     Case: 16-70010      Document: 00513725837         Page: 1    Date Filed: 10/19/2016




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

                                      No. 16-70010                           FILED
                                                                      October 19, 2016
                                                                        Lyle W. Cayce
STEVEN LYNN LONG,                                                            Clerk

              Petitioner - Appellant

v.

LORIE DAVIS, 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. 3:12-CV-839


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The District Court denied Steven Long’s habeas petition. Because the
district court also denied his request for a Certificate of Appealability, Long
has filed a motion here for that Certificate. The motion is DENIED.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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             FACTUAL AND PROCEDURAL BACKGROUND
     On May 20, 2005, eleven-year-old Kaitlyn Smith spent the night with
her neighbor. Kaitlyn was reported missing the next morning. A search of the
neighborhood ensued. During the search, Kaitlyn’s grandfather found her
body beneath a vacant home after he noticed the skirting around the home had
been disturbed. Police found a bloody fingerprint near Kaitlyn’s body. It was
matched to Steven Long, who had been staying at the neighbor’s house. Later
that night, Long confessed to killing Kaitlyn.    Kaitlyn’s autopsy revealed
defensive abrasions and evidence of a prolonged and violent sexual assault.
Long was tried and convicted in state court in Dallas County, Texas.
     Both the prosecution and the defense presented extensive evidence
during the penalty phase. The prosecution detailed Long’s history of violence
and sexual deviance.     As a teenager, Long was arrested three times and
identified as having homicidal tendencies. He once participated in a drive-by
shooting. During his various terms of incarceration, Long exhibited lascivious
behavior and violated several prison rules. Outside of prison, Long was unable
to maintain relationships, often abusing the women he dated. His abusive
tendencies continued even as he was awaiting trial for Kaitlyn’s murder.
      Long’s mitigation evidence primarily concerned his atypical upbringing
and family background. His mother, Judy, testified she often neglected her
children — she would at times “go out to bars, take the children, and leave
them sitting in the car.” Judy gave her children alcohol at a young age and
threatened to leave them at an orphanage when they misbehaved. As a result,
Long’s sister was his primary caregiver. His sister moved out of the house as
a teenager, leaving Long alone. As a child, Long was arrested several times,
suffered anxiety attacks, and misbehaved at school.        His behavior only
worsened as he got older. Long once threatened his mother with a knife and
physically assaulted his daughter. Additionally, Long was sexually abused by
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a fellow inmate during one of his terms in prison. One expert opined that this
assault led Long to sexualize violence. After hearing all the evidence, the jury
sentenced Long to death. The Texas Court of Criminal Appeals affirmed. Long
v. State, No. AP-75539, 2009 WL 960598 (Tex. Crim. App. Apr. 8, 2009).
      Long then filed a state habeas petition challenging the validity of his
conviction and sentence. The parties presented evidence on the issue of Long’s
intellectual capacity, focusing mainly on whether he had malingered on his
intelligence tests to skew the results. Dr. Daneen Milam testified on Long’s
behalf after administering several tests, including the Wechsler Adult
Intelligence Scale to measure intelligence and the Holstead-Reitan Battery to
determine whether Long had suffered brain damage. Dr. Milam determined
Long had no brain damage but did have an IQ in the low 60s, which she
considered accurate based on consistency in Long’s reported IQ scores from
previous tests. On cross-examination, Dr. Milam conceded Long could have
put forth sub-optimal effort on her tests, which would result in a poor score.
She had not tested Long to determine whether he was malingering. She also
conceded Long did not score poorly on IQ tests until after he had been charged
with a capital offense.
      Toni Knox, a mitigation specialist, also testified on Long’s behalf. Knox
acknowledged that most of her professional work focused on eliminating the
death penalty. Even so, her testimony was largely unfavorable to Long’s
defense. She testified Long was manipulative and had never been diagnosed
as intellectually disabled. She also acknowledged that each of the mental
health professionals retained for trial believed Long had malingered on his
intelligence tests to skew the results.
      Finally, Long called Dr. Laura Lacritz to testify concerning the tests she
performed on him prior to trial. Like those administered by Dr. Milam, the
tests revealed Long had an IQ of 62, but Dr. Lacritz was concerned those
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results did not reflect the full measure of Long’s intellectual capacity. In fact,
Dr. Lacritz identified Long’s conversational style and his ability to play chess
and perform mathematical functions as reasons to doubt that Long was
intellectually disabled.
      In addition, the state had three primary witnesses. Dr. Randall Price
indicated Long was not intellectually disabled for several reasons. First, Long
took the California Achievement Test at seven years old, which indicated his
IQ was 91.      During his meetings with Dr. Price, Long reported not
remembering the details of his crime, despite offering a thorough confession to
police. Dr. Price believed Long’s attempt at exculpating himself was “a sign of
some kind of intellectual abstract thinking.” Also, Dr. Price testified Long read
novels, applied for credit, purchased a car, and worked multiple jobs, all of
which indicated a measure of intellectual function. Finally, Dr. Price noted no
one in Long’s family believed him to be intellectually disabled.
      Dr. Kelly Goodness, having been retained by Long’s trial attorneys, also
testified at the state habeas proceedings. Based on her interaction with Long,
Dr. Goodness did not believe Long to be intellectually disabled. She believed
his IQ was likely in the mid-80s. Dr. Goodness attributed Long’s adaptive
deficiencies to personality faults and drug abuse instead of intellectual
disability. Finally, Paul Johnson (Long’s trial attorney) testified he made
every attempt to unearth evidence before trial concerning circumstances that
might mitigate Long’s penalty. The three experts he retained all believed Long
to be malingering on the intelligence tests.
      After the multi-day evidentiary hearing, the state trial court
recommended denial of the petition. The Court of Criminal Appeals adopted a
majority of the recommended findings and denied relief. Ex parte Long, No.
WR-76324-01, 2012 WL 752547, at *1 (Tex. Crim. App. Mar. 7, 2012). Long
then filed a federal habeas petition in the Northern District of Texas. There,
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he presented seven grounds for relief, including intellectual disability. After
the presentation of evidence, Long requested a six-month continuance so he
could be retested to determine whether he had malingered on the intelligence
tests. The district court denied a continuance, any relief, and a Certificate of
Appealability (“COA”). Here, Long seeks a COA on the issue of intellectual
disability under Atkins v. Virginia, 536 U.S. 304 (2002).


