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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 13-70015                                FILED
                                                                             August 1, 2014
                                                                             Lyle W. Cayce
CLIFTON LAMAR WILLIAMS,                                                           Clerk

                                     Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                    Respondent - Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas


Before JONES, DENNIS, and HAYNES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
       A jury found Clifton Lamar Williams guilty and sentenced him to death
for the brutal robbery and murder of a 93-year-old woman. After exhausting
his state remedies, Williams filed a federal habeas petition under
28 U.S.C. § 2254, claiming ineffective assistance of counsel and that he is
intellectually disabled 1 and therefore ineligible for execution under Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002). In a thorough opinion, the
district court rejected the petition.          Williams now seeks a certificate of




       1We have substituted “intellectual disability” for “mental retardation,” the term used
by the parties and the Supreme Court in Atkins. Hall v. Florida, 572 U.S. ___, 134 S. Ct.
1986, 1990 (2014).
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                                  No. 13-70015
appealability (COA) under 28 U.S.C. § 2253(c)(2). For the following reasons,
we DENY the COA application.
                                  Background
1.    Facts
      On July 9, 2005, then 21-year old Williams broke into the home of Cecilia
Schneider, beat, strangled, and stabbed her to death.              Williams laid
Schneider’s dead body on her bed and set it afire, destroying incriminating
evidence of the crime. He then fled in the victim’s car, disposed of the murder
weapon and the clothes he was wearing, and denied any connection to the
murder.    Eventually, Williams told the Tyler, Texas police that Jamarist
Paxton, an acquaintance, forced him to participate in the offense and that his
own involvement was minimal. At Williams’s trial, however, Paxton testified
that he was not involved in the offense, and the police were unable to find any
evidence to substantiate Williams’s claim that someone else was involved in
Schneider’s murder. The jury found Williams guilty of capital murder and
sentenced him to death.
2.    Procedure
      Williams filed a direct appeal with the Texas Court of Criminal Appeals
(“CCA”), raising seven points of error. The CCA affirmed the trial court on all
points. Williams did not seek Supreme Court review. While his direct appeal
was pending before the CCA, Williams sought habeas corpus under TEX. CODE
CRIM. PROC. ART. 11.071. The state trial court conducted an evidentiary
hearing, and issued a report and findings recommending denial of habeas
relief. The CCA approved the trial court’s findings and denied habeas relief.
Williams then filed a federal habeas petition, raising ten claims for relief, along
with a motion to stay and abate the federal action because his petition asserted
a previously unexhausted claim. The district court denied the motion, and
Williams amended his petition to omit the unexhausted claim.            After the

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                                 No. 13-70015
district court denied relief, Williams sought a Certificate of Appealability
(COA), which the district court also denied. The motion for COA has been
renewed in this court.
                               Standard of Review
      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
state court prisoner must obtain a COA before appealing a federal district
court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A). This is warranted
upon a “substantial showing of the denial of a constitutional right.”         Id.
§ 2253(c)(2).   Where, as here, the district court rejects the Petitioner’s
constitutional claims on the merits, this court will issue a COA only if the
petitioner demonstrates that reasonable jurists could debate whether the
district court’s resolution of his constitutional claims was correct, or could
conclude that the issues presented “deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003)
(internal quotation marks and citation omitted). In cases involving the death
penalty, “[A]ny doubt as to whether a COA should issue in a death–penalty
case must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d
782, 787 (5th Cir. 2005).
      In determining whether the district court’s denial of a prisoner’s petition
is debatable, this court “must be mindful of the deferential standard of review
the district court applied to [the habeas petition] as required by the AEDPA.”
Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003). AEDPA requires the
petitioner to prove that the adjudication by the state court “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 “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 focus of the “unreasonable application”
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inquiry is on whether the state court’s application of clearly established federal
law was objectively unreasonable. Williams v. Taylor, 529 U.S. 362, 411,
120 S. Ct. 1495, 1522 (2000). Accordingly, a state court’s application of a
federal law may be reasonable for the purposes of § 2254(d) even though
another court has applied the same law differently. Id. In sum, “[a] state
court’s determination that a claim lacks merit precludes federal habeas relief
so long as fairminded jurists could disagree on the correctness of the state
court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal
quotation marks and citation omitted).
