I know
everything that was said and done," she said.
Rickey Lynn Lewis, a man
twice sentenced to die for capital murder, was issued a death
warrant Wednesday to be carried out next month. The 43-year-old
was set to be executed on Sept. 7, 2005, by 114th District Judge
Cynthia Stevens Kent, who found that all of his state and
federal appeals had been exhausted.
convicted for the Sept. 17, 1990, murder of George Newman during
a burglary at the victim's house. He was also found guilty of
sexually assaulting Newman's common-law wife, Connie Hilton.
Lewis, clad in
a bright yellow jail jumpsuit and shackles and flanked by
deputies, was transported from death row to Smith County for the
hearing, after which he was escorted back to prison.
hung his head after the date was announced but moments later,
was smiling and talking with his attorney. A handful of people
for the victims, including Ms. Hilton, sat in the court's
ruled in February that Lewis was not mentally retarded, a claim
he used to try to escape the death chamber. The Court of
Criminal Appeals of Texas, which ordered the trial judge to
preside over the writ of habeas corpus hearing, agreed with her
ruling and ordered her to set an execution date.
Lewis, who has
been on death row for about a decade, was convicted and twice
sentenced to die for the capital murder. The first Smith County
jury selected convicted Lewis and sentenced him to death. But in
1996, the Court of Criminal Appeals remanded the punishment back
to the trial court.
another jury again sentenced him to the death penalty, finding
that he committed the murder deliberately, that there was a high
probability he would be a continuing threat to society and that
there were no mitigating circumstances that warranted a life
sentence rather that the death penalty.
District Judge Diane DeVasto set Lewis' execution date for Aug.
7, 2003 but Lewis' attorneys claimed he was mentally retarded, a
matter that was finally settled this year. The final judgment
came down when the Court of Criminal Appeals' affirmed Judge
Kent's finding that Lewis is not mentally retarded.
attorneys tried to prove that Lewis was wrongly sentenced to
death. Mental retardation experts hired by the state testified
that he has learning disabilities but is not retarded; doctors
hired by the defense disagreed.
In a mental
retardation claim, the defense has the burden of proof. The
three-pronged approach to diagnosing mental retardation includes
below-average intellectual functioning usually denoted by an IQ
score of 70 or less, manifestation of the disorder by age 18 and
consideration of adaptive functioning, or how a person operates
in daily life. If the judge had ruled that Lewis was retarded,
his sentence would have automatically been commuted to life in
In 2002, the
U.S. Supreme Court prohibited the execution of mentally retarded
people. Judge Kent concluded that Lewis entered the home to
burglarize it but was interrupted by the victims. He shot Newman
and sexually assaulted, bit and hit Ms. Hilton, threatening to
kill her. He also killed the couple's dog.
late mother's testimony during trial indicated he was a "bright"
child who began having problems when the family moved in with
his father, who beat him and whom he later shot to protect his
occurred when he was 10 years old, she said. Lewis' capital
murder trial attorney, Jeff Baynham, sat in on the hearing
Wednesday for Lewis' appellate attorney Mike Charlton, of New
Mexico. District Attorney Matt Bingham, First Assistant DA April
Sikes and Assistant DA Mike West represented the state.
In re Lewis, Not Reported in S.W.3d,
2003 WL 21751491 (Tex.Crim.App. 2003). (State Habeas)
Habeas Corpus Application from Smith County.
This is a subsequent application for writ of
habeas corpus filed pursuant to the provisions of Art. 11.071,
Sec. 5, V.A.C.C.P.
On April 29, 1994, applicant was convicted of
the offense of capital murder. The jury answered the special
issues submitted under Art. 37.071, V.A.C.C.P., and the trial
court set punishment at death. On direct appeal, this Court
reversed the assessed punishment and remanded for a new sentencing
hearing. Lewis v. State, No. 71,887 (Tex.Cr.App. delivered June
19, 1996). On remand, the jury answered the punishment phase
special issues and the trial court once again assessed punishment
at death. This Court affirmed the sentence on appeal. Lewis v.
State, No. 71,887 (Tex.Cr.App. Delivered June 23, 1999).
Applicant's initial application for a writ of habeas corpus was
denied by this Court. Ex parte Lewis, No. 44,725-01 (Tex.Cr.App.
delivered April 19, 2000). The trial court has scheduled
applicant's execution to take place on August 7, 2003.
