           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          August 19, 2008

                                       No. 07-70019                   Charles R. Fulbruge III
                                                                              Clerk

MICHAEL ROSALES,

                                                  Petitioner-Appellant,
v.

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal
Justice, Correctional Institutions Division,

                                                  Respondent-Appellee.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:04-CV-00084


Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Michael Rosales moves this court for a certificate of
appealability (‘COA”) on four issues. First, he contends that a COA should be
granted on whether the district court improperly applied the standards that
govern the determination of mental retardation. Second, he argues that a COA
should be granted on whether the district court erred in denying his claim of
mental retardation. Third, he argues that a COA should be granted on whether


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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the district court erroneously relied on the testimony presented by Respondent-
Appellee Nathaniel Quarterman’s (“Respondent”) expert witness. Finally, he
contends that a COA should be granted on whether the district court improperly
applied the standards that govern the compensation of counsel.             For the
following reasons, we DENY Rosales’ motion for COA with regard to all but his
mental retardation claim, with regard to which we GRANT his motion for COA
but AFFIRM the district court’s dismissal on the merits.
                                         I.
      In May 1998, Rosales was convicted and sentenced to death for the murder
of Mary Felder, which occurred during the course of a burglary or robbery. On
direct appeal, Rosales’ conviction and sentence was affirmed by the Texas Court
of Criminal Appeals (“TCCA”); the United States Supreme Court denied
certiorari review. Rosales also sought state and federal habeas relief, both of
which were denied. On April 7, 2004, less than one week before his scheduled
execution, Rosales filed a successive state habeas application arguing that he is
mentally retarded and thus his execution is barred by Atkins v. Virginia, 536
U.S. 304 (2002). He attached affidavits from James R. Patton, Ed.D.; Dr. Ruth
Luckasson, a professor at the University of New Mexico; Leo Mills, an
investigator employed with the Colorado State Public Defenders Office; and
Meghan Fruska, an investigator.
      On April 12, 2004, one day before his scheduled execution, the TCCA held
that Rosales’ application failed to “set out sufficient facts to raise a bona fide
claim under Atkins” and therefore dismissed his application as an abuse of the
writ and denied his motion for a stay of execution. Ex parte Rosales, No. 55, 761-
02 (Tex. Crim App. 2004). That same day, Rosales filed a petition for writ of
certiorari at the United States Supreme Court as well as a motion requesting a
stay of execution and authorization to file a successive petition for writ of habeas
corpus in this court. While the Supreme Court denied his petition on May 17,

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2004, this court had already granted his request for a stay of execution as well
as his motion for leave to file a successive petition on April 13, 2004 . On April
15, 2004, Rosales filed a motion in federal district court requesting the
appointment of counsel, permission to proceed in forma pauperis, permission to
file a skeletal petition, and expenses to retain an investigator and a mental
health expert. The motion was granted on April 22, 2004. On May 21, 2004,
Rosales filed his amended petition and attached affidavits or declarations from
eleven different witnesses, including: an affidavit from Dr. Susana A. Rosin, an
amended affidavit of Dr. Patton, and declarations from Rosales’ siblings and
former teachers.
      The district court conducted an evidentiary hearing on October 28-29 and
November 3, 2004; both Rosales and Respondent appeared and presented
witnesses. Rosales presented the testimony of Dr. Susana A. Rosin, a Houston-
based psychologist, who had administered a number of tests to assess Rosales’
intelligence, including the Wechsler Adult Intelligence Scale III (“WAIS-III”), the
most up-to-date intelligence assessment available. She explained that according
to that test his I.Q. is 61. She also administered the Wise Range Achievement
Test in order to determine the consistency of Rosales’ effort, and testified that
she did not believe that his I.Q. score was the result of malingering on his part.
Rosales’ sister and older brother testified to their brother’s inability to effectively
take care of himself when he was growing up; for example, they highlighted that
he would have to be constantly reminded to take showers and change his clothes.
They also explained that he did very poorly in school, that he was often very
irresponsible with money, and that he was easily pressured by his friends.
Rosales also submitted declarations prepared by other family members, former
teachers, and former employers.        Additionally, Rosales submitted a sworn
affidavit from Dr. Patton. In his affidavit, Dr. Patton explained that after
reviewing Dr. Rosin’s test reports and the affidavits from Rosales’ family


