     Case: 10-70016    Document: 00512994392      Page: 1   Date Filed: 04/06/2015




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

                                                                              FILED
                                  No. 10–70016                             April 6, 2015
                                                                         Lyle W. Cayce
JOHN REYES MATAMOROS,                                                         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


Before JOLLY, DAVIS, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      A Texas jury found John Reyes Matamoros guilty of capital murder, and
the state trial court sentenced him to death. Matamoros sought post-conviction
relief on the ground that he is intellectually disabled and thus ineligible for the
death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). After the state
courts and the federal district court denied him relief, we granted a certificate
of appealability (COA). Because Matamoros cannot meet his burden under
AEDPA, we AFFIRM the district court’s denial of relief.
                                        I.
      The district court’s opinion thoroughly recounts the factual background
and procedural history of this case. See Matamoros v. Thaler, No. H-07-2613,
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2010 WL 1404368, at *1–3 (S.D. Tex. Mar. 31, 2010). In November 1992,
Matamoros stood trial for the capital murder of his neighbor, Eddie Goebel.
The jury found Matamoros guilty, and the state trial court sentenced him to
death. The Texas Court of Criminal Appeals affirmed Matamoros’s conviction
and sentence on direct appeal. Matamoros v. State, 901 S.W. 2d 470 (Tex.
Crim. App. 1995). The Court of Criminal Appeals denied Matamoros’s initial
state application for a writ of habeas corpus. Ex parte Matamoros, No. 50791-
01 (Tex. Crim. App. Dec. 5, 2001). After the Supreme Court decided Atkins,
Matamoros filed his initial federal habeas petition, asserting that he is
ineligible for the death penalty under Atkins because he is intellectually
disabled. 1 The district court stayed those proceedings so that Matamoros could
exhaust his Atkins claim in state court.
       The Court of Criminal Appeals received Matamoros’s successive state
habeas application and remanded the case for the state trial court to address
the merits of the Atkins claim. After an evidentiary hearing, the state trial
court entered written findings of fact and conclusions of law recommending
that the Court of Criminal Appeals deny relief. The Court of Criminal Appeals
denied Matamoros’s petition because Matamoros “fail[ed] to demonstrate by a
preponderance of the evidence that he has sufficient deficiencies in adaptive
functioning for a diagnosis of mental retardation or that there was an onset of
mental retardation during [Matamoros’s] developmental period.” Ex parte
Matamoros, No. WR-50791-02, 2007 WL 1707193, at *1 (Tex. Crim. App. June
13, 2007). The state trial court had also found that Matamoros did not meet


       1 The terms “mentally retarded” and “mental retardation” are used in this opinion
only where they are part of a direct quote. Otherwise, we substitute the terms “intellectual
disability” and “intellectually disabled,” which have been adopted by the Supreme Court and
this circuit to describe the identical condition. See Hall v. Florida, 134 S. Ct. 1986 (2014);
Williams v. Stephens, 761 F.3d 561, 565 & n.1 (5th Cir. 2014).


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the    first   criterion   for   intellectual   disability—significant   sub-average
intellectual functioning—but the Court of Criminal Appeals disagreed and
found that Matamoros did meet that criterion. Id.
       Matamoros then filed the federal habeas petition that gives rise to this
appeal. The district court denied relief and denied a COA, concluding that the
state court’s determination that Matamoros was not intellectually disabled
was not unreasonable in light of the evidence before the state court.
Matamoros, 2010 WL 1404368. Matamoros requested a COA from this court.
While the request for a COA was pending, Matamoros moved to stay the
proceedings so that he could return to state court to present newly available
evidence in support of his Atkins claim: in April 2011, Dr. George Denkowski,
the psychologist who testified as the state’s expert at the state habeas court’s
2006 evidentiary hearing, had his license officially “reprimanded” because his
“diagnostic practices [had] come under considerable professional scrutiny.” Ex
Parte Matamoros, Nos. WR-50791-02–03, 2012 WL 4713563, at *2 (Tex. Crim.
App. Oct. 3, 2012). Denkowski entered into a settlement agreement with the
Texas State Board of Examiners of Psychologists, in which he agreed to “not
accept any engagement to perform forensic psychological services in the
evaluation of subjects for mental retardation or intellectual disability in
criminal proceedings.”           We granted Matamoros’s motion to stay the
proceedings while he returned to state court to bring this development to the
state court’s attention.
       Following our stay, the Court of Criminal Appeals exercised its authority
to reconsider the initial disposition of Matamoros’s writ. Ex Parte Matamoros,
No. WR-50791–02, 2011 WL 6241295, at *1 (Tex. Crim. App. Dec. 14, 2011).
The Court of Criminal Appeals remanded the cause to the state trial court “to
allow it the opportunity to re-evaluate its initial findings, conclusions, and


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recommendation in light of the Denkowski Settlement Agreement.” Id. The
Court of Criminal Appeals stated that the state trial court could “order
affidavits or hold a live hearing if warranted.” Id. In the state trial court,
Matamoros tendered new affidavits from Drs. Thomas Oakland and Jack
Fletcher in support of his claim of intellectual disability and requested a
hearing. Without acknowledging the new affidavits or holding a new hearing,
the state trial court signed an order adopting the state’s Amended Proposed
Findings of Fact and Conclusions of Law, which recommended that relief be
denied. The state trial court stated in open court that it had discounted Dr.
Denkowski’s testimony. See Ex Parte Matamoros, 2012 WL 4713563, at *3
(Price, J., dissenting).    The Court of Criminal Appeals again denied
Matamoros’s writ application, “[b]ased upon the trial court’s findings and
conclusions and our own review.” Id. at *1.
      Two judges on the Court of Criminal Appeals dissented. They noted that
the state trial court did not mention Matamoros’s new affidavits and that “the
process by which [the] new recommended findings and conclusions were made
does not inspire confidence.” Id. at *3. The dissenters further stated that
because Matamoros had “made a fairly compelling showing of mental
retardation,” they “would not reject his claim without first remanding the
cause to the convicting court for additional fact development.”          Id.   The
dissenters specifically stated that they, as the state court, were not bound by
“almost insurmountable” AEDPA deference and, for that reason, should not
defer to the state trial court’s factual determination. Id. at *5.
      Matamoros then filed a motion to lift the stay in this court and to remand
for the district court “to reconsider [his] Atkins claim de novo without taking
into account or in any respect relying on Dr. Denkowski’s analysis.”           We
granted the motion to lift the stay and carried the motion for remand with the


