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

                                                 FILED
                                                                           August 21, 2009

                                       No. 05-70038                    Charles R. Fulbruge III
                                                                               Clerk

ERIC LYNN MOORE

                                                   Petitioner-Appellee
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                   Respondent-Appellant




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                                 No. 6:03-CV-224


Before SMITH, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
       The state’s appeal of the district court’s grant of Eric Lynn Moore’s petition
for writ of habeas corpus was returned to this panel from the en banc court. We
affirm.
                                              I
       Moore was convicted and sentenced to death for the murder of Helen Ayers
in 1991.     The Texas Court of Criminal Appeals (“TCCA”) affirmed Moore’s


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 05-70038

conviction and death sentence in 1994, and rejected Moore’s first habeas
petition. The federal district court denied Moore’s habeas petition and this
Court affirmed in 2002. See Moore v. Cockrell, No. 01-41489, 54 F. App’x. 591
(5th Cir. 2002).
      In 2002, the United States Supreme Court decided Atkins v. Virginia, 536
U.S. 304, holding that the execution of a mentally retarded inmate violates the
Eighth Amendment. Moore filed a second state habeas petition with the TCCA,
claiming that he was mentally retarded and thus ineligible for the death penalty
under Atkins. The TCCA denied Moore’s claim. Ex Parte Moore, No. 38,670-02
(Tex. Crim. App 2003). Moore then filed a federal habeas petition, again making
his Atkins claim. This Court authorized him to file a successive §2254 petition.
In re Moore, No. 03-40207, 67 F. App’x. 252 (5th Cir. May 12, 2003). Further
procedural activity ensued in this Court and in the district court, eventually
resulting in Moore being granted an evidentiary hearing by the district court.
After considering the evidence, the district court found Moore to be mentally
retarded and enjoined the State from executing him.
      The State appealed the district court’s ruling. This panel reversed the
ruling on procedural grounds. Moore v. Quarterman, 454 F.3d 484 (5th Cir.
2006). Moore petitioned for rehearing en banc, and the panel withdrew its
opinion, replacing it with a second opinion that also reversed the district court
on procedural grounds. Moore v. Quarterman, 491 F.3d 213 (5th Cir. 2007)
Moore filed a second petition for rehearing en banc, which was granted. The en
banc Court reversed the panel, finding that Moore had established cause and
prejudice for failure to exhaust his Atkins claim in state court. The case was
returned to the panel for review of the district court’s determination on the
merits of Moore’s Atkins claim. Moore v. Quarterman, 533 F.3d 338, 342 (“We
return this case to the panel for review of the ultimate Atkins determination of
mental retardation under the clear error standard.”)

                                       2
                                        No. 05-70038

                                               II
       To succeed on an Atkins claim, a defendant must prove by a preponderance
of the evidence that he is mentally retarded. Lewis v. Quarterman, 541 F.3d
280, 283 (2008). We review a district court’s findings of fact for clear error and
its conclusions of law de novo. 28 U.S.C. § 2254(d); e.g. Lewis, 541 F.3d at 283.
The question of whether a defendant suffers from mental retardation is a
question of fact, and thus subject to clear error review.                       See Clark v.
Quarterman, 457 F.3d 441, 444 (5th Cir. 2006).
       Factual findings are clearly erroneous only if they are implausible in light
of the record as a whole. Rivera v. Quarterman, 505 F.3d 349, 360 (5th Cir.
2007). “If the district court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently. Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 573-74 (1985) (citing United States v.
Yellow Cab Co., 338 U.S. 338, 342 (1949)). A reviewing court accords deference
to determinations of credibility made by the factfinder; this deference also
extends to findings based on “physical or documentary evidence or inferences
from other facts.” Id. at 574.
                                              III
       The district court conducted its assessment of the facts under the
framework developed by the Texas Criminal Court of Appeals in Ex Parte
Briseno, 135 S.W.3d 1 (Tex. Ct. Crim. App. 2004), which provides the guidelines
for determining mental retardation for the purposes of Atkins claims.1 Under


       1
        The Texas legislature has yet to enact legislation for determining mental retardation
under Atkins. See, e.g. Neel v. State, 256 S.W.3d 264, 270 (Tex. Ct. Crim. App. 2008) (“Over
four years later [following Briseno], the Texas legislature still has not enacted any legislation

                                               3
                                       No. 05-70038

Briseno, a capital defendant must prove by the preponderance of the evidence
that he is mentally retarded. This burden of proof applies to three showings: (1)
the defendant had significant subaverage intellectual functioning, (2) with
related limits in adaptive functioning, and (3) the onset of which occurred prior
to the defendant turning eighteen. This “three-pronged test” is an adaptation of
the definition of mental retardation provided by the American Association for
Mental Retardation (AAMR) and set out in section 591.003(13) of the Texas
Health and Safety Code. Briseno, 135 S.W.3d at 7. The district court focused
the bulk of its analysis on intellectual and adaptive functioning.2
                                              A
       Significantly subaverage intellectual functioning is defined as an IQ of
about 70 or below (approximately 2 standard deviations below the mean).
Briseno, 135 S.W.3d at 7 n.24 (citing to A MERICAN P SYCHIATRIC A SSOCIATION
D IAGNOSTIC AND S TATISTICAL M ANUAL OF M ENTAL D ISORDERS (Text Revision, 4th
ed. 2000) (hereinafter “DSM-IV”); A MERICAN A SSOCIATION ON M ENTAL
D EFICIENCY, C LASSIFICATION IN            M ENTAL R ETARDATION            N1    (Grossman
ed.1983)(hereinafter “AAMD”)).           IQ tests may overstate or understate the
subject’s actual level of intellectual functioning.            See, id., 135 S.W.3d at 8
(“Psychologists and other mental health professionals are flexible in their
assessment of mental retardation; thus, sometimes a person whose IQ has tested
above 70 may be diagnosed as mentally retarded while a person whose IQ tests
below 70 may not be mentally retarded.”).




on this matter.”)
       2
         The state does not argue that the district court erred in finding that Moore fulfilled
the third criterion of the Briseno test: manifestation of significantly subaverage intellectual
functioning and related adaptive deficits before the age of eighteen. See Moore v. Dretke,2005
WL 1606437,*15 (E.D.Tex. July 1, 2005).

                                              4
                                   No. 05-70038

        The standard instrument for measuring intellectual functioning is the
Wechsler Adult Intelligence Scales test (WAIS III). Atkins, 536 U.S. at 309 n.5.
Moore presented the results of two Wechsler-based IQ tests before the district
court. His scores were, respectively, 76 (on a Wechsler Adult Intelligent Scale-
Revised, or WAIS-R, test, ) and 66 (on the WAIS III test). He also presented the
results of a 1973 Primary Mental Abilities (PMA) Test that was administered by
his school; the result was 74. The most recent test, the WAIS III, was conducted
in conjunction with a test of non-verbal abilities (TONI-2), which reduces the
impact of the test taker’s educational background on his score. Moore’s expert,
Dr. Antonin Llorente (“Dr. Llorente”), testified that the TONI-2 results placed
him in the bottom eight-tenths percentile of the entire population.
        The district court based its holding that Moore had proved by
preponderance of the evidence that he exhibited significant subaverage
intellectual functioning on two facts: First, the court found that the State’s
expert, Dr. Gary Mears (“Dr. Mears”), agreed under cross-examination that
Moore satisfied the intellectual functioning prong of the Briseno test; second,
the court averaged the three IQ test scores, for a score of 72, and applied a five-
point standard error of measurement. The district court found that the result
satisfied the AAMR criterion of subaverage intellectual functioning. The State
argues that both findings were clearly erroneous because (1) its expert did not
“concede” that Moore satisfied the intellectual functioning prong; and (2) all
three of the test scores are so unreliable as to be invalid.
        The district court relied on the following exchange between Moore’s lawyer
and Dr. Mears, in reference to the intellectual functioning prong of the Briseno
test:
        Q: So you agree with Dr. Llorente that whether we use the DSM[-IV]
        definition or the AAMR definition, the first prong is satisfied in your
        professional opinion?



                                         5
                                  No. 05-70038

      A: The prong in terms of—I have some questions about his accuracy of
      score, but I would still, nevertheless, because of my opinion about the
      adaptive functioning, I will accept that.
      Q: You do accept that?
      A: I will accept it.
      Q: Because I don’t want to spend half a day talking about it?
      A: Right. I will accept it—regardless of the scoring errors, I still will
      accept it.
      The discussion then moved on to the adaptive functioning prong of the
Briseno test.
      Though the State contends that this exchange does not constitute a
“concession” by Dr. Mears that Moore satisfies the intellectual functioning prong,
we find that it is at best ambiguous and defer to the district court’s view of the
testimony. It is clear that Dr. Mears did not consider Moore to be mentally
retarded because (in his assessment) the strength of Moore’s adaptive
functioning outweighed any limitations in intellectual functioning. However, it
is also a reasonable interpretation of Dr. Mears’ testimony that he believed
Moore to have significant limitations in intellectual functioning based solely on
his IQ test scores.
      The dissent characterizes Dr. Mears’ prior testimony about the IQ tests as
breaking dramatically with his later agreement that Moore satisfied the
intellectual functioning prong. On the contrary, the report submitted by Dr.
Mears one day before he testified, which the dissent references, clearly states,
“I accepted the results of the administration, testing, and scoring of the
intelligence testing done by both Drs. Llorente and Fulbright. Psychometrically,
the scores are rather consistent considering a more than a decade lag.” Though
Dr. Mears discusses the IQ tests at length in his testimony, he never states that
any scoring error in the administration of the WAIS-III renders it so unreliable
or inaccurate such that it could not be used to determine intellectual functioning.

                                        6
                                   No. 05-70038

Rather, he maintains reservations about potential scoring errors (though he does
not state that the test should be thrown out altogether) and disagrees about the
degree to which reliance on the scores alone, without analysis of adaptive
functioning, can be the basis for making an overall determination of mental
retardation. Dr. Mears’ views on Moore’s adaptive functioning, and his overall
view that Moore is not mentally retarded, is not incompatible with agreement
that Moore’s intellectual functioning as measured by the IQ tests satisfies
Briseno. The point is that the district court’s interpretation of the exchange, in
light of the other documentary and evidentiary testimony, was reasonable. We
are not left with the “definite and firm conviction that a mistake was
committed.” Anderson, 470 U.S. at 574-75.
      The State argues next that the unreliability of all three test scores nullifies
any basis upon which to base the intellectual functioning finding. The State also
points to evidence it says indicates that Moore deliberately scored poorly on the
WAIS-III test.
      While there was conflicting testimony as to the presence of scoring errors
on all three tests, the district court had a clear basis in the record to find that
the scores were consistent after accounting for their margins of error, and were
thus collectively a sufficiently reliable indicator of Moore’s IQ. For example, Dr.
Mears stated at the hearing that he did not administer his own independent test
because he “had sufficient number of tests of the quantify intelligence tests [sic]
to at least get a view of how [Moore] compares with the people that take those
tests.” Dr. Llorente testified that “we are not trying to reach here a conclusion
about a patient’s intellectual level on the basis of one test alone. That is not the
right thing to do, and I agree with Dr. Mears on that. So it should be on the
basis of multiple, for example procedures, which is what we did.” In averaging
the test scores and relying on the five-point margin of error that Dr. Llorente



                                         7
                                       No. 05-70038

testified was applicable to each score, the district court attempted to find a way
to reconcile all three test scores.3
       The district court also heard expert testimony that supported the
averaging of the three scores and the application of the confidence interval. Dr.
Llorente extensively testified as to each of the testing protocols and noted that,
despite potential scoring errors and various other considerations, all three tests
demonstrated consistency in their findings; he also testified that a five point
margin of error was applicable to each test score.                Relying on the AAMR
definition and how the AAMR accounts for the standard error of measurement,
Dr. Llorente testified that a score of “75 and below would be considered mental
retardation.” In the expert report he submitted to the district court, Dr. Mears
also noted that the AAMR associates mild mental retardation with IQs ranging
from 50 to 75.4
       Thus, there were several bases to support the district court’s finding that
Moore satisfied the intellectual functioning prong of the Briseno test: the
existence of the WAIS III score below 70; Dr. Llorente’s testimony that the other
two adjusted test scores were consistent with the WAIS III score considering the
standard errors of measurement; and Dr. Llorente’s testimony that a score of 75




       3
        The district court could have relied solely on Dr. Llorente’s testimony and concluded
that Moore demonstrated significant subaverage intellectual functioning, especially as it
expressly found Dr. Llorente’s testimony to be more credible than Dr. Mears as to all three
Briseno criteria, given the greater comprehensiveness of Dr. Llorente’s examination. Moore,
2005 WL 1606437 at *13.
       4
         Dr. Mears never addressed in his testimony whether a score of 75 or below was
compatible with a finding of mental retardation. As previously discussed, Dr. Mears testified
that IQ test scores alone, without consideration of educational and cultural factors, could not
be used to determine whether an individual was mentally retarded.