Applicant has now filed a second application
for writ of habeas corpus pursuant to Art. 11.071, Sec. 5,
requesting a stay of execution and alleging mental retardation. We
have reviewed the application and find it satisfies the
requirements of Sec. 5. Accordingly, this order serves as notice
to the convicting court the requirements of Sec. 5 have been met
and the convicting court should proceed to consider the merits of
applicant's claim. Sec. 6(b). Finally, applicant is granted a stay
of execution pending further orders by this Court.
Lewis v. Quarterman, 541 F.3d 280
(5th Cir. 2008). (Federal Habeas)
Background: Following his conviction for
capital murder and imposition of death sentence, and following
denial of his first request for habeas relief, 58 Fed.Appx. 596,
petitioner filed successive habeas petition based on his alleged
mental retardation. The United States District Court for the
Eastern District of Texas, David Folsom, J., 2007 WL 1830748,
denied relief. Certificate of Appealability (COA) was granted.
Holding: The Court of Appeals, Rhesa Hawkins
Barksdale, Circuit Judge, held that petitioner exhausted state
court remedies as to affidavit by author of IQ test that
administrator of IQ test did not follow test protocols. Vacated
RHESA HAWKINS BARKSDALE, Circuit Judge:
Rickey Lynn Lewis appeals the denial, pursuant
to the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), of his successive-habeas claim, under Atkins v. Virginia,
536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (execution of
mentally-retarded defendant cruel and unusual punishment
prohibited by Eighth Amendment). The issue for which the district
court granted a certificate of appealability (COA) is whether,
based on the evidence submitted in the state-court Atkins
proceeding, and pursuant to our deferential review under AEDPA,
the following decision by the Texas Court of Criminal Appeals
(TCCA) was unreasonable: that Lewis failed to establish, by a
preponderance of the evidence, that he had significantly
subaverage general intellectual functioning. In April 2008, this
panel denied Lewis' request to certify other issues for appeal.
Lewis v. Quarterman, 272 Fed.Appx. 347 (5th Cir.2008)
(unpublished). Primarily at issue is the district court's refusal
to consider an affidavit, first offered in that court, challenging
the administration of an IQ test to Lewis. The affidavit was
offered in reply to the State's response to Lewis' federal habeas
application. VACATED and REMANDED.
In September 1990, during the burglary of a
residence, Lewis murdered one person and sexually assaulted that
person's fiancée. A state-court jury convicted Lewis in April 1994
of capital murder; he was sentenced to death. Holding the trial
court had not applied the recently revised special issues, the
Texas Court of Criminal Appeals (TCCA) upheld the conviction but
remanded for a new punishment-phase hearing. Lewis v. State, No.
71,887 (Tex.Crim.App. 19 Jun. 1996) (unpublished). On remand,
Lewis was again sentenced to death; the TCCA affirmed. Lewis v.
State, No. 71,887 (Tex.Crim.App. 23 Jun. 1999) (unpublished).
Lewis did not petition for review by the Supreme Court of the
United States. While his direct appeal was pending, Lewis
requested state post-conviction relief. It was denied. Ex parte
Lewis, No. 44,725-01 (Tex.Crim.App. 19 Apr. 2000) (unpublished).
Lewis then requested federal habeas relief, which was denied in
2002. Our court affirmed that denial. Lewis v. Cockrell, 58
Fed.Appx. 596 (5th Cir.2003) (unpublished). The Supreme Court
denied review in October 2003. Lewis v. Dretke, 540 U.S. 841, 124
S.Ct. 108, 157 L.Ed.2d 75 (2003).
Following the 2002 Atkins decision, Lewis filed
a successive-habeas application in state court, contending: he is
mentally retarded; and thus, in the light of Atkins, he is
ineligible for execution. The TCCA, in July 2003, stayed Lewis'
scheduled execution and remanded the matter to a state-habeas
trial court to consider the Atkins claim. Ex parte Lewis, No.
44,725-02, 2003 WL 21751491 (Tex.Crim.App. 24 Jul. 2003)
(unpublished). The state-habeas trial court conducted an
evidentiary hearing in December 2004. In February 2005, it
rendered proposed findings of fact and conclusions of law, and
recommended denying relief. The TCCA agreed, based on the
state-habeas trial court's findings and conclusions, and on the
TCCA's independent review. Ex parte Lewis, No. 44,725-02
(Tex.Crim.App. 29 Jun. 2005) (unpublished).