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members and former teachers, he concluded, in his professional opinion, that
“sufficient data exist[ed] to support a claim that Mr. Rosales is mentally
retarded.”
      Respondent presented the expert testimony of Dr. Roger Saunders, a
clinical psychologist licensed in the State of Texas, who had interviewed and
tested Rosales over a ten-hour period. Dr. Saunders challenged Rosales’ I.Q.
score of 61—he attributed the low score to malingering—and noted that Rosales’
I.Q. score from a test administered pre-Atkins was 82. Dr. Saunders also
determined that much of Rosales’ abnormal behavior as a child was likely
attributable to conduct disorder and not mental retardation. Additionally,
Respondent presented the testimony of a number of police officers and prison
guards, who spoke to Rosales’ ability to function at a fairly high level (e.g.,
checking books out from the library). Respondent also presented the testimony
of former employers of Rosales who presented similar testimony.
      The district court denied Rosales’ claim for habeas relief. First, the court
concluded that the TCCA dismissal of Rosales’ state application for “failure to
set out sufficient facts to raise a bona fide claim under Atkins” was an
adjudication on the merits, and accordingly AEDPA’s deferential standard of
review applied. The district court concluded that since the only evidence Rosales
presented to the state court in support of his Atkins claim was a statement that
he had scored 73 on an I.Q. test that was administered in January 2004 as well
as conclusory declarations that Rosales was possibly mentally retarded, the
TCCA’s decision was “neither contrary to nor an unreasonable application of
Supreme Court law and certainly did not result in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” Second, the district court wrote that even assuming
arguendo that Rosales is entitled to de novo review under AEDPA, his claim
would still fail because the evidence he presented did not satisfy the three

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American Association on Mental Retardation (AAMR) standards:                    (1)
“significantly subaverage” general intellectual functioning, usually defined as an
I.Q. of about 70 or below; (2) accompanied by “related” limitations in adaptive
functioning; (3) the onset of which occurs prior to the age of 18.
                                        II.
      A petitioner seeking a COA only needs to demonstrate “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The Supreme
Court has explained that courts of appeals are forbidden from conducting full-
fledged reviews of petitioner’s claims during COA determinations; the issue for
the court of appeals to decide is whether the district court’s resolution of the
petitioner’s constitutional claims is “debatable amongst jurists of reason.”
Miller-El, 537 U.S. at 336-37 (“When a court of appeals side steps this process
by first deciding the merits of an appeal, and then justifying its denial of a COA
based on its adjudication of the actual merits, it is in essence deciding an appeal
without jurisdiction.”). Accordingly, while a “COA does not require a showing
that the appeal will succeed. . . . A prisoner seeking a COA must prove
‘something more than the absence of frivolity’ or the existence of mere ‘good
faith’ on his or her part.” Id. at 337-38.
                                        III.
      First, Rosales argues that a COA should be granted on whether the
district court erred by not properly analyzing his claim under the standards for
mental retardation laid out by the American Association of Intellectual and
Developmental Disabilities (AAIDD), formerly known as the AAMR. According

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to Rosales, the district court focused on issues that have little relevance under
the AAIDD standards. For example, Rosales asserts that the district court relied
heavily on evidence relating to Rosales’ performance while he was incarcerated
even though the AAIDD standards admit that people with mental retardation
can improve their functioning.
      In Atkins, the Supreme Court left “to the State[s] the task of developing
appropriate ways to enforce the constitutional restriction upon its execution of
sentences.” 537 U.S. at 317. The Court did cite with approval the definitions of
mental retardation supplied by the American Psychiatric Association and the
AAMR. Id. at 309 n.3 & 317 n.22. As far as the latter is concerned, the Supreme
Court explained:
      The American Association of Mental Retardation (AAMR) defines
      mental retardation as follows: “Mental retardation refers to
      substantial limitations in present functioning. It is characterized
      by significantly subaverage intellectual functioning, existing
      concurrently with related limitations in two or more of the following
      applicable adaptive skill areas: communication, self-care, home
      living, social skills, community use, self-direction, health and safety,
      functional academics, leisure, and work. Mental retardation
      manifests before age 18.”

