     Case: 13-70011       Document: 00512588848         Page: 1    Date Filed: 04/08/2014




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

                                                                                     FILED
                                      No. 13-70011                                April 8, 2014
                                                                                Lyle W. Cayce
ROBERT CHARLES LADD,                                                                 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 HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
       A Texas jury convicted Robert Ladd of capital murder and sentenced him
to death for the rape and murder of Vicki Ann Garner. Ladd sought habeas
relief in federal district court, claiming that he is mentally retarded 1 and
therefore categorically ineligible for the death penalty under Atkins v.




       1  As our sister circuits have explained, “the preferred terminology for mental
retardation is now ‘intellectual disability.’” Brumfield v. Cain, No. 12-30256, 2014 WL
805327, at *1 n.1 (5th Cir. Feb. 28, 2014) (citing Pizzuto v. Blades, 729 F.3d 1211, 1214 n.1
(9th Cir. 2013); Hooks v. Workman, 689 F.3d 1148, 1159 n.1 (10th Cir. 2012)). Yet, because
the term mental retardation is used by both the parties and relevant legal authority, we use
mentally retarded throughout our opinion.
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                                     No. 13-70011
Virginia. 2 Following an evidentiary hearing, the district court denied habeas
relief, but granted a Certificate of Appealability (“COA”). We AFFIRM.
                                            I
                                           A
      In 1978, Robert Ladd was convicted of murdering a woman and her two
children, and then setting her house on fire. After serving 16 years of a 40 year
prison sentence, Ladd was released from prison. On September 25, 1996, Vicki
Ann Garner was found dead in her home.                 Garner had been raped and
strangled to death. In addition, her home was robbed and then set on fire.
      A police investigation quickly connected Ladd to Garner’s murder. 3
Ladd’s DNA was found on Garner, his hand print was found in Garner’s
kitchen, and Ladd had sold a TV set that had been taken from Garner’s
residence in exchange for crack cocaine. 4
      Soon thereafter, Ladd was indicted for capital murder, as the murder
occurred during the commission of burglary, robbery, sexual assault, and
arson. On August 23, 1997, a Texas state jury convicted Ladd of capital
murder, and, on August 27, 1997, the jury imposed the death penalty. A direct
appeal then followed, which was denied on October 6, 1999. 5 Ladd’s petition
for a writ of certiorari was then denied on April 17, 2000.
      Ladd filed his first state petition for habeas relief, asserting an
ineffective assistance of counsel claim, alleging that Ladd’s counsel was
ineffective for failing to raise evidence of mental retardation during the
punishment phase. The state district court held an evidentiary hearing, where
Ladd presented testimony of his trial counsel, but did not present a psychiatric



      2 538 U.S. 1064 (2003).
      3 See generally Ladd v. Texas, 3 S.W.3d 547, 556 (Tex. Crim. App. 1999).
      4 Id.
      5 Id.

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                                    No. 13-70011
expert. The State presented its psychologist and psychiatrist who had both
testified at trial that Ladd presented a future danger. These experts generally
opined that they would discount Ladd’s prior IQ score of 67, explaining that
they did not know enough about the administration of the test and that such a
result was inconsistent with his later academic achievement. But, neither
expert had tested Ladd’s IQ, nor otherwise examined him for mental
retardation; indeed, their testimony centered on their conclusion that the
additional information obtained about Ladd would not have changed their
expert opinions regarding his future dangerousness. The state trial court then
issued its findings of fact and conclusions of law, wherein it concluded:
            The information that Applicant had scored 67 on an IQ
            test as a juvenile did not support an inference that
            Applicant was mentally retarded because of a higher
            IQ score, the completion of the GED program and
            completion of barber school as an adult. . . . The
            information that Applicant scored 67 on an IQ test was
            not mitigating because of the other information that
            Applicant was not mentally retarded. 6
The Texas Court of Criminal Appeals (“CCA”) then denied Ladd’s petition for
state habeas relief on December 15, 1999. 7
      Ladd filed his first application for federal habeas relief on January 18,
2001. Ladd again raised the claim that he received ineffective assistance by
counsel because his attorney had not raised evidence of Ladd’s mental
retardation during the punishment phase. The district court rejected this
claim on October 24, 2001. We affirmed, concluding that “the Texas court was
well-within the bounds of AEDPA reasonableness in concluding that Ladd
suffered no prejudice.” 8



      6 R. 238.
      7 Ex Parte Ladd, No. 42,639-01 (Tex. Crim. App. 1999).
      8 Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002).