Between the state-habeas trial court's February
2005 recommendation and the TCCA's denial of relief that June, and
concerned about AEDPA's limitations period, our court permitted
Lewis to file a successive federal habeas application for his
Atkins claim, conditioned on the denial of relief by the TCCA. In
re Lewis, No. 05-40484 (5th Cir. 15 Apr. 2005) (unpublished).
Lewis filed that application in district court on 20 April 2005.
Therefore, when the TCCA denied relief that June, which prompted
Lewis' execution being set, the federal district court granted
Lewis' unopposed motion to stay execution.
In April 2005, Lewis filed the
successive-habeas application at issue. It did not mention Dr.
Roid or an affidavit by him (discussed below and primarily at
issue here). In February 2006, the State responded, advising there
was no exhaustion issue and asking the district court, inter alia,
to deny relief. In September 2006, Lewis filed his reply to the
State's response. In it, Lewis supplemented his Atkins claim with
the affidavit of Dr. Roid, which provides: Dr. Rosin committed
nine procedural errors in administering an IQ test to Lewis; and
the test Dr. Rosin administered was “invalid”. On 8 December 2006,
the State moved to strike that reply, asserting that Dr. Roid's
affidavit is a “new, and unexhausted, exhibit[ ]”.
The district court did not rule on the motion
to strike. Instead, in June 2007, it ruled, under AEDPA, that the
state-court decision was not unreasonable (that Lewis failed to
establish he is mentally retarded); all relief was denied. Lewis
v. Quarterman, No. 5:05-CV-70, 2007 WL 1830748 (E.D. Tex. 22 Jun.
2007) (unpublished). In a footnote, citing 28 U.S.C. § 2254(d)(2),
the district court ruled it would not consider Dr. Roid's
affidavit because it was not presented in the State court
proceeding. That cited section provides that habeas relief “shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication ...
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding”. 28 U.S.C. § 2254(d)(2) (emphasis
added). That August, the district court granted a COA for whether,
based upon the evidence submitted in the state-court proceeding,
the following TCCA decision was unreasonable: Lewis failed to
establish by a preponderance of the evidence that he had
significantly subaverage general intellectual functioning.
Lewis requested a COA from this court on three
more issues. Those requests were denied in April 2008. One of
those issues was whether the district court should have considered
the affidavit of Dr. Roid (new evidence offered in district
court), challenging Dr. Rosin's administration of an IQ test. We
ruled: the admissibility, vel non, of Dr. Roid's affidavit was an
evidentiary issue that did not concern the denial of a
constitutional right; and, as such, it was possible evidence to be
considered when the merits were addressed for the issue on which
the district court granted a COA. Lewis, 272 Fed.Appx. at 350-51.
Pursuant to AEDPA, where a state court has
rejected a habeas claim, a federal court may grant relief only
where the state-court decision: (1) 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”. 28 U.S.C. § 2254(d). The state-habeas
court's fact findings are presumed correct; Lewis can rebut the
presumption only by clear and convincing evidence. 28 U.S.C. §
We apply the same § 2254(d) standard of review
to the state-court decision as did the district court. Along that
line, we review the district court's findings of fact for clear
error; its conclusions of law, de novo. E.g., Martinez v. Johnson,
255 F.3d 229, 237 (5th Cir.2001). In Atkins, 536 U.S. at 321, 122
S.Ct. 2242, the Supreme Court held that the execution of
mentally-retarded defendants violates the Eighth Amendment. The
Court acknowledged disagreement will often arise “in determining
which offenders are in fact retarded” and, therefore, left to the
States the task of defining mental retardation and “developing
appropriate ways to enforce th[is] constitutional restriction”.
Id. at 317, 122 S.Ct. 2242.