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                                 No. 10–70016
request for a COA. See Matamoros v. Stephens, 539 F. App’x 487, 491 (5th Cir.
2013). We declined to remand the case to the district court because, “under
AEDPA, it is the state trial court’s factual findings to which we must defer if
reasonable,” so “remanding this case to the district court to allow it to make
new findings would serve no meaningful purpose.” Id. at 494. We issued a
COA on Matamoros’s Atkins claim. Id. This appeal followed.
                                       II.
      Federal habeas proceedings are subject to the rules prescribed by the
Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2254.
Under AEDPA, if a state court has adjudicated a habeas petitioner’s claim on
the merits, federal habeas relief may be granted in either of two circumstances.
First, relief may be granted if the state court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”                28 U.S.C.
§ 2254(d)(1); see Harrington v. Richter, 562 U.S. 86, 97–98 (2011); Rivera v.
Quarterman, 505 F.3d 349, 356 (5th Cir. 2007). “A state court’s decision is
deemed contrary to clearly established federal law if it reaches a legal
conclusion in direct conflict with a prior decision of the Supreme Court or if it
reaches a different conclusion than the Supreme Court on materially
indistinguishable facts.” Gray v. Epps, 616 F.3d 436, 439 (5th Cir. 2010) (citing
Williams v. Taylor, 529 U.S. 362, 404–08 (2002)). “If this standard is difficult
to meet, that is because it was meant to be.” Harrington, 562 U.S. at 103.
      Second, and of consequence here, relief may be granted if the state
court’s decision “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). Thus, we can grant Matamoros’s petition if the Court of Criminal
Appeals unreasonably found that Matamoros was not intellectually disabled.


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Although “[t]he term ‘unreasonable’ is no doubt difficult to define . . . , a state-
court factual determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first instance.”
Wood v. Allen, 558 U.S. 290, 301 (2010) (alternation in original) (internal
quotation marks omitted). Even if “‘[r]easonable minds reviewing the record
might disagree’ about the finding in question, ‘on habeas review that does not
suffice to supersede the trial court’s . . . determination.’” Id. (alterations in
Wood) (quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006)). Moreover, we
presume the state court’s factual findings are correct, and a petitioner only
may rebut this presumption by “clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1); see Miller-El v. Dretke, 361 F.3d 849, 854 (5th Cir. 2004), rev’d on
other grounds, 545 U.S. 231 (2005). 2
       The question of whether a defendant is intellectually disabled is a fact
question. Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir. 2010). Accordingly,
Matamoros bases his argument on § 2254(d)(2).                    Specifically, Matamoros


       2 The Supreme Court has “explicitly left open the question whether § 2254(e)(1)
applies in every case presenting a challenge under § 2254(d)(2).” Wood v. Allen, 558 U.S. 290,
300 (2010); see Rice v. Collins, 546 U.S. 333, 339 (2006) (“[T]he parties disagree about whether
and when [§ 2254(e)(1)’s presumption applies]. We need not address that question.”); see also
Wood, 558 U.S. at 301 n.2 (describing possible ways to interpret the interplay of § 2254(e)(1)
and § 2254(d)(2)). The courts of appeals are divided on the issue. Compare Trussell v.
Bowersox, 447 F.3d 588, 591 (8th Cir. 2006) (applying § 2254(e)(1) in a § 2254(d)(2) case) with
Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004) (holding that § 2254(e)(1) only applies
in a challenge based on evidence outside the state trial court record); see also Justin F.
Marceau, Deference and Doubt: The Interaction of AEDPA § 2254(d)(2) and (e)(1), 82 Tul. L.
Rev. 385 (2007).
       In our circuit, we apply § 2254(e)(1)’s presumption and “clear and convincing evidence”
requirement to a state court’s determination of particular factual issues in § 2254(d)(2) cases.
See Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011) (“The clear-and-convincing evidence
standard of § 2254(e)(1)—which is arguably more deferential to the state court than is the
unreasonable-determination standard of § 2254(d)(2)—pertains only to a state court’s
determination of particular factual issues, while § 2254(d)(2) pertains to the state court’s
decision as a whole.”); Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006).



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argues that he is entitled to habeas relief because the Court of Criminal
Appeals’s conclusion that he (Matamoros) is not intellectually disabled is an
unreasonable determination of the facts in light of the evidence before that
court. See 28 U.S.C. § 2254(d)(2). Thus, the question before us is whether
Matamoros has shown, by clear and convincing evidence, that the Court of
Criminal Appeals unreasonably determined that Matamoros does not exhibit
adaptive behavior deficits that originated before age eighteen. We now turn to
that task.
                                       III.
                                        A.
        We begin with a discussion of the law that governs our analysis. In
Atkins, the Supreme Court held that the Eighth Amendment prohibits the
execution of intellectually disabled persons.     536 U.S. at 321.     The Court
explained that there is a “national consensus” among state legislatures and
Congress that the execution of mentally retarded offenders is excessive
punishment, id. at 316–17, and the Court found “no reason to disagree with
the judgment of the legislatures that have recently addressed the matter,” id.
at 321 (internal quotation marks omitted). The Atkins Court noted that states
which      had   already     enacted    “statutory     definitions    of   mental
retardation . . . generally conform to the clinical definitions” of the American
Association on Mental Retardation (AAMR) and/or the American Psychiatric
Association. Id. at 308 n.3, 317 n.22. However, the Court did not articulate a
governing standard for intellectual disability, instead leaving to the states “the
task of developing appropriate ways to enforce the constitutional restriction
upon [their] execution of sentences.” Id. at 317 (alteration in original) (internal
quotation marks omitted).




