     Case: 13-70003      Document: 00512728682         Page: 1    Date Filed: 08/11/2014




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

                                                                                   FILED
                                      No. 13-70003                           August 11, 2014
                                                                              Lyle W. Cayce
GILMAR ALEXANDER GUEVARA,                                                          Clerk
                                                 Petitioner–Appellant,
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
                               Respondent– Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            U.S.D.C. No. 4:08-CV-1604


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioner Gilmar Guevara requests that this court grant a Certificate of
Appealability (COA) to conduct appellate review of the district court’s denial
of his federal habeas claims, including two claims of ineffective assistance of
counsel and one claim that, under Atkins v. Virginia, 536 U.S. 304 (2002),
Texas may not execute him because he suffers from an intellectual disability. 1
For the reasons herein, we DENY his application for a COA.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 Although previous opinions use the term “mental retardation,” the preferred terminology
is now “intellectual disability.” See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014).
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                                   I.
      Guevara shot and killed Tae Youk and Gerardo Yaxon on June 2, 2000
at a Houston convenience store. Guevara told police that on the night of the
murders one of his friends suggested that they “go to the store there” to “get
the money.” Guevara shot both store attendants after one hit him. Guevara
and his friends left the store without taking anything.       Just hours after
murdering Youk and Yaxon, Guevara killed Freddy Marroquin, an apartment
security guard, to steal his gun. Guevara was charged with capital murder for
the shootings of Youk and Yaxon. The jury ultimately found Guevara guilty of
the capital murder of both victims.
      As part of their mitigation investigation for the punishment phase of the
trial, Guevara’s court-appointed attorneys interviewed him, contacted his
brother Benjamin and sister Sonia Sorto, and attempted to locate his wife
Nancy. His trial counsel thoroughly discussed Guevara’s background and
childhood with both Guevara and his brother, focusing on the trauma caused
by growing up during El Salvador’s civil war.     They also asked questions of
both men to explore the possibility of mitigation evidence relating to post-
traumatic stress disorder (PTSD), immigrant trauma, ID, head injuries,
psychological health, abuse, or any other possible psychological problems.
Neither offered any information suggesting these avenues should be further
explored. Trial counsel also spoke with Sorto, but she indicated that she did
not want to take part in the trial process. Guevara’s wife could not be located.
      During the punishment phase, the prosecution introduced aggravating
evidence regarding Guevara’s previous convictions and criminal conduct,
which included theft, carrying a weapon, unauthorized use of a motor vehicle,
auto theft, repeated parole violations, and convenience-store robberies during
which he had fired shots and inflicted permanent injuries. He later “bragged
about robbing some ‘Ghandis’ and about . . . pistol-whipping one of the

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‘Ghandis’ when he made too much noise.”          Furthermore, only hours after
committing the murders for which the jury convicted him, Guevara killed
another person to take his weapon. The prosecution argued in closing that
Guevara would be a danger throughout his life.
      Guevara’s trial counsel did not call punishment-phase witnesses. They
had planned to call Benjamin at the punishment phase of trial to testify about
Guevara’s childhood during the war, but decided not to call him because they
worried that his testimony might do more harm than good.                 Following
particularly powerful testimony by the mother of Marroquin, who had also
come from El Salvador, counsel were concerned such testimony might demean
Marroquin and prompt comparisons between Guevara and both Benjamin and
Marroquin.
      After the punishment phase, the jury responded affirmatively to the
question, “Do you find from the evidence beyond a reasonable doubt that there
is a reasonable probability that [Mr. Guevara] would commit criminal acts of
violence that would constitute a continuing threat to society?” See Tex. Code
Crim. Pro. § 37.071(2)(b)(1). The jury responded negatively to the question,
“Do you find . . . taking into consideration all of the evidence, including the
circumstances of the offense, the defendant’s character and background, and
the personal moral culpability of [Guevara], . . . that there [are] sufficient
mitigating . . . circumstances to warrant [a life sentence].” Id. § 37.071(2)(d)(1).
These responses to the special issues required the death penalty. Accordingly,
Guevara was sentenced to death.         He was unsuccessful in appealing his
conviction. See Guevara v. State, 97 S.W.3d 579 (Tex. Crim. App. 2003).
      Guevara thereafter filed a state application for habeas corpus relief
claiming ineffective assistance of counsel (IAC claim). He argued, inter alia,
that his trial counsel had been ineffective for failing to investigate evidence of