                                              8
                                       No. 05-70038

or less constitutes mental retardation.5 Based on this evidence, we find no clear
error.
         Finally, the district court also rejected the evidence proffered by the State
of “malingering” by Moore. See id. (“Moore’s scores on [ ] tests [other than the
PMA] showed no response bias, which is an attempt by Moore to perform
poorly.”) .




         5
          Judge Smith would hold that, under Texas law, there is a bright-line IQ score cutoff
of 70 and apply it in this case. Notwithstanding the fact that the State never made this
argument before the Court, and thus we found no reason to address it, we note that neither
Briseno nor its progeny establish that such a bright-line cutoff exists. The TCCA decisions
which apply the Briseno criteria do not change the standard outlined in Briseno, which defined
significantly subaverage functioning as occurring in persons with an “IQ of about 70 or below
(approximately 2 standard deviations below the mean).” 135 S.W.3d at 7 n.24 (citing to
DSM-IV and AM ERICAN ASSOCIATION ON MENTAL DEFICIENCY , CLASSIFICATION IN MENTAL
RETARDATION N1 (AAMD)) (emphasis added). The Briseno court declined to create any
presumption that mental retardation must be established by IQ scores lower than 70. See
Briseno, 135 S.W.3d at 7 n.24 (declining to adopt Ohio’s rebuttable presumption that a
defendant is not mentally retarded if his or her IQ is above 70). Briseno did not alter the
standards outlined in Atkins, which states that mental retardation can be found in range of
70-75. 536 U.S. at 309 (“It is estimated that between 1 and 3 percent of the population has an
IQ between 70 and 75 or lower, which is typically considered the cutoff IQ score for the
intellectual function prong of the mental retardation definition.”) TCCA cases are not in
conflict with Briseno or Atkins. See e.g. Ex parte Modden, 147 S.W.3d 293, 298 (Tex. Crim.
App. 2004) (“the applicant’s IQ scores of 58 and 64 are well below the 70-75 score that
generally indicates subaverage general intellectual functioning.”). Briseno makes clear the
accounting for the standard error of measurement is an inquiry conducted by the factfinder
based on expert testimony. See Briseno, 135 S.W.3d at 7 n.24 (recognizing that
“[p]sychologists and other mental health professionals are flexible in their assessment of
mental retardation” and that a person tested with an IQ above 70 may be mentally retarded);
id. at 14 n. 53 (discussing expert disagreement as to application of the confidence interval and
ultimately rejecting application due to lack of evidence in the record).
        The criticism that the majority fails to take the opportunity to “make sense of Texas’s
jurisprudence regarding retardation. . . and to provide guidance” is misplaced. First, the
ultimate responsibility for providing guidance and clarifying the relevant standards, especially
to the degree that such “clarification” actually calls into question the language articulated in
Atkins and in Briseno, rests with the Texas courts, not with us. See Atkins, 536 U.S. at 317
(“[W]e leave to the State[s] the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of sentences.”) (internal citations omitted).
Second, we are reluctant to create new law in this area where the parties fail to identify or
address these novel issues.

                                               9
                                       No. 05-70038

       We therefore find that, because the record supports the district court’s
assessment of Moore’s intellectual functioning, the district court did not clearly
err in holding that Moore satisfies that prong of the Briseno test.
                                               B
       The district court spent the bulk of its opinion discussing evidence under
the adaptive functioning prong of the Briseno test.                Under this prong, the
factfinder looks for “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.”
Briseno, 135 S.W.3d at 7 n.25 (citing A MERICAN A SSOCIATION ON M ENTAL
D EFICIENCY (AAMD), C LASSIFICATION IN M ENTAL R ETARDATION 11).
       In arguing that the district court clearly erred in its evaluation of the
adaptive functioning evidence, the State primarily argues that the “great
weight” of the evidence cuts the other way, and that the district court abused its
discretion in how it conducted its factfinding. Again, however, we must be
mindful of the deferential lens through which we view the lower court’s
credibility determinations and conflicting testimony and evidence. The district
court relied exclusively on the AAMR’s guidelines for                 determining mental
retardation, and followed the AAMR in examination of three areas: Moore’s
conceptual skills, Moore’s social skills, and Moore’s practical skills.6 Moore, 2005


       6
          The criticism that the district court erred as a matter of law in “inconsistently”
applying the AAMR 9th and 10th editions was never made by the State, likely because no rule
on AAMR editions exists in either Texas or the 5th Circuit. Briseno itself cites both the AAMR
9th and AAMR 10th almost interchangeably, 135 S.W.3d. at 7-8, as Judge Smith
acknowledges. The court in Briseno also does not cite either the AAMR 9th or the AAMR 10th
for a definition of limitations in adaptive functioning, instead citing the American Association
on Mental (AAMD) definition. Id. at 7 n. 25 (citing AAMD at 11). This definition, while similar,
is not the same as either the AAMR 9th or the AAMR 10th. Further, this Court has never
distinguished between the AAMR 9th and the AAMR 10th.
        Given the absence of any briefing by the parties on this issue, we decline to create a

                                              10
                                  No. 05-70038

WL 1606437 at *5. The district court considered “experts’ clinical judgments and
other evidence to determine whether Moore [had] significant deficits that place
him approximately two standard deviations below the mean in adaptive
functioning.”   Id. at 6.   As part of assessing the “clinical judgment” of the
experts, the court looked to their training, experience with others who are
mentally retarded, and familiarity with the individual and his environment. Id.
The court also found Dr. Llorente’s testimony to be more credible than Dr.
Mears, especially with respect to evaluation of adaptive functioning, based on
the fact that Dr. Llorente spent a great deal more time than Dr. Mears
evaluating Moore and interviewing people who knew him:


      On all three criteria, but especially Moore’s adaptive functioning, the
      Court finds Dr. Llorente’s testimony and assessment more credible than
      Dr. Mears’s. Dr. Llorente spent seven to eight hours interviewing and
      evaluating Moore, while Dr. Mears spent only two to two and half hours.
      Dr. Llorente contacted and interviewed Moore’s family members to learn
      about Moore's childhood, while Dr. Mears did not contact or interview
      anyone because he thought their opinions were not useful. Instead, Dr.
      Mears relied exclusively on his comparatively brief interview with Moore
      and his review of Moore’s records. Dr. Llorente administered a large
      battery of tests to Moore. Dr. Mears also performed some tests on Moore,
      but not nearly as many.


      Id. at 13.
      We first address the State’s contention that the district court abused its
discretion in not considering “other factors” suggested in Briseno to help the
factfinder distinguish mental retardation from antisocial personality disorder.
These factors are: (1) whether those who knew the person best during the
developmental stage thought he was mentally retarded at the time, and if so,


new mandatory methodology in applying the AAMR. Adoption of such a rule would again
contravene Atkins’ mandate to leave the development of standards for weighing mental
retardation to the states. Atkins, 536 U.S. at 317.

                                        11
                                     No. 05-70038

acted according to that determination; (2) whether the person formulated plans
and carried them through; (3) whether the person’s conduct showed leadership;
(4) whether the person’s conduct in response to external stimuli is rational and
appropriate, regardless of whether it is socially acceptable; (5) whether the
person responds coherently, rationally, and on point to oral or written questions;
(6) whether the person hides facts or lies effectively in his own or others’
interests; (7) whether the commission of the offense required forethought,
planning, and complex execution of purpose. Briseno, 135 S.W.3d at 8. The
district court declined to apply these factors for the following reasons: it found
that the State did not argue or present evidence that Moore had an antisocial
personality disorder that accounted for his adaptive functioning deficiencies;
that, even if the argument that Moore suffered from antisocial personality
disorder had been raised, there was no evidence to support a finding that such
a disorder caused Moore’s cognitive and adaptive deficits; that the factors are not
part of the AAMR’s definition of mental retardation; and that application of the
factors is purely discretionary. Moore, 2005 WL 1606437 at 5 n.6.
      The district court did not abuse its discretion in not explicitly considering
the Briseno factors, as it found that the State did not present evidence to support
a finding that a personality disorder is responsible for Moore’s cognitive and
adaptive deficits. Id. Though the State does point to testimony provided by its
experts that Moore displayed symptoms of antisocial personality disorder, we
must defer to the district court’s determination that any such symptoms did not
cause his subaverage intellectual and limited adaptive functioning.7


      7
         Further, Briseno makes clear that the application of the factors is discretionary.
Briseno, 135 S.W.3d at 8 (“There are, however, some other evidentiary factors which
factfinders in the criminal trial context might also focus upon in weighing evidence as
indicative of mental retardation or of a personality disorder. . .”) (emphasis added).
Subsequent TCCA cases do not alter this discretionary language. See Hunter v. State, 243
S.W.3d 664, 666 ( Tex. Crim. App.2007) (“Other evidentiary factors that fact finders in the
criminal-trial context might also focus upon in weighing evidence as indicative of mental

                                            12
                                        No. 05-70038

       Notwithstanding the district court’s statement that it would not consider
the Briseno factors, the transcript of the evidentiary hearing indicates that the
court did consider evidence implicating the factors, including the factor that is
of particular importance to the State—Moore’s role in the crime for which he was
convicted.     The district court specifically asked Dr. Llorente whether his
evaluation of Moore’s mental retardation would be changed by evidence that
Moore was the leader of the crime, and Dr. Llorente responded that it would not.
Moore’s counsel then followed up by pointing out that in the 1991 assessment of
Moore, the report stated that Moore was more likely a follower than a leader,
and Dr. Llorente agreed that Moore’s mental capacity is such that he would be
easily manipulated and influenced by others. Though this discussion is absent
in the district court’s memorandum opinion, it is clear from the transcript of the
hearing that the court considered it.
       Evidence pertaining to the other Briseno factors also appears throughout
the evidentiary hearing. In the hundreds of pages of testimony, the district
judge heard: opinions from people who knew Moore during his developmental
stage about whether they thought he was mentally retarded; evidence about
Moore’s functioning at school and at work showing his planning skills and
response to external stimuli; and evidence about how he responds to oral and
written questions. For example, the district court looked at evidence from
Moore’s school records, and heard from numerous witnesses including teachers,
family members, classmates and acquaintances regarding his inability to
complete schoolwork and perform other basic tasks until the age of eighteen.


retardation include. . . “); Gallo v. State, 239 S.W.3d 757, 769-70 (Tex. Crim. App. 2007) (same)
(emphasis added); Ex Parte Modden, 147 S.W.3d 293, 296 (Tex. Crim. App. 2004) (“In Ex parte
Briseno, we concluded that the criteria in these definitions are subjective, and thus, we set out
some additional factors that factfinders may use.”); Rosales v. Quarterman, 291 F.App’x 558,
562 (5th Cir. 2008) (per curiam) ((“In Briseno, the TCCA also laid out a number of guidelines
that courts can consider when making mental retardation determinations.”) (emphasis added).