                                  Discussion
      Williams advances nine claims for relief. The first eight claims assert
that Williams’s trial counsel were ineffective. The ninth contests the jury’s
finding that Williams is not intellectually disabled. Williams pressed the same
nine theories in his petition to the district court. Because the ineffective
assistance claims comprise the vast bulk of Williams’s appeal, the principles
controlling these claims are set forth first. We then address each of Williams’s
claims in turn.
      It is noteworthy that the State afforded Williams highly experienced
defense counsel and access to investigators and multiple experts, as reflected
in the state habeas findings. The punishment phase of trial lasted for days,
and the trial court’s attentiveness to detail is reflected in the paucity of
challenges to trial procedure.




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1.    Ineffective assistance of counsel
      To establish that he was denied constitutionally effective assistance of
counsel, Williams must demonstrate that (1) counsel rendered deficient
performance, and (2) counsel’s actions resulted in prejudice.      Strickland v.
Washington, 466 U.S. 668, 687–88, 690, 104 S. Ct. 2052, 2064-65 (1984). Both
of these prongs must be proven, and the failure to prove one of them will defeat
the claim, making it unnecessary to examine the other prong. Id. at 687,
104 S. Ct. at 2064. The deficient performance prong requires proof that, in
light of all the circumstances, counsel’s performance fell below an objective
standard of reasonableness. Id. at 687–88. In determining whether counsel’s
performance was deficient, courts must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (internal quotation marks omitted). The Supreme Court
has admonished that judicial scrutiny of counsel’s performance “must be highly
deferential,” and avoid “the distorting effect of hindsight.” Id. at 689–90. To
demonstrate prejudice, the second prong, Williams must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.      The Supreme Court has
further held that the likelihood of a different outcome must be “substantial,
not just conceivable.” Harrington, 131 S. Ct. at 792.
      Viewing the Strickland test from the narrow perspective afforded federal
courts by AEDPA results in even greater deference to the state courts’
judgment.    This is because , “[t]he standards created by Strickland and
§ 2254(d) are both ‘highly deferential,’... and when the two apply in tandem,
review is ‘doubly so.’ “ Harrington, 131 S. Ct. at 788 (citations omitted).


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2.    Williams’s admission that he was in possession of a razor blade
      Williams asserts that his trial counsel was constitutionally ineffective
because they allowed Williams to admit in open court that, while awaiting
trial, he had impermissibly taken a razor blade from the shower area back to
his cell. Williams argues that this admission had a prejudicial effect on the
testimony of Dr. Tynus McNeel, a State’s expert, and the jury’s decision
regarding future dangerousness.
      Williams disputes the district court’s reading of the trial court record.
Assuming, arguendo, that Williams’s counsel was deficient for allowing the
“uncounseled” admission, Williams cannot establish prejudice. Dr. McNeel
explained that he formed his final opinion that Williams was a future threat
based on considerably     more than just the razor blade incident.         He also
considered all the evidence of Williams’s disruptive behavior in jail.
Dr. McNeel read a transcript of Williams’s testimony regarding the razor
blade, which showed that Williams became agitated by a prison guard’s
testimony and uttered an audible profanity in open court, prompting the trial
judge to excuse the jury and admonish him about his courtroom behavior.
There was plenty of testimony and evidence unrelated to the razor blade
incident that supported the state’s expert witnesses and the verdict. Various
witnesses described Williams as a volatile and aggressive inmate. According
to their testimony:
      [Williams] had been involved in several other disruptive events
      while in jail including being disrespectful and using profanity
      toward a female guard, a plan to fight with another inmate, an
      altercation with an inmate over a cup of coffee, a threat to slap a
      jailer, the discovery of a trustee [sic] jacket in [Williams]’s cell, as
      well as a physical altercation with another inmate that required
      the other inmate to be taken to a jail clinic.
