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

                                                 FILED
                                                                            April 28, 2009

                                       No. 08-70012                    Charles R. Fulbruge III
                                                                               Clerk

GERALD CORNELIUS ELDRIDGE,

                                                   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 Southern District of Texas
                              USDC No. 4:05-CV-1847


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:*
       Petitioner Gerald Eldridge seeks a certificate of appealability (COA) on the
issue of whether Eldridge is mentally retarded and thus ineligible for the death
penalty under Atkins v. Virginia.1 We deny his request for a COA.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           536 U.S. 304 (2002).
                                 No. 08-70012

                                        I
      In April 1994, Eldridge was convicted of capital murder and sentenced to
death for killing Cynthia Bogany and her nine-year-old daughter, Chirissa.
Cynthia Bogany was Eldridge’s former girlfriend and the mother of his seven-
year-old son, Terrell.
      The evidence established that Eldridge went to Cynthia Bogany’s
apartment, kicked in the door, and shot Chirissa between the eyes at point-blank
range, killing her instantly. Eldridge then shot at close range his son Terrell
and another individual, Wayne Dotson, both of whom were wounded but
survived. Cynthia fled the apartment but Eldridge chased and caught her when
she tripped and fell on the stairs outside a neighbor’s apartment. Despite
Cynthia’s pleas for her life, Eldridge shot her twice in the head, killing her
instantly. Eldridge was twenty-eight years old at the time of the murders.
      The Texas Court of Criminal Appeals (TCCA) affirmed Eldridge’s
conviction and sentence. Eldridge’s initial state habeas corpus application was
pending when the Supreme Court of the United States decided Atkins.2
Thereafter, while his first habeas application was still pending, Eldridge filed
a second state habeas petition raising an Atkins claim.
      The TCCA denied Eldridge’s initial habeas application and, on the same
day, dismissed Eldridge’s second application as an abuse of the writ, stating,
“We have reviewed the facts applicant presents in his ‘Atkins claim’ and find
that, even if they were true, he has not established a prima facie claim as set
forth by this Court in [Ex parte] Briseno [135 S.W.3d 1 (Tex. Crim. App. 2004)].”
      Eldridge filed a skeletal petition for a writ of habeas corpus in federal
district court. Eldridge later filed an amended petition raising only one claim




      2
          Id.

                                       2
                                  No. 08-70012

for relief: that the Eighth Amendment prohibits Eldridge’s execution because he
is mentally retarded.
      The respondent, Nathaniel Quarterman, Director of the Texas Department
of Criminal Justice (TDCJ) Correctional Institutions Division, moved for
summary judgment, asserting that the evidence failed to support Eldridge’s
claim. Both sides filed extensive briefs and exhibits, including grades and
standardized-test records from Eldridge’s school years, testing performed by the
prison system, and testing performed by experts retained for this litigation. The
district court conducted a four-day evidentiary hearing at which Eldridge and
the TDCJ presented testimony from mental-health experts and from family
members, friends, and others who knew or had observed Eldridge.
      After carefully considering the petition, summary judgment motion,
state-court record, party submissions, evidence presented, and applicable law,
the district court granted respondent’s motion for summary judgment and
denied Eldridge’s petition for a writ of habeas corpus. The district court also
denied Eldridge’s request for a COA. Eldridge now petitions this court for the
grant of a COA.
                                        II
      Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a petitioner must secure a COA to appeal a federal district court’s
denial of habeas relief.3 A COA will be granted only if the petitioner makes “a
substantial showing of the denial of a constitutional right.”4 This court conducts
a “threshold inquiry” and must issue a COA if “reasonable jurists would find the




      3
          28 U.S.C. § 2253(c).