                                               13
                                 No. 05-70038

The district court also heard testimony that Moore was unable to properly dress
himself, could not tie his shoes, consistently scored well below his grade level,
and had difficulties learning to speak in sentences and paragraphs, as well as
testimony that Moore had difficulties performing basic assignments, and was a
follower who was easily tricked as a child. Moore, 2005 WL 1606437 at *7-*10.
The district court also heard from former co-workers and employers as to deficits
in his ability to complete work-related tasks.     Id. at *11.   In addition to
testimony and documentary evidence regarding Moore’s school and work
performance, the district court considered Dr. Llorente’s and Dr. Mears’
examinations of Moore, which included both oral and written evaluations. Id.
at *13.
      The district court relied on this evidence for its finding that Moore’s
deficits in adaptive functioning satisfy Briseno. The State argues that the
district court incorrectly viewed the evidence, arguing, for example, that
substantial evidence showed that Moore’s academic performance would have
improved if he applied himself, that Moore’s teachers did not remember his
inability to tie his shoes, that he was employed at several jobs and was
commended for good performance, and that he communicated and interacted
well with his classmates. Where evidence conflicts, however, we must defer to
the fact-finder’s decision as to which evidence to credit, and we may not simply
re-weigh the facts to come to a contrary conclusion. Anderson, 470 U.S. at 574.
The State also argues that a determination of mental retardation for the
purposes of Atkins cannot rest on such subjective factors. However, the Briseno
court acknowledged that the adaptive behavior criteria are indeed “exceedingly
subjective,” Briseno, 135 S.W.3d at 8, and we are bound to apply the law as set
out by the Texas courts.




                                       14
                                  No. 05-70038

                                       IV
      In arguing that the district court clearly erred, the State essentially re-
litigates the evidentiary case it presented below. However, the district court was
in a better position than this court to judge the credibility of the witnesses who
testified on the extent, duration, and causes of Moore’s intellectual and adaptive
functioning limitations. See Rivera, 505 F.3d at 363. Because its findings were
not “implausible,” they “survive[ ] clear error review.” Id. Accordingly, we
AFFIRM.




                                       15
                                        No. 05-70038

JERRY E. SMITH, Circuit Judge, dissenting:


       I respectfully dissent. The majority has produced an intellectually slug-
gish opinion, electing to sweep the district court’s legal (and factual) errors un-
der the proverbial rug rather than undertake its responsibility to make sense of
Texas’s jurisprudence regarding retardation, to apply it rigorously to Eric
Moore’s case, and to provide guidance. Haphazardly-applied standards of re-
view, casually-read caselaw, and superficially-scrutinized evidence make for an
unfortunate combination; here, they result in shallow analysis and the wrong
result. The only mitigation is that the majority opinion is unpublished, so it is
not binding on anyone or any court.


                                     I. Legal Background.
A. Standard of Review.
       The majority’s errors run deep, beginning with its exaggeratedly deferen-
tial standard of review. Moore was required to show, by a preponderance of the
evidence, that he satisfied the test for retardation established by Ex parte Bri-
seño, 135 S.W.3d 1, 12 (Tex. Crim. App. 2004), and its progeny.1 But though the
district court acts as the finder of fact on the overall question of mental retar-
dation,2 and though we review its factual findings for clear error,3 we apply a de
novo review of legal questions as a necessary means of determining whether the
ultimate factual question of retardation was decided without reversible error.
       The majority fails to acknowledge it, but there is no doubt on that score:



       1
        Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006) (Dennis, J.); see also Morris
v. Dretke, 413 F.3d 484, 497 (5th Cir. 2005).
       2
           Clark, 457 F.3d at 444.
       3
           Rivera v. Quarterman, 505 F.3d 349, 361 (5th Cir. 2007).

                                              16
                                         No. 05-70038

To the extent that errors of state or federal law “influence” the district court’s
decision, even that court’s findings of fact are accorded no deference whatsoever.4
“[A] judgment based on a factual finding derived from an incorrect understand-
ing of substantive law must be reversed,” 5 because incorrect legal conclusions
“taint” resulting factual findings.6 The clearly-erroneous standard of review
gives no shelter to a district court’s legal errors.
       Similarly, the district court cannot immunize its findings from reversal
merely by characterizing them as determinations of credibility. Anderson v. City
of Bessemer City, 470 U.S. 564, 575 (1985).7 Nor is the existence of some evi-
dence to support the district court’s finding sufficient to rule out a determination
of clear error entirely. Id. at 573.


                                    B. The Briseño Test.
       After the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002),
leaving the details of substantive and procedural protections for mentally re-



       4
        G.M. Trading Corp. v. Comm’r, 121 F.3d 977, 980 (5th Cir. 1997). Nor is the panel
permitted to defer to the district court in its interpretation of Texas’s definition of mental re-
tardation. See Hulin v. Fibreboard Corp., 178 F.3d 316, 318 (5th Cir. 1999) (Dennis, J.) (citing
Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991) (“We conclude that a court of appeals
should review de novo a district court’s determination of state law.”))
       5
         Mobil Exploration & Producing U.S., Inc. v. Cajun Constr. Servs., Inc., 45 F.3d 96, 99
(5th Cir. 1995).
       6
           Id. at 99 n.6 (quoting Fulton Nat’l Bank v. Tate, 363 F.2d 562, 567 (5th Cir. 1966)).
       7
           The Anderson Court explained,

       Documents or objective evidence may contradict the witness’ story; or the story
       itself may be so internally inconsistent or implausible on its face that a reason-
       able factfinder would not credit it. Where such factors are present, the court of
       appeals may well find clear error even in a finding purportedly based on a credi-
       bility determination.

Anderson, 470 U.S. at 575.

                                                17
                                         No. 05-70038

tarded convicts to the states, the Texas Court of Criminal Appeals (“TCCA”)
adopted the general diagnostic framework of the American Association on Men-
tal Retardation (“AAMR”)8 that is employed elsewhere in Texas state law. Bri-
seño, 135 S.W.3d at 7. The Texas Legislature has taken no action pursuant to
Briseño,9 and Texas courts have continued to apply it. The AAMR definition is
therefore authoritative, at least to the extent that it was incorporated by the
Briseño court, and subject to any modifications that Briseño requires.10
        The Briseño definition of retardation has three parts that the defendant
has the burden of proving by a preponderance of the evidence. Id. at 12. First,
Briseño requires that putatively retarded individuals have “‘significantly subav-
erage’ general intellectual functioning,” “defined as an IQ of about 70 or below
(approximately two standard deviations below the mean).” 11 In practice, IQ tests
typically are normed to an average IQ defined as 100, with a standard deviation
of 15 or 16. AAMR 10th at 60-66 (discussing various IQ tests). Retarded per-
sons are those with IQ’s two standard deviations or more below the mean, that
is, in the bottom 2-3% of the population as measured by IQ testing.
        Second, Briseño requires that low IQ be “accompanied by related limita-
tions in adaptive functioning.” Briseño, 135 S.W.3d at 7 & n.25 (internal quota-
tion marks omitted). “Impairments in adaptive behavior are defined as signifi-



        8
          See AAMR, MENTAL RETARDATION : DEFINITION , CLASSIFICATION , AND SYSTEM S OF SUP -
PORT   (10th ed. 2002) (“AAMR 10th”).
        9
        Neal v. State, 256 S.W.3d 264, 270 (Tex. Crim. App. 2008) (“Over four years later, the
Texas legislature still has not enacted any legislation on this matter.”), cert. denied, 129 S. Ct.
1037 (2009).
        10
          See Briseño, 135 S.W.3d at 9 & n.30 (noting that the legal definition of retardation
is different from, though informed by, “psychological diagnostic criteria”).
        11
       Id. at 7 & n.24 (quoting American Psychiatric Association, DIAGNOSTIC AND STATISTI-
CAL MANUAL OF MENTAL DISORDERS 39 (Text Revision, 4th ed. 2000) (“DSM-IV”)). See also
AAMR 10th at 35, 57 (discussing the AAMR 10th threshold IQ score for retardation).

                                               18
                                         No. 05-70038

cant limitations in an individual’s effectiveness in meeting the standards of ma-
turation, learning, personal independence, and/or social responsibility that are
expected for his or her age level and cultural group, as determined by clinical as-
sessment and, usually, standardized scales.” 12 Third, the defendant’s poor IQ
and adaptive functioning deficits must have manifested themselves before the
age of eighteen.13


                                III. Intellectual Functioning.
       The district court concluded that Moore satisfied the first prong of the Bri-
seño test by demonstrating an IQ of “about 70” or lower.14 The court explained
that it had two bases for that finding: first, what the court took to be the state’s
expert’s agreement with Moore that Moore’s IQ is impaired for purposes of Bri-
seño, and second, Moore’s history of IQ testing.15 The court, contrary to the ma-
jority’s analysis, committed reversible error on both counts.




       12
          Briseño, 135 S.W. 3d at 7 n.25 (quoting American Association on Mental Deficiency,
CLASSIFICATION IN MENTAL RETARDATION (Grossman ed. 1983)). See also AAMR 10th at 41
(defining “adaptive skills” as those abilities “that have been learned by people in order to func-
tion in their everyday lives”).
       13
            See Briseño, 135 S.W.3d at 7; AAMR 10th at 1.
       14
          Moore v. Dretke, No. 603-CV-224, 2005 WL 1606437, at *5 (E.D. Tex. Jul. 1, 2005)
(citing AAMR, MENTAL RETARDATION : DEFINITION , CLASSIFICATION , AND SYSTEM S OF SUPPORT
(9th ed. 1992) (“AAMR 9th”)).
       15
            The court stated, in full,

       With a five-point standard error of measurement and both experts agreeing that
       Moore satisfies this criterion for mental retardation, the Court concludes that
       Moore has proven by a preponderance of the evidence that he satisfies the
       AAMR criterion of subaverage intellectual functioning defined as an IQ of
       “about 70 or below.”

Moore v. Dretke, 2005 WL 1606437, at *5.

                                               19
                                         No. 05-70038

                                A. Dr. Mears’s “Agreement.”
       Moore submitted the expert testimony of Dr. Anatolin Llorente, who ad-
ministered an IQ test to Moore and testified that Moore’s IQ is below the Briseño
threshold of 70. The state’s expert, Dr. Gary Mears, stated on direct examina-
tion that, on account of various scoring errors in, and necessary adjustments to,
Moore’s IQ test scores, his IQ is significantly higher than 70, perhaps even over
80, and in any case not in the retarded range. 3 EH 239.16 Even before Mears
identified flaws in Llorente’s testing procedure, he argued in his report that be-
cause Llorente’s test did not take “cultural factors and educational factors” into
account, it critically understated Moore’s actual IQ and contributed to Llorente’s
misdiagnosis.17 Mears’s conclusions, if adopted by the district court, would have
precluded a finding of retardation.
       The colloquy that opened Mears’s cross-examination, however, has proven
a source of confusion for both the district court and the majority. The panel does
not quote the entire relevant dialogue, so I will:
       Q. Let’s start with IQ testing.