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       In Texas, the standard for determining whether a person is intellectually
disabled, and thus ineligible for the death penalty, was established by the
Texas Court of Criminal Appeals in Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim.
App. 2004). The Briseno court looked to the “definitions of ‘mental retardation’
set out by the American Association on Mental Retardation (AAMR) and [the
definition] contained in section 591.003(13) of the Texas Health and Safety
Code.” 3 Id. at 7. Both the AAMR and the Texas Code use a three-prong test
for mental retardation: (1) significant sub-average intellectual functioning; (2)
deficits in adaptive behavior; and (3) onset before age 18. Id. The Briseno court
held, with qualifications discussed below, that “[Texas] will follow the AAMR
or section 591.003(13) criteria in addressing Atkins mental retardation claims,”
unless the legislature adopts an alternative statutory definition for use in
capital cases. 4 Id. at 8. The Briseno court placed the burden of proof on the
defendant, who must show, by a preponderance of the evidence, that he is
intellectually disabled. Id. at 12.
       The prong of the Briseno test most relevant here is the second prong—
deficits in adaptive behavior. 5 “Adaptive behavior means the effectiveness
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.”
Briseno, 135 S.W.3d at 7 n.25 (internal quotation marks omitted). The AAMR


       3 The subtitle of the Texas Health and Safety Code containing this definition concerns
“the effective administration and coordination of mental health and mental retardation
services at the state and local levels.” Tex. Health & Safety Code Ann. § 531.001.

       4   The Texas Legislature has not adopted such a definition.

       5The Court of Criminal Appeals determined that Matamoros satisfied the first prong
of the Briseno test, so we do not discuss that prong here. And because we rule against
Matamoros on the adaptive behavior prong, we need not address whether his symptoms onset
before age eighteen.


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identifies ten adaptive skill areas; a person must have deficits in at least two
of these skill areas in order to meet the AAMR diagnostic criteria for adaptive
behavior deficits. The ten adaptive skill areas are: “communication, self-care,
home living, social skills, community use, self-direction, health and safety,
functional academics, leisure, and work.” Atkins, 536 U.S. at 308 n.3 (internal
quotation marks omitted).
      Although the Briseno court stated that Texas courts would use the
AAMR definitions, it also noted that “[t]he adaptive behavior criteria are
exceedingly subjective.” 135 S.W.3d at 8. The Briseno court further noted that,
“[a]lthough experts may offer insightful opinions on the question of whether a
particular person meets the psychological diagnostic criteria for mental
retardation, the ultimate issue of whether [a] person is, in fact, mentally
retarded . . . is one for the finder of fact, based upon all of the evidence and
determinations of credibility.” Id. at 8–9.
      Because of the “subjectiv[ity]” of scientific standards and expert
testimony, the Briseno court listed seven additional factors that courts may
consider in their adaptive behavior analysis. These factors have come to be
known as “Briseno factors.” They are:
             (1) 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? (2) Has the person
      formulated plans and carried them through or is his conduct
      impulsive? (3) Does his conduct show leadership or does it show
      that he is led around by others? (4) Is his conduct in response to
      external stimuli rational and appropriate, regardless of whether it
      is socially acceptable? (5) Does he respond coherently, rationally,
      and on point to oral or written questions or do his responses
      wander from subject to subject to subject? (6) Can the person hide
      facts or lie effectively in his own or others’ interests? (7) Putting
      aside any heinousness or gruesomeness surrounding the capital


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                                       No. 10–70016
       offense, did the commission of that offense require forethought,
       planning, and complex execution of purpose?

Id. We previously have held that Briseno is a constitutionally permissible
interpretation and application of Atkins. 6 See Lewis v. Thaler, 701 F.3d 783,
793 (5th Cir. 2012); Chester v. Thaler, 666 F.3d 340, 346–47 (5th Cir. 2011).
Indeed, we have denied habeas relief even where the state court relied only on
the Briseno factors, to the exclusion of the AAMR adaptive behavior criteria.
See Chester, 666 F.3d at 347 (“[W]e conclude that the application of the Briseno
factors, even in the absence of specific employment of the AAMR’s methodology
for determining deficiencies in adaptive behavior, cannot be an ‘unreasonable
application’ of Atkins’ broad holding.”); id. at 353 (Dennis, J., dissenting)
(“[T]he TCCA in the present case used the Briseno factors as a substantive part
of its mental retardation definition, instead of the second prong of the AAMR
definition . . . .”). Thus, we are bound to apply the Briseno factors in our
analysis of whether the state court unreasonably determined that Matamoros
is not intellectually disabled.
       This is so even in light of the Supreme Court’s decision in Hall v. Florida,
134 S. Ct. 1986 (2014). Matamoros argued, in a 28(j) letter, that Hall casts
doubt on the propriety of a test that deviates from accepted medical practice.
In Hall, the Supreme Court rejected Florida’s use of a strict 70-point IQ cut-
off, in large part because “Florida’s rule disregards established medical



       6 Some have criticized the Briseno factors because they lack a scientific basis. See,
e.g., Chester v. Thaler, 666 F.3d 340, 350–71 (5th Cir. 2011) (Dennis, J., dissenting); John H.
Blume et al., Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation
in Death Penalty Cases, 18 Cornell J.L. & Pub. Pol’y 689, 710–14 (2009); id. at 711–12 (“The
Briseno factors present an array of divergences from the clinical definitions.”). That said, we
may not “disregard the precedent that has been established by our previous decisions.” In re
Pilgrim’s Pride Corp., 690 F.3d 650, 663 (5th Cir. 2012).