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       Following the Supreme Court’s decision in Atkins v. Virginia, 9 Ladd filed
his second petition for state habeas relief on April 7, 2003, arguing that he was
categorically excluded from the death penalty because of mental retardation.
In support of this claim, Ladd attached several exhibits to his state petition,
including: (i) documentation from Ladd’s childhood institutionalization in the
Gatesville State School, where his IQ had been tested at 67; (ii) psychiatric
notes from this institutionalization wherein the psychiatrist noted that Ladd
is “rather obviously retarded” and had “mental retardation, mild to moderate”;
(iii) institutionalization records showing that Ladd was functioning below his
grade level in basic academic skills and had social development problems; and,
(iv) documentation that as a child Ladd was prescribed Mellaril, an anti-
psychotic medication, to control his impulsive behavior. Arguing that he had
set forth a prima facie Atkins claim, Ladd requested an evidentiary hearing to
refute any evidence the State might offer and to develop fully his claim.
Without an evidentiary hearing, or any opportunity to develop fully his Atkins
claim, the CCA dismissed the petition on the merits ten days later on April 17,
2003, explaining that he failed to plead sufficient facts to permit a successive
writ under Texas state law. 10
       Ladd sought authorization from this Court to file a second application
for habeas relief in the district court. We authorized the successive writ, and
on June 20, 2003, Ladd filed the application for habeas corpus at issue.



       9  536 U.S. 304 (2002) (holding that the mentally retarded are categorically excluded
from the death penalty).
        10 Although the CCA dismissed this successive petition ostensibly as an abuse of the

writ, we have explained that “in the Atkins context, Texas courts have imported an
antecedent showing of ‘sufficient specific facts’ to merit further review, rendering dismissal
of such claims [as abuse of the writ] a decision on the merits. . . . Thus, a decision that an
Atkins petition does not make a prima facie showing—and is, therefore, an abuse of the writ—
is not an independent state law ground.” Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir.
2007) (internal citations and quotation marks omitted).
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                                             B
       On June 27, 2005, the district court conducted an evidentiary hearing on
the application.      Ladd presented several witnesses, including:                 Richard
Garnett, a licensed professional counselor; 11 Lubertha Cephus, Ladd’s
mother’s first cousin; Russell Pinckard, a death row corrections officer; and,
Nelma Thomas, Ladd’s sister.
       Garnett testified that, in his expert opinion, Ladd was mentally
retarded. First, Garnett explained that Ladd had significantly sub-average
intellectual functioning. 12 Garnett based this conclusion on Ladd receiving an
IQ score of 67, when he was tested at age 13 by the Texas Youth Commission. 13
Moreover, Garnett explained that the Texas Youth Commission’s psychiatrist,
Phillip Ash, noted that Ladd appeared mentally retarded. 14                   In addition,
Garnett noted that Ladd had a low birth weight, consistent with fetal alcohol
syndrome. 15 Garnett did note that Ladd later received an IQ score of 86, but
he explained that this score was on a less comprehensive IQ test, the Beta test,
that is not as accurate as the previously administered Wechsler test. 16 Garnett
discounted a more recent Wechsler test IQ score of 60, because there were signs
of malingering. 17
       Second, Garnett testified that Ladd had significant adaptive skills
deficits. In particular, Garnett testified that Ladd had deficits with: money
concepts, work-related skills, using community resources, communications



       11 See Tr. of Evid. Hr’g Vol. 1 at 28.
       12 Id. at 65–66.
       13 Id.
       14 Id. at 69–71.
       15 Id. at 77–78, 115.
       16 Id. at 81–86. Garnett explained that “the Beta [IQ test] is not recognized as a

substantive test of intelligence. . . . The Beta [IQ test] is a screening instrument which is
designed to get a rough guesstimate of someone’s functional level.” Id. at 84–85.
       17 Id. at 90–94.

