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

                                                 FILED
                                                                            June 19, 2009

                                       No. 08-70036                    Charles R. Fulbruge III
                                                                               Clerk

KENNETH WAYNE THOMAS

                                                   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. 3:07-cv-00039


Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
       Kenneth Thomas was convicted of capital murder in 1987 and sentenced
to death. His sentence and conviction on direct review were upheld. Thomas
filed his first federal habeas petition in 2000 which was denied. Following the
Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002), Thomas
filed a successive state habeas application alleging he was mentally retarded.
The state trial court conducted an evidentiary hearing on Thomas’s allegation,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-70036

and recommended that his claim be denied.         The Texas Court of Criminal
Appeals adopted the state trial court’s findings of fact and denied relief.
      This court granted Thomas’s motion for authorization to file a successive
petition for writ of habeas court on his mental retardation claim. In re Thomas,
225 F. App’x 222 (5th Cir. 2007). His successive petition was denied by the
district court, which found that the state court’s evidentiary hearing provided
Thomas a full and fair opportunity to present his claims and that the state court
finding that Thomas was not mentally retarded was reasonable based on the
evidence.   Thomas subsequently filed an application for a Certificate of
Appealability (COA) on the issue of his entitlement to an evidentiary hearing
and the merits of his Atkins claim, which the district court denied. He now
applies to this court for a COA. We deny his application for a COA.
                                        I.
      Thomas must make “a substantial showing of the denial of a constitutional
right” for this court to issue a COA. 28 U.S.C. § 2253(c)(2). The Supreme Court
has stated the applicable standard of review in these cases as follows:
      Under the controlling standard, a petitioner must “sho [w] that reasonable
      jurists could debate whether (or, for that matter, agree that) the petition
      should have been resolved in a different manner or that the issues
      presented were ‘adequate to deserve encouragement to proceed further.’”
      [Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
      463 U.S. 880, 893, n.4 (1983))].
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). In determining whether a COA
should issue, a court does not have to determine that “the appeal will succeed.”
Id. at 337. Instead, the court must only ask “whether [the] resolution was
debatable amongst jurists of reason.” Id. at 336. Therefore, we must determine
whether reasonable jurists could debate whether the district court should have
granted Thomas’s request for an evidentiary hearing. “We review [a] federal
district court’s refusal to grant an evidentiary hearing on the Atkins issue for an
abuse of discretion.” Hall v. Quarterman, 534 F.3d 365, 367 (5th Cir. 2008). “[A]

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district court abuses its discretion in not holding an evidentiary hearing only if
the state court failed to provide a full and fair hearing.” Id. at 368-69.
      A district court must look to the terms of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) in determining whether a petitioner is
entitled to an evidentiary hearing.
      Under AEDPA, Congress prohibited federal courts from granting habeas
      relief unless a state court's adjudication of a 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,” § 2254(d)(1), or the relevant state-court decision “was
      based on an unreasonable determination of the facts in light of the
      evidence presented in the State court proceeding.” § 2254(d)(2).
Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Thomas does not argue that the
law applied by the state court was incorrect; he only argues that the state court’s
determination that he is not retarded is unreasonable in light of the evidence
presented to that court. “AEDPA also requires federal habeas courts to presume
the correctness of state courts' factual findings unless applicants rebut this
presumption with ‘clear and convincing evidence.’ § 2254(e)(1).” Id. at 473-74.
Therefore, the state court’s determination is due deference unless Thomas points
to clear and convincing evidence that he is mentally retarded. “[A] district court
is not required to hold an evidentiary hearing” where the record contradicts the
petitioner’s factual allegations. Id. at 474.
                                        II.
      As indicated above, following the Supreme Court’s decision in Atkins, the
state court conducted an evidentiary hearing on Thomas’s claim that he was
mentally retarded. At the hearing, Thomas presented expert testimony on his
mental status to establish that he is mentally retarded. Under Texas law, a
petitioner must demonstrate that he has: “(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.” Ex parte


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Briseno, 135 S.W.3d 1, 7 (Tex. Crim App. 2004) (footnotes omitted)
(acknowledging Texas has embraced the American Association on Mental
Retardation’s (“AAMR”) definition of mental retardation); see also Atkins, 536
U.S. at 309 n.3 (setting forth both the AAMR’s and the American Psychiatric
Association’s definitions of mental retardation).
      The first factor, subaverage intellect, is typically established by looking to
IQ tests such as the Wechsler Adult Intelligence Scale (WAIS) and finding a
score of 70 or below. See id. at 308 n.5 (noting that, at the time, the WAIS-III
was “the standard instrument in the United States for assessing intellectual
functioning”); Briseno, 135 S.W.3d at 7 n.24. Thomas has taken three IQ tests.
The first was administered in 1986 (the same year he committed the capital
murder) by Dr. Lovitt. Thomas, then 25 years old, scored 75 on that test. In
1987, Dr. Hom administered another test and Thomas scored a 77. Finally, in
2003, Dr. Kessner administered the third test and Thomas, 42 years old, scored
a 67. The state court concluded that the 1986 test administered by Dr. Lovitt
provided “the most accurate assessment of [Thomas’s] IQ.” This IQ test was
taken closest in time to the crime and Dr. Lovitt, who administered that test,
had been hired by the defense in preparation for a competency hearing. It was
also consistent with Thomas’s 1987 IQ test and mental health assessments
performed throughout Thomas’s life. Taking the standard error of measurement
into account, the state court found that Thomas’s “true” IQ score was within the
70-80 range, which indicates “borderline intellectual functioning, not mental
retardation.”
      The state court went on to consider the next element of a mental
retardation claim, limitations in adaptive functioning. This is evaluated by
looking at eleven factors set forth in Atkins: communication, self-care, home
living, social interpersonal skills, use of community resources, self-direction,
functional academic skills, work, leisure, health and safety. Atkins, 536 U.S. at

