                   REVISED NOVEMBER 26, 2010

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

                                                                    FILED
                                  No. 10-70003                  October 29, 2010

                                                                  Lyle W. Cayce
                                                                       Clerk
VIRGILIO MALDONADO,

                                            Petitioner - Appellant
v.

RICK THALER, 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 KING, STEWART, and HAYNES, Circuit Judges.
KING, Circuit Judge:
      The petitioner–appellee, Virgilio Maldonado, was sentenced to death in
1997 in Texas state court for a murder committed during the course of a robbery
in 1995. After exhausting state-court avenues for postconviction relief, he
sought habeas relief under 28 U.S.C. § 2254 in federal district court. The district
court denied the petition for habeas relief and denied a certificate of
appealability (COA). We granted a COA as to Maldonado’s claim that he is
mentally retarded and therefore ineligible for the death penalty under Atkins v.
Virginia, 536 U.S. 304 (2002), and ordered supplemental briefing on that issue.
                                   No. 10-70003

We denied a COA as to all other issues. We now address the Atkins claim and
affirm the district court’s denial of habeas relief.
                              I.   BACKGROUND
A.    Factual and Procedural Background
      Maldonado, a Mexican national, was tried and convicted of capital murder
in Texas state court in 1997 for the November 1995 robbery and murder of Cruz
Saucedo. Saucedo was found shot twice in the head with a .45-caliber semi-
automatic weapon, his hands bound with the electric cord of a Black & Decker
iron. The murder went unsolved until several months later, when Maldonado
confessed to the murder after being arrested for an unrelated bank robbery.
According to Maldonado’s confession, he entered Saucedo’s house with another
man while a third accomplice waited in a car. Maldonado’s companion wanted
to borrow an AK-47 from Saucedo. When Saucedo refused the loan, they bound
him and demanded to know where the weapon and some marijuana were kept.
Maldonado’s companion retrieved these items and told Maldonado to kill
Saucedo. Maldonado did so, using a pillow to muffle the sound of the gunshots.
The State of Texas charged and tried Maldonado for murder in the course of a
robbery. The jury convicted Maldonado of capital murder and determined that
he should receive a death sentence.
      Maldonado filed an automatic direct appeal of his conviction with the
Texas Court of Criminal Appeals (TCCA), which affirmed his conviction and
sentence after considering his points of error on the merits. See Maldonado v.
State, 998 S.W.2d 239 (Tex. Crim. App. 1999). While that appeal was pending,
he filed his first application for a writ of habeas corpus, which the TCCA denied.
Ex parte Maldonado, No. 51,612-01 (Tex. Crim. App. 2002). After the Supreme
Court concluded, in Atkins v. Virginia, 536 U.S. 304, that the Eighth
Amendment precludes the execution of mentally retarded persons, Maldonado
filed a subsequent state habeas application in the TCCA in which he claimed

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that he was mentally retarded and therefore ineligible for the death penalty. Ex
parte Maldonado, No. 51,612-02 (Tex. Crim. App.). The TCCA remanded to the
state habeas trial court to take evidence and enter findings of fact and
conclusions of law on the Atkins claim. Ex parte Maldonado, No. 51,612-02 (Tex.
Crim. App. 2003).
      After a live evidentiary hearing, the state habeas trial court entered
findings of fact and conclusions of law recommending that relief be denied on
Maldonado’s Atkins claim. The TCCA adopted the state habeas trial court’s
findings of fact and conclusions of law and denied relief.         See Ex parte
Maldonado, Nos. 51,612-02, 51,612-03, 2007 WL 2660292, at *1 (Tex. Crim. App.
Sept. 12, 2007). Maldonado challenged this ruling and others in a federal habeas
petition under 28 U.S.C. § 2254. The district court denied all of Maldonado’s
claims and sua sponte denied a COA. Maldonado v. Thaler, 662 F. Supp. 2d 684
(S.D. Tex. 2009). We granted a COA only as to the Atkins issue—the subject of
the instant appeal. Maldonado v. Thaler, No. 10-70003, 2010 WL 3155236 (5th
Cir. Aug. 10, 2010).
B.    The Atkins Decision and Briseno Framework
      In Atkins v. Virginia, 536 U.S. 304, the Supreme Court held that the
Eighth Amendment forbids the execution of mentally retarded persons. The
Atkins Court, however, “le[ft] to the State[s] the task of developing appropriate
ways to enforce the constitutional restriction upon their execution of sentences.”
Id. at 317 (alterations and internal quotation marks omitted). The relevant
standard in Texas was set out by the TCCA in Ex parte Briseno, 135 S.W.3d 1,
7 (Tex. Crim. App. 2004). The Briseno court held that mental retardation claims
should be adjudicated under the framework established by the American
Association on Mental Retardation (AAMR), in conjunction with the standard
supplied by the Texas Persons with Mental Retardation Act, TEX. HEALTH &
SAFETY CODE § 591.003(13) (“‘Mental retardation’ means significantly