Accordingly, the TCCA has held that petitioners
must prove by a preponderance of the evidence that they are
mentally retarded, as defined by the American Association of
Mental Retardation (AAMR) and Texas Health and Safety Code §
591.003(13). Ex parte Briseno, 135 S.W.3d 1, 7-8, 12
(Tex.Crim.App.2004). The definition of mental retardation
referenced in Atkins and Briseno has three elements: significantly
subaverage general intellectual functioning, generally defined as
an IQ of about 70 or below; accompanied by related limitations in
adaptive functioning; and onset prior to the age of 18. Atkins,
536 U.S. at 308 n. 3, 318, 122 S.Ct. 2242; Briseno, 135 S.W.3d at
7. The state-habeas trial court recommended that Lewis failed to
prove he is mentally retarded. That court's proposed findings of
fact and conclusions of law, adopted by the TCCA, stated that
Lewis failed to prove each of the three elements required for
finding mental retardation. With regard to the one element for
which COA has been granted (significantly subaverage general
intellectual functioning), the state-habeas trial court received
evidence placing Lewis' IQ at 59, 70, 75, or 79. The state-habeas
trial court sided with the State's experts' higher estimates on
the basis that Drs. Rosin and Gripon were more credible, reliable,
and unbiased than Drs. Martin and Garnett, Lewis' experts.
The score of 79, the highest of the four
scores, was recorded by Dr. Rosin following administration of the
Stanford-Binet V IQ test to Lewis on 25 October 2004, fairly close
to the evidentiary hearing that December. The score of 75 resulted
from Dr. Garnett's (one of Lewis' experts) re-scoring the test
administered to Lewis by Dr. Rosin. The score of 70 is a result of
Dr. Gripon's assessment, having reviewed all the available
evidence and test results but not having administered a test to
Lewis. The score of 59 was recorded by Dr. Martin, following
administration of the WAIS III IQ test to Lewis on 30 September
2004. Dr. Rosin's recorded score of 79 resulted from the most
recent IQ test administered to Lewis. Obviously, this fact, along
with an IQ of about 70 generally being the break point for finding
significantly subaverage general intellectual functioning and with
the state-habeas court's finding Dr. Rosin more credible than Drs.
Martin and Garnett (who recorded scores of 59 and 75,
respectively), makes Dr. Rosin's testing particularly important.
The district court found that, because two IQ
test scores showed below-average intellectual ability (IQ scores
of about 70 or below) and two scores were above that line, the
evidence on this point is in balance. The district court
concluded: because evidence was even, the state court's
adjudication of the subaverage-general-intellectual-functioning
element of Lewis' mental-retardation claim was not, pursuant to
AEDPA, based upon an unreasonable determination of the facts in
the light of the evidence presented. Because all three elements
for mental retardation must be satisfied, the district court
ceased its analysis after this first element. In other words, it
did not review the state-habeas court's adjudication of the other
two elements for a mental-retardation claim.
In district court, as noted supra, Lewis
offered new evidence to support his mental-retardation claim. That
proposed evidence is the above-referenced affidavit of Dr. Roid,
author of the Stanford-Binet IQ test administered to Lewis by Dr.
Rosin. Dr. Roid reviewed Dr. Rosin's testimony, notes from, and
video recordings of, Dr. Rosin's administration of the IQ test to
Lewis, and the test results. The conclusions detailed in Dr.
Roid's affidavit were: administration of the test to Lewis was
invalid because standardized procedures were not followed, making
the use of the published norms questionable; and, the effect of
assistance given by Dr. Rosin to Lewis during the IQ test
administration would result in an inflated IQ estimate. As
discussed, citing 28 U.S.C. § 2254(d)(2), the district court ruled
it would not consider Dr. Roid's affidavit because it was not
presented in the State court proceeding. Again, that cited section
states habeas relief “shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication ... resulted in a decision
that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding”. 28
U.S.C. § 2254(d)(2) (emphasis added). Our court, however, has held
that problems presented by evidence introduced for the first time
in federal court in support of a federal habeas application are
“more accurately analyzed under the ‘exhaustion’ rubric of §
2254(b)”, not as issues of “ ‘factual development’ under §
2254(d)”. Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir.2000);
see also Morris v. Dretke, 413 F.3d 484, 498 (5th Cir.2005).
Under § 2254(b), “[a]n application for a writ
of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears
that the applicant has exhausted the remedies available in the
courts of the State”. This exhaustion requirement is satisfied if
the substance of petitioner's claims have been fairly presented to
the state court. Anderson v. Johnson, 338 F.3d 382, 386 (5th
Cir.2003). The exhaustion requirement is not satisfied if the
petitioner “presents material additional evidentiary support to
the federal court that was not presented to the state court”.