       A. Yes, sir.

       Q. Can we agree for the purposes of this hearing that Mr. Moore
       has significant limitations in intellectual functioning, the first prong
       of the mental retardation definition? That is my question.

       A. I agree that he has limitations in intellectual functioning, yes.

       Q. Now, do you agree to the extent we can move past that first
       prong of the mental retardation definition and focus on adaptive de-
       ficits?


       16
            I cite the evidentiary hearing transcript in the form “[volume] EH [page].”
       17
         Mears was not able to administer an IQ test himself, because Llorente had given one
only three months before, 3 EH 216, and a six-month interval is needed for accuracy. Hall v.
State, 160 S.W.3d 24, 30 n.14 (Tex. Crim. App. 2004).

                                               20
                                   No. 05-70038

      A. Yes, sir.

      Q. So you agree with Dr. Llorente that whether we use the DSM de-
      finition or the AAMR definition, the first prong is satisfied in your
      professional opinion?

      A. The prong in terms ofSSI have some question [sic] about his ac-
      curacy of the score, but I would still, nevertheless, because of my
      opinion about the adaptive functioning, I will accept that.

      Q. You do accept that?

      A. I will accept it.

      Q. Because I don’t want to spend half a day talking about it?

      A. Right, I will accept itSSregardless of the scoring errors. I still
      will accept it.

      Q. Okay.

      [Moore’s Attorney]. Your Honor, I hate to rest on that, but I think
      I need to. I think we have moved past that prong.

      THE COURT. All right. Proceed.

      Q. I appreciate that, sir.

      A. Thank you.

      Q. You have helped us move along. . . .

4 EH 3-4. The district court took this exchange as a concession by Mears and
concluded that “both experts agree[d] that Moore satisfies” the Briseño IQ cri-
terion. Moore v. Dretke, 2005 WL 1606437, at *5. The majority characterizes the
testimony as “at best ambiguous” and defers to the district court’s view.
      That is absurd; only one interpretation of Mears’s testimony is defensible,
and it is not the district court’s or the majority’s. It makes no sense to suppose


                                       21
                                        No. 05-70038

that Mears (1) submitted a report asserting that Moore had an IQ well in excess
of the ceiling for a retardation diagnosis and attacking the accuracy of Llorente’s
contrary evidence, (2) testified to that effect at great length on one day of a hear-
ing (even bringing up additional concerns with Llorente’s evidence), and (3) then
for no apparent reason conceded the issue entirely in the opening moments of his
cross-examination, first thing the very next morning. That, however, is exactly
what the district court and the majority say.
       Neither Moore, nor the district court, nor the majority has posited an ex-
planation for such a dramatic reversal. Nor can I imagine an explanation that
survives a moment of sober reflection on the actual course of the district court
proceedings. After eliminating rationalizations too fanciful even for Moore to
suggest in his own defense (but which, somehow, satisfy the district court and
the majority), what remains is only the conclusion that Mears made no conces-
sion at all.
       A broader review of the record only bolsters that view. On direct examin-
ation, immediately after explaining his objections to the IQ test administered by
Llorente, Mears emphasized that even if, hypothetically, Llorente’s IQ testing
were accepted as accurate, he was “so convinced” that Moore’s adaptive function-
ing far exceeded the level of mentally retarded persons that whether Llorente’s
IQ testing was adopted would not matter. 3 EH 220.18 Though the majority
chooses to ignore it, that is almost precisely the view Mears repeated to Moore’s
counsel on cross-examination. Mears’s testimony was consistent between direct


       18
          The majority lamely counters that on direct examination Mears “never clearly states
that the scores [qualifying Moore on the IQ prong] are invalid.” That is not only irrelevant,
but a flat misrepresentation of what happened at the hearing. The state did not need to show
that Llorente’s test was “invalid,” only that it was inaccurate or unreliable, and that is exactly
the opinion Mears presented. Relying on Mears’s failure use the word “invalid” in describing
Llorente’s test when he actually did testify that it was incorrectly administered and subject
to a variety of upward adjustments is no way for the majority to treat a transcript that, read
sensibly, provides no support for its opinion.

                                               22
                                      No. 05-70038

and cross examination; there was no concession.
       Plainly, Mears wished to present two independent bases for rejecting
Moore’s Atkins claim: Because Mears felt that the adaptive-functioning prong
was not even a close call in Moore’s case, it did not matter what the court de-
cided on the IQ issue, so Mears did not, in the words of Moore’s counsel, “want
to spend half a day talking about it.” Mears reserved his objections to Moore’s
IQ scores, but all parties preferred to focus on Mears’s subsequent testimony
regarding Moore’s adaptive functioning.19
       This is not a case in which two plausible theories explain the evidence, nor
is it a decision concerning a witness’s credibility where the panel must accord
the district court heightened deference under the clearly-erroneous standard of
review. See Anderson, 470 U.S. at 574-75. The district court misunderstood the
plain words of Mears’s testimony. The question is not whether Mears meant
what he said, or whether what he said was believable or true; rather, the ques-
tion is whether he said what he said, and that can be determined by the cold
words in the transcript without reference to credibility, inflection, or demeanor.
       Notwithstanding the majority’s headlong rush to defer to the district court,
the “definite and firm conviction that a mistake has been committed” is inescap-
able. Id. at 573. To the extent the court relied on Mears’s “agreement” in mak-
ing its finding on Moore’s IQ, that decision “is implausible in the light of the rec-
ord considered as a whole,” Rivera, 505 F.3d at 361, and the court committed
clear error. That disposes of one of the district court’s two bases for finding that
Moore’s IQ satisfies the requirements of Briseño.




       19
         The majority, in effect, penalizes the state because its expert cooperated with the
court—to the evident gratitude of Moore’s counsel—in expediting the hearing by avoiding what
the parties perceived as unnecessary discussion.

                                            23
                                         No. 05-70038

                                        B. Moore’s IQ.
                                          1. Criteria.
       The present panel’s next job, in a correct treatment of Moore’s case, would
have been to identify the Texas state standard for deciding whether Moore’s IQ
meets the requirements for retardation under Atkins. The basic question is
whether Texas law treats the IQ of 70 spoken of in Briseño and AAMR 10th as
a bright-line cutoff point. The majority studiously avoids thinking about that
question. But it is impossible to evaluate the district court’s finding that Moore’s
IQ is below the borderline set by Briseño without first determining what that
borderline is, especially considering that the court’s factual findings would not
be entitled to deference if the standard it applied were wrong. I will therefore
fill that hole in the majority’s analysis.
       The TCCA has left no doubt that an IQ below 70 (or at or below 70) is re-
quired for a finding of retardation under Atkins.20 In our post-Briseño decisions,
this court has interpreted the Texas standard in the same way as the TCCA.21

       20
          See, e.g., Williams v. State, 270 S.W.3d 112, 132 (Tex. Crim. App. 2008) (distinguish-
ing between the defendant’s “70 and below IQ scores” and his “70 and above IQ scores”); Hun-
ter v. State, 243 S.W.3d 664, 669-71 (Tex. Crim. App. 2007) (noting defense expert’s testimony
that 70 “is considered the ‘cutoff point’”), cert. denied, 129 S. Ct. 51 (2008); Howard v. State,
153 S.W.3d 382, 386 (Tex. Crim. App. 2004) (“‘Significantly subaverage general intellectual
functioning’ is defined as an IQ of 70 or below.”); see also Neal, 256 S.W.3d at 272-73 (“signifi-
cant sub-average general intellectual functioning, usually evidenced by an IQ score below 70”);
Ex parte Blue, 230 S.W.3d 151, 163 (Tex. Crim. App. 2007) (same). The fact that Texas courts
have referred to 70 as a “presumptively retarded score,” see, e.g., Ex parte Taylor, No. WR-
48498-02, 2006 WL 234854, at *3 (Tex. Crim. App. 2006) (per curiam) (unpublished) (Johnson,
J. concurring), supports this interpretation.

        I acknowledge an otherwise-unsupported statement in Ex parte Modden, 147 S.W.3d
293, 298 (Tex. Crim. App. 2004), that a “70-75 score” “generally indicates subaverage general
intellectual functioning.” That assertion, however, not only is dictumSSconsidering that the
defendant’s IQ had been measured, in two tests, at 58 and 64SSbut also is contrary to the over-
whelming weight of TCCA authority; the statement, to my knowledge, has not been repeated
in any later decision.
       21
            See Taylor v. Quarterman, 498 F.3d 306, 308 (5th Cir. 2007) (“[T]he only IQ test tak-
                                                                                   (continued...)

                                                24
                                        No. 05-70038

In no case has a Texas court or the Fifth Circuit found mental retardation for
Atkins purposes where its best guess as to IQ was above 70.
       To be sure, IQ tests have a margin of error, and a person’s actual IQ may
be below 70 even when an IQ test yields a higher score. Both the Briseño court
and AAMR 10th speak of an IQ measurement in terms of probabilities and ac-
knowledge that, considering the five-point margin of error typical in IQ tests, a
diagnosis of retardation is sometimes possible even where a person’s IQ is mea-
sured to be above 70. See Briseño, 135 S.W.3d at 7 n.24; AAMR 10th at 57.
       Texas caselaw is explicit, though, in holding that an actual IQ between 70
and 75 is not sufficient for a finding of retardation.22 The Briseño petitioner pre-
sented scores of 72 and 74 and pointed out that, because of the margin of error,
his true IQ could be lower. The TCCA rejected that argument: “[E]ven if a fact-
finder applied the statistical standard deviation, there is not enough evidence
in this record that proves, by a preponderance of evidence, that applicant’s true
IQ is lower than 72-74 rather than higher than 72-74.” Briseño, 135 S.W.3d at
14 n.53. If the Briseño court had meant to establish an IQ cutoff above 70, or not
to establish a cutoff at all, or if it had envisioned simple application of an IQ


       21
           (...continued)
en of Taylor prior to his turning eighteen yielded a result of 75, above the mild retardation cut
off of 70.”), cert. denied, 128 S. Ct. 1739 (2008); Woods v. Quarterman, 493 F.3d 580, 586 (5th
Cir. 2007) (“[T]he court noted . . . the existence of four IQ test scores placing Woods above the
seventy-point cutoff.”); In re Mathis, 483 F.3d 395, 397 (5th Cir. 2007) (“Typically, a person’s
IQ must be measured at 70 or below to qualify as mentally retarded.”); Clark, 457 F.3d at 445
(stating that IQ of 70 is “the rough cut-off for mental retardation”); In re Salazar, 443 F.3d
430, 433 n.1 (5th Cir. 2006) (per curiam) (treating 70 as the “cutoff score” even where an IQ
score could have been “adjusted” to below 75). See also Wilson v. Quarterman, No. 6:06-CV-
140, 2009 WL 900807, at *5 (E.D. Tex. Mar. 31, 2009) (quoting Texas state trial court findings
stating that 70 is “considered the border below which a person is mildly mentally retarded”).
       22
          See Neal, 256 S.W.3d at 273-75 (deferring to jury’s finding of no preponderance based
on test scores of 70, 72, and 87); Taylor, 2006 WL 234854, at *6 (Johnson, J., concurring) (no
preponderance based on score of 75); Ex parte Rodriguez, 164 S.W.3d 400, 403, 405 (Tex. Crim.
App. 2005) (Cochran, J., concurring) (score of 71, according to defense expert, “not in the re-
tarded range”; 70 a “cut-off level”).