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                                 No. 10–70016
practice.” Id. at 1995. After Matamoros filed the 28(j) letter, we rejected the
argument that Hall renders Briseno unconstitutional. See Mays v. Stephens,
757 F.3d 211, 219 (5th Cir. 2014), cert. denied, 135 S. Ct. 951 (2015). Our rule
of orderliness prevents a three-judge panel from “disregard[ing] the precedent
that has been established by our previous decisions.” In re Pilgrim’s Pride
Corp., 690 F.3d 650, 663 (5th Cir. 2012).
                                       B.
      Before we turn to the evidence on which the state habeas court based its
decision, we pause to discuss the evidence on which it disclaimed any reliance.
As noted, Dr. Denkowski was the state’s expert witness at the 2006 state
habeas proceedings.      Dr. Denkowski administered numerous tests on
Matamoros and reviewed affidavits, medical reports, behavioral reports,
disciplinary records, and other documents about Matamoros.                  Most
importantly for present purposes, Dr. Denkowski concluded that Matamoros
had an adaptive deficit in functional academics but no other area.           Dr.
Denkowski’s conclusion was based, in large part, on adjustments he made to
Matamoros’s scores on the Adaptive Behavior Assessment System (ABAS). For
example, Matamoros attained a 3 out of 10 (i.e., a failing score) on the skill of
“self-direction,” but Dr. Denkowski adjusted this score upward into the passing
range based on Matamoros’s “description . . . of his system and plan for stealing
cars and . . . [his] documented ability to formulate plans and carry them
through, albeit criminal plans.” The state trial court adopted Dr. Denkowski’s
determination that Matamoros only had an adaptive deficit in functional
academics, despite contrary determinations by Matamoros’s experts.




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       In 2011, Dr. Denkowski entered into a settlement agreement in which
his license was “reprimanded.” See Matamoros, 2012 WL 4713563, at *1. 7 The
Court of Criminal Appeals remanded Matamoros’s case “to allow the trial court
the opportunity to re-evaluate its initial findings, conclusions, and
recommendation in light of the Denkowski Settlement Agreement.” Id.
       On remand, the state trial court disclaimed any reliance on Dr.
Denkowski’s testimony. However, the state trial court’s amended findings of
fact closely mirrored its original findings of fact, except that the citations to
Dr. Denkowski’s testimony were (usually) removed. 8 This similarity between
the original and the amended findings exists despite the fact that some of the




       7 Dr. Denkowski’s testimony and methodology were called into question in at least two
other cases in this circuit. See, e.g., Maldonado v. Thaler, 389 F. App’x 399, 403 (5th Cir.
2010) (granting COA because the district court’s ruling “relied, in part, on the testimony of
the State’s expert witness, Dr. George Denkowski”); Pierce v. Thaler, 355 F. App’x 784, 794
(5th Cir. 2009) (granting COA where petitioner’s “arguments focus almost exclusively on . . .
the credibility of the State’s expert witness, Dr. George Denkowski”). Indeed, the state has
taken the position that it will no longer rely on any of Denkowski’s findings in any pending
appeals.

       8 For example, Finding of Fact 53 states: “The Court finds, based on the 2006 writ
hearing, that Dr. Denkowski administered the Stanford-Binet Intelligence Scales – Fifth
Edition . . . and the applicant obtained a Full-scale Score of 62 . . . .” Another example is
Finding of Fact 64, which states: “The Court finds, based on the 2006 writ hearing, that
maladaptive behaviors are behaviors that interfere with the performance of adaptive tasks .
. . and that the presence of maladaptive behavior does not meet the criterion of significant
limitations in adaptive functioning (I WH at 107–108)(III WH at 72–73).” The citations
supporting this Finding of Fact are to Dr. Denkowski’s testimony, during which he testified:
“[J]ust because you have maladaptive . . . behavior present gives no indication what your
adaptive behavior really is . . . [Y]ou can’t assess adaptive behavior on the basis of
maladaptive behavior.” A third example is Finding of Fact 114, in which the state trial court
found, “based on the 2006 writ hearing, that Dr. Norsworthy did not assess the applicant’s
adaptive behavior when evaluating him in 1980; therefore, Dr. Norsworthy’s evaluation does
not meet the three-prong test required to diagnose mental retardation (I WH at 126–29)(III
WH at 71).” The second citation is to Dr. Denkowski’s testimony, during which he testified
that Dr. Norsworthy “couldn’t really make any kind of comment regarding retardation
because among other things, no adaptive behavior assessment was done.”