                                 DISCUSSION
      To appeal the district court’s denial of his habeas petition, Long must
first obtain a COA. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A COA
may be granted “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If “a district court has
rejected the constitutional claims on the merits,” as occurred here, a “petitioner
must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.”             Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The issue is the “debatability of the
underlying constitutional claim, not the resolution of that debate.” Miller-El,
537 U.S. at 342. “This threshold inquiry does not require full consideration of
the factual or legal bases adduced in support of the claims”; instead, it involves
“an overview of the claims in the habeas petition and a general assessment of
their merits.” Id. at 336.
      “In death penalty cases, any doubts as to whether the COA should issue
are resolved in favor of the petitioner.” Moore v. Quarterman, 534 F.3d 454,
460 (5th Cir. 2008). In considering a COA on a claim denied on the merits by
a state court, we are controlled by 28 U.S.C. § 2254(d). That statute “imposes
a highly deferential standard for evaluating state-court rulings and demands
that state-court decisions be given the benefit of the doubt.” Hardy v. Cross,
132 S. Ct. 490, 491 (2011) (quotation marks omitted). A federal court may not
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grant habeas relief under Section 2254(d) unless the state court decision “was
contrary to federal law then clearly established” by the Supreme Court;
“involved an unreasonable application of” clearly established Supreme Court
precedent; or “was based on an unreasonable determination of the facts in light
of the record before the state court.” Harrington v. Richter, 562 U.S. 86, 100
(2011) (citations and quotation marks omitted).
      A state court’s decision is contrary to clearly established federal law if
the Supreme Court has reached a different conclusion on a question of law or
has decided a similar case the opposite way. Higgins v. Cain, 720 F.3d 255,
260 (5th Cir. 2013). A state court’s application of federal law is unreasonable
if the court identifies the correct legal principles but applies them
unreasonably to the facts of the case before it. Id. “The state court’s factual
findings are presumed to be correct unless the habeas petitioner rebuts the
presumption by clear and convincing evidence.” Id. (quotation marks omitted).
      Long argues the district court erred in these ways: (1) finding three
experts evaluated Long for intellectual disability and determined he was not
intellectually disabled; (2) concluding Long was malingering, despite the fact
that several IQ tests revealed nearly the same results; and (3) denying Long’s
request for a continuance of the evidentiary hearing to allow another
assessment of malingering.