      4
          Id. § 2253(c)(2).

                                        3
                                         No. 08-70012

district court’s assessment of the constitutional claims debatable or wrong.” 5 “In
death penalty cases, any doubts as to whether the COA should issue are resolved
in favor of the petitioner.” 6 We do “not grant relief on any claim adjudicated on
the merits by a state court unless the state decision was contrary to, or an
unreasonable application of, clearly established federal law as determined by the
Supreme Court, or if the state court’s determination of facts was unreasonable
in light of the evidence.”7
       The state court dismissed Eldridge’s Atkins claim as an abuse of the writ
because Eldridge had not alleged sufficient facts to establish a prima facie case.8
This court has previously noted that such a dismissal in Texas is a decision on
the merits.9 Therefore, AEDPA’s deferential standard of review applies.10
                                               III
       The Supreme Court in Atkins v. Virginia held that the Eighth Amendment
forbids the execution of the mentally retarded.11 The Court left “to the States
the task of developing appropriate ways to enforce the constitutional restriction



       5
         Miller-El v. Cockrell, 537 U.S. 322, 336, 338 (2003) (quoting Slack v. McDaniel, 529
U.S. 473, 482, 484 (2000)).
       6
            Gomez v. Quarterman, 529 F.3d 322, 326 (5th Cir. 2008).
       7
            Id. (quoting Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998)).
       8
          See TEX . CODE CRIM . PROC . ANN . art. 11.071, § 5 (Vernon Supp. 2008) (providing that
a successive state habeas corpus petition may not be considered unless the petitioner alleges
specific facts establishing a constitutional violation); Ex parte Staley, 160 S.W.3d 56, 63 (Tex.
Crim. App. 2005).
       9
           See Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007) (“[T]o decide whether
an Atkins claim is an abuse of the writ, the CCA examines the substance of the claim to see
if it establishes a prima facie case of retardation, and only upon deciding that question can the
state court decide whether remand is appropriate.”).
       10
            Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005).

       11
            536 U.S. 304, 321 (2002).

                                                4
                                        No. 08-70012

upon its execution of sentences.” 12 Because the Supreme Court declined to
explicitly define “mental retardation” for purposes of the Eighth Amendment,
Texas courts have employed the definition promulgated by the American
Association       of   Mental    Retardation.13        This   definition    imposes      three
requirements: (1) significantly subaverage general intellectual functioning,
generally defined as an IQ below 70; (2) related “limitations in adaptive
functioning,” defined as “significant limitations in an individual’s effectiveness
in meeting the standards of maturation, learning, personal independence, and/or
social responsibility that are expected for his or her age level and cultural group,
as determined by clinical assessment and, usually, standardized scales”; and
(3) onset prior to the age of 18.14 Determination of whether Eldridge satisfies
any of these elements is a question of fact.15
       In a habeas proceeding, we review the district court’s findings of fact for
clear error and conclusions of law de novo, applying the same standard of review
to the state court’s decision as the district court.16 “A finding is clearly erroneous
only if it is implausible in the light of the record considered as a whole.”17




       12
            Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17 (1986)).
       13
            In re Hearn, 418 F.3d 444, 446 (5th Cir. 2005).
       14
         Ex parte Briseno, 135 S.W.3d 1, 7 & nn.24-25 (Tex. Crim. App. 2004) (citing
American Association of Mental Retardation, MENTAL RETARDATION : DEFINITION ,
CLASSIFICATION , AND SYSTEM S OF SUPPORT 5 (9th ed. 1992)).
       15
           See Rivera v. Quarterman, 505 F.3d 349, 361-63 (5th Cir. 2007) (holding that the
district court did not clearly err in finding that defendant suffered from significantly
subaverage intellectual functioning and related limitations in adaptive functioning); see also
Briseno, 135 S.W.3d at 9 (“[T]he ultimate issue of whether [a] person is, in fact, mentally
retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the
finder of fact, based upon all of the evidence and determinations of credibility.”).
       16
            Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998).
       17
            St. Aubin v. Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006).