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amended findings have no support in the record without Dr. Denkowski’s
testimony. In recognition of this discrepancy, the state acknowledged at oral
argument that the state trial court likely relied upon Dr. Denkowski’s
testimony despite its representations to the contrary.
      Matamoros argues that the state trial court’s reliance on Dr.
Denkowski’s testimony makes its decision unreasonable and entitles
Matamoros to relief. Matamoros is incorrect. We review the Court of Criminal
Appeals’s decision, not the state trial court’s. See Woodfox v. Cain, 772 F.3d
358, 369 (5th Cir. 2014) (“Under AEDPA, we review the last reasoned state
court decision.” (internal quotation marks omitted)). The Court of Criminal
Appeals explicitly stated that it relied not only upon the state trial court’s
factual findings, but also “[its] own review.” Matamoros, 2012 WL 4713563, at
*1. Thus, Matamoros cannot show that the relevant decisionmaker—the Court
of Criminal Appeals—relied on Dr. Denkowski’s testimony.
      Alternatively, our review is limited to the state court’s decision, “‘not the
written opinion explaining that decision.’”       Maldonado, 625 F.3d at 239
(quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)); see also
Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (“The statute compels
federal courts to review for reasonableness the state court’s ultimate decision,
not every jot of its reasoning.”). Instead, we must conduct our own review of
the evidence (excluding Dr. Denkowski’s testimony) and determine whether
Matamoros has shown clearly and convincingly that the Court of Criminal
Appeals’s decision—that Matamoros did not meet his burden of proof—was
unreasonable.
                                        C.
      We now turn to the evidence in the record. Nearly all of the evidence
before the Court of Criminal Appeals in 2012 was presented at the 2006


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hearing. The evidence presented in 2006 includes: expert testimony from Dr.
Susana Rosin; various test results; the transcript of Matamoros’s testimony
during the punishment phase of his trial; testimony from Matamoros’s family
members; and records of Matamoros’s personal history, particularly those
collected while he was under state supervision. 9
       Matamoros offered expert testimony from Dr. Susana Rosin. Dr. Rosin
testified that Matamoros was intellectually disabled because he had sub-
average intellectual functioning and adaptive behavior deficits that had
originated prior to age 18. With respect to the AAMR adaptive skills areas,
Dr. Rosin testified that Matamoros had adaptive deficits in communication,
writing and math skills, ability to follow directions, living, and ability to adapt
to basic rules.
       Dr. Rosin based her conclusions on interviews with Matamoros and his
family, a review of Matamoros’s family records, Texas Youth Commission
(TYC) records, Texas Department of Criminal Justice (TDCJ) records,
Matamoros’s letters, various psychological reports, and Matamoros’s test
results during his incarceration at TYC.




       9 We do not purport to list all of the evidence in the record. Instead, we have attempted
to describe enough of the evidence to provide an accurate overview of the record. Moreover,
although the Court of Criminal Appeals determined that Matamoros satisfied the “sub-
average intellectual functioning” prong of the intellectual disability test, we include some
discussion of evidence related to intellectual functioning. As recounted in further detail
below, several IQ tests were administered to Matamoros over the past few decades. A 1977
test administered by Dr. Ronald Smith resulted in a full-scale IQ score of 71; a 1980 test
administered by Dr. Ludy Norsworthy resulted in a full-scale IQ score of 74; a 2003 test
resulted in a full-scale IQ score of 77 (the validity of this test was disputed, as it was based
on an outdated test); a 2004 test administered by Dr. Susana Rosin resulted in a full-scale
IQ score of 65; and a 2005 test administered by Dr. George Denkowski resulted in a full-scale
IQ score of 62 (although Denkowski testified that he did “not believe that is an accurate
measure of the applicant’s actual mental ability . . . [and] would evaluate the applicant’s IQ
in the borderline normal range”).


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                                 No. 10–70016
      Based on Dr. Rosin’s review of the above-mentioned records, she
concluded that:
      • The 1977 report diagnosing Matamoros as mildly intellectually
        disabled appeared to be a valid diagnosis.
      • The personality testing in the 1977 report ties into the social behavior
        analysis that is required for adaptive behavioral analysis.
      • The 1977 report is consistent with the information provided by
        Matamoros’s sisters and the description of Matamoros in his other
        records.
      • Matamoros’s TYC admission records from June 1978, detailing his
        work history and family history, and his July 1978 testing placed
        him—when he was 15—around a second-grade academic level.
      • The TYC monthly reports from 1978—which generally described
        Matamoros as immature—were consistent with Dr. Smith’s 1977
        report.
      • Certain facts in Matamoros’s 1979 discharge papers—specifically the
        statement that he would benefit from learning to fill out an
        application—were consistent with intellectual disability.
      • A 1980 report found that Matamoros was at a 1.8 reading level and
        3.7 math level when he was 17 years old.
      • Another psychologist, Dr. Ludy Norsworthy, performed an
        assessment and diagnosed Matamoros with “borderline mental
        retardation.”
      • Matamoros’s adaptive behavioral problems were apparent in the
        descriptions of his behavior in his discharge papers from TYC in 1980.
      • Intellectual disability tends to run in families and Matamoros has a
        family history of cognitive and learning problems, including two
        nephews who display some dysmorphic facial features.

      Based on Dr. Rosin’s testing of Matamoros, in combination with her
review of prior records, Dr. Rosin testified that:
         • Matamoros’s adaptive behaviors were subnormal, but the test was
           difficult to administer because Matamoros is in a confined
           environment and does not have the opportunity to perform some
           of the tested behaviors.
         • Matamoros shows adaptive deficits that he has exhibited since
           childhood.



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                                  No. 10–70016
         • Dr. Ronald Smith’s 1977 test—which concluded that Matamoros
           was intellectually disabled—is very significant because it was
           performed independent of any knowledge about the criminal
           proceedings.
         • Matamoros had deficits in communication, writing ability, and
           math ability. His deficits were demonstrated by trouble following
           directions in prison and in learning to adapt to fairly basic rules.