Memorandum Opinion at 25, Williams v. Thaler, No. 1:09-CV-00271 (E.D. Tex.
Mar. 26, 2013), ECF No. 31.          Two expert witnesses, Dr. McNeel and
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                                  No. 13-70015
Dr. Edward Gripon, testified that Williams was a future threat to society.
Williams’s criminal history, which included the brutality of Ms. Schneider’s
murder and Williams’s lack of remorse, a prior conviction for criminal trespass,
and an arrest and his confession to unauthorized use of a motor vehicle, was
also submitted to the jury. And unlike Dr. McNeel, who merely read the
transcript of Williams’s courtroom outburst, the jury witnessed the profanity
and agitation firsthand and was able to draw its own conclusions regarding
Williams’s future dangerousness.
      In sum, because Williams has failed to show prejudice, reasonable jurists
could not debate the district court’s conclusion that the state courts did not
unreasonably apply Strickland in holding that trial counsel were not
ineffective for allowing Williams to admit, or not preventing his admission,
that he removed the razor blade to his jail cell.
3.    State’s access to Williams
      Williams argues that trial counsel were ineffective in allowing
Dr. Gripon to interview Williams. During cross–examination in the penalty
phase, trial counsel questioned Dr. McNeel about his failure to interview
Williams. Outside of the jury’s presence, the State objected that Dr. McNeel
could not have interviewed Williams without counsel’s permission, which had
not been granted. The State asserted the jury had been misled. Trial counsel
replied that he had not denied access to Williams, but had insisted that he not
be interviewed until after the defense had presented evidence negating
Williams’s future dangerousness. Further, he did not object to Williams’s
being interviewed at the appropriate time. As a result, Dr. Gripon interviewed
Williams that evening. Before the interview, Dr. Gripon had testified to the
jury that Williams was a future danger. Dr. Gripon testified during the State’s
rebuttal that the interview strengthened his opinion that Williams would be a
future danger.        He also opined, responding to Williams’s mitigation
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                                 No. 13-70015
contentions, that Williams is not intellectually disabled or paranoid
schizophrenic.
      Williams contends that trial counsel erred by “opening the door” to the
interview, and then compounded the error by allowing the expert to opine on
Williams’s future dangerousness as well as his lack of intellectual disability.
Estelle v. Smith holds that a “criminal defendant, who neither initiates a
psychiatric evaluation nor attempts to introduce any psychiatric evidence, may
not be compelled to respond to a psychiatrist if his statements can be used
against him at a capital sentencing proceeding.” 451 U.S. 454, 468, 101 S. Ct.
1866, 1876 (1981).      Here, however, Williams placed his mental state at
issue before and during trial.       Before trial, counsel were aware that
examination by a State’s psychiatrist would be required when Williams
presented his own expert defense testimony on mental retardation, paranoid
schizophrenia and future dangerousness. Indeed, Dr. Gripon testified about
these issues only after Williams had presented two psychological experts who
testified that he was not a future threat to society.       Thus, Dr. Gripon’s
testimony does not run afoul of Smith.
      Assuming, arguendo, that trial counsel erred in allowing Dr. Gripon to
examine Williams, any error was harmless. In its punishment phase case in
chief, the State’s two experts testified extensively concerning Williams’s future
dangerousness and a separate expert testified on mental retardation.
Dr. Gripon had already testified that there was a probability that Williams
constituted a continuing threat to society. His rebuttal testimony, moreover,
was limited in comparison to his earlier testimony, which was based on a
comprehensive review of Williams’s background and the circumstances of the
murder.   Williams makes no effort to explain how Dr. Gripon’s rebuttal
testimony adversely affected his intellectual disability claim beyond the
evidence already presented by the State. Prejudice has not been shown. For
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these reasons, reasonable jurists could not debate the district court’s holding
that the state court did not unreasonably apply Strickland in concluding that
trial counsel were not ineffective for “opening the door” to Dr. Gripon’s
interview and rebuttal testimony.