                                               25
                                        No. 05-70038

test’s margin of error to the resulting score, it would have had no reason to make
this observation; the scores of 72 and 74 would likely have been satisfactory by
themselves as a matter of law. The Briseño court also expressly questioned the
diagnostic usefulness of any margin of error where “the burden of proof is pre-
ponderance of the evidence, not a 95% confidence burden.” Briseño, 135 S.W.3d
at 14 n.53.23
       The most accurate interpretation of Texas law, then, is that the lodestar
of the Briseño analysis, as reflected in Briseño and its progeny, is an IQ of 70 or
below (or, in accordance with some of the cited cases, an IQ below 70), regardless
of the margin of error. Although IQ tests certainly have a margin of error, recog-
nition of that margin merely permits evidence that a defendant’s true IQ is lower
or higher than what was measured.24 Evidence may show that an IQ measure-



       23
          That makes excellent statistical sense. By definition, even taking the margin of error
into account, an average IQ score above 70 cannot by itself prove an IQ of 70 or below by a
preponderance of the evidence, for when the center of a confidence interval is higher than 70,
the probability that the score is below 70 cannot be above 50 percent. The probability that a
subject’s true IQ lies above 70 is necessarily above 50 percent; in the absence of other data,
that precludes finding an IQ below 70.
       24
          See Briseño, 135 S.W.3d at 14 n.53; see also Hunter, 243 S.W.3d at 669-70; Taylor,
498 F.3d at 308 (“The administrator of the test thought Taylor was capable of performing bet-
ter than 75. While Taylor’s expert concluded that this test result overstated Taylor’s IQ by
seven points, the trial court was not unreasonable in finding otherwise.”). In Briseño, the trial
court determined that the most accurate measurements of IQ yielded results of 72 and 74.
The TCCA quoted and adopted the trial court’s finding that “[t]he preponderance of the evi-
dence does not show that these test scores over-state the actual intellectual functioning of Ap-
plicant; the evidence in fact showed that there are good indications that the test scores under-
stated Applicant’s intellectual functioning.” Briseño, 135 S.W.3d at 14.

        The decision in Briseño therefore reflects a combination of (1) skepticism toward any
given IQ measurement and (2) searching for a true IQ measurement at (or maybe below) the
threshold of 70. This is consistent with the treatment in AAMR 10th, at 57-59, of variations
in IQ measurements and fully explains why some Texas courts, see, e.g., Neal, 256 S.W.3d at
272-73, state that an IQ score below 70 “usually” satisfies the IQ prong. One way or another,
evidentiary flexibility in determining whether a standard is met is not to be confused with the
absence of any standard at all. See Clark, 457 F.3d at 446 (explaining that Texas courts “make
a flexible determination” of whether a defendant’s IQ is above or below 70).

                                               26
                                         No. 05-70038

ment between 70 and 75 is inflated, thus permitting a finding of “significantly
subaverage general intellectual functioning,” just as the opposite may be shown
regarding an IQ measured below 70, Briseño, 135 S.W.3d at 7 n.24, and courts
should be “flexible” in considering such evidence.25 But without such evidence,
an IQ score above 70 is not itself indicative of retardation “merely because the
low end of [a defendant’s] confidence band [is] below 70.” Clark, 457 F.3d at
446.26
         Not only is the TCCA’s directive on this matter plain, but this court has
adopted it. In Clark, the panel reasoned that “[t]he explanation provided by the
[TCCA] in adopting its definition of mental retardation plainly foreclose[d]” the
petitioner’s claim “that it was error for the state court [not] to find mental re-
tardation where the lowest potential score in the confidence band of the 1983
[IQ] test was below 70.” Clark, 457 F.3d at 446 (citing Briseño, 135 S.W.3d at



         25
         See Clark, 457 F.3d at 444-46. See also Williams v. Quarterman, 293 F. App’x 298,
309-10 (5th Cir. 2008) (per curiam) (finding an IQ above 70 where petitioner had tested at 70
or 71 repeatedly, and the district court suspected malingering); In re Hearn, 418 F.3d 444, 447
& n.4 (5th Cir. 2005) (considering measurement error in granting permission to file a succes-
sive habeas petition based on IQ of 74).
         26
          One district judge from the court a quo has presented a compelling justification for
a bright-line rule.

         Even though IQ testing and evaluation of adaptive limitations involves ranges,
         the professional organizations and the courts have adopted standards or criter-
         ia, which establish a cut-off point. No matter which criteria are chosen, there
         will be some individuals who are very close to the border of the cutoff—even if
         only slightly higher. Saying that a Defendant should be classified as mentally
         retarded simply because he or she is “borderline” would make the cutoff, which
         is already based on an evaluation of ranges, impossibly vague. There will al-
         ways be a Defendant who is close to, but just above, the level of the last person
         found to be mentally retarded who could therefore be termed “borderline.” That
         Defendant would then be in a new “borderline” sub-category of the classification
         of mentally retarded. The concept of “borderline” would swallow any definition
         or standard.

Simpson v. Quarterman, No. 1:04-CV-485, 2009 WL 80091, at *15 (E.D. Tex. Jan. 8, 2009).

                                                27
                                        No. 05-70038

7 n.24).
       Moore was therefore required to prove that his IQ is below a bright-line
cutoff of 70. Such a finding could be made in spite of, but not because of, IQ mea-
surements above 70.


                                   2. Moore’s IQ Scores.
       Once the proper standard has been identified, the obvious next issue is
whether the district court applied it correctly. Because the majority chooses not
to identify that standard, it is unable to do anything much beyond shrugging its
shoulders and babbling about clear error. The inescapable answer, however, is
No, for reasons of both fact and law.
       Moore’s IQ has been measured three times. When he was in first grade,
his school administered a PMA test that showed his IQ to be 74. In 1991, the
prison gave a WAIS-R test that yielded a score of 76. Lastly, Llorente adminis-
tered a WAIS-III test in 2004 that produced a score of 66.27
       All three of those test results were called into question at the evidentiary
hearing. The PMA score, for example, is only a number; there is no evidence
that it was properly scored or whether it was administered individually, as the
test protocol requires, or to an entire school class. 3 EH 41-45. The vocabulary
section of the WAIS-R, according to Llorente, was improperly scored, and in a
way that may have slightly inflated the score.28 Llorente also testified concern


       27
          The majority notes that Llorente also administered a TONI-2 test that showed an IQ
of 60, but even Llorente seems not to have considered that test to be a measure of general
intelligence. His conclusion reflects the standard professional view of the TONI-2. See, e.g.,
Hall v. Quarterman, 534 F.3d 365, 376 (5th Cir. 2008). In any event, though the district court
mentioned that score, it did not rely on it. See Moore v. Dretke, 2005 WL 1606437, at *4-*5.
       28
         The WAIS-R verbal section includes a series of progressively more difficult vocabu-
lary questions. Test subjects are asked to define the fourth word in a list, with full credit as-
sumed on the first three. But if the subject receives no credit on any one of questions
                                                                                  (continued...)

                                               28
                                        No. 05-70038

ing the “Flynn Effect,” the apparent increase in the average IQ scores in popula-
tions over time, as measured by a given IQ test. Because the WAIS-R was an
older test when it was administered to Moore, Llorente suggested adjusting
Moore’s score of 76 downward by about four points. 2 EH 175-78.29
       Mears urged adjusting Moore’s score on the WAIS-R upward by as much
as ten points to take Moore’s lack of education into account. 3 EH 239. Mears
also stated that the decline in Moore’s measured IQ between the WAIS-R and
the WAIS-III could be accounted for by Moore’s age, observing that though
Moore’s verbal score stayed essentially constant, a decrease in his math score (in
which abilities naturally decline with age) drove his second score down. 3 EH
246-49. Llorente made no attempt to correct for Moore’s age or educational level,
despite the fact that Moore is well outside the demographic group to which the
WAIS-III is normally applied. 3 EH 68-71, 228-30.
       Mears also noted an error in Llorente’s scoring methodology. Llorente, it
appears, administered vocabulary questions to Moore until Moore missed a total



       28
          (...continued)
4 through 8, the administrator is required to ask and score questions 1 through 3. Petitioner
Exhibit (“Pet. Ex.”) 13. Moore received no credit on question 7, “fabric” (he evidently answered
“clothes”), but the administrator did not score questions 1 through 3, “bed,” “ship,” and “pen-
ny,” to confirm that Moore knew the words. Respondent Exhibit (“Res. Ex.”) 7 at 33; 2 EH
171-74. This may have inflated the score, perhaps by “one or two points.” 2 EH 174. Moore
answered “ship” and “penny” correctly on the WAIS-III test that Llorente administered in
2004, but Llorente said one cannot assume that Moore would have known the terms in 1991.
3 EH 52-55.
       29
           The Flynn Effect “has not been accepted in this Circuit as scientifically valid.” Ma-
this, 483 F.3d at 398 n.1 (citing Salazar, 443 F.3d at 433 n.1). More importantly for our pur-
poses, it is not evident whether Texas courts would permit consideration of the Flynn Effect.
Neal, 256 S.W.3d at 273 (“We have previously refrained from applying the Flynn Effect, noting
that it is an ‘unexamined scientific concept’ that does not provide a reliable basis for conclud-
ing that an appellant has significant sub-average general intellectual functioning.”) (quoting
Blue, 230 S.W.3d at 166 (“This Court has never specifically addressed the scientific validity
of the Flynn Effect. Nor will we attempt to do so now.”)). Even if both of Llorente’s adjust-
ments to the WAIS-R were adopted, the test would still yield a measurement of 72, above the
Texas threshold.

                                               29
                                       No. 05-70038

of six. According to Mears, however, the WAIS-III requires the administrator
to ask questions until the subject misses six consecutive questions, and Moore
had missed only four in a row when Llorente stopped. In effect, Llorente admin-
istered a partial test; we cannot know what would have happened to Moore’s
score if Llorente had asked the next two questions. 3 EH 216-18.
       Instead of grappling with those conflicting upward and downward adjust-
ments, the district court gave the three scores equal weight, averaged them,
reached an IQ of 72, applied the “five-point standard error of measurement,” and
therefore concluded that Moore had borne his burden of proof. It is that finding,
and the district court’s actual reasoning in making it, that the panel must con-
sider, and yet the majority refuses to address it at anything resembling an ac-
ceptable level of detail.


                                          3. Errors.
       To begin with, the district court’s IQ decision is not insulated by an evalu-
ation of credibility. The court stated, in the context of its findings on Moore’s
adaptive functioning, that it found Llorente more credible than Mears “[o]n all
three criteria, but especially on Moore’s adaptive functioning[.]” Moore v. Dretke,
2005 WL 1606437, at *13.30 In explaining its credibility finding, the court made
no mention of the experts’ IQ-related testimony but instead pointed to other as-
pects of their evaluation of Moore.
       That finding, additionally, had no apparent effect on the district court’s
reasoning with regard to Moore’s IQ. By averaging the IQ scores, the court de-
clined to give additional weight to the test administered by Llorente. The court


       30
         It is puzzling that the court could find one expert more credible than the other on the
third elementSSonset before age eighteenSSbecause both parties and, as the district court not-
ed, Moore v. Dretke, 2005 WL 1606437, at *15, both experts agreed that that element of the
retardation test was met. Apparently the district court was intent on painting with a broad
brush the fact that it liked Llorente’s testimony better than Mears’s.