                                               5
                                       No. 08-70012

                                             IV
      The district court found that Eldridge did not have substandard
intelligence. Eldridge’s IQ test results are consistent with such a finding.
      In 1994, Eldridge scored a full-scale IQ of 112 on a version of the Wechsler
Adult Intelligence Scale (WAIS) administered by a supervisor of psychiatric
services at the TDCJ unit.           Later, the TDCJ’s expert, Dr. Thomas Allen,
administered a different form of the WAIS test and reported that Eldridge scored
a full-scale IQ of 84.       Only Eldridge’s full-scale IQ score of 72, on a test
administered by his expert witness, Dr. Patricia Averill, placed him in the mildly
mentally retarded range—and then only if Eldridge showed significant deficits
in adaptive behavior.18        Although Dr. Averill concluded that Eldridge was
mentally retarded, the district court found Dr. Averill’s analysis and conclusions
to be unreliable because she failed to consider or test for the possibility of
malingering or lack of effort, failed to consider explanations or possibilities other
than mental retardation for the test results she obtained, and relied only on
limited information about Eldridge’s background.               Further, before testing
Eldridge, Dr. Averill reviewed no school or work records, prior IQ scores, or
psychological evaluations and did not interview Eldridge’s family and friends.
      In Woods v. Quarterman, we held that a state court’s conclusion that the
petitioner failed to demonstrate that he suffered from subaverage general
intellectual functioning was not unreasonable.19           In Woods, the petitioner’s
expert was the “only person to test Woods’ IQ below seventy” and did so on a test



      18
          See AM ERICAN PSYCH IATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS 41-42 (Text Revision, 4th ed. 2000) (DSM-IV) (“Thus, it is possible to
diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit
significant deficits in adaptive behavior. Conversely, Mental Retardation would not be
diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or
impairments in adaptive functioning.”).
      19
           493 F.3d 580, 586-87 (5th Cir. 2007).

                                              6
                                       No. 08-70012

when the petitioner “had an incentive to perform poorly.” 20 Petitioner’s four
other IQ test scores were above seventy points.21 We concluded that the state
habeas court’s decision to give more weight to the petitioner’s childhood IQ test
scores than the score obtained by the petitioner’s expert was reasonable because
the latest result could have been caused by a motivation to score poorly.22
      Further, in Moore v. Quarterman, we held that a state court’s decision that
a defendant was not mentally disabled “was not contrary to or otherwise
involved an unreasonable application of clearly established federal law” even
though the defendant presented evidence of full-scale IQ scores of 68, 72, 72, 76,
63, and 76.23 There, “some expert opinion supported a finding of subaverage
intellectual functioning, [but] there was other expert evidence indicating that
Moore did not suffer from such functioning and that he underperformed on at
least some of the tests.” 24
      Similar to Briseno, in this case, Eldridge did not record an IQ score lower
than 72, and all other scores were higher than 75. Additionally, as in Woods, the
district court did not find Eldridge’s full-scale IQ score of 72 to be reliable, partly
because Eldridge had a motivation to score poorly. Finally, similar to Moore, Dr.
Allen concluded that Eldridge was not mentally retarded and deliberately
exerted no effort on the most recent IQ tests.25




      20
           Id. at 586.
      21
           Id.
      22
           Id. at 587.
      23
           517 F.3d 781, 784 (5th Cir. 2008).
      24
           Id.
      25
           See id.

                                                7
                                  No. 08-70012

      The district court found that Eldridge did not possess substantially
subaverage intelligence. Based on the evidence, reasonable jurists would not
disagree that this finding was not clearly erroneous.
                                        V
      The district court also examined Eldridge’s claimed deficits in adaptive
functioning and determined that the evidence did not show a significant deficit
consistent with mental retardation.
                                        A
      The district court’s finding that Eldridge was not deficient in academic
functioning is not clearly erroneous. Eldridge’s grades in high school, seventieth
percentile graduation ranking, and the fact that he passed the pipe-fitters exam
all support the district court’s finding that Eldridge was not deficient in
academic functioning. Further, Eldridge’s conduct in prison, letters, and oral
comments made during trial lend support to the district court’s finding.
      Eldridge argues that the district court failed to weigh properly Dr. Averill’s
testimony and that reasonable jurists could disagree as to whether Dr. Averill
considered evidence showing that Eldridge was capable of more academic work
than her testimony indicated. But the district court found Dr. Averill to be not
credible because she dismissed evidence without an adequate basis for doing so.
For example, Dr. Averill claimed that Eldridge received help writing his letters
and a grievance with the State Bar of Texas but cited no evidence that this
actually occurred. The district court stated, “[i]n short, Dr. Averill was either
unaware of, or discounted, evidence that was inconsistent with the conclusions
she had reached.”
      Eldridge also claims that he did not pass the pipe-fitters exam by himself,
but that his brother, Barry Eldridge, took the test for him.         However, the
training coordinator for the pipe-fitters union testified that the test was taken
in a locked room and that Barry did not have a key to get in. Additionally,