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                                  No. 10-70003

subaverage general intellectual functioning that is concurrent with deficits in
adaptive behavior and originates during the developmental period.”). As quoted
in Atkins, the AAMR supplies the following definition of mental retardation:
      Mental retardation refers to substantial limitations in present
      functioning. It is characterized by significantly subaverage
      intellectual functioning, existing concurrently with related
      limitations in two or more of the following applicable adaptive skill
      areas:    communication, self-care, home living, social skills,
      community use, self-direction, health and safety, functional
      academics, leisure, and work. Mental retardation manifests before
      age 18.
Atkins, 536 U.S. at 309 n.3 (quoting AAMR, MENTAL RETARDATION: DEFINITION,
CLASSIFICATION, AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992)). Briefly stated,
Briseno requires three elements for a finding of mental retardation:            (1)
significantly subaverage intellectual functioning (generally, a full-scale IQ score
of 70 or below); (2) deficits in adaptive functioning; and (3) onset before age 18.
See Briseno, 135 S.W.3d at 7.
      In Briseno, the TCCA made clear that although the determination of
whether an applicant meets this three-prong standard requires careful
consideration of the relevant psychological standards—and expert testimony
obviously assists with this assessment—the ultimate determination as to mental
retardation must be made by the court, based on what the Constitution requires.
The TCCA explained:
      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 this
      person is, in fact, 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.
Id. at 9.




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C.    Maldonado’s Atkins Claim
      Maldonado’s Atkins claim received extensive consideration in the state
habeas court. Maldonado submitted to psychological testing by the State’s
expert, Dr. George Denkowski, a clinical psychologist, and by two of his own
experts, Dr. Ricardo Weinstein, a forensic neuropsychologist, and Dr. Antonio
Puente, a professor of psychiatry and neuropsychologist. Each of these experts
submitted an affidavit to the state habeas trial court. To supplement these
affidavits with live testimony, and to provide an opportunity for cross-
examination, the state habeas trial court conducted an extensive, seven-day
evidentiary hearing on the Atkins issue on September 11, 13, 14, and 15 and
November 16, 17, and 27, 2006. Dr. Denkowski testified for the State and Dr.
Puente testified on behalf of Maldonado.         Dr. Weinstein did not testify.
Maldonado called an additional expert, Dr. Jack Fletcher, who had not examined
Maldonado but who provided additional testimony intended to rebut Dr.
Denkowski’s testimony. Both sides also called lay witnesses to testify as to
Maldonado’s adaptive behavior.
      After considering the expert affidavits and testimony, the lay testimony,
and numerous exhibits, the state habeas trial court concluded that Maldonado
had not met his burden of presenting evidence sufficient to satisfy any of the
three prongs of the Briseno test. Accordingly, it entered findings of fact and
conclusions of law recommending that Maldonado be found not mentally
retarded.   Although these findings credited and cited extensively to Dr.
Denkowski’s testimony, they were also structured such that the result would not
change if the results of the tests administered by Dr. Denkowski were
disregarded. The findings and conclusions did, however, rely on Dr. Denkowski’s
critiques of other experts’ evidence, and were not specifically structured to stand
if Dr. Denkowski’s critiques were discounted. The TCCA adopted the state
habeas trial court’s findings and conclusions in their entirety and accordingly


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                                  No. 10-70003

denied Maldonado’s subsequent habeas application. See Ex parte Maldonado,
Nos. 51,612-02, 51,612-03, 2007 WL 2660292, at *1 (Tex. Crim. App. Sept. 12,
2007). Maldonado then filed the instant federal habeas petition.
      While Maldonado’s federal habeas application was pending, the TCCA
issued an opinion, Ex parte Plata, No. AP-75820, 2008 WL 151296, at *1 (Tex.
Crim. App. Jan. 16, 2008), in which it refused to credit Dr. Denkowski’s
testimony in connection with another habeas case. The state habeas trial court,
whose recommendations the TCCA adopted in full, concluded that there were
“fatal errors in Denkowski’s administration and scoring of Plata’s IQ and
adaptive deficit tests.” See id.; Ex parte Plata, No. 693143-B (Tex. 351st Dist.
Sept. 28, 2007). The Texas State Board of Examiners of Psychologists (“State
Board”) subsequently filed a complaint against Dr. Denkowski with the State
Office of Administrative Hearings (SOAH), attaching the state habeas trial
court’s findings in Plata and seeking to sanction him for intentionally
misapplying psychiatric testing methods in that case. See SOAH Docket No.
520-09-2882.     The Board’s complaint also alleges that Dr. Denkowski
“intentionally misused or abused psychological testing . . . in connection with
[his] forensic assessments of . . . Maldonado.” It contends, in relevant part, that:
      64. The Respondent failed to properly address language and
      cultural issues with Maldonado, a native of Mexico.
      65. Respondent administered the self-report portion of the Adaptive
      Behavior Assessment System (ABAS) to Maldonado using a
      Spanish-language interpreter from the court system to translate
      questions due to the subject’s limited ability to speak English and
      Respondent’s inability to speak Spanish.
      66. Respondent deviated from established testing protocols in the
      evaluation and scoring of Maldonado’s intellectual functioning.
      67. The adjustments Respondent made to Maldonado’s adaptive
      behavior scores were not scientifically valid.
      68. Respondent used maladaptive behavior to assess adaptive
      behavior.