                                              30
                                       No. 05-70038

did not evaluate the upward and downward adjustments proposed by either ex-
pert and, in effect, treated them as a wash; it certainly did not say that it gave
Llorente’s proposed adjustments any more credence than Mears’s.31 Though the
district court certainly could have relied entirely on Llorente’s testimony and
concluded that Moore’s IQ is 66, it chose not to. The court decided that Moore
satisfied the IQ prong of its analysis not because it preferred Llorente’s testi-
mony to Mears’s but because it mistakenly believed the experts to be in agree-
ment. This panel therefore, in evaluating Moore’s IQ, need not give the court’s
decision on this matter the special degree of deference that we accord findings
involving credibility. Anderson, 470 U.S. at 575.
       The district court’s conclusion cannot survive a substantive review less
slavishly deferential than the majority’s. For one thing, there is no legal or rec-
ord support for taking an average of Moore’s IQ scores. Averaging IQ scores is,
to say the least, a creative approach to their analysis and comparison and is
highly unusual. Neither expert suggested, employed, or endorsed it.32 The dis-
trict court assumed, without any evident backing, that averaging is a meaningful
way to compare scores from different IQ testing protocols administered years
apart and that the margin of error was the same for all three and was the same
after the averaging as before. All of those assumptions are facially implausible,
and the district court had no apparent reason to think any of them is correct.
       Nor is there any precedent supporting such a move. When faced with a
variety of IQ test results, courts instead (1) identify the single most reliable re-

       31
          The district court did discount the state’s argument that Moore was malingering on
the test administered by Llorente, but Mears (contrary to the statement in the court’s memo-
randum opinion) did not express that view himself, so that conclusion did not entail a credibil-
ity assessment as between the two experts.
       32
          The majority’s statement to the contrary has no basis in the record. Reading support
for averaging IQ scores into Llorente’s testimony about the “consistency” of Moore’s three IQ
scores, as the majority tries to do, merely distorts the hearing testimony transcript with wish-
ful thinking.

                                              31
                                           No. 05-70038

sult,33 (2) narrow the results to a probable IQ range above or below 70,34 or
(3) treat the IQ testing results as a wash that precludes a finding of retarda-
tion.35 All these approaches are preferable to just taking an average, especially
considering that all three of the IQ scores are of doubtful reliability. 36 The dis-
trict court, in effect, made up its psychiatric testing methodologies as it went
along, and the majority is compliant.
         Granting, though, that the district court’s best guess as to Moore’s IQ was
72, the district court’s finding that Moore satisfied the IQ prong of Briseño col-
lapses entirely. If Moore’s average IQ of 72 is his true IQ, then as a matter of
law he is not retarded for purposes of Briseño and Atkins. Moreover, the fact
that the district court found, based on the IQ evidence described, that Moore
demonstrated “an IQ of ‘about 70 or below’” suggests that the district court failed
to recognize Texas’s bright-line cutoff point correctly. As discussed above, Texas
requires a finding of an IQ of 70 or below (or perhaps, in accordance with some
cases, below 70). The district court committed reversible legal error if it oper-
ated on any other understanding of Texas law or reached a conclusion contrary
to it.
         If, on the other hand, the district court correctly understood the IQ cutoff
point, the only way Moore’s average IQ could have justified a finding of retarda-
tion is if the court relied on extrinsic evidence as to Moore’s IQ that would have


         33
              See Rivera, 505 F.3d at 361-62; Taylor, 2006 WL 234854, at *6 (Johnson, J., concur-
ring).
         34
              See Briseño, 135 S.W.3d at 14 & n.53; see also Clark, 457 F.3d at 445-46.
         35
          See Blue, 230 S.W.3d at 165-66 (stating that where the defendant suggests adjusting
a “partial” score, above 70, to below 70, “we will simply regard the record as . . . devoid of any
reliable IQ score”); Lewis v. Quarterman, 541 F.3d 280, 284 (5th Cir. 2008); see also Howard,
153 S.W.3d at 387.
         36
         Under such circumstances, even Moore’s counsel, at oral argument, conceded that the
results must be “weighed.”

                                                 32
                                       No. 05-70038

pointed to a lower result, for example, by showing that his scores were inflated
or that the higher scores were entitled to less evidentiary weight. Cf. Rivera,
505 F.3d at 361-62. But the district court did no such thing. Instead, it seems
just to have relied on the fact that IQ tests typically have a five-point margin of
error. As explained above, if the court really did drag its best guess as to
Moore’s IQ score below the 70-point threshold by applying the margin of error
—and nothing in its reasoning suggests a more generous reading—it did so
contrary not only to Texas law but also to this circuit’s precedent.
       That makes no difference to the majority, which refers to the district
court’s “accounting for [the tests’] margins of error” without blinking, and evi-
dently with a straight face. The majority is utterly silent, in fact, on the district
court’s failure to apply the Briseño IQ cutoff point properly. Instead, it makes
a last-ditch effort to salvage the district court’s decision by relying on the super-
ficially comforting fact that, according to Llorente, Moore’s three IQ scores were
“consistent.”
       But the fact that three IQ scores, two above 70 and one below, may be
“consistent” tells us nothing about whether Moore’s IQ is above or below 70, the
question the court was bound to answer. After all, Mears testified that the
scores were consistent as well, and the thrust of his testimony was the opposite
of Llorente’s. The district court was still obligated to determine whether the
high or the low end of the resulting range was most accurate, but it did not.37
The majority is without justification in ignoring that failure.




       37
          Even if, viewing its words most loosely, it decided that Moore’s IQ was at the low end
of the confidence interval based on the experts’ supposed agreement that Moore had satisfied
the first Briseño prong, the court’s conclusion would still fail, because, as explained above,
there was no such agreement.

                                              33
                                         No. 05-70038

                               C. Summary Regarding IQ.
       The district court applied an incorrect standard of law and misinterpreted
the factual evidence in stating that Moore meets the IQ prong of the Briseño
test. If Moore’s IQ is above 70, his claim for relief under Atkins must fail. While
IQ tests have a margin of error, the law compels the district court to determine
its effect; it makes no difference standing alone. Though the court may have
been entitled merely to credit Llorente’s testimony and accept the IQ test he ad-
ministered, it chose not to. The majority seeks to avoid reaching those conclu-
sions by hiding behind the standard of review, but the majority cannot disguise
its abdication of its responsibility to judge the district court’s findings.
       The most charitable remedy for the district court’s errors is to remand for
that court to hear Moore’s evidence again in light of the correct standards. That
would require a new evidentiary hearing at which testimony, expert or other-
wise, can be given and interpreted under a correct understanding of the law.
       Such a forgiving outcome is by no means required, however. The panel is
entirely justified in reversing the district court altogether, rendering judgment
for the state, and submitting Moore to the punishment duly imposed on him.
Moore had the burden all along of showing that he met the IQ prong of the Bri-
seño test. Despite ample opportunity to present evidence, he failed to present
a single complete IQ score on his own behalf. As I have explained, Llorente ap-
pears to have misadministered the WAIS-III in such a way that there is no tell-
ing how much higher Moore’s score would have been if correctly measured, and
Texas courts and this court have repeatedly endorsed a hard denial of relief un-
der such circumstances.38 For Moore to receive the relief he seeks, on the evi


       38
          See Blue, 230 S.W.3d at 165-66 (stating that where the defendant suggests adjusting
a “partial” score, above 70, to below 70, “we will simply regard the record as . . . devoid of any
reliable IQ score”); Lewis v. Quarterman, 541 F.3d 280, 284 (5th Cir. 2008); see also Howard,
153 S.W.3d at 387. See also Williams, 293 F. App’x at 311 (“Because Williams carries the bur-
                                                                                     (continued...)

                                               34
                                       No. 05-70038

dence he presented, is nothing short of a windfall.
       None of the district court’s bases for finding in Moore’s favor on the first
Briseño factor withstands scrutiny, nor do any of the majority’s justifications for
affirming. All that remains is the majority’s craven refusal to confront and recti-
fy the errors presented to it.


                              IV. Adaptive Functioning.
       Even if Moore’s IQ were sufficiently low under the Briseño test, he still has
the burden to show the necessary deficits in adaptive functioning, the issue that
(thanks partly to Mears’s generous cooperation with Moore’s counsel) took up the
bulk of the Atkins hearing. Besides the respective experts, Moore relied primari-
ly on the testimony of family members and acquaintances from his youth; the
state, on Moore’s former teachers and prison guards. The court, after helpfully
condensing the relevant evidence and testimony into a veritable biography of the
petitioner, concluded that Moore suffered from significant deficits in adaptive
functioning. Even giving due deference to the court’s determinations of fact and
credibility, it erred as a matter of law.


                                       A. Criteria.
       Once again, the majority takes no interest in the criteria for reviewing the
district court’s findings. But just as was the case with the IQ analysis, it is im-
possible to evaluate the district court’s opinion without understanding the adap-
tive functioning framework. Again, I explicate that standard and demonstrate
the district court’s serious errors in applying it.
       AAMR 10th discusses adaptive behavior in terms of “conceptual, social,


       38
          (...continued)
den of proving mental retardation, failure to prove the first Briseño prong should end our in-
quiry.”).

                                             35
                                         No. 05-70038

and practical adaptive skills” 39 and requires that an individual have significant
deficits (placing him two standard deviations or more below normal) in at least
one of those three categories. AAMR 10th at 73. But as explained in AAMR
10th at 81-82, the previous edition, which is AAMR 9th, employed a much dif-
ferent approach, dividing adaptive functioning into ten categories—communica-
tion, functional academics, self-direction, health and safety, social skills, leisure,
self-care, home living, community use, and work—and requires significant defi-
cits in two of those categories.
       AAMR 9th was current at the time of Atkins.40 AAMR 10th was current
at the time of Briseño, when the general AAMR framework was incorporated in-
to Texas law.41 At first glance, then, it might seem most appropriate to require
that adaptive functioning be analyzed under the AAMR 10th framework.42 But
the Briseño court cited both editions 43 and never specified which adaptive- func-
tioning test to use. In practice, other Texas courts, as well, have often referred
to AAMR 9th.44 This court has typically followed whichever edition was used by



       39
           AAMR 10th provides examples of “representative skills” within these categories. Un-
der conceptual skills, the AAMR lists “language (receptive and expressive),” “reading and writ-
ing,” “money concepts,” and “self-direction;” under social skills, “interpersonal,” “responsibili-
ty,” “self-esteem,” “gullibility (likelihood of being tricked or manipulated),” “naivete,” “follows
rules,” “obeys laws,” and “avoids victimization;” under practical skills, “activities of daily liv-
ing,” “instrumental activities of daily living,” “occupational skills,” and “maintains safe envir-
onment.” AAMR 10th at 42.
       40
            See Atkins, 536 U.S. at 308 n.3.
       41
            See Briseño, 135 S.W.3d at 8 n.29.
       42
          See ex parte Chester, No. AP-75037, 2007 WL 602607, at *1 & n.9 (Tex. Crim. App.
Feb. 28, 2007) (unpublished) (interpreting Briseño as requiring “significant deficits in adaptive
functioning, usually expressed by limited conceptual, social, and adaptive skills”).
       43
            See generally Briseño, 135 S.W.3d at 7-8.
       44
       See Modden, 147 S.W.3d at 295-96 & n.9 (quoting and attributing to Briseño the
AAMR 9th standard).