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                                   No. 13-70011
skills, and social skills. 18 In addition, Garnett testified that Ladd’s deficits
were properly attributed to mental retardation, rather than anti-social
personality disorder. 19 Although Garnett acknowledged that he could not use
any evaluative instruments for measuring the adaptive skills of an
incarcerated individual, he explained that he was able to make this assessment
based on his clinical judgment and experience. 20           Additionally, Garnett
discounted Ladd’s having obtained a G.E.D., learning to play chess, and having
written many letters, by explaining that obtaining a G.E.D. and learning to
play chess were not outside the capacity of the mildly mentally retarded. 21 As
to the letters, Garnett explained that based on his conversations with Ladd he
believed that Ladd had received substantial assistance in writing those
letters. 22
       Third, Garnett testified that, given his childhood IQ score of 67 and
family reports of adaptive functioning deficits, these deficits developed prior to
Ladd turning 18 years old. 23
       On cross-examination, the State elicited from Garnett that (i) Ladd was
a latch-key kid who had been able to take care of himself; 24 (ii) by 11 years old,
Ladd could handle money; 25 (iii) Ladd’s failure to make friends during
childhood may have been a product of his anti-social personality disorder, and
not retardation; 26 (iv) Ladd’s reading ability tests above the tenth grade level,
despite most mentally retarded being unable to read above the seventh grade



       18 Id. at 96–97.
       19 Id. at 98–100.
       20 Id. at 107–11, 197.
       21 Id. at 103–05.
       22 Id. at 100–02.
       23 Id. at 113–16.
       24 Id. at 128–30.
       25 Id. at 132.
       26 Id. at 137.

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                                      No. 13-70011
level; 27 (v) Ladd had successfully completed vocational training programs in
prison; 28 and, (vi) Ladd was successful working in a structured environment
when he was not in prison. 29
      Lubertha Cephus testified that Ladd’s mother drank heavily while
pregnant with Ladd. 30 Ladd’s sister, Nelma Thomas, testified that Ladd had
problems understanding the concepts of games as a child: she explained that
he did not understand the concept of suits in card games and that he did not
understand the need to run to first base while playing kickball. 31 In addition,
Thomas testified that Ladd often failed to dress himself appropriately for the
weather when he was twelve to fourteen years old, and that when her mother
sent him to the store, he could not remember what he was supposed to
purchase. 32
      The State presented several witnesses, including: Al Matson, the
manager of the vocational program at which Ladd worked, Howard Alexander,
a prison barber instructor, and Dr. Thomas Allen, a forensic psychologist.
Matson explained that he managed the vocational division of the Andrews
Center, a community mental health/mental retardation healthcare center. 33
Matson testified that Ladd was referred to the Andrews Center from a
substance abuse facility, 34 and was a capable worker. 35 Matson explained that
Ladd was placed into some of the more challenging positions, such as line
leader and quality control. 36 During the course of his employment, Ladd could


      27 Id. at 159–60.
      28 Id. at 153–58.
      29 Id. at 169.
      30 Id. at 203.
      31 See Tr. of Evid. Hr’g Vol. 2 at 237–39.
      32 Id. at 241–42.
      33 Id. at 257.
      34 Id. at 263.
      35 Id. at 261–62.
      36 Id. at 262.