4.    Insanity defense
      Williams argues that trial counsel’s handling of an insanity defense was
incompetent for two reasons.      First, Williams contends that trial counsel
blundered by raising the insanity defense four months after the initial pretrial
hearing.   Second, he claims that there was no colorable insanity defense in
this case, and trial counsel prejudiced Williams by alleging this defense.
      The discussion that occurred after trial counsel filed a notice of insanity
defense is fatal to Williams’s first contention. When the matter was taken up,
trial counsel informed the trial court that he did not believe that the filing was
late. The State objected that the filing was untimely. After the trial court
commented that it would be inclined to allow the filing absent a showing by
the State of “some strong basis for not doing so,” the State withdrew its
objection, and the notice was deemed timely filed. Thus, there is no support
for Williams’s argument that trial counsel were deficient for not raising the
insanity defense at the initial pretrial hearing.
      As to the second argument, Williams notes that under Texas law,
“[i]nsanity is an affirmative defense to prosecution when, at the time of the
conduct charged, the actor, as a result of a severe mental disease or defect, did
not know that his conduct was wrong.” TEX. PEN. CODE § 8.01(a) (emphasis
added). Williams then points to various actions he took after he murdered
Schneider, including that he burned the victim’s body, fled the scene, disposed
of the murder weapon, and initially lied to the police. According to Williams,
all of the post–murder evidence shows that he knew he knew that his conduct
was wrong. Williams’s conduct after the murder, however, does not preclude
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a finding of insanity at the time of the murder. Further, when trial counsel
gave notice, they knew that Williams had been previously diagnosed with
paranoid schizophrenia but had not yet received the defense psychologist’s
report. Taken in context, trial counsel’s decision to raise the insanity defense,
even though they did not ultimately pursue it, cannot form the basis of habeas
relief. Ransom v. Johnson, 717 F.2d 199, 206 (5th Cir. 1983) (holding that trial
counsel’s informed and reasoned practical judgments “will not be second-
guessed”).
       Even if Williams could establish deficient performance, he cannot show
prejudice.   Williams contends that, as a result of counsel’s pleading the
insanity defense, he was ordered to submit to examinations by court–appointed
experts, who later rendered opinions contrary to Williams’s claims that he is
intellectually disabled and does not constitute a continuing threat to society.
Trial counsel, however, had already agreed to allow the State’s mental
retardation expert to examine Williams in return for the State’s assurance that
it would withdraw its notice of intent to seek the death penalty if its expert
concluded that Williams is intellectually disabled. Indeed, the State’s mental
retardation expert had examined Williams four times before trial counsel filed
the notice regarding the insanity defense. Thus, reasonable jurists could not
debate the district court’s holding that the state courts did not unreasonably
apply Strickland in concluding that trial counsel were not ineffective in the
manner in which they pursued the insanity defense.
5.     Literacy Council records
       When he was 20 years old, Williams took an Adult Basic Education test
at the Literacy Council of Tyler. Williams scored on a second grade level for
reading and a fifth grade level for math. According to Williams, his poor test
scores at the Literacy Council would have shown that his school grades were
misleading and would have fortified the argument that he had received several
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decent marks only due to the school’s reluctance to fail or hold back students,
rather than because Williams had a higher aptitude than an intellectually
disabled individual. Williams contends that his trial counsel were ineffective
in failing to publish to the jury evidence of his Literary Council test scores.
       The Council records, however, were cumulative and had limited
probative value. At the evidentiary hearing in the state habeas action, trial
counsel stated that they did not find the records significant in light of
Williams’s school records, because his performance on standardized tests
indicated his diminished intellectual functioning better than his grades. As to
the probative value of the Council records, Nancy Crawford, head of the
Council and its records custodian, explained that the Adult Basic Education
test was designed as a placement tool so that the Council would know where
to start GED instruction with a given student. Crawford further indicated that
the testing conditions at the Council were far from optimal; the entire amount
of time Williams spent at the Council was 10.75 hours over approximately one
year; and he never attended a single class at the Council. This record showed
the records’ low probative value. Accordingly, reasonable jurists could not
debate the district court’s conclusion that the state courts did not unreasonably
apply Strickland in concluding that trial counsel were not ineffective for failing
to emphasize the Literary Council test scores.