                                                 36
                                        No. 05-70038

the parties and experts.45 So have the district courts in this circuit.46 That ap-
proach is intuitively obvious, for it permits use of two comparably valid frame-
works while guaranteeing that district courts will always have the necessary ex-
pert guidance in applying them.
       In this case, confusingly, AAMR 9th and AAMR 10th were used inconsis-
tently during Moore’s hearing. Mears’s report, though it never mentions either
edition specifically, plainly follows the AAMR 9th standards. The categories of
adaptive functioning he lists, and the two-category deficit requirement he men-
tions, are those of AAMR 9th. Res. Ex. 8 at 3. Mears’s direct examination,
moreover, was structured around the AAMR 9th categories. 3 EH 250-57.
       Llorente’s report and testimony are less explicit but inescapably lead to
the same conclusion. After opining, in his report, that Moore had difficulties in
his general academics and “vocational history,” Llorente segued into a discussion
of additional fields of adaptive functioning—“social skills,” “daily living skills,”
“other adaptive areas”—with the phrase “[a]s if these two factors were not
enough.” Not only are these categories essentially those of AAMR 9th, but Llor-
ente’s presentation demonstrates that he was looking for deficits in two or more
specific areas of adaptive functioning, as AAMR 9th requires, rather than in one
of AAMR 10th’s broad categories. Pet. Ex. 1 at 11.
       Furthermore, when explaining adaptive functioning at the hearing, Llor-
ente mentioned the categories of “social skills, communications, self-care, and
those types of skills where an individual requires to be able to disengage his re-

       45
        See Williams, 293 F. App’x, at 311-12 (AAMR 9th); Rivera, 505 F.3d at 357 (same);
Woods, 493 F.3d at 585 (same); Morris, 413 F.3d at 487-88 & n.1 (AAMR 10th).
       46
          See Simpson, 2009 WL 80091, at *12; Rivera v. Dretke, No. B-03-139, 2006 WL
870927, at *10 (S.D. Tex. Mar. 31, 2006) (“[T]his Court will utilize the 1992 AAMR criteria
[i.e., AAMR 9th] . . . because it is the definition that has been endorsed by prior courts and
because it is the definition upon which both sides agree, despite the fact that Petitioner
discusses both definitions without advancing one over the other.”) (same), aff’d in part, vacated
in part, 505 F.3d 349 (5th Cir. 2007), cert. denied, 129 S. Ct. 176 (2008).

                                               37
                                       No. 05-70038

sponsibilities in his society.” 2 EH 183. These are categories of the AAMR 9th
framework and do not resemble the AAMR 10th’s three-part standard. At no
time did Llorente specify a limitation in conceptual, social, or practical adaptive
functioning; he consistently spoke of multiple, specific areas of adaptive function-
ing and said that Moore was limited in a variety of them.
       Moore, however, argued to the district court that the AAMR 10th standard
was applicable, 2 EH 17, and he entered excerpts from AAMR 10th into evi-
dence, Pet. Ex. 7. Moore’s counsel, while cross-examining Mears, moved freely
between the paradigms of the two editions.47 The court ultimately used the
AAMR 10th three-part framework. For all its detailed reasoning and close ex-
amination of the evidence, the court thus failed to make its factual findings con-
sistently with the standards laid out in the expert testimony.
       A few examples will demonstrate how far adrift that failure led the district
court. Though AAMR 10th gives some indication of how its standard relates to
AAMR 9th’s categories and provides “representative skills” relevant to concep-
tual, social, and practical adaptive functioning, see AAMR 10th at 82 Table 5.2,
its guidance is hardly self-explanatory. Llorente’s report, at its most definite
point, finds that Moore has deficits in academics, social skills, vocational history,
and daily living skills.
       “Functional academics,” though, is only one of four AAMR 9th categories
that the AAMR 10th table connects to conceptual adaptive skills, and it has no
obvious counterpart among the AAMR 10th representative skills. “Social skills”
is one of two AAMR 9th categories related to social adaptive skills, but there is
no indication whether AAMR 10th and AAMR 9th use the terms identically.


       47
           4 EH 44-47 (questioning Mears on Moore’s “self-esteem,” “gullibility,” obedience to
law, “ability to avoid victimization,” and “occupational skills,” all listed in AAMR 10th as
“skills” relevant to social adaptive functioning); 4 EH 52-56 (questioning Mears on Moore’s “ac-
ademic functioning”); 4 EH 60 (“I have got before you . . . the three broad categories from the
AAMR. I am going to start and look at conceptual.”).

                                              38
                                       No. 05-70038

“Activities of daily living” is a representative skill area within practical adaptive
skills in AAMR 10th (an area in which the court did not find significant limita-
tions), but “self care,” “home living,” and “work” are three of the five AAMR 9th
categories grouped under that new rubric. AAMR 10th gives no indication as to
how deficits in AAMR 9th areas translate to the three-category framework.
       At the same time, when the court considered the AAMR 10th representa-
tive skills (e.g., money concepts, obeying laws, avoiding victimization)—categor-
ies not mentioned in AAMR 9th—it did so essentially blind, not having heard ex-
perts explain those examples or how they fit into the all-embracing fields of
adaptive functioning. One might put this still more starkly: No expert testified
in support of the district court’s finding that Moore exhibits significant deficits
in conceptual and social adaptive skills.
       That is error that infects all the district court’s factual findings concerning
adaptive functioning. Consider, for example, the court’s extensive treatment of
Moore’s academic history, a subject much discussed by both experts. Those data,
under AAMR 9th, might plausibly be pigeonholed under “functional academics,”
as Llorente did in his report. But the nearest equivalent in AAMR 10th is “con-
ceptual skills,” a category including such representative skills as “language” and
“reading and writing.” AAMR 10th gives no indication—and the experts had no
occasion to explain—how Moore’s grades in math, history, and science (for exam-
ple) relate to his adaptive functioning under the framework the court employed.
       The court also based its finding that Moore exhibits significant deficits in
conceptual adaptive functioning largely on what it took to be his lifelong difficul-
ty learning new skills (e.g., tying shoes, following directions, performing physical
work in unison with others, riding a bicycle, driving a car).48 None of that has
anything to do with the other two skills “representative” of conceptual adaptive

       48
          The court counted many of these difficulties a second time in the context of Moore’s
practical adaptive functioning, as to which the court did not find a significant deficit.

                                             39
                                       No. 05-70038

functioning, “money concepts” and “self-direction.”
       The district court’s use of the expert testimony in the context of AAMR
10th was therefore largely guesswork, uninformed by expert guidance. Because
the witnesses spoke in terms of AAMR 9th, the categories of which map onto the
AAMR 10th framework imperfectly, the court’s evaluation of Moore’s adaptive
functioning is inherently flawed.
       The majority does not even acknowledge this confusion, much less suggest
any means of rectifying it. Plainly, though, no matter how deferential the stan-
dard or review may be, the difference between the two AAMR frameworks makes
it impossible for the panel to evaluate whether the court properly applied evi-
dence marshaled for AAMR 9th purposes to the AAMR 10th framework.49
       The district court had no idea what it was doing in this regard. I cannot
tell whether the court guessed right, and neither can the majority. The differ-
ence is that I find the prospect of the blind leading the blind in a death penalty
case disturbing enough to avoid, while the majority cheerfully accepts it. Be-
cause of the absence of expert testimony, the review the majority applies is no
review at all—little more than a rubber stamp. Whether the majority’s reticence



       49
          In Williams, the TCCA reviewed and rejected a defendant’s appeal from a jury verdict
rejecting his Atkins claim in which, although an expert referred to the AAMR 9th categories,
the jury was instructed on the AAMR 10th categories. In that case, however, the TCCA opined
that the jury could have based its conclusions on grounds other than adaptive functioning—for
example, the defendant’s IQ—and in any case the standard of review applied to the verdict
was far more deferential than is the clear error review here. Williams, 270 S.W.3d at 132
(evaluating whether the verdict was “so against the great weight and preponderance of the evi-
dence as to be manifestly unjust”).

        In Gallo v. State, 239 S.W.3d 757, 778 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct.
2872 (2008), the TCCA permitted a jury instruction defining “adaptive behavior” as “the effec-
tiveness with or degree to which a person meets the standards of personal independence and
social responsibility expected of the person’s age and cultural group” instead of enumerating
the categories. (The experts had used the AAMR 9th approach.) But that is merely the defini-
tion found in § 591.003 of the Texas Health and Safety Code, which the Briseño court largely
incorporated. Briseño, 135 S.W.3d at 7 n.25.

                                              40
                                  No. 05-70038

flows from an exaggerated conception of the ability of generalist jurists to consid-
er technical information themselves, a stunted reliance on the standard of re-
view, or mere inattention, I do not know. Regardless, it is obvious that what the
panel ought to have done (if it reached Moore’s adaptive functioning at all) is
decline to review the district court’s findings and remand for evaluation of the
evidence consistently with the expert testimony that may be elicited in a further
hearing.


                       B. The Additional Briseño Factors.
      The Briseño court, 135 S.W.3d at 7 n.25, 8, acknowledged that the criteria
for adaptive functioning are “exceedingly subjective” and encouraged the use of
standardized tests for their evaluation. The court, id. at 8, also suggested a
number of “other evidentiary factors which factfinders in the criminal trial con-
text might also focus upon in weighing evidence as indicative of mental retarda-
tion or of a personality disorder”:
      ! Did those who knew the person best during the developmental
      stage—his family, friends, teachers, employers, authorities—think
      he was mentally retarded at that 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 appro-
      priate, 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 sub-
      ject?

      ! Can the person hide facts or lie effectively in his own or others’ in-

                                        41
                                        No. 05-70038

       terests?

       ! Putting aside any heinousness or gruesomeness surrounding the
       capital offense, did the commission of that offense require fore-
       thought, planning, and complex execution of purpose?

Id. at 8-9.50
       The district court acknowledged the existence of the Briseño factors but re-
fused to consider their substantive application. Explaining that decision, the
court interpreted Briseño as saying that the factors would apply only in those At-
kins cases in which a court must decide whether a defendant is retarded or has
a personality disorder. Because it did not understand the state to have argued,
or presented any evidence, that Moore had such a disorder, the court considered
the factors to be legally and factually irrelevant. It also said that it did not have
to consider any factors not part of the AAMR test, and, lastly, it relied on the fac-
tors’ being discretionary. For these reasons, it chose not to take any of the Bri-
seño factors into account. Moore v. Dretke, 2005 WL 1606437, at *5 n.6.
       The majority happily endorses the district court’s conclusion, failing to rec-
ognize that none of those reasons is an adequate ground for refusing to consider
the Briseño factors. All, in fact, contain errors of law or clearly erroneous find-
ings of fact,51 or at the very least indicate the court’s refusal to consider “relevant
factor[s] that should have been given significant weight.” 52 The court’s choice to


       50
          The Briseño court evidently expected that these factors, being intuitively simple and
nontechnical, would be helpful to courts in sorting out contradictory expert testimony concern-
ing the “exceedingly subjective” criteria for adaptive functioning in close cases. Briseño, 135
S.W.3d at 8.
       51
           Ratliff v. Stewart, 508 F.3d 225, 229 (5th Cir. 2007) (internal quotation marks omit-
ted); see also Unger v. Amedisys Inc., 401 F.3d 316, 320 (5th Cir. 2004); Chaves v. M/V Medina
Star, 47 F.3d 153, 156 (5th Cir. 1995).
       52
         In re Volkswagen of Am., Inc., 545 F.3d 304, 310 n.4 (5th Cir. 2008) (en banc) (quoting
Kern v. TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir. 1984)), cert. denied, 129 S. Ct. 1336
                                                                                   (continued...)