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his troubled childhood, PTSD, and immigrant trauma. He also relied on a
declaration from mitigation expert Gina T. Vitale. Vitale provided information
on Guevara’s work history, reporting that he worked various jobs including in
an auto body shop, as a line chef, and as a repair man in his apartment
complex. Her sources stated that he was “very adept at welding” and “an
excellent worker.” The owner of the apartment complex was “so pleased with
Guevara’s work” that he hired Guevara to work with the “head maintenance
man.”
        Three years after filing this initial state habeas application, but before
the Texas Court of Criminal Appeals had ruled, Guevara filed a subsequent
habeas application claiming that his intellectual disability precluded him from
being executed. In this successive habeas application, Guevara argued that he
had introduced evidence to make out a prima facie case that he suffered from
intellectual disability and was thus ineligible for the death penalty under
Atkins. He argued that, in addition to the IAC claim raised in his first petition,
his trial counsel was deficient in not investigating his intellectual disability
(IAC-ID claim). He based this claim on an affidavit from Dr. Antolin Llorente,
a psychologist who performed a series of neuropsychological tests, reviewed
various records, examined Guevara, and interviewed three other individuals
by telephone. He presented a full-scale IQ score of 77 on the Test of Nonverbal
Intelligence, Second Edition (TONI-2), as well as sections of various other IQ
tests for which his scores ranged from 60 to 91. Much of his findings conflicted
with Vitale’s report of Guevara’s abilities.      The Texas Court of Criminal
Appeals denied Guevara’s initial application and found that state procedural
law prevented consideration of his successive application.
         Guevara next filed a federal habeas suit in district court. While the
case was pending in the district court, the Supreme Court decided Martinez v.



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Ryan, which recognized that an attorney’s incompetence in an initial-review
state post-conviction proceeding can establish cause for a procedural default of
an ineffective assistance of counsel claim. 132 S. Ct. 1309, 1320 (2012). The
district court ordered briefing on Martinez. Shortly thereafter, we issued our
opinion in Ibarra v. Thaler holding that, because of the way Texas configured
its appellate and post-conviction review, Martinez did not apply to Texas
inmates. Ibarra v. Thaler, 687 F.3d 222, 225–27 (5th Cir. 2012).        After the
district court issued its opinion in this case, the Supreme Court overruled
Ibarra in Trevino v. Thaler, 133 S. Ct. 1911 (2013).
      The district court denied the IAC claim raised in the initial state post-
conviction application on the ground that 28 U.S.C. § 2254(d) precluded federal
relief. The court denied the ineffective assistance of counsel claim regarding
ID, presented in the successive state post-conviction application, on the ground
that it was procedurally defaulted. It explained in a footnote that under Ibarra
it could not forgive the default. It also briefly addressed the merits of the IAC-
ID claim, explaining that this circuit has previously found no Strickland
prejudice in failing to present evidence of low IQ. After requesting additional
briefing on Guevara’s substantive Atkins claim, it found that he had not
established a prima facie Atkins claim in state habeas court and denied his
petition under § 2254(d). It denied a COA on all issues. Guevara filed a timely
Notice of Appeal.
                                       II.
      “[W]hen a habeas corpus petitioner seeks to initiate an appeal of the
dismissal of a habeas corpus petition . . . the right to appeal is governed by the
certificate of appealability requirements.” Slack v. McDaniel, 529 U.S. 473,
478 (2000). Section 2253 of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) addresses appeals of denials of habeas corpus petitions. It provides