      Dr. Rosin testified that personality testing from the time Matamoros was
incarcerated as a juvenile indicated that Matamoros was somewhat socially
inept, direct, and simplistic in his dealings with others. He was highly group
dependent and very easily led into becoming a venturesome participant. He
depended highly upon individuals in his group to provide him with leadership
and to support him in problem-solving behavior. He also appeared to view
adults, particularly males, as a source of punishment.
      As part of her evaluation, Dr. Rosin administered the Vineland test, an
I.Q. test, the Wechsler Adult Intelligence Scale 3 (W.A.I.S. III), the Wide Range
Achievement Test, and the Benton Visual Retention Test, and she attempted
to administer the Trail Making A and B test. Based upon the results of the
W.A.I.S. III, Dr. Rosin found that Matamoros had a verbal I.Q. of 66, a
performance I.Q. of 69, and a full-scale I.Q. of 65.
      Dr. Rosin specifically tested Matamoros’s adaptive behavior skills
through the use of the Vineland test. The Vineland assesses adaptive behavior
skills in three areas, which encompass the ten or eleven different areas under
the AAMR or DSM, respectively: communications, daily living skills, and
socialization. Matamoros scored a 44 in socialization (a moderate deficit), a 33
in communication (a severe deficit), and a 57 in daily living (a mild deficit). Dr.
Rosin concluded that Matamoros had deficits in communication, writing and
math skills, ability to follow directions, living, and learning to adapt to basic



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                                  No. 10–70016
rules. Based on her own testing, her review of previous tests, and anecdotal
evidence from Matamoros’s family, Rosin concluded that Matamoros had
adaptive deficits originating prior to age 18 and met the criteria for intellectual
disability.
      In addition to Dr. Rosin’s testimony and supporting evidence,
Matamoros also presented test-based evidence of intellectual disability.
Beginning in 1977, Matamoros was evaluated and administered standardized
tests on numerous occasions. In 1977, Dr. Smith administered Matamoros an
intelligence test, the W.I.S.C. –R., now the W.I.S.C. –R –IV. He was also
administered the Wide Range Achievement Test, the Cattell Culture Fair I.Q.
Test, the Bender Gestalt, the Thematical Perception Test, and a number of
personality tests. Dr. Smith assessed Matamoros’s reading level at about a 1.7
grade equivalency, spelling at about a second-grade equivalency, and
arithmetic at a 2.9 grade equivalency. This put Matamoros at about the first
percentile in these categories. Dr. Smith’s 1977 report assessed Matamoros’s
verbal I.Q. at 64, performance I.Q. at 82, and full-scale I.Q. at 71. Matamoros’s
Culture Fair I.Q., based mainly on nonverbal abilities, was a 79.
      In 1978—when Matamoros was around the appropriate age for ninth
grade—he was administered the Metropolitan Achievement Test (M.A.T.).
Matamoros tested around a second-grade level, including a 1.9 in word
knowledge; a 1.5 in word analysis; a 1.8 in reading; a 2.4 in math; and a 1.9 in
total reading. In 1980, Matamoros was again administered the M.A.T., and he
scored a 1.8 in reading and a 3.7 in math. He was also administered the
W.A.I.S., the adult version of the Wechsler scales. His verbal I.Q. was 73, his
performance I.Q. was 79, and his full-scale I.Q. was 74. In 2003, Matamoros
was administered tests by Dr. Walter Quijano. Dr. Quijano found a verbal I.Q.
of 72, a performance I.Q. of 84, and a full-scale I.Q. of 77.


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                                No. 10–70016
      Turning to the state’s case, the state’s evidence and argument at the
2006 evidentiary hearing included Dr. Denkowski’s testimony, Matamoros’s
actions after the crime and testimony at his trial, behavior reports from
Matamoros’s time in state custody, and various criticisms of Matamoros’s
evidence. For reasons discussed above, we do not consider Dr. Denkowski’s
testimony.
      The state argued that Matamoros’s testimony during the punishment
phase of his trial was evidence of his ability to think logically, thoughtfully,
and rationally. During the punishment phase of his trial, Matamoros took the
stand and gave an account that explained the physical evidence placing him at
the crime scene (including his blood and shoeprints). Matamoros testified that
he and another man, Danny Castillo, were drinking in a parking lot near the
victim’s house, that Castillo entered the victim’s house while Matamoros was
urinating behind a car, that Matamoros only entered the victim’s house after
hearing the victim yelling, that Castillo stabbed Matamoros before fleeing, and
that Matamoros stood next to the victim for a moment before leaving.
Matamoros further testified that he did not name Castillo as the “true” culprit
until the punishment hearing because he feared retribution from Castillo, who
was affiliated with the “Mexican Mafia.” The state argues that this story
“represents a fairly sophisticated attempt to admit incriminating evidence
while denying guilt.” Cf. Briseno, 135 S.W.3d at 8 (“Can the person hide facts
or lie effectively in his own or others’ interests?”); id. (“Does he respond
coherently, rationally, and on point to oral or written questions or do his
responses wander from subject to subject?”).
      Matamoros also denied that he committed certain offenses for which he
previously had been accused or convicted. For example, he maintained that he
had not actually committed an assault for which he had pleaded guilty,