                                         8
                                  No. 08-70012

Barry’s scratch paper from his own attempt to join the union and that of
Eldridge’s tests showed stark differences in problem-solving techniques. Finally,
a handwriting analyst and certified fraud examiner testified that Eldridge’s and
Barry’s tests were not written by the same person, and that it was highly
probable that all of Eldridge’s pipe-fitters exams were written by Eldridge.
      Eldridge also argues that greater weight should have been given to the
testimony of his mother, Mattie Wade, Barry Eldridge, and one of Eldridge’s
teachers at Jack Yates High School, Judith Zinsser.
      According to Eldridge, Mattie Wade testified that she took librium before
giving birth to him and that he did poorly in elementary school. But the district
court noted these facts in its opinion and observed that the school did not require
Eldridge to repeat a grade. Additionally, the district court noted that Donna
Lawson, one of Eldridge’s elementary-school teachers, used Eldridge as a peer
tutor for kindergartners when he was in third grade and that Lawson’s testing
of Eldridge in second grade did not indicate mental retardation.
      Barry Eldridge testified that he helped Eldridge with his homework, even
when Eldridge was a year ahead of Barry in high school. This testimony was
refuted, however, by an interview with Wan-Ling Woodbury, Eldridge’s high-
school algebra teacher. In that class, Woodbury required her students to work
out math problems on the blackboard, and “Eldridge was not assisted by his
brother Barry or a friend in working out such problems in the classroom.”
Woodbury stated that Eldridge could not be mentally retarded and perform as
well as he did in the algebra class.
      Finally, Eldridge claims that reasonable jurors could disagree on the
weight to give Zinsser’s testimony that Jack Yates High School was a low
performing school and that students’ grades were not necessarily valid. Zinsser
also testified that Eldridge tested in the bottom one percent in the twelfth grade
in reading. But the district court noted that, even taking into account the low

                                        9
                                   No. 08-70012

performance of Jack Yates High School, it would be difficult for a mentally
retarded person to graduate in the seventieth percentile of his high-school class.
        The district court found that Eldridge did not suffer a deficit in academic
functioning. Reasonable jurists would not disagree that this finding was not
clearly erroneous.
                                         B
        The district court’s finding that Eldridge was not deficient in the area of
work also was not clearly erroneous. Eldridge was regularly employed, received
good performance reviews, worked over forty hours per week at times, received
regular pay raises and, at one point, earned about four times the minimum
wage.
        Eldridge’s primary argument is based on Dr. Averill’s testimony that
Barry Eldridge helped the petitioner take the pipe-fitters exam. However, the
district court properly found that the credible evidence showed that Eldridge
took the exam on his own and was successful in the pipe-fitters apprenticeship
program. Therefore, reasonable jurists would not disagree that the district
court’s finding was not clearly erroneous.
                                         C
        The district court’s finding that Eldridge did not have an adaptive deficit
in social functioning was not clearly erroneous. Eldridge had friends during his
school years, although not many, and evidence showed that Eldridge was socially
confident in school until his knee injury. Eldridge had girlfriends in high school
and subsequently had relationships with other women, including a common-law
wife.    Eldridge left socially appropriate messages on Cynthia Bogany’s
answering machine and, since being in prison, Eldridge has had “pen pals” from
around the world with whom he corresponds, interactions that Dr. Allen
concluded were inconsistent with mental retardation.



