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Rickey Lynn LEWIS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Rape - Robbery
Number of victims: 1
Date of murder: September 17, 1990
Date of arrest: 3 days after
Date of birth: July 21, 1963
Victim profile: George Ray Newman, 45
Method of murder: Shooting
Location: Smith County, Texas, USA
Status: Sentenced to death on May 6, 1994. Executed by lethal injection in Texas on April 9, 2013
 
 

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United States Court of Appeals
For the Fifth Circuit

 

opinion 07-70024

opinion 07-70024-revised

 
 

 
 

Summary:

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 Hilton.

Citations:

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 Habeas)
Lewis v. Thaler, 701 F.3d 783 (5th Cir. 2012). (Federal Habeas)

Final/Special Meal:

Texas no longer offers a special "last meal" to condemned inmates. Instead, the inmate is offered the same meal served to the rest of the unit.

Final/Last Words:

"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...."

ClarkProsecutor.org

 
 

 
 

 
 

 
 

Texas Department of Criminal Justice

Rickey Lynn Lewis
Date of Birth: 07-21-62
DR#: 999097
Date Received: 05-06-94
Education: 9 years
Occupation: laborer
Date of Offense: 09-17-90
County of Offense: Smith
Native County: Smith
Race: Black
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 5' 03"
Weight: 146

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.

Co-Defendants: None.


Texas Attorney General

Wednesday, April 3, 2013

Media Advisory: Rickey Lynn Lewis scheduled for execution

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.

PROCEDURAL HISTORY

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 court’s decision.
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 relief.
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, rape

By Michael Graczyk - Associated Press

Chron.com

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 Texas.

“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 clemency request.

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 help.

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

ProDeathPenalty.com

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 said.

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 fiancé goodbye.

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.

Lewis was 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.

The convict 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 gallery.

Judge Kent 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.

In 1997, 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.

Former 241st 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.

Defense 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 prison.

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.

The defendant's 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 mother.

The shooting 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.

PER CURIAM.

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 and remanded.

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.

I.

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.

II.

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. § 2254(e)(1).

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.

III.

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 REMANDED.


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 court.

I

In 1993, a state court jury convicted Lewis of capital murder and sentenced him to death. State v. Lewis, No. 13160, 1993 WL 13634358 (217th Dist. Ct., Angelina County, Tex. June 24, 1993). Lewis appealed, and the Texas Court of Criminal Appeals (“TCCA”) upheld the conviction but remanded for resentencing. Lewis v. State, No. 71,887 (Tex.Crim.App. June 19, 1996) (unpublished). On remand, the trial court again sentenced Lewis to death, and the TCCA affirmed. Lewis v. State, No. 71,877 (Tex.Crim.App. June 23, 1999) (unpublished). Lewis did not petition for review by the United States Supreme Court. In 2000, Lewis was denied state habeas relief. Ex parte Lewis, No. 44,725–01 (Tex.Crim.App. Apr. 19, 2000) (unpublished). Lewis was also denied federal habeas relief, and we affirmed the denial. Lewis v. Cockrell, 58 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 before us.

II

“In a habeas corpus appeal, we review the district court's findings of fact for clear error and its conclusions of law de novo, applying the same standards to the state court's decision as did the district court.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.2004). Section 2253(c) strictly limits our appellate jurisdiction to the issues on which the applicant has been granted COA. See 28 U.S.C. § 2253(c) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from [ ] the final order in a habeas corpus proceeding ....”); Carty v. Thaler, 583 F.3d 244, 266 (5th Cir.2009) (“Because neither we nor the district court granted Carty a COA on this issue, we lack jurisdiction to consider this claim.”). Accordingly, we ask only whether the State court's determination that Petitioner did not establish by a preponderance of the evidence that he had significantly subaverage general intellectual functioning was unreasonable.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 557 (2011).

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).”).

III

Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), sets certain limits on a federal court's power to grant a state prisoner's application for a writ of habeas corpus. Section 2254(a) provides that a federal court may entertain an application for a writ of habeas corpus “only on the ground that [an applicant] is in custody in violation of the Constitution or laws or treaties of the United States.” § 2254(a). Sections 2254(b) and (c) prohibit a federal court from granting such an application unless, with certain exceptions, the applicant has exhausted state remedies. If these first hurdles have been cleared, § 2254(d) applies some additional restrictions, requiring that the application, [S]hall not be granted with respect to any claim that was adjudicated on the merits in State Court proceedings unless adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. § 2254(d). Section 2254(e)(1) also requires that a State court's factual determinations “shall be presumed to be correct” and that a federal court shall not hold an evidentiary hearing unless the applicant shows that the claim relies 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 341.

Although we note that the district court in this case at times used the terms “decision” and “findings” loosely, we do not read its opinion as extending the clear and convincing evidence standard beyond its appropriate reach. See Lewis, No. 5:05–CV–70, 2010 WL 4119239 at *2 (“The AEDPA requires this Court to presume the correctness of the state court's factual findings unless Petitioner rebuts this presumption with ‘clear and convincing evidence.’ ”) (emphasis added). The district court treated the state court's determination that Lewis failed to show subaverage intellectual functioning as a fact finding subject to § 2254(e)(1) deference, an approach which is consistent with our precedents. See, e.g., Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir.2010) (“The question of whether a defendant suffers from mental retardation involves issues of fact, and thus is subject to a presumption of correctness that must be rebutted by clear and convincing evidence under § 2254(e)(1).”); Woods v. Quarterman, 493 F.3d 580, 587 (5th Cir.2007) (“[T]o the extent Woods argues that the state court's decision was ‘based on an unreasonable determination of the facts in light of the evidence presented,’ 28 U.S.C. § 2254(d)(2), he has failed to rebut, by clear and convincing evidence, the presumption that the state court's factual findings are correct.”) (citing § 2254(e)(1)). In short, for Lewis to prevail on a claim of factual error, he must both (1) rebut the state court's finding that Lewis failed to show subaverage intellectual functioning with clear and convincing evidence, § 2254(e)(1), and show the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(2).