6.     Duties at Kentucky Fried Chicken
       Williams contends that trial counsel were ineffective because they did
not sufficiently controvert the State’s characterization of Williams’s work at
Kentucky Fried Chicken (KFC). At trial, the State asserted that Williams’s
job as a cook at KFC required the ability to measure spices in the proper
proportion and cook chicken appropriately. Williams argues that had trial
counsel investigated Williams’s job duties, they would have been able to
explain that all of KFC’s ingredients uses are pre–mixed, and all that Williams
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had to do was open boxes, sift various ingredients together and dredge the
chicken.
      To provide effective assistance, “trial counsel must not ignore pertinent
avenues of investigation, or even a single particularly promising investigation
lead.” Charles v. Stephens, 736 F.3d 380, 389 (5th Cir. 2013) (per curiam).
Here, however, Williams’s trial counsel were fully aware of their client’s duties
at KFC. They obtained Williams’s employment records and interviewed his
former employers. Trial counsel ultimately made a tactical decision not to
focus on Williams’s limited duties as a KFC cook because they believed that
the jury would learn that Williams was in fact able to cook simple meals for
himself. Instead, trial counsel emphasized Williams’s unsteady work history.
As they explained, defense experts said that Williams’s inability to keep a “low
functioning” job was consistent with mental retardation.
      The fact that trial counsel used Williams’s tenure at KFC to show his
inability to hold a job, and not his alleged inability to cook, is well within the
“wide latitude” that the Supreme Court has afforded criminal defense counsel
in making tactical decisions.     Harrington, 131 S. Ct. at 789.        Williams,
moreover, cannot show that he was prejudiced by trial counsel’s approach,
because another defense witness, Dr. Thomas Allen, gave the jury a basis for
inferring that Williams’s duties as a cook did not entail a high degree of
complexity. During the punishment phase, Dr. Allen testified that chain
restaurants such as KFC do not rely on their cooks to measure and add spices,
but use essentially pre–packaged seasoning. Thus, reasonable jurists could
not debate the district court’s conclusion that the state courts did not
unreasonably apply Strickland in holding that trial counsel’s basis for
challenging the State’s characterization of Williams’s work at Kentucky Fried
Chicken (KFC) did not render his counsel ineffective.


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7.     Expert testimony on future dangerousness
       Williams contends that trial counsel were ineffective for not objecting to
the testimony by the State’s psychiatric and psychological experts that he
constituted a future threat to society. Although he concedes that psychiatric
testimony about future dangerousness is currently admissible under Barefoot
v. Estelle, 463 U.S. 880 (1983), Williams argues that trial counsel should have
challenged that holding as incompatible with the Supreme Court’s later
decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
thereby paving the way for the Supreme Court to revise the current rule.
       Williams’s argument, however, does not show that the state court’s
decision was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the United States Supreme Court.
28 U.S.C. § 2254(d)(1). Williams instead argues that trial counsel failed to
press his version of what the law on psychiatric evidence should be. His
contention that the Supreme Court may overrule Barefoot in light of Daubert
is completely speculative. This court, moreover, has held that Daubert does
not apply to the standards governing the admissibility of expert evidence at a
capital sentencing hearing, United States v. Fields, 483 F.3d 313, 341-46 (5th
Cir. 2007), and has rejected the notion that trial counsel is deficient for not
challenging the continued validity of Barefoot. Johnson v. Cockrell, 306 F.3d
249, 255 (5th Cir. 2002) (“We also disagree that Johnson could have
persuasively argued to the district court that Daubert or Robinson altered the
admissibility of this type of evidence after Barefoot.”).      In light of these
holdings, reasonable jurists could not debate the district court’s ruling that
that the state courts did not unreasonably apply Strickland in concluding that
trial counsel were not deficient for failing to object to the testimony from the
State’s psychiatric and psychological experts.