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                                   No. 10–70016
explaining that he pleaded guilty only because he believed a jury was unlikely
to believe his word over the victim’s word.        Dr. Rosin conceded on cross-
examination    that   Matamoros’s     explanation    “is     based   on   logic   and
[Matamoros’s] understanding of how the criminal justice system worked.” Cf.
Briseno, 135 S.W.3d at 8 (“Is his conduct in response to external stimuli
rational and appropriate, regardless of whether it is socially acceptable?”).
Matamoros further testified that, during his affiliation with the Mexican
Mafia, he would be asked to perform certain tasks by other members of the
Mexican Mafia, but that he sometimes would decline to perform some of the
more violent of those tasks. Cf. Briseno, 135 S.W.3d at 8 (“Does his conduct
show leadership or does it show that he is led around by others?”).
      According to the state, Matamoros’s crimes “exposed the same calculated
rationality as did his testimony.” For example, Matamoros had threatened his
murder victim the day before the murder, claiming that the victim owed him
money. Similarly, the above-mentioned woman whom Matamoros assaulted
had previously reported Matamoros for stealing a clipboard from a police car.
Four or five months later, Matamoros broke into her house and assaulted her,
telling her that “your time has come for you to pay your price.” The state
argues that both of these crimes evidence Matamoros’s ability to make and
follow through on plans.       Cf. Briseno, 135 S.W.3d at 8 (“Has the person
formulated plans and carried them through or is his conduct impulsive?”); id.
at 8–9 (“Putting aside any heinousness or gruesomeness surrounding the
capital offense, did the commission of that offense require forethought,
planning, and complex execution of purpose?”).
      The state also introduced records from Matamoros’s time in state
custody, including reports from TYC and TDCJ and testimony from
correctional officers.     These records include descriptions and behaviors


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                                 No. 10–70016
inconsistent with adaptive behavior deficits. For example, some of the reports
state that Matamoros was social with other inmates, had the potential to be a
leader, and did not have any socialization problems. A 1978 TYC report notes
that Matamoros was very proficient at daily living skills, kept himself neat and
clean, and was conscientious about his personal appearance.            At TDCJ,
Matamoros reportedly requested commissary items using the proper forms,
successfully completed visitation forms, checked out books from the library,
and possessed a chess set and an accompanying list of chess moves (suggesting
that he was playing chess with other inmates).
      The state also pointed out flaws with the evidence presented by
Matamoros. For example, Dr. Rosin’s administration of the Vineland test did
not comport with accepted methods of administration; rather than asking
someone close to Matamoros to answer the questions, she relied on
Matamoros’s self-reporting. The state also cross-examined Dr. Rosin, with
varying degrees of effectiveness, on the following topics: whether Matamoros’s
inability to follow rules could be the result of an active choice; the fact that
many of the TYC reports state that Matamoros was proficient at daily living,
polite, and conscientious about his personal appearance; TYC reports that
indicate Matamoros was not a behavior problem in class and that he had the
potential to become a good leader with good social skills; and TYC reports
indicating that Matamoros was manipulative.
      The state also attacked the earlier testing and reports. In particular, the
state established that neither Dr. Smith nor Dr. Norsworthy tested Matamoros
specifically for adaptive behavior deficits, as the presence of adaptive behavior
deficits was not a prong of the intellectual disability diagnosis at the times the
tests were administered.




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                                  No. 10–70016
      Matamoros argues that much of this evidence should not be considered
because the state trial court “viewed the historical record through Denkowski’s
skewed lens.” Although it is true the state trial court based its decision on
much of the same evidence that Dr. Denkowski used (e.g. reports and records
from TYC and TDCJ), we cannot say that this evidence is tainted solely
because Dr. Denkowski mentioned it. The Briseno factors direct courts to
evaluate a defendant’s interactions with others and ability to function in
everyday life; under our precedent, courts can conduct that inquiry by referring
to records of the defendant’s daily life or by examining his testimony. See, e.g.,
Maldonado, 625 F.3d at 241–44. In any event, we review the Court of Criminal
Appeals’s decision, not the state trial court’s.
                                        D.
      In addition to all of the evidence presented at the 2006 evidentiary
hearing, Matamoros submitted new affidavits in 2012 from Drs. Jack Fletcher
and Thomas Oakland. The affidavits, which are described in greater detail
below, are generally critical of the state trial court’s 2006 decision, of Dr.
Denkowski’s methodology, and of the use of TYC records as a measure of
adaptive behavior competency. It is unclear whether the state trial court or
the Court of Criminal Appeals considered the affidavits of Drs. Fletcher and
Oakland.
      Dr. Fletcher’s affidavit criticizes Dr. Denkowski’s methods; Dr. Fletcher
“do[es] not believe that Dr. Denkowski utilizes accepted practices . . . and
[believes] that Dr. Denkowski interprets assessment data in an idiosyncratic
manner that is professionally unacceptable and unethical.”            Further, Dr.
Fletcher states that “Dr. Denkowski’s practice of adjusting adaptive behavior
scores based on ‘trial testimony,’ reports of behavior in controlled settings like
the Texas Youth Commission and prison, and evidence of a ‘criminal


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                                  No. 10–70016
personality’ is inappropriate.”    Dr. Fletcher, based on his own review of
Matamoros’s history, determined that “there are clear indications from
caretakers of significant adaptive behavior deficits before age 18,” and that
“[Matamoros] shows evidence of adaptive behavior weaknesses in conceptual,
social, and practical domains consistent with a mild intellectual disability.
Both the intellectual deficiencies and the adaptive behavior deficiencies were
apparent during the developmental period (i.e., before 18 years of age).” Dr.
Fletcher concludes that Matamoros “meets the criteria for an intellectual
disability.”
      Dr. Oakland submitted two affidavits. The first sharply criticizes Dr.
Denkowski’s testimony and findings. For example, Dr. Oakland states that
“Dr. Denkowski’s reliance on Mr. Matamoros’s anti-social and criminal
behavior as evidence of his adaptive behavior is unsupported and contrary to
standard practice. Moreover, his belief that measures of adaptive behavior
produce scores that tend to understate the actual functioning of persons
engaged in criminal behaviors also is contrary to standard practice and lacks
empirical support.”     The affidavit further states that Dr. Denkowski
inappropriately relied on records from when Matamoros was incarcerated,
explaining that “[l]ife when incarcerated, by design, differs considerably from
life on the outside. Life on the outside has more common life demands, is more
complex, and more reliant on one personally knowing what to do, when, and
under what conditions.” Dr. Oakland ultimately concludes that, based upon
his “review of Dr. Denkowski’s affidavit and testimony, it [is] my opinion that
. . . Dr. Denkowski’s work concerning adaptive behavior deficit, in this case,
reflects a lack of adherence to well established standards and practices and
violates ethical standards.”