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309 n.3. Along with these criteria, Texas courts look to additional evidentiary
factors:
      •       Did those who knew the person best during the developmental stage
              - his family, friends, teachers, employers, authorities - think he was
              mentally retarded at the time, and if so, act in accordance with that
              determination?
      •       Has the person formulated plans and carried them through or is his
              conduct impulsive?
      •       Does his conduct show leadership or does it show that he is led
              around by others?
      •       Is his conduct in response to external stimuli rational and
              appropriate, regardless of whether it is socially acceptable?
      •       Does he respond coherently, rationally, and on point to oral or
              written questions or do his responses wander from subject to
              subject?
      •       Can the person hide facts or lie effectively in his own or others'
              interests?
      •       Putting aside any heinousness or gruesomeness surrounding the
              capital offense, did the commission of that offense require
              forethought, planning, and complex execution of purpose?
Briseno,   135 S.W.3d at 8-9.
      The state court examined all of these factors individually and determined
that Thomas did not present evidence that he had limitations in adaptive
functioning.     It looked at affidavits from Thomas’s family members, and
determined that while Thomas was slow, he did not demonstrate limitations in
adaptive functioning.       Thomas demonstrated organizational skills while
incarcerated, successfully following a weight-loss plan and using a calender to
keep track of his appeals. The state court also looked at the actions of Thomas
after the crime was committed, and concluded that his disposal of the weapon
and concealment of the crime demonstrated forethought, planning, and rational
behavior.
      The state court considered expert testimony from Thomas’s expert, Dr.
Garnett, who argued that an individual’s adaptive strengths should not be
considered in evaluating his adaptive abilities, and that only his weaknesses

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should be considered when making a determination of mental retardation. The
state court rejected this contention, and found that the Briseno factors “clearly
contemplate consideration of a person’s behavioral strengths as well as
weaknesses.” In looking at the evidence, the state court concluded that Thomas
“does not have significant deficits in adaptive behavior and that applicant
functions in the borderline range of intelligence.”
      The final element in evaluating a mental retardation claim is whether the
prior two elements - subaverage intellectual functioning and deficits in adaptive
functioning - were evident before the individual was 18 years old. Thomas
argued that he had suffered a brain injury as a child, but the state court
determined that the evidence did not support this contention. Thomas also
argued that his score of 67 on the 2003 IQ test indicated that he demonstrated
subaverage functioning before he was 18 years old. However, the state court
found that IQ scores are generally stable through from childhood through early
adulthood, and decline as a person ages, and found the score of 67, produced
when Thomas was 42, was not as reliable as the test taken when he was 25. The
state court determined that Thomas presented no evidence that he demonstrated
either subaverage intellect or deficits in adaptive functioning before he was 18.
      Overall, the state court made 249 individual findings of facts and
conclusions of law at the end of its evidentiary hearing. During that hearing,
Thomas presented expert testimony and other evidence to the state court, and
the State presented its own evidence including expert testimony. Evidence
supported the arguments of both parties, and the state court, which had the
opportunity to observe witnesses and evaluate their testimony, concluded that
Thomas was not mentally retarded. This conclusion was based on a reasonable
determination of the facts in light of the evidence before it, and Thomas points
to no “clear and convincing evidence” that this conclusion is incorrect. See §
2254(d)(2), (e)(1). The district court concluded that Thomas had a full and fair

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hearing before the state trial court, and we agree. Therefore, it was not an abuse
of discretion for the district court to deny Thomas’s request for an evidentiary
hearing, and reasonable jurists could not dispute with the district court’s
conclusion. See Hall, 534 F.3d at 368-69.
                                         III.
      Thomas     presents   other    specific   challenges   to   the   state   court’s
determination that he is not mentally retarded. He argues first that a theory
known as the Flynn Effect should have been applied to his IQ test scores,
lowering them below the necessary 70-point threshold. He contends that the
record contradicts the state’s conclusion that the Flynn Effect should not be
applied. He also argues that the testimony of the state’s expert, Dr. Price, is
internally contradictory and that our decision in Guidry v. Dretke, 397 F.3d 306
(5th Cir. 2005) required the district court to at least hold an evidentiary hearing.
These arguments shall be considered in turn.
            A. The Flynn Effect
      Thomas argues that the state court erred in accepting his unadjusted IQ
scores as accurate assessments of his intelligence. Instead of accepting those
scores, Thomas argues that his IQ scores should be adjusted downward to
account for the Flynn Effect. The Flynn Effect is a theory published by Dr.
James R. Flynn that argues that IQ scores have gone up over the years, and that
when a test is administered years after its publication, the results should be
adjusted downward to account for the lapse in time between publication and its
administration. Thomas argues that the Flynn Effect should be applied to his
IQ scores, reducing them in proportion to the time elapsed since the publication
date. Thomas has been tested with three different versions of the WAIS. In
1986, he took the WAIS-R, which was published in 1981. If the Flynn Effect
were applied to this test, Thomas’s score of 75 would be reduced to 73. In 1987,
Thomas took the WAIS, which was published in 1955. Applying the Flynn Effect