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8.     Mistaken belief as to Dr. Patton
       Williams claims that trial counsel were ineffective because they
mistakenly believed that defense expert, Dr. James Patton, was not qualified
to render an opinion that Williams is intellectually disabled. Had Dr. Patton
opined on the issue, Williams notes, the defense would have presented three
experts versus the two presented by the State.       Williams contends that by
presenting more expert witnesses, his counsel would have met the
preponderance of evidence standard set out in Ex parte Briseno, 135 S.W.3d 1
(Tex. Crim. App. 2004), and thereby proved that he is intellectually disabled.
       Williams’s trial counsel called Dr. Patton to testify solely on the issue of
adaptive deficits, one component of a mental retardation diagnosis, and not to
render an opinion on whether Williams is intellectually disabled.           Before
Patton’s testimony, during the State’s voir dire of the expert witness, the
prosecutor questioned Patton’s credentials to make a diagnosis of mental
retardation. Williams argues that trial counsel erred by not rebutting this line
of questioning by citing In re Hearn, 418 F.3d 444 (5th Cir. 2005), where the
court held that Dr. Patton is qualified to diagnose intellectual disability.
       In re Hearn is irrelevant, however, because the purpose of Dr. Patton’s
testimony in this case was to offer his opinion on Williams’s adaptive deficits,
not to make an intellectual disability diagnosis.           Further, the record
establishes that this decision to focus Dr. Patton’s testimony was reasonable
trial strategy. Dr. Patton testified after the other two defense experts had
opined that Williams is intellectually disabled. Dr. Patton’s testimony would
have been cumulative, and may also have carried less weight with the jurors
given his lesser credentials. Finally, Williams’s claim that the presence of a
third witness would have convinced the jury that he is intellectually disabled
is entirely speculative and does not accurately describe the preponderance
standard.    Conflicting expert testimony invites juries to make a credibility
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determination, not to tally which side produced more experts. See Chester v.
Thaler, 666 F.3d 340, 349 (5th Cir. 2011), cert. denied, 133 S. Ct. 525 (2012).
Accordingly, reasonable jurists could not debate the district court’s conclusion
that the state courts did not unreasonably apply Strickland in holding trial
counsel were not ineffective for focusing Dr. Patton’s testimony on adaptive
deficits.
9.     Atkins challenge
       In his ninth and final challenge, Williams contends that because he is
intellectually disabled, he is ineligible for the death penalty under Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002).
       Texas follows the American Association on Mental Retardation
(“AAMR”) definition of intellectual disability for Atkins claims presented in
death–penalty cases.         Under this definition, intellectual disability is
characterized    by:   (1)   “significantly     subaverage”    general   intellectual
functioning; (2) accompanied by “related” limitations in adaptive functioning;
(3) the onset of which occurs prior to the age of 18. Briseno, 135 S.W.3d at 7.
In Briseno, the CCA created seven evidentiary factors to assist the factfinder
in determining, within the AAMR framework, whether a particular defendant
is in fact intellectually disabled. Id. at 8.
       Williams’s argument has three parts. First, Williams takes issue with
the CCA’s use of several of the Briseno factors. This court, however, has
previously upheld the Briseno factors as an appropriate mechanism for
enforcing Atkins’s prohibition against executing intellectually disabled capital
defendants. Chester, 666 F. 3d at 347 (concluding that the Briseno factors do
not contradict Atkins). Thus, the CCA’s use of the Briseno framework to
evaluate Williams’s claim was not an unreasonable application of federal law.