      1. Intellectual Disability Testing
      The district court found the experts had, in fact, tested Long for
intellectual disability and they agreed he did not satisfy the standard. In
Atkins, the Supreme Court left “the task of developing appropriate ways to
enforce the constitutional restriction upon [the] execution of sentences” to the
states. 536 U.S. at 317. In Texas, Atkins intellectual disability “is a disability
characterized by: (1) significantly subaverage general intellectual functioning;
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(2) accompanied by related limitations in adaptive functioning; (3) the onset of
which occurs prior to the age of 18.” Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.
Crim. App. 2004) (quotation marks omitted). To succeed on an Atkins claim, a
defendant must prove his intellectual disability by a preponderance of the
evidence. Lewis v. Quarterman, 541 F.3d 280, 283 (5th Cir. 2008).
      Satisfying each element of the Briseno test is necessary to a finding of
intellectual disability in Texas. Blue v. Thaler, 665 F.3d 647, 662 (5th Cir.
2011). A determination as to whether any of the elements are satisfied is a
question of fact. Briseno, 135 S.W.3d at 9. Both the state and the district
court’s findings of fact are reviewed for clear error. Thompson v. Cain, 161
F.3d 802, 805 (5th Cir. 1998). “A finding is clearly erroneous only if it is
implausible in the light of the record considered as a whole.” St. Aubin v.
Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006).
      Only the first element is at issue here. A “significantly subaverage
general intellectual functioning [is] generally defined as an IQ below 70.”
Eldridge v. Quarterman, 325 F. App’x 322, 324 (5th Cir. 2009).             Long’s
attorneys obtained the assistance of three mental health professionals — Drs.
Goodness, Crowder, and Lacritz — before trial, who tested Long for intellectual
disability. All agreed that Long is not intellectually disabled. Reasonable
jurists would not debate those findings. See Slack, 529 U.S. at 484.
      Long argues that no expert evaluated him for intellectual disability
before trial. In Long’s view, Dr. Goodness conducted no testing whatsoever,
and Dr. Crowder was only retained to conduct sanity and competency testing.
Long admits Dr. Lacritz administered an IQ test and found the results were
invalid because of malingering. Thus, Long was evaluated for intellectual
disability but failed to meet the first element of the Briseno test because of his
malingering. We agree with the Government that “tested” should not be read
in a hyper-technical sense. As long as at least one expert evaluated Long for
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one of the intellectual disability criteria, the district court did not err because
“fulfillment of each prong is necessary to a finding of” intellectual disability.
See Maldonado v. Thaler, 625 F.3d 229, 241 (5th Cir. 2010).
      We also note that Long did not show limitations in his adaptive
functioning related to his intellectual ability. See Ex parte Hearn, 310 S.W.3d
424, 428 (Tex. Crim. App. 2010). True, Long demonstrated some adaptive
deficiencies. For example, he struggled in school, never lived independently,
and experienced difficulty in the workplace. Still, Long did not show that these
adaptive deficiencies were related to his alleged intellectual disability as
required by Hearn. Instead, the evidence suggested any adaptive behavior
deficits were the result of drug use, behavioral problems, lack of motivation,
and a dysfunctional family environment.
      As to whether the experts agreed Long was not intellectually disabled,
the state court record supports the district court’s summation. Long’s trial
counsel testified that all of the experts told him they did not believe Long was
intellectually disabled.    Dr. Goodness and Dr. Lacritz confirmed their
statements to that effect. Dr. Crowder did not testify, but two other witnesses
indicated Dr. Crowder did not believe Long was intellectually disabled either.
Based on our assessment of the evidence, reasonable jurists would agree that
Long had been tested for intellectual disability before trial and that all mental
health professionals agreed he was not intellectually disabled.