IV

Also at issue on appeal is whether § 2254 allows a federal habeas court to consider Dr. Roid's affidavit. This question is before us again because of the Supreme Court's recent decision in Cullen v. Pinholster, ––– 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 record:

This understanding of the text is compelled by “the broader context of the statute as a whole,” which demonstrates Congress' intent to channel prisoners' claims first to the state courts. Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The federal habeas scheme leaves primary responsibility with the state courts ....” [ 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.

V

We turn now to the merits of Lewis's application. As discussed above, § 2254 does not permit a federal court to grant a habeas application unless the applicant can show legal error under § 2254(d)(1) or factual error under § 2254(d)(2). To establish legal error under § 2254(d)(1), the applicant must show that the state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1). “[A]n unreasonable application of federal law is different from an incorrect application of federal law,” Id. at 410, and “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fair-minded jurists could disagree’ on the correctness of the state court's decision.” Harrington v. Richter, ––– 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)).

A

Lewis alleges the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States.” § 2254(d)(1). Lewis asserts the state court's application of Briseno factors was “unscientific” and in contradiction with the Supreme Court's decision in Atkins. While the state court relied heavily on Lewis's IQ scores when determining whether he had subaverage intelligence, the court also considered Lewis's school records, testimony from Lewis's mother, Lewis's criminal history, Lewis's incarceration records, and Lewis's abilities as a pro se litigant. Lewis maintains the district court improperly focused on Lewis's behavior rather than his test scores when evaluating his intellectual functioning. Lewis alleges the state judge's erroneous application of the Briseno factors improperly excludes mildly mentally retarded people, such as Lewis, from Atkins' protection. Although testing is the primary means for ascertaining IQ, the Briseno court considered other evidence in evaluating the probative value of the test scores. See Ex parte Briseno, 135 S.W.3d at 14. The Briseno court's definition of significantly subaverage intellectual functioning mandates the conclusion that courts are permitted to look at factors other than IQ tests when assessing this prong. Id. The Briseno court explained that, although an IQ of 70 is generally 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 subaverage intelligence).

Therefore, we hold the state court's application of the Briseno factors to inform its analysis of Lewis's competing IQ scores was not contrary to nor an unreasonable application of clearly established federal law.

B

Lewis also alleges factual error under § 2254(d)(2). Lewis maintains the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Specifically, Lewis contends (1) there are no circumstances in which a state court could reasonably rely on Dr. Rosin's IQ score of 79; (2) exclusion of Dr. Martin's testimony was objectively unreasonable; (3) exclusion of Dr. Garnett's testimony was objectively unreasonable; (4) reliance on Dr. Gripon's opinions about mental retardation was objectively unreasonable; (5) the state court's rejection of other testimony was unreasonable; and (6) the state court's embrace of anonymously scored prison IQ tests was unreasonable.

Lewis first contends that the state court's reliance on Dr. Rosin's score was unreasonable because the court's findings conceded that Dr. Rosin “did not exactly follow all of the instructions for the application of the assessment instrument,”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.” § 2254(d)(2).

Lewis contends that the “exclusion” of Dr. Garnett's and Dr. Martin's testimony was unreasonable. Our review of the record suggests that “exclusion” 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 do so.

Lewis further contends the state court's rejection of other testimony was unreasonable. Lewis alleges the state court unreasonably rejected the testimony of Jeff Baynham, Lewis's original trial attorney, who testified he needed to speak to Lewis on a second grade level. The state court permitted Baynham to testify and weighed his testimony along with the other evidence. FFCL at 20. Lewis also alleges the state court unreasonably ignored the testimony of a special education teacher, Louise O'Sullivan, and a special education school administrator, Martha Surles, both from the school Lewis attended, who testified Lewis's presence in the special education program was strong evidence that he was mentally retarded. Martha Surles testified, however, that students in the special school were not necessarily mentally retarded: she testified learning disabled and autistic students also attended the school. Id. at 16. Moreover, Louise O'Sullivan testified that though she recognized Lewis as a student at the special school, she did not remember what kind of student he was. Id.

Finally, Lewis contends the state court's embrace of anonymously scored prison IQ tests was objectively unreasonable. Some prison documents contained anonymously scored IQ score results that Lewis maintains the state court should not have relied on because there was no evidence the tests were properly administered by trained psychologists. We have held courts do not err by assigning less weight to prison IQ scores than full-length scores, Rivera v. Quarterman, 505 F.3d 349, 362 (5th Cir.2007), but we have not held that it is objectively unreasonable to assign any weight to prison IQ scores. We cannot say it was objectively unreasonable for the state court to assign some weight to Lewis's prison IQ scores. In light of the substantial corroborating evidence, we cannot hold Lewis rebutted the trial court's finding that Lewis does not have significantly subaverage intelligence with “clear and convincing evidence,” nor can we hold that the trial court's decision was objectively unreasonable in light of the evidence presented in the state-court proceeding.

VI

For these reasons, we AFFIRM.

 

 

 
 
 
 
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