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                                     No. 13-70011
operate an ultrasonic welding machine, setup electronic weighing scales, and
operate a forklift. 37 Matson testified that Ladd did not require any special
assistance or supervision, and would have been promoted but for his criminal
background. 38 Although Ladd was initially started at below minimum wage,
he received several raises in the course of his work, resulting in above-
minimum wage payment. 39 These funds were paid into a trust account, but
the Andrews Center used trust account for non-mentally retarded workers, as
well as the mentally retarded. 40 Eventually, Matson explained, Ladd was fired
because of problems with absenteeism and confrontations with supervisors. 41
      Howard Alexander testified that he taught a vocational barber training
program in prison. 42         The program required at least a seventh grade
education, 43 and, in Alexander’s opinion, could not be completed by anyone
with serious learning deficiencies. 44 Although Alexander does not remember
instructing Ladd, Alexander’s records indicate that Ladd completed the state
barber exam and was one of Alexander’s better students. 45
      Dr. Thomas Allen, a forensic psychologist, 46 testified that in his opinion
Ladd was not mentally retarded. First, Dr. Allen explained that he did not
trust the IQ score of 67 administered when Ladd was 13, because Ladd had a
propensity for “prevarication” and low motivation, and there were no notes as
to whether the degree of Ladd’s effort on the examination were observed. 47



      37 Id. at 264–65.
      38 Id. at 268–69.
      39 Id. at 290–91.
      40 Id. at 292.
      41 Id. at 270–71.
      42 Id. at 299–300.
      43 Id. at 301.
      44 Id. at 302, 307.
      45 Id. at 311.
      46 Id. at 314.
      47 Id. at 324–25.

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Relatedly, Dr. Allen explained that the IQ score of 86, although only measured
by a screening tool, was instructive, as it placed Ladd within the average range
of prisoners screened. 48 Similar to Garnett, Dr. Allen opined that the recent
score of 60 was unreliable because of malingering. 49
      Second, Dr. Allen testified that Ladd’s of possible adaptive deficits were
properly explained by Ladd’s anti-social personality disorder, because the
behavioral observations predominantly focused on aggression and anti-social
conduct, not on behavioral deficits typically associated with mental
retardation. 50
      Third, Dr. Allen explained that he administered the Vineland Adaptive
Skills Inventory, which he modified to adapt to Ladd. 51           Although this
inventory has not been normed on prisoners, Dr. Allen explained that Ladd’s
score placed him well within the middle, or average, range of the population. 52
Reviewing Ladd’s history, Dr. Allen opined that his adaptive deficits were due
to behavioral problems, not mental retardation, including deficits related to
functional academics, using community resources, inter-personal skills, and
communications skills. 53 Finally, Dr. Allen opined that, although possible, it
would be very unusual for someone to suffer from both mental retardation and
anti-social personality disorder. 54
      Following the evidentiary hearing, the district court issued a
memorandum opinion and order, wherein it concluded that it found the State’s
expert witness to be more persuasive. Accordingly, the district court denied



      48 Id. at 381–82.
      49 Id. at 352–60.
      50 Id. at 325–26.
      51 Id. at 364–66.
      52 Id. at 364–80.
      53 Id. at 333–48.
      54 Id. at 327.

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the application on February 15, 2013, concluding that Ladd had failed to
establish by a preponderance of the evidence that he was mentally retarded. 55
The district court then granted a COA on March 28, 2013.                     Ladd timely
appeals.
                                             II
       We begin with the State’s argument that the district court failed to apply
proper Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
deference to the state court proceedings. The State argues that the state courts
were not required to afford Ladd an evidentiary hearing, and accordingly the
district court should have afforded AEDPA deference to the state proceedings.
       AEDPA mandates deference to state court proceedings. If a “state court
has adjudicated a habeas petitioner’s claims on the merits, he may receive
relief in the federal courts only where the state court decision ‘resulted in a
decision that was contrary to, or involved an unreasonable application of
clearly established federal law’” 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.’” 56 And it is “axiomatic that infirmities in state
habeas proceedings do not constitute grounds for federal habeas relief.” 57
Nonetheless, we have explained that where there is “a significant substantive
liberty interest [at stake],” that liberty interest “entitles the petitioner to a set
of core procedural due process protections: the opportunity to develop and be
heard on his claim that he is ineligible for the death penalty.” 58 Thus, “when