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that “an appeal may not be taken” from a final order in a habeas corpus
proceeding without a COA. 28 U.S.C. § 2253(c)(1). A COA may issue “only if
the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).
      “Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack, 529
U.S. at 484. In other words, a COA should issue if it is debatable whether “the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Id. at
483–84 (internal quotation marks omitted) (quoting Barefoot v. Estelle, 463
U.S. 880, 894 (1983)). Similarly, “when the district court denies a habeas
petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue (and an appeal of the district court’s
order may be taken) if the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.”       Id. at 478, 484
(emphasis added).      “[B]oth showings [must] be made before the court of
appeals may entertain the appeal.” Id. at 485.
      “The question is the debatability of the underlying constitutional claim,
not the resolution of that debate.” Cardenas v. Dretke, 405 F.3d 244, 248 (5th
Cir. 2005). In deciding whether to grant a COA, we “consider only whether the
district court’s application of [AEDPA] deference to the petitioner’s claim is
debatable among jurists of reason.” Id. at 248–49 (citing Miller-El v. Cockrell,
537 U.S. 322, 341 (2003) (emphasis omitted).



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                                    III.
      Guevara seeks habeas relief on two grounds: (1) ineffective assistance of
counsel under Wiggins v. Smith, 539 U.S. 510 (2003) for failing to conduct an
adequate mitigation investigation; and (2) death ineligibility under Atkins.
However, there are two distinct IAC claims—the original IAC claim that his
counsel was constitutionally deficient for failing to conduct an adequate
mitigation investigation (IAC claim) and the subsequent IAC claim that his
counsel was constitutionally deficient for failing to investigate intellectual
disability (IAC-ID claim). We will address the IAC claim, the IAC-ID claim,
and the Atkins claim in turn.
                                           A.
      Guevara argues that his trial counsel’s investigation preceding the
punishment phase of his trial was unreasonably limited. He claims that his
counsel conducted no mitigation investigation whatsoever and that such an
investigation would have uncovered powerful evidence of, inter alia, a troubled
childhood, PTSD, and immigrant trauma. His arguments are unavailing.
      In order to prevail on an IAC claim, a defendant must show that (1) his
counsel’s performance was so deficient as to fall below an objective standard of
reasonableness, and (2) that he was prejudiced by counsel’s conduct.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Failure to make the
required showing of either deficient performance or sufficient prejudice defeats
the ineffectiveness claim. Id. at 700. On federal review of a habeas claim
alleging IAC, Strickland’s standards merge with the AEDPA into a “doubly
deferential” standard.   Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
“When § 2254(d) applies . . . [t]he question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Premo v.




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Moore, 131 S. Ct. 733, 740 (2011) (citation and internal quotation marks
omitted).
      Even assuming arguendo that Guevara’s counsels’ investigation was
unreasonably deficient, his IAC claim fails on the prejudice prong. The actual-
prejudice inquiry requires an inmate to show a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceedings would
have been different.” Strickland, 466 U.S. at 694; see also Wiggins, 539 U.S. at
534. In a death penalty case such as this one, “the question is whether there
is a reasonable probability that, absent the errors, the sentencer . . . would
have concluded that the balance of aggravating and mitigating circumstances
did not warrant death.” Strickland, 466 U.S. at 695. If the “evidence of . . .
future dangerousness was overwhelming . . . it is virtually impossible to
establish prejudice.” Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002).
      The aggravating circumstances in this case were extraordinary.
Guevara had a long history of escalating violence and cruelty. Before the two
murders at the center of this case, he had fired shots and inflicted permanent
injuries during the course of robberies. He had bragged about his robberies
and the injuries he had inflicted, while using racial slurs to refer to his victims.
Perhaps most aggravating, only hours after committing the murders for which
the jury convicted him, Guevara killed a security officer to steal his gun.
Moreover, any information about his difficult life in El Salvador would have
been undermined by both his brother’s clean record despite their shared
childhood and the fact that one of his victims was from El Salvador and
experienced the same atrocities.
      In sum, we conclude that reasonable jurists could not debate the district
court’s assessment of Guevara’s initial IAC claim. See Slack, 529 U.S. at 484.
Accordingly, we deny Guevara’s petition for a COA for the claim that his