      2. Malingering
      The district court determined the state court acted reasonably in finding
Long’s IQ scores were within the range of intellectual disability due to his
malingering. Long contends “the amazing consistency between [his] IQ scores
. . . given by three different clinicians over a three-and-a-half-year period” is
compelling evidence his low IQ scores are accurate. Long highlighted expert
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testimony that his lifestyle before incarceration was consistent with the
lifestyle of someone who was intellectually disabled. Long further asserts Dr.
Milam testified he was intellectually disabled and not malingering.
      A “state habeas court [is] permitted to discount [IQ] scores due to the
incentive to malinger.” Taylor v. Quarterman, 498 F.3d 306, 308 (5th Cir.
2007). Several experts agreed Long was giving less than full effort on the tests
administered. The fact that some experts disagreed and the state habeas court
chose to side with the majority opinion does not render the court’s opinion
unreasonable. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983). The
opinions that Long was malingering were supported by evidence that he had
not put forth effort in most areas of his life; that he was inconsistent in
providing information about his crimes to police; and that he only scored below
the intellectual disability threshold on tests after being charged with capital
murder. Based on controlling law and the deferential standard of review,
reasonable jurists would not consider this finding debatable.


      3. Continuance
      Finally, Long contends the district court erred by refusing to grant his
request for a six-month continuance to undergo additional testing. Long’s
primary argument on this point is that “the question whether [he] was
malingering when he took the IQ tests was the only contested issue,” so the
state court violated his due process rights by refusing to grant additional time.
      In the Atkins context, petitioners are not guaranteed evidentiary
hearings but merely “the opportunity to be heard.” Tercero v. Stephens, 738
F.3d 141, 148 (5th Cir. 2013). In Tercero, the state court did not afford the
petitioner an evidentiary hearing. Id. Instead, the court permitted him to file
successive habeas applications and “did not limit the evidence he could attach
to that pleading.” Id. The state fully responded to each argument presented
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in the petition. Id. The petitioner, therefore, had the power to define the
boundaries of what the state court would consider; the court was not required
to probe for additional arguments. Id. On appeal, we found “the state court
provided [the petitioner] with a full opportunity to be heard.”          Id.   No
evidentiary hearing was necessary because the petitioner had previously
developed his claims in full. Id. at 148–49.
      As in Tercero, the state court here satisfied the dictates of procedural due
process. Long was afforded a three-day evidentiary hearing during which
several mental health professionals and his trial counsel testified as to the
evidence of his intellectual disability. Nothing suggests the court limited its
consideration of Long’s Atkins claim. Instead, the record shows the court
conducted an exhaustive review of the vast amount of evidence presented.
Long still requested a six-month continuance during which additional testing
could be done. Long, though, offered no evidence to indicate the testing might
yield results different from those already obtained. In fact, he could not show
with certainty his expert would even readminister the test, stating instead that
she might “possibly” do so. As a result, Long cannot show the “substantial
prejudice” necessary to establish a denial of procedural due process. Davis v.
Mann, 882 F.2d 967, 975 (5th Cir. 1989).
      The district court’s decisions that Long was tested for intellectual
disability, that he malingered on those tests, and that he was afforded
adequate process are not debatable among jurists of reason. Long’s request for
a COA is DENIED.




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