       55 See Ladd v. Thaler, No. 1:03cv00239-RAS, 2013 WL 593927, at *11 (E.D. Tex. Feb.
15, 2013).
       56 Rivera, 505 F.3d at 355 (quoting 28 U.S.C. § 2254(d)).
       57 Moore v. Dretke, 369 F.3d 844, 846 (5th Cir. 2004) (per curiam) (internal quotation

marks and citation omitted).
       58 Blue v. Thaler, 665 F.3d 647, 657 (5th Cir. 2011) (quoting Wiley v. Epps, 625 F.3d

199, 207 (5th Cir. 2010)).
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                                        No. 13-70011
a petitioner makes a prima facie showing of mental retardation, a state court’s
failure to provide him with an opportunity to develop his claim deprives the
state court decision of deference ordinarily due under . . . AEDPA.” 59 This is
because where a “state court dismisses a prima facie valid Atkins claim without
having afforded the petitioner an adequate opportunity to develop the claim, it
has run afoul of the Due Process Clause, and that due process violation
constitutes an unreasonable application of clearly established federal law that
is sufficient to deprive the state court’s decision of AEDPA deference.” 60
Importantly, this does not require states to “give hearings to all persons with
Atkins claims” because “states [are given] discretion to set gateways to full
consideration and to define the manner in which habeas petitioners may
develop their claims.” 61
       The State rightly points to serious problems regarding the deference due
to the CCA’s judgment and whether the district court afforded proper deference
under AEDPA. This is in no small part directly attributable to the long length
of time this case was pending in the district court, during which the landscape
of AEDPA deference 62 and Atkins claims substantially changed. But we need
not reach this, as it is sufficient to say that the district court’s rejection of
Ladd’s Atkins claim following de novo review is, as we explain below, sound,
and the district court must be affirmed. Any want of deference to the state
court cannot, by definition, have injured the State.


       59  Id. at 656.
       60  Id. (citing Wiley, 625 F.3d at 207); see also Rivera, 505 F.3d at 358 (“The lesson we
draw . . . is that, where a petitioner has made a prima facie showing of retardation as Rivera
did, the state court’s failure to provide him with the opportunity to develop his claim deprives
the state court’s decision of the deference normally due.” (citing Panetti v. Quarterman, 551
U.S. 930 (2007)).
        61 Id. at 657 (citing Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007)
        62 See, e.g., Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (“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.”).
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                                                III
          We turn to the merits of Ladd’s claim of mental retardation. We review
the district court’s factual findings for clear error and the district court’s
conclusions of law de novo. 63 A finding of fact is “clearly erroneous only if it is
implausible in the light of the record considered as a whole.” 64
          In Atkins, the Supreme Court left to the states the formulation and
adoption of their own definitions of mental retardation. 65 Under Texas law,
“mental retardation is a disability 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.” 66           The CCA defines a significant “subaverage intellectual
functioning . . . as an IQ of about 70 or below.” 67                   Because there is a
measurement error of approximately 5 points, “any score could actually
represent a score that is five points higher or five points lower than the actual
IQ.” 68        With respect to limitations in adaptive functioning, the CCA has
explained that “three adaptive-behavior areas are applicable to determining
mental retardation: conceptual skills, social skills, and practical skills.” 69
Importantly,           the   subaverage     intellectual    functioning     and   significant
limitations in adaptive functioning must be linked: “the adaptive limitations
must be related to a deficit in intellectual functioning and not a personality




          63   Rivera, 505 F.3d at 361 (citing Woods v. Quarterman, 493 F.3d 580, 584 (5th Cir.
2007)).
          Id. (quoting St. Aubin v. Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006)).
          64

          536 U.S. at 317.
          65
       66 Blue, 665 F.3d at 657–58 (citing Ex parte Briseno, 135 S.W.3d 1, 7–8 (Tex. Crim.

App. 2004)).
       67 Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim. App. 2010).
       68 Id.
       69 Id.