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                                  No. 10–70016
      Dr. Oakland’s second affidavit takes issue with the state trial court’s
findings of fact in the 2006 proceeding. In particular, Dr. Oakland writes that
“the judge’s findings display a lack of understanding of well-established
standards and principles as well as scientific value.”           The affidavit then
proceeds to criticize approximately seventy of the state trial court’s factual
findings. For example, with respect to the state trial court’s 2006 Findings of
Fact 75 and 83, Dr. Oakland opined: “The judge erred in her judgment as to
the behaviors that reflect adaptive behavior. She commonly and incorrectly
assumes such qualities as “appeared to clearly understand, is logical,
addressed questions appropriately, is capable, devise stories, provide a rational
explanation, shows understanding, . . . reflect adaptive behavior. They reflect
intelligence, not adaptive behavior.”
      The parties dispute whether we may consider these affidavits. AEDPA
limits our review to “the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2). Although Matamoros submitted the affidavits to the state
trial court, it is unclear whether the state court ever accepted this submission.
As noted, the Court of Criminal Appeals allowed the state trial court “the
opportunity    to   re-evaluate    its   initial    findings,     conclusions,    and
recommendation in light of the Denkowski Settlement Agreement.”
Matamoros, 2011 WL 6241295, at *1. The Court of Criminal Appeals stated
that the state trial court could “order affidavits or hold a live hearing if
warranted,” id., but it did not require the state trial court to accept new
affidavits. The state trial court did not give any indication that it had reviewed
the new affidavits. Thus, we cannot say whether the affidavits were “presented
in the State court proceeding.” Indeed, the dissenting judges of the Court of
Criminal Appeals wrote that the state trial court “apparently did not” consider
the affidavits. Matamoros, 2012 WL 4713563, at *3 (Price, J., dissenting)


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                                      No. 10–70016
(emphasis in original).        And it is unclear whether the Court of Criminal
Appeals considered the affidavits when it conducted “[its] own review” of the
evidence.
       In any event, the affidavits do not affect the outcome of this appeal. Even
if the state trial court was properly presented with the affidavits’ criticism of
using TYC records to gauge Matamoros’s adaptive functioning, the state trial
court would not have been required to give those criticisms determinative (or
any amount of) weight. See Briseno, 135 S.W.3d at 8–9 (“Although experts may
offer insightful opinions on the question of whether a particular person meets
the psychological diagnostic criteria for mental retardation, the ultimate issue
of whether [a] person is, in fact, mentally retarded . . . is one for the finder of
fact, based upon all of the evidence and determinations of credibility.”).
Accordingly, even if the affidavits were in the record, we would not be able to
say that the state trial court’s reliance on the TYC records was unreasonable. 10
                                             IV.
       Oftentimes, the precise standard of review has little practical effect on
the outcome of a case. Courts often comment that they “need not address” the
standard of review, Rice v. Collins, 546 U.S. 333, 339 (2006), that the result is
the same “[w]ith or without . . . deference,” Smith v. Spisak, 558 U.S. 139, 156
(2010), that “we need not parse the differences between the two standards in
this case,” McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1445 (2014),
or that a claim can be rejected “[u]nder any standard of review,” Quilloin v.
Walcott, 434 U.S. 246, 256 (1978). This is not one of those cases. The law
permits us to grant relief only if Matamoros has shown, by clear and convincing



       10In addition, the portions of the affidavits criticizing Dr. Denkowski are irrelevant,
as we have not given any weight to Dr. Denkowski’s testimony or opinions.


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                                      No. 10–70016
evidence, that the Court of Criminal Appeals was unreasonable in concluding
that Matamoros failed to prove, by a preponderance of the evidence, that he is
intellectually disabled, as that term is defined in Briseno and has been
interpreted by Texas courts.
      Under that standard, Matamoros’s petition fails. Although Matamoros
provided ample evidence that he exhibits adaptive behavior deficits—including
multiple test results, multiple expert opinions, and multiple diagnoses
spanning three decades—and although the state has no expert testimony in
support of its position, 11 instead relying primarily on historical and
observational evidence, Matamoros has not shown that the Court of Criminal
Appeals was unreasonable in concluding that Matamoros did not meet his
burden. Under Briseno’s framework, the Court of Criminal Appeals was free
to weigh the historical and observational evidence and its interpretation of
Matamoros’s testimony more heavily than it weighed the scientific and expert
reports presented by Matamoros. As we have recounted, the record contains
evidence that Matamoros has formulated plans, has shown the potential for
leadership, responds appropriately to external stimuli, answers questions
directly, lies to protect his own interests, and has committed offenses requiring
forethought. See Briseno, 135 S.W.3d at 8–9. Moreover, the state used cross-
examination to cast some doubt on Dr. Rosin’s methodology and findings, as
well as those of other doctors who examined Matamoros. Thus, even though
the only competent scientific evidence in the record suggests that Matamoros
has deficits in numerous adaptive behavior areas, Matamoros has not clearly
and convincingly shown that it was unreasonable for the Court of Criminal
Appeals to conclude that Matamoros did not satisfy the Briseno test for


      11   Other than Dr. Denkowski’s testimony.


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                                  No. 10–70016
adaptive behavioral defects. Cf. Mays, 757 F.3d at 219 (“[B]ecause Mays has
made no attempt to present any evidence of limited adaptive functioning under
Briseno, he has failed to provide evidence of mental retardation under Texas
law . . . .”). Accordingly, we AFFIRM the district court’s denial of relief.




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