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counsel was constitutionally ineffective for failing to conduct an adequate
mitigation investigation.
                                                     B.
        Guevara next turns to his IAC claim for failing to investigate the
possibility of intellectual disability for mitigation purposes, which was
contained in his successive habeas application. As noted above, the district
court found the IAC-ID claim procedurally defaulted. However, it also briefly
addressed the merits, explaining that failing to present evidence of “low IQ” is
not prejudicial under Strickland. Guevara argues that this claim should be
remanded to the district court, in light of Trevino v. Thaler, 133 S. Ct. 1911
(2013). 2 We disagree.
        When this case was pending before the district court, the Supreme Court
decided Martinez v. Ryan, which held that IAC at initial-review collateral
proceedings may establish cause for the procedural default of a claim of
ineffective assistance at trial. 132 S. Ct. 1309 (2012). Under Martinez, a
default is excused where (1) state habeas counsel was ineffective under
Strickland and (2) the underlying IAC claim “is a substantial one, which is to
say that the prisoner must demonstrate that the claim has some merit.” Id. at
1318.     Even if a petitioner makes both of these showings, he is not
automatically entitled to habeas relief. Id. at 1320. Rather, “[i]t merely allows
a federal court to consider the merits of a claim that otherwise would have been
procedurally defaulted.” Id.
        After the district court requested additional briefing on Martinez, the
Fifth Circuit decided that because of Texas’s habeas procedural structure

2 Guevara also addresses the merits of his IAC-ID claim. His arguments mirror those given in support
of his initial IAC claim. In short, he contends that any reasonable attorney would have investigated
for ID in this case and that a mental health evaluation aimed at intellectual disability would have
yielded mitigation evidence at trial. We decline to grant a COA on these grounds. Our analysis in
part II.A. applies with equal force to this claim.


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Martinez did not apply to Texas inmates. Ibarra, 687 F.3d at 225. Subsequent
to the district court’s order finding Guevara’s IAC-ID claim procedurally
barred, however, the Supreme Court has explicitly overruled Ibarra and held
that Martinez does apply to Texas inmates. Trevino v. Thaler, 133 S. Ct. 1911
(2013).
      Guevara’s argument for remand rests on an assumption that because the
IAC-ID claim was procedurally defaulted, it was not decided on the merits.
According to Guevara, therefore, Martinez and Trevino mandate that the
district court review the merits of this claim.             Martinez’s remedy of
consideration of the merits of a defaulted IAC claim is inapplicable here,
however, because the district court fully considered the merits of the IAC-ID
claim in its alternate holding.
      This conclusion is supported by our post-Trevino cases considering
procedurally defaulted claims. We recently held that where “the district court,
in its alternative holding, rejected his constitutional claims on the merits, [the
petitioner] cannot obtain a COA unless he also demonstrates that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Newbury v. Stephens, 10-70028, 2014 WL 2958635, at
*20 (5th Cir. July 1, 2014) (internal quotation marks omitted) (citing Slack,
529 U.S. at 484).     In Newbury, the court noted that “the district court
thoroughly and carefully considered all of the evidence that [the petitioner]
presented . . . and held that [his IAC] claim lacks merit because he can
demonstrate neither deficient performance nor prejudice under Strickland.”
Id. at *21. Therefore, because Newbury
      already received all of the relief available to him under the
      authority of Martinez and Trevino, that is, review of the merits by
      a federal court, it is not necessary for us to remand the case to the
      district court to determine whether Newbury’s state habeas
      counsel was ineffective or whether his [IAC] claim has ‘some merit’

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       under Martinez. All that we need to determine is whether
       reasonable jurists would find debatable the district court’s decision
       that Newbury’s [IAC] claim lacks merit under Strickland.