Dowthitt, 230 F.3d at 745 (emphasis in original). Evidence is
material if it fundamentally alters, not merely supplements, the
claim presented in state court. Anderson, 338 F.3d at 386-87. “The
exhaustion-of-state-remedies doctrine, ... codified in the
[pre-AEDPA] federal habeas statute ... reflects a policy of
federal-state comity, an accommodation of our federal system
designed to give the State an initial opportunity to pass upon and
correct alleged violations of its prisoners' federal rights.”
Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438
(1971) (citations, internal quotation marks, and footnote
omitted). The exhaustion rubric, discussed supra, ensures the
habeas petitioner has fairly presented the substance of his
federal claim to the state courts. This comports with “AEDPA's
purpose to further the principles of comity, finality, and
federalism”. Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct.
1479, 146 L.Ed.2d 435 (2000). Once the federal claim has been
fairly presented to the state courts, and the exhaustion
requirement has been satisfied, a federal court reviewing a habeas
application may be confident adequate measures have been taken to
“prevent ‘unnecessary conflict between courts equally bound to
guard and protect rights secured by the Constitution’ ”. Picard,
404 U.S. at 275-76, 92 S.Ct. 509 (quoting Ex parte Royall, 117
U.S. 241, 251, 6 S.Ct. 734, 29 L.Ed. 868 (1886)).
Therefore, if new evidence is determined to be
exhausted (because it merely supplements the claim first presented
in state court), it may be considered by the federal court.
Morris, 413 F.3d at 498; Dowthitt, 230 F.3d at 745-46. Lewis
offers Dr. Roid's affidavit to support his claim that Dr. Rosin
did not follow the IQ test protocols when administering the test
to Lewis. As further discussed below, this is not material
additional evidence, because it supplements, rather than
fundamentally alters, the claim presented in state court. For
example, Dowthitt held that petitioner exhausted his
ineffective-assistance-of-counsel mental-illness claim when he had
presented detailed assertions of his paranoid schizophrenia to the
state courts, and offered additional affidavits by mental-health
experts on that same diagnosis in federal court that were not
previously presented to the state courts. Dowthitt, 230 F.3d at
745-46. The same is true here.
In state court, Lewis presented claims of
mental retardation, relying upon affidavits and testimony by
health professionals. His claim is exhausted, notwithstanding his
presenting in federal court for the first time an affidavit by a
mental-health expert (the creator of the IQ test administered by
Dr. Rosin) opining on that same diagnosis. The claim that Dr.
Rosin improperly administered the IQ test was fully addressed in
state court. The state-habeas trial court noted in its proposed
findings of fact that Dr. Rosin testified at the state-habeas
Atkins evidentiary hearing that she did not follow all the
instructions for application of the IQ test. Dr. Garnett, one of
Lewis' experts, testified at that hearing that the IQ score of 79
on the test given by Dr. Rosin has low validity because of the
overt mistakes made in scoring the test. Dr. Roid's affidavit
supplements that testimony by Dr. Garnett. Accordingly, as stated,
the exhaustion requirement, with regard to Dr. Roid's affidavit,
has been met. See Morris, 413 F.3d at 498; Dowthitt, 230 F.3d at
745-46. FN* The State seems to suggest another basis for not
considering Dr. Roid's affidavit: its not being attached to Lewis'
federal habeas application. As noted, Dr. Roid's affidavit was
first proffered in Lewis' reply to the Director's response to
Lewis' habeas application. (The Director's response discussed an
IQ score of 79 reported by Dr. Rosin following her testing of
Lewis, the validity of which Dr. Roid's affidavit directly
challenged.) The State responded to that affidavit by filing a
motion to strike, claiming, inter alia, that Lewis improperly
provided “newly created, and unexhausted, affidavit testimony from
Dr. Gale Roid”. As discussed supra, the district court did not
rule on the State's motion to strike, instead holding in its 22
June 2007 opinion denying habeas relief that such new evidence
could not be considered.
In our court, the State does not urge this as a
basis to exclude Dr. Roid's affidavit, presenting only this
footnote on the point: “The Director notes that Lewis did not even
submit this affidavit with his original federal petition; rather,
it was attached to his reply to the Director's response”. The
timing in district court of Dr. Roid's affidavit does not alone
preclude its being considered by the district court, especially in
the absence of any argument here to the contrary. Moreover, this
was not the reason given by the district court for not considering
it. Instead, as discussed, the court ruled it would not consider
it because it had not been presented in state court. Because the
district court was not prohibited from considering Dr. Roid's
affidavit, we vacate and remand for further proceedings, as may be
appropriate, so that, inter alia: the State may respond to Dr.