                                               42
                                          No. 05-70038

disregard the Briseño factors is an abuse of discretion almost by definition.
       To begin with, the fact that the AAMR does not mention those seven fac-
tors does not exclude their applicability in Texas law; the Briseño test super-
sedes the AAMR and is the law that controls here.53 The TCCA can modify the
AAMR definition at its discretion, and in Briseño it did so. The district court
was wrong as a matter of law to ignore Texas state courts in this way.
       The court also erred as a matter of law in saying that those factors are in-
applicable where personality disorders are not at issue. Briseño did involve a
defendant who claimed to be retarded and who the state said merely suffered
from a personality disorder. Other courts have used the Briseño factors to make
a similar distinction.54 But the TCCA has understood or described the Briseño
factors as being applicable in all cases,55 and so has this court.56 Whether the
state argued or presented evidence related to personality disorders is therefore


       52
           (...continued)
(2009). See also Dell Computer Corp. v. Rodriguez, 390 F.3d 377, 385 n.14 (5th Cir. 2004)
(“Thus, ‘when judicial action is taken in a discretionary matter,’ that action may be set aside
by a reviewing court if ‘it has a definite and firm conviction that the court below committed
a clear error of judgment in the conclusion it reached upon a weighing of the relevant fac-
tors.’”) (quoting United States v. Walker, 772 F.2d 1172, 1176 n.9 (5th Cir. 1985)).
       53
          See Modden, 147 S.W.3d at 299-300 (“[T]his Court in Ex parte Briseño adopted the
[AAMR] criteria . . . and some other evidentiary factors in addressing Atkins mental retarda-
tion claims.”) (citation omitted) (Henry, J., dissenting); see also Mathis, 483 F.3d at 397 (stat-
ing that retardation depends on the AAMR definition “and associated factors” established by
Briseño); Clark, 457 F.3d at 445 (“Although the Court [in Atkins] did refer to the clinical defi-
nitions of mental retardation promulgated by the AAMR . . . it did not dictate that the ap-
proach and the analysis of the State inquiry must track the approach of the AAMR . . . exact-
ly.”).
       54
            See, e.g., Williams, 293 F. App’x at 312.
       55
        See, e.g., Hunter, 243 S.W.3d at 666-67; Gallo, 239 S.W.3d at 769-70; Modden, 147
S.W.3d at 296 & n.12.
       56
          See, e.g., Rosales v. Quarterman, 291 F. App’x 558, 562 (5th Cir. 2008) (per curiam),
cert. denied, 129 S. Ct. 1317 (2009)) (“In Briseño, the TCCA also laid out a number of guide-
lines that courts can consider when making mental retardation determinations.”).

                                                43
                                          No. 05-70038

irrelevant to the factors’ applicability.
       The district court’s reliance on a legally erroneous understanding of the
Briseño factors’ scope of application constitutes an abuse of discretion and is re-
versible. Even if, “arguendo (and dubitante),”57 Briseño did limit the application
of those factors to cases in which a personality disorder is presented as an alter-
native to a diagnosis of retardation, the district court was plainly incorrect in
saying that the state had not argued or presented evidence that Moore’s adap-
tive functioning deficits may be caused by such a disorder. On both direct and
cross-examination, Mears consistently suggested an “antisocial” personality as
an alternative explanation to mental retardation.58 That is essentially identical
to the circumstances of Briseño, in which “the State’s expert found no mental
retardation but did find evidence consistent with antisocial personality disor-
der.” Briseño, 135 S.W.3d at 13.
       More importantly still, the district court’s statement that “there is no ev-
idence to support a finding that a personality disorder is responsible for Moore’s
cognitive and adaptive deficits,” Moore v. Dretke, 2005 WL 1606437, at *5, is be-
lied by the court’s own analysis of Moore’s social adaptive functioning, which
deals extensively with Moore’s disruptive behavior in school, social isolation, vio-
lence, and strained family relationships. Considering that both the state and the
court’s factual findings invited consideration of whether Moore has an antisocial



       57
            Puckett v. United States, 129 S. Ct. 1423, 1431 (2009).
       58
            3 EH 223 (stating that Moore’s adaptive problems are caused by antisocial tenden-
cies, not adaptive problems in the retardation sense); 3 EH 252 (explaining that Moore is not
retarded but rather is “more on the antisocial spectrum”); 4 EH 41 (distinguishing between
adaptive functioning for purposes of retardation and diagnosis of antisocial personality); 4 EH
55-56 (“I think he has does have some learning disabilities [as distinguished from retardation]
. . . . [The significance of a child’s academic problems] depends on if the child is antisocial. . . .
He may not have been motivated.”); 4 EH 63-64 (state’s attorney questioning Mears on the dif-
ference between “problem” or “antisocial” behavior and adaptive deficit; poor performance in
school not an adaptation issue if it derives from antisocial tendencies or poor motivation)).

                                                 44
                                        No. 05-70038

personality, the district court should have considered the factors set out in Bri-
seño for just that purpose. In short, the court’s rejection of the Briseño factors
was “based on an erroneous view” of the lawSSits impression that the factors are
not applicable at allSSand also on a “clearly erroneous assessment of the evi-
dence”SSits failure to recognize relevant evidence at the hearing.
       After one rejects the district court’s first reasons for ignoring the Briseño
factors, all that remains is the court’s naked reliance on the factors’ being discre-
tionary. That, standing by itself, is not an acceptable basis for refusing to con-
sider them. Though the TCCA has described the factors in discretionary terms,
there is no Texas case in the years since Briseño in which the court, in the way
the district court acted here, explicitly refused to consider the factors.
       In fact, a review of post-Briseño cases shows that where Texas trial judges
rather than juries make the Briseño analysis, they consistently—perhaps invari-
ably—consider some or all of these factors, and the TCCA, after Briseño, has
used almost mandatory language in describing them.59 This court, moreover,
has referred to the factors as “correct definitions of mental retardation” for pur-
poses of the governing Texas law. Moreno v. Dretke, 450 F.3d 158, 164 (5th Cir.
2006). Evidence relevant to the factors was elicited in both the state trial and
the federal evidentiary hearing, and all seven appear at least relevant to Moore’s




       59
          See Modden, 147 S.W.3d at 297 (“[T]he trial court did not use the Briseño factors in
its findings because it did not have the benefit of our order in that case. Nonetheless, we con-
clude that the trial court’s findings are supported by the record.”); Ex parte Elizalde, No.
WR-48957-02, 2006 WL 235036, at *3 (Tex. Crim. App. Jan. 30, 2006) (unpublished) (Johnson,
J., concurring) (“In Briseño, this Court examined seven factors to gauge the level of an individ-
ual’s adaptive functioning. However, applicant provides no evidence . . . to address any of the
factors outlined in Briseño.”). See also Gallo, 239 S.W.3d at 777 (“The ultimate issue of wheth-
er a defendant is 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.”).

                                               45
                                        No. 05-70038

case.60 Considering the factors’ obvious centrality to the Briseño test and rele-
vance to this case, together with the absence of any justification for ignoring
them, the district court’s choice was mere caprice—in other words, an abuse of
discretion.
       The district court had no legally cognizable reason for ignoring the Briseño
factors, and the majority appears to recognize the precariousness of the district
court’s refusal to address the evidence as the TCCA intended. The majority’s
effort to justify that refusal, however, is nothing short of sophistic.
       The majority completely disregards the district court’s mistaken legal un-
derstanding of the factors’ applicability. The majority does recognize the volume
of evidence before the district court that was related to the factors, but the
majority does not seem to understand how badly that cuts against its conclu-
sion.61 If there was so much evidence relevant to the factors, after all, the dis-
trict court’s reliance on the supposed lack of relevant evidence looks especially
weak. Instead, the majority brazenly pretends that the district court considered
the factors “implicitly.”62


       60
          In fact, the district court and the majority resolutely ignore the unmistakable fact
that all seven of the Briseño factors likely weigh against Moore. The adults who knew him
when he was a child were fairly unanimous that while they regarded him as mentally subav-
erage, they never thought he was retarded. Moore’s role in his crime—including the ruse it
involved and the manner in which Moore duped his co-defendants out of the proceeds and tried
to shift responsibility for the victim’s death—undeniably indicates a capacity for planning,
leadership, and subterfuge. There was no indication that his conduct has ever been irrational.
He answers questions directly and coherently, as evidenced by his interviews with Llorente,
Mears, and the police after his arrest; no testimony suggested otherwise. Merely to affirm the
district court bespeaks a refusal to confront that contrary evidence and its legal implications.
       61
          Nor does the majority convincingly explain the fact that district court made abso-
lutely no reference, in its opinion, to the sophistication of Moore’s leadership role in the mur-
der, one of the main elements of the state’s argument regarding adaptive functioning.
3 EH 7-11.
       62
         For example, the majority reads the district court as actually deciding that Moore’s
antisocial tendencies “did not cause his” adaptive deficits and that Moore’s role in the crime
                                                                                 (continued...)

                                               46
                                     No. 05-70038

       That is pure fiction. For all its elaborate deference to the district court
elsewhere in its shaky opinion, the majority fails to take the district court at its
word in one of its most unambiguous statements, namely: “This Court will not
analyze these factors for four reasons[.]” The only acceptable reading of that
language is that the district court did not analyze those factors. Because all of
the district court’s reasons are legally inadequate, there is no sense at all in the
majority’s concocting imaginary factual findings to which to defer.
       The great irony in the majority’s treatment of the evidence relevant to the
Briseño factors is that though the majority happily endorses the district court’s
application of that evidence to technical psychiatric criteria that it did not under-
stand, the majority refuses to censure the district court for failing to apply the
evidence to criteria, created for judicial use, that are critical under state law.
The majority has elected to rewrite an indefensible district court decision rather
than review it on its own merits.


                                    IV. Conclusion.
       In light of the record and the applicable law, the district court committed
both legal and factual reversible errors in finding that Moore is retarded, for At-
kins purposes, under Texas law. A clear-headed evaluation of the evidence in
light of the correct legal standards undeniably poses a more difficult obstacle for
Moore than the one he actually faced, considering his history of IQ testing and
the weight of the Briseño factors. Because of the majority’s evident indifference
to state legal standards, however, that evaluation will never come.
       Rather than correct the district court’s undeniable errors, the panel major-
ity washes its hands of Moore’s case under the guise of respecting the clearly-
erroneous standard of review. That standard, however, cannot possibly justify

       62
       (...continued)
he committed did not affect its judgment.

                                            47
                                   No. 05-70038

the majority’s limpness in the face of those mistakes. The effect, which must be
attributed entirely to the majority itself, is to abandon any attempt to get the
right result in a complex case, to leave a difficult (and still embryonic) patch of
constitutional law unimproved, and to mock, on the flimsiest of foundations, the
honest efforts of Texas state courts to apply Atkins.
      The only redeeming feature of the majority’s misguided opinion is that, as
I noted at the outset, it is unpublished and therefore binding as precedent on no
one except the parties to this case as it affects only this case. The correct resolu-
tion of these important questions, as they relate to the implementation of Atkins
in Texas and in this circuit, must await another day and another panel. More-
over, because, under Atkins, the states are left to fashion their own response to
that decision, the majority’s mangling of Texas legal standards is subject to
ready correction by the TCCA or the legislature.
      I respectfully dissent.




                                         48