       Id.; see also Wilkins v. Stephens, 560 F. App’x 299, at *4–12 (5th Cir.
2014) (per curiam) (unpublished) (denying a COA where the district court
determined that the claims were procedurally barred but alternatively
concluded that there was no merit to petitioner’s IAC claims).
       Here, the district court addressed the merits of the IAC-ID claim and
found that Guevara could not demonstrate prejudice. 3 It provided case law to
support the holding that failing to present evidence of low IQ was not
prejudicial to Guevara. The district court’s treatment of the issue was not
cursory. Although the district court was incorrect in its procedural ruling in
light of Trevino, there is no need to remand the claim back to the district court
to determine whether Guevara’s state habeas counsel was ineffective or
whether his IAC claim has some merit under Martinez.                       Guevara has already
received the relief mandated by Martinez and Trevino—review of the merits by
a federal court.
       All we must determine is whether reasonable jurists would find
debatable the district court’s decision that Guevara’s IAC-ID claim lacks merit
under Strickland. We conclude that reasonable jurists could not debate the
district court’s decision that Guevara was not prejudiced.                        There is not a
reasonable probability that, given the evidence of low IQ, the jury would have
answered the special issues questions in a way that did not require the death


3 In Gates v. Stephens this court granted a COA and remanded five of petitioner’s IAC claims in light
of Trevino. 548 F. App’x 253, at *1 (5th Cir. 2013), as amended (Mar. 19, 2014) (per curiam)
(unpublished). In Gates, the district court also addressed the merits, albeit in a cursory fashion and
in a footnote. See Gates v. Thaler, 2011 WL 4370182, at *4 n.6 (S.D. Tex. May 31, 2011). The district
court simply wrote that it “reviewed the allegations Gates makes in his first five points of error and
dismisses them with confidence that, if habeas procedure allowed for plenary federal review, his claims
would not merit habeas relief.” Id.


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penalty. As explained above, the aggravating evidence was overwhelming.
Furthermore, the IQ tests that Guevara did present in state habeas court were
inconclusive and mostly incomplete, with scores ranging from 60 to 91. The
Court in Atkins noted that low IQ that does not clearly indicate intellectual
disability “can be a two-edged sword that may enhance the likelihood that the
aggravating factor of future dangerousness will be found by the jury.” 536 U.S.
at 321; see also Boyd v. Johnson, 167 F.3d 907, 910 (5th Cir. 1999). This point
is particularly relevant here, where there is powerful evidence of future
dangerousness. Accordingly, we decline to grant a COA as to the claim that
Guevara’s counsel was ineffective for failing to present evidence of intellectual
disability.
                                            C.
      In his subsequent habeas petition, Guevara also raised a substantive
Atkins claim. In this claim, Guevara argued that he is ineligible for the death
penalty because he is an individual with intellectual disability. The district
court reviewed the claim under the AEDPA, finding that Guevara did not show
his Atkins claim entitles him to relief under the AEDPA’s deferential
standards.    Guevara alleges that he presented prima facie evidence of
intellectual disability and that the state court’s ruling to the contrary is an
unreasonable application of federal law. Therefore, he argues, the decision
should not have received AEDPA deference. Guevara also argues that he
should be granted a COA in light of the recent Supreme Court decision Hall v.
Florida, which rejected Florida’s use of a strict IQ test score cutoff of 70 for
Atkins purposes.     134 S. Ct. 1986, 1990 (2014).     We find his arguments
unavailing. Accordingly, we decline to grant a COA as to this claim.
      In Atkins v. Virginia, the Supreme Court held that under the Eighth
Amendment’s “evolving standards of decency,” “death is not a suitable