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to this test would reduce his score of 77 to 67. Thomas took the WAIS-III in
2003, and this version of the test was published in 1997. The Flynn Effect would
reduce his score on this test from 67 to 65.
      Both Thomas’s expert, Dr. Kessner, and the State’s expert, Dr. Price,
testified about the Flynn Effect. Dr. Kessner opined that the reduction in scores
based on the Flynn Effect should be applied to all of Thomas’s test scores,
including the 2003 test that she administered. However, she acknowledged that
there is some dispute as to the applicability of the Flynn Effect, particularly with
regard to individuals of low intelligence. Dr. Price gave his own opinion of the
Flynn Effect, and testified that while he was aware of its existence, it was
inappropriate to apply it to an individual’s test scores. Price stated that the
Flynn Effect captured a “group effect,” not an individual one, and that there was
controversy over what caused the IQ scores to rise over time.
      Thomas argues that this panel’s previous decision granting him
authorization to file a successive federal habeas petition recognized the Flynn
Effect as an accepted scientific theory. We disagree. The panel did not make a
determination about the reliability of the theory or if it was applicable to
Thomas. It simply said that the claim “warrant[ed] further exploration by the
district court.” Thomas, 225 F. App’x at 224. The district court conducted this
exploration, and determined that the state court had made reasoned findings of
fact as to the applicability of the Flynn Effect. We agree with the district court
that the state court’s determination that the Flynn Effect should not be applied
was not unreasonable.
      Thomas argues that the state court, despite its discussion and rejection of
the Flynn Effect, should have made express findings that his unadjusted IQ
scores represented a true measure of his intelligence. We read the state court’s
findings as to the reliability of the 1986 score as sufficient, and nothing more
explicit was necessary. IQ tests have long been accepted by courts as evidence

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in evaluating mental retardation claims. See Atkins, 536 U.S. at 209 n.5; Morris
v. Dretke, 413 F.3d 484, 489 (5th Cir. 2005). Thomas’s own expert acknowledged
the WAIS-III is the current “gold standard” for assessing intellectual abilities.
We agree with the district court that reasonable jurists would not debate that
the state court’s decision that the 1986 test was an accurate assessment of
Thomas’s IQ was reasonable based on the facts before it.
             B.   Guidry v. Dretke
      Thomas also argues that the evidence presented at the evidentiary hearing
is so contradictory that the district court should have granted an evidentiary
hearing. He relies on Guidry v. Dretke, 397 F.3d 306, in which this circuit held
that a district court did not abuse its discretion when it chose to grant an
evidentiary hearing as to questions of fact presented in the state court. In that
case, police, lawyers, and the defendant provided conflicting testimony, and the
state court ignored the testimony favorable to the defendant. Id. at 315. The
State argued that the state court’s silence meant the court had made “implied”
findings as to the reliability of the testimony. Id. at 325. “[T]he district court
concluded the trial court’s decision ‘was based on an unreasonable determination
of the facts.’” Id. at 326. In light of this, this court held that the district court
did not abuse its discretion in conducting an evidentiary hearing. Id. at 324.
      While the record in this case does have evidence both supporting and
opposing the application of the Flynn Effect, it is not analogous to the situation
in Guidry. There, testimony of conflicting fact witnesses was completely ignored
by the trial court in its findings of fact. Here, the state court considered all of
the available evidence before it, and made findings that took into consideration
all of the evidence. In particular, the state court considered the testimony of Dr.
Price and Dr. Kessner as to the applicability of the Flynn Effect and determined
that Dr. Price was more persuasive. The state court concluded that “it is not a
generally accepted professional practice to automatically adjust individual IQ

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scores to accommodate the group statistical concept known as the Flynn Effect.”
The state court also considered the testimony of Thomas’s expert Dr. Garnett,
and the determined that he was biased in favor of Thomas. The state trial judge
reached these conclusions after observing the witnesses and considering the
evidence. Once again, reasonable jurists would not debate that the state court’s
decision was reasonably based on the evidence before it.
                                      IV.
      Reasonable jurists would not debate the correctness of the district court’s
order. The district court did not err in denying Thomas an evidentiary hearing
or in accepting as reasonable the state court’s finding that Thomas was not
mentally retarded. Therefore, Thomas’s application for a COA is DENIED.




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