Roid's affidavit; the district court will have an opportunity to
consider the affidavit and the State's response; and, the state
court's adjudication of the
subaverage-general-intellectual-functioning element of Lewis'
mental-retardation claim may be re-evaluated, under AEDPA, in the
light of this new evidence. Obviously, if the district court
concludes, in the light of this new evidence, that the state
court's adjudication of that element of Lewis' mental-retardation
claim was based upon an unreasonable determination of the facts in
the light of all the evidence, the district court should then
consider one or both of the other two elements, as required, of
Lewis' mental-retardation claim. Atkins, 536 U.S. at 308 n. 3,
318, 122 S.Ct. 2242; Briseno, 135 S.W.3d at 7.
For the foregoing reasons, the denial of habeas
relief is VACATED and this matter is REMANDED to district court
for further proceedings consistent with this opinion. VACATED and
Lewis v. Thaler, 701 F.3d 783 (5th
Cir. 2012). (Federal Habeas)
Background: Following his conviction for
capital murder and imposition of death sentence, and following
denial of his first request for habeas relief, 58 Fed.Appx. 596,
petitioner filed successive habeas petition based on his alleged
mental retardation. The United States District Court for the
Eastern District of Texas, David Folsom, J., 2007 WL 1830748,
denied relief. Certificate of Appealability (COA) was granted, and
the Court of Appeals, 541 F.3d 280, vacated and remanded. On
remand, the District Court, Folsom, J., 2010 WL 4119239, denied
relief, and COA was granted.
Holdings: The Court of Appeals, Emilio M.
Garza, Circuit Judge, held that: (1) Texas court's application of
factors listed in Ex parte Briseno was not contrary to nor
unreasonable application of clearly established federal law, and
(2) Texas court's reliance on clinical psychologist's
determination of petitioner's IQ score was not unreasonable
determination of facts. Affirmed.
EMILIO M. 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,
122 S.Ct. 2242, 153 L.Ed.2d 335 (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 the state court's determination was
not unreasonable, and we AFFIRM the judgment of the district
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 Fed.Appx. 596 (5th Cir.2003). The Supreme
Court denied Lewis's petition for certiorari. Lewis v. Dretke, 540
U.S. 841, 124 S.Ct. 108, 157 L.Ed.2d 75 (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, 122 S.Ct. 2242. 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, 122
S.Ct. 2242 (“[W]e leave to the State[s] the task of developing
appropriate ways to enforce the constitutional restriction upon
[their] execution of sentences.” (quoting Ford v. Wainwright, 477
U.S. 399, 416–17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (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 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,
2003 WL 21751491 (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 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
“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.FN1 In order to
answer this question, we must first discuss the habeas statute
generally and the Supreme Court's recent construction of it in
Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d
FN1. 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. In support, he cites Berghuis v. Thompkins, –––
U.S. ––––, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (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).”).
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 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,
120 S.Ct. 1479, 146 L.Ed.2d 435 (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, 123 S.Ct. 1029, 154
L.Ed.2d 931 (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
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 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.” §
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, ––– U.S. ––––, 131 S.Ct.
1388, 179 L.Ed.2d 557 (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)
(“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, 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
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 ....” [
Woodford v.] Visciotti, supra [537 U.S. 19], at 27, 123 S.Ct. 357
[154 L.Ed.2d 279 (2002)]. 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 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, 120 S.Ct. 1479).)
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.2012) (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 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.
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, ––– U.S. ––––, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct.
2140, 158 L.Ed.2d 938 (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 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,
123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing § 2254(d)(2)).
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 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. FN2. The factors the Ex
parte Briseno court listed are: • 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.
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
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
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.
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
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,”FN3 FFCL at 14, and because she scored Lewis's
“abbreviated IQ” at 58.FN4 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.
FN3. 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 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. FN4. 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).
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 Stanford–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.” §
Lewis contends that the “exclusion” of Dr.
Garnett's and Dr. Martin's testimony was unreasonable. Our review
of the record suggests that “exclusion” 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 Lewis had the burden of rebutting with clear and
convincing evidence, 28 U.S.C. § 2254(e)(1), and Lewis failed to
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. 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
For these reasons, we AFFIRM.