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punishment for a [intellectually disabled] criminal.” 536 U.S. at 321 (internal
quotation marks omitted).      However, Atkins “did not provide definitive
procedural or substantive guides for determining when a defendant is
[intellectually disabled].” Hearn v. Thaler, 669 F.3d 265, 272 (5th Cir. 2012)
(internal quotation marks omitted). Rather, states must decide for themselves
how to measure intellectual disability. Under Texas law, an Atkins claim
requires the following showing:       “(1) significantly sub-average general
intellectual functioning; (2) accompanied by related limitations in adaptive
functioning; (3) the onset of which occurs prior to the age of 18.” Ex parte
Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004) (internal quotation marks
omitted). “Significantly sub-average general intellectual functioning” has been
defined in Texas as an IQ of about 70 or below. Id. at 7 n.24. This court has
further explained that:
      The medical authorities cited by the court in Briseno also noted:
      Psychologists and other mental health professionals are flexible in
      their assessment of [intellectual disability]; 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
      [intellectually disabled].

      Hearn, 669 F.3d at 669 (citing Briseno, 135 S.W.3d at 7).
      In Hall v. Florida, the Supreme Court concluded that mandatory, strict
IQ test cutoffs are unconstitutional. Hall, 134 S. Ct. at 1990. In Hall, “the
Court focused largely on the prohibition of sentencing courts’ considering even
substantial, additional evidence of retardation—including poor adaptive
functioning—for defendants who do not have an IQ score below 70.” Mays v.
Stephens, 13-70037, 2014 WL 2922295, at *6 (5th Cir. June 27, 2014) (citing
Hall, 134 S. Ct. at 1994, 2001). The Court “agree[d] with the medical experts
that when a defendant’s IQ test score falls within the test’s acknowledged and
inherent margin of error, the defendant must be able to present additional

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evidence of intellectual disability, including testimony regarding adaptive
deficits.” Hall, 134 S. Ct. at 2001.
      We have declared that Hall “in no way affects this court’s reading and
application of Briseno.” Mays, 2014 WL 2922295 at *6. We explained that
“Texas has never adopted the bright-line cutoff at issue in Hall.” Id. We
further explained that “[t]he cutoff at issue in Hall was problematic largely
because it restricted the evidence [] that could be presented to establish
intellectual disability,” but there is “no similar restriction of evidence under
Briseno.” Id.
      Guevara did not make a prima facie case for an intellectual disability.
In state habeas proceedings he presented no full-scale results from an accepted
IQ test. He presented a full-scale IQ score of 77 on one test, the TONI-2, which
Texas courts do not find to be a valid measure of intellect. See Maldonado v.
Thaler, 625 F.3d 229, 240–41 (5th Cir. 2010). On various sections of various
other IQ tests, his scores ranged from 60 to 91. He presented no evidence at
all that any intellectual disability he had appeared before the age of 18. His
expert’s evidence conflicted with much of the other evidence presented about
Guevara’s intellectual abilities, such as his ability to excel at various jobs and
learn new skills. Thus, the district court properly analyzed this claim under
the AEDPA.
      We conclude that reasonable jurists could not debate the underlying
constitutional claim. The district court’s ruling is amply supported by the
record. The record showed evidence of Guevara’s intellectual abilities, work
performance, and an absence of adaptive limitations. Dr. Llorente’s affidavit,
on which Guevara bases his Atkins claim, conflicts with much of the other
evidence in the record. Moreover, in light of Mays’s holding that Hall “in no
way affects this court’s reading and application of Briseno,” Mays, 2014 WL



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2922295 at *6, Guevara’s arguments regarding the constitutionality of Briseno
fall short. Accordingly, we decline to issue a COA as to Guevara’s substantive
Atkins claim.
                                   IV.
     For the foregoing reasons, we DENY Guevara’s application for a COA.




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