Id. at 309 n.3 (internal citations omitted). In Ex parte Briseno, 135 S.W.3d 1
(Tex. Crim. App. 2004), the TCCA explained that “[u]ntil the Texas legislature
provides an alternate statutory definition of ‘mental retardation’ for use in
capital sentencing, we will follow the AAMR or [the Tex. Health & Safety Code]
§ 591.003(13) criteria in addressing Atkins mental-retardation claims.”           135
S.W.3d 1, 8 (Tex. Crim. App. 2008).1 In Briseno, the TCCA also laid out a
number of guidelines that courts can consider when making mental retardation
determinations. Id. at 8-9. This court has repeatedly approved the use of the


      1
          The standards for determination mental retardation under that Texas statutory
provision is nearly identical to the AAMR standard.

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framework laid out in Briseno. See, e.g., Moreno v. Dretke, 450 F.3d 158, 163
(5th Cir. 2006); In re Hearn, 418 F.3d 444, 446-47 (5th Cir. 2005). Here, the
district court followed the case law and carefully and thoughtfully applied the
three AAMR factors as well as the applicable Briseno guidelines. Rosales’
contention that the district court improperly applied the standards is without
merit as he has failed to cite to any applicable case law, much less offer any
credible arguments to support his position. Accordingly, Rosales has failed to
demonstrate that he is entitled to a COA on this issue.
      Next, Rosales argues that a COA should be granted on whether the district
court erred by denying his claim of mental retardation. Proceeding with an
abundance of caution, we grant Rosales’ motion for COA as to this issue,
acknowledging that it is “debatable amongst jurists of reason” whether the
district court properly resolved this constitutional claim. We now turn to a
review of the merits of this claim. As an initial matter we conclude that
AEDPA’s deferential standard of review applies in this case. This court has
previously held that when the TCCA dismisses a case for failure to “set out
sufficient facts to raise a bona fide claim under Atkins” such a decision qualifies
as a dismissal on the merits. See Rivera v. Quarterman, 505 F.3d 349, 355-56
(5th Cir. 2007). Under 28 U.S.C. § 2254(d), as amended by AEDPA, a state
prisoner may not obtain relief on any of his claims that were adjudicated on the
merits in the state-court proceedings unless the 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.” 28 U.S.C. § 2254(d).
      Here, Rosales’ evidence of mental retardation before the TCCA was sparse:
he did not present an I.Q. score near or below 70, nor did he present any concrete

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evidence of adaptive behavioral deficits that had onset before the age of 18. He
has failed to raise the possibility that the TCCA’s dismissal of his claim “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.” See 28 U.S.C. § 2254(d). Further, even assuming arguendo that
Rosales had satisfied the stringent requirements of § 2254(d), his claim would
still fail as we conclude, having reviewed the evidence presented before the
district court, that he has not demonstrated that he is mentally retarded.
Accordingly, we affirm the district court’s dismissal of this claim.
      Finally, we deny Rosales’ request for COA on his two remaining
claims—whether the district court erroneously relied on the testimony presented
by Respondent’s expert witness and whether that court improperly applied the
standards that govern the compensation of counsel—because he has failed to
demonstrate how these claims sufficiently implicate constitutional concerns. See
28 U.S.C. § 2253(c)(2) (explaining that a petitioner seeking a COA needs to
demonstrate “a substantial showing of the denial of a constitutional right.”).
                                        IV.
      For the foregoing reasons, we DENY Rosales’ motion for COA with regard
to all but his mental retardation claim, with regard to which we GRANT his
motion for COA but AFFIRM the district court’s dismissal on the merits.




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