                                         10
                                       No. 08-70012

       Eldridge argues that reasonable jurists could disagree as to the accuracy
of some of Dr. Allen’s statements, such as the finding that the messages on the
answering machine were socially appropriate. Eldridge also argues that the
court should have given more weight to Barry Eldridge’s testimony and less to
that of Hubert Hardeman. Because this court defers to the district court’s
credibility determinations,26 reasonable jurists would not disagree that the
district court’s finding that Eldridge did not suffer a deficit in social functioning
was not clearly erroneous.
                                              D
       The district court further found that Eldridge was not deficient in the area
of home life. Evidence showed that Eldridge cashed his paychecks, shared
expenses when he lived with girlfriends, shopped for groceries, and performed
some household chores. He had a job as a pipe-fitter’s helper and he had a bank
account. He drove and knew how to repair cars.
       Eldridge claims that reasonable jurists could disagree that he had a deficit
in home living because of the testimony of Dr. Averill. But the district court
found that Dr. Averill’s conclusions were based on assumptions not supported
by the evidence.
       Eldridge also argues that the district court improperly weighed much of
Barry Eldridge’s testimony.           According to Eldridge, Barry indicated that
Eldridge could not live by himself or take care of routine chores at home.
Cynthia Bogany’s niece refuted this testimony when she stated that Eldridge
cooked for the family and made other contributions to home life.



       26
           See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives
federal habeas courts no license to redetermine credibility of witnesses whose demeanor has
been observed by the state trial court, but not by them.”); Pippin v. Dretke, 434 F.3d 782, 792
(5th Cir. 2005) (“A trial court’s credibility determinations made on the basis of conflicting
evidence are entitled to a strong presumption of correctness and are ‘virtually unreviewable’
by the federal courts.” (quoting Moore v. Johnson, 194 F.3d 586, 605 (5th Cir.1999))).

                                              11
                                       No. 08-70012

      Eldridge further argues that the district court gave too much weight to
Barry Eldridge’s testimony that his brother was not mentally retarded. But one
of the evidentiary factors fact-finders might focus upon is whether “those who
knew the person best during the developmental stage—his family, friends,
teachers, employers, authorities—[thought] he was mentally retarded . . . .”27
Therefore, it was not improper for the district court to give Barry Eldridge’s
statement weight.
      Finally, Eldridge argues that the district court improperly weighed Mattie
Wade’s testimony that he could not buy groceries “with a long list” and that
Eldridge was forbidden from using the microwave after burning some bread. In
light of other evidence, however, reasonable jurists would not disagree that the
district court’s finding that Eldridge did not suffer a deficit in the area of home
living was not clearly erroneous.
                                             VI
      The district court concluded that “[t]he evidence shows that Eldridge does
not have significantly subaverage intellectual functioning or significant deficits
in adaptive functioning. It necessarily follows that such symptoms did not
manifest before Eldridge turned 18 years old.” Eldridge’s standardized tests and
academic performance support such a conclusion. In the second grade, Eldridge
tested in the forty-sixth percentile on the Peabody Picture Vocabulary Test
(PPVT), which is within “normal” range. According to the PPVT, Eldridge’s
mental age was one month behind his chronological age. Additionally, as noted
earlier, Eldridge was a peer tutor for kindergartners when he was in the third
grade. Further, Eldridge was not in special-education classes, was not held back
to repeat a grade, and graduated from high school in the seventieth percentile
of his class. Finally, none of his friends or family, nor any medical professional,



      27
           Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004).

                                             12
                                         No. 08-70012

gave any indication before Eldridge turned eighteen that they believed Eldridge
was mentally retarded.28
       The evidence in the record does not support Eldridge’s contention that his
alleged mental retardation had an onset before age eighteen.                   Accordingly,
reasonable jurists would not disagree that the district court’s finding that
Eldridge’s alleged mental retardation did not manifest before age eighteen was
not clearly erroneous.
                                     *        *         *
       Because reasonable jurists would not find the district court’s assessment
of the constitutional claims debatable or wrong, Eldridge’s request for a COA is
DENIED.




       28
          See id. at 17 (“It is highly significant that in none of these voluminous records is
there any indication from any source that any person thought applicant might be mentally
retarded.”).

                                             13