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disorder.” 70 A petitioner’s failure to establish “any one of these three elements
will defeat an Atkins claim.” 71
       The district court concluded that Ladd failed to establish an Atkins
claim. First, the district court found “by a preponderance of the evidence that
Ladd has significantly sub-average intellectual functioning.” 72 The district
court explained that this conclusion was compelled by (i) Ladd’s scoring 67 on
a Wechsler IQ test at age 13, and (ii) both parties’ experts agreeing that both
subsequently administered IQ tests, where Ladd achieved scores of 86 and 60,
are less reliable because the higher score of 86 was achieved on a less accurate
test instrument and the lower score of 60 was likely the result of malingering. 73
Second, the district court found that “Ladd has failed to establish by a
preponderance of the evidence that any of his deficits in adaptive functioning
are significant.” 74 The district court explained that although both Ladd’s and
the State’s experts agreed that Ladd “demonstrated deficits in adaptive
behavior in functional academics, social skills, work, and communication,” the
experts disagreed as to whether these deficits were properly attributed to his
mental retardation or his anti-social personality disorder. 75 The district court
considered the experts’ testimony as to each adaptive deficits and concluded
that the State’s expert’s testimony was more persuasive. It then concluded
that, as to his deficits in functional academics, social skills, and work, Ladd’s
deficits were properly attributed to his anti-social personality disorder. As to
his deficit in adaptive behavior in communications skills, the district court


       70  Id.
       71  Blue, 665 F.3d at 658 (citing Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006)
(“It is plain that [Briseno] requires that all three elements exist to establish mental
retardation.”).
        72 Ladd, 2013 WL 593927 at *8.
        73 Id.
        74 Id. at *10 .
        75 Id. at *8.

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explained that neither expert claimed that a deficiency in this skill could be
related to Ladd’s anti-social personality disorder. Accordingly, the district
court found that this deficit was related to his sub-average intellectual
functioning, but, under Texas law, Ladd must possess two deficits in adaptive
behavior. In addition, the district court found that to the extent Ladd has
deficits in his adaptive behavior, these deficits are not significant limitations.
In this regard, the district court found the State’s expert’s testimony to be more
credible and persuasive.
      Ladd argues that the district court committed clear error in concluding
that he was not mentally retarded. First, Ladd agrees with the district court’s
finding that Ladd has significantly sub-average intellectual functioning.
Second, Ladd argues that the district court clearly erred when it concluded (i)
that all but one of Ladd’s deficits in adaptive behavior are properly attributed
to his anti-social personality disorder, and (ii) that none of Ladd’s deficits in
adaptive behavior are significant. Ladd argues that it is highly unlikely that
Ladd would have subaverage intelligence and not have adaptive deficits. In
addition, Ladd argues that the district court erred in requiring Ladd to
demonstrate that his adaptive deficits were caused by his low intellectual
functioning, and not his anti-social personality disorder.
      The district court did not clearly err in finding that Ladd was not
mentally retarded.         To begin with, as the CCA has noted, the “adaptive
behavior criteria are exceedingly subjective[.]” 76 The district court held an
extensive evidentiary hearing, and, as we noted in Rivera, the district court
“having actually presided over the . . . evidentiary hearing, is in a better
position than this court to judge and weigh credibility of the witnesses who
testified on the extent, duration, and causes of [petitioner’s] adaptive


      76   Ex parte Briseno, 135 S.W.3d at 8.
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                                    No. 13-70011
functioning limitations.” 77 Here, the parties’ experts agreed that Ladd suffered
from some degree of deficit in adaptive functioning.          The experts sharply
disagreed as to whether these deficits were related to Ladd’s subaverage
intellectual functioning. The district court, having heard and evaluated the
testimony of each expert, found the State’s expert to be more persuasive.
Considering that the district court is in the better position to reach such a
conclusion, and that such a conclusion can be supported by the evidence, we
find the district court’s determination plausible and thus survives clear error
review.
                                         IV
      For the foregoing reasons, we AFFIRM.




      77   505 F.3d at 363.
                                         15