       Second, Williams argues that the jury’s conclusion that he is not
intellectually disabled ignores lay testimony that he is mentally unstable as
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                                 No. 13-70015
well as expert opinion that his disciplinary problems at school and failure to
hold a steady job could be explained by schizophrenia. Is it unclear how helpful
these arguments are to Williams, since he acknowledges that mental
retardation and paranoid schizophrenia are distinct diagnoses.            Under
AEDPA, Williams can prevail on this argument only by showing that the jury’s
finding that he is not intellectually disabled “was based upon an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings.” 28 U.S.C. § 2254(d)(2). See also Hooks v. Workman, 689 F.3d
1148, 1166 (10th Cir. 2012) (holding that jury verdict must be upheld where
rational trier of fact could have found that petitioner failed to establish by a
preponderance of the evidence that he is intellectually disabled). Significantly,
this court must presume the jury’s finding to be correct “absent clear and
convincing evidence to the contrary.” 28 U.S.C. § 2254(e)(1). Here, the jury
determined that Williams is not intellectually disabled after considering the
“testimony of psychological experts from both sides in the field of mental
retardation and others such as teachers, counselors and mental health
providers who had contact with appellant before and after his incarceration.”
Williams, 270 S.W.3d at 132. Although there is some evidence in the 1,900
page record that Williams is intellectually disabled, it does not amount to clear
and convincing proof that the jury’s determination was incorrect.          Thus,
Williams’s second argument fails.
      Third, Williams argues that the evidence presented at trial proves that
he met each of the three criteria for intellectual disability set forth in the
AAMR definition. We need not go beyond two of these criteria regarding
whether he has an IQ below 70. Williams points out that two of his experts—
Dr. Robert McClure and Dr. Allen—both tested him and obtained IQ results
below the AAMR’s benchmark of 70. The CCA, however, found that the jury
could have reasonably questioned the reliability of both diagnoses. There was
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                                  No. 13-70015
testimony that Williams misled and misrepresented his background to
Dr. McClure, who examined Williams to determine his eligibility for Social
Security benefits, and that Dr. McClure’s assessment that Williams was
“mildly” intellectually disabled was accordingly based on incomplete and
inaccurate information. The CCA also found that Dr. Allen was not a credible
witness because he based his opinion on information provided by Williams and
his family members, and did not interview any of Williams’s school teachers.
Importantly, Dr. Timothy Proctor, an expert retained by the State, gave
Williams a total of five IQ tests with scores of 70, 71, 73–74, 78, and 83. Even
with the recognized, five–point standard error of measurement, Williams
scored over 70 on two of these tests.
      Williams also contends that he proved that he possessed adaptive
deficits, the second AAMR factor.         Dr. Proctor testified, however, that
Williams’s deficits in adaptive behavior were not in the intellectual disability
range. Williams does not contradict this finding.
      Reasonable jurists could not debate the district court’s resolution of
Williams’s claim of intellectual disability.
                                  Conclusion
      For the reasons herein stated, Williams’s COA request is DENIED.




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                                  No. 13-70015


JAMES L. DENNIS, Circuit Judge, concurring in the judgment:
      Based on the evidence of intellectual disability that was presented to the
jury in this case, I concur in the denial of a certificate of appealability on the
petitioner’s claim of ineligibility for the death penalty under Atkins v. Virginia,
536 U.S. 304 (2002). However, with respect to the so-called “Briseno factors”
that Texas applies to Atkins claims, see Ex parte Briseno, 135 S.W.3d 1, 8-9
(Tex. Crim. App. 2004), which the majority says are “appropriate,” ante, at 15,
I adhere to my views expressed in Chester v. Thaler, 666 F.3d 340 (5th Cir.
2011) (Dennis, J., dissenting), namely, that such factors may, depending on
how they are applied, run afoul of Atkins. But in this case, the Briseno factors
are simply irrelevant because the jury, to which the petitioner’s Atkins claim
was submitted and rejected, was not instructed as to the Briseno factors, and,
thus, such factors did not and could not have affected the rejection of the Atkins
claim. See Williams v. State, 270 S.W.3d 112, 133-34 (Tex. Crim. App. 2008)
(jury instruction). And, in affirming the jury’s conclusion, the Texas Court of
Criminal Appeals did not purport to apply the Briseno factors in any manner
either. In short, this case provides no occasion for us to opine in the abstract
on whether the Briseno factors are generally “appropriate,” and I do not join
the majority’s advisory opinion to that effect.
      As for the petitioner’s ineffective-assistance-of-counsel claims, I concur.




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