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       69. Respondent also used the interpreter as a translator to
       administer the Weschler Adult Intelligence Scale 3rd Ed. (WAIS-III)
       to Maldonado and doing so rendered the test scores invalid.
First Amended Complaint, SOAH Docket No. XXX-XX-XXXX (Feb. 9, 2010). The
complaint has not yet been resolved. Proceedings before the SOAH are pending;
discovery is ongoing; and counsel represented at oral argument that a hearing
is not to occur before May 2011.1 Maldonado timely notified the federal district
court about the Plata case and about the State Board’s proceedings against Dr.
Denkowski.
       The district court conducted a careful and detailed review of the record,
and in particular considered whether the new revelations about Dr. Denkowski’s
work in the Plata case and the pending State Board complaint against him in
the SOAH provided a basis to question or reject the state habeas court’s
analysis. The district court noted that many of the errors that Dr. Denkowski
apparently committed in the Plata case did not appear to have been repeated in
his assessment of Maldonado, but allowed that the Plata errors might raise
issues as to Dr. Denkowski’s credibility. Maldonado v. Thaler, 662 F. Supp. 2d
at 715 n.31, 729 n.51. The district court also noted, however, that “[t]he state
court’s adjudication denied relief independent of Dr. Denkowski’s testing,


       1
         The complaint alleges that Dr. Denkowski violated the following State Board rules in
connection with his evaluation of Maldonado: Rule 465.9(a)–(e), (h)–(j) (requiring that
licensees provide “only services for which they have the education, skills, and training to
perform competently”; take into account subjects’ “age, gender, ethnicity, national origin,
disability, language, and socio-economic status”; “maintain current knowledge of scientific and
professional information”; employ “new techniques only after first undertaking appropriate
study and training”; and withdraw from providing services if lacking the appropriate skills);
Rule 465.10 (requiring that “[l]icensees rely on scientifically and professionally derived
knowledge when making professional judgments”); Rule 465.16(b)(1), (2) (requiring that
licensees use assessment techniques or tests “only if they are familiar with the reliability,
validation and related standardization or outcome studies of, and proper applications of, the[se]
techniques”); Rule 465.18(a)(2)–(4), (b)(1),(2) (requiring that licensees base all assessments and
recommendations upon “information and techniques sufficient to provide appropriate
substantiation for each finding” and decline to render opinion in areas “about which the
licensee does not have the appropriate knowledge and competency”).

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                                  No. 10-70003

possibly in recognition [of] the concerns raised by Maldonado’s experts.” Id. at
724–25, 729. The district court concluded, in agreement with the state habeas
court, that even if the results of Dr. Denkowski’s testing of Maldonado were
disregarded completely, Maldonado could not meet his burden of establishing
mental retardation. Id. at 724, 729. Like the state habeas court, however, the
district court did rely on criticisms supplied by Dr. Denkowski in reaching this
conclusion. The district court held that “the state habeas court was [not]
unreasonable in finding that Maldonado was not mentally retarded as
understood by Atkins.” Id. at 735.
      This appeal followed. Maldonado contends that the district court erred in
concluding that Dr. Denkowski’s alleged administrative and scoring errors,
particularly in light of the Plata case and the State Board proceedings against
Dr. Denkowski, did not provide a basis for disregarding Dr. Denkowski’s
testimony in its entirety. Maldonado argues in particular that the court’s
assessment of the other experts’ testimony relied too heavily on criticisms by Dr.
Denkowski.
                       II.   STANDARD OF REVIEW
      This habeas proceeding is subject to the Antiterrorism and Effective Death
Penalty Act (AEDPA), 28 U.S.C. § 2254, because Maldonado filed his federal
petition on May 9, 2007, well after AEDPA’s effective date. See Lindh v.
Murphy, 521 U.S. 320, 335–36 (1997). “Under AEDPA, if a state court has
adjudicated a habeas petitioner’s claims on the merits, he may receive relief in
the federal courts only where the state court decision ‘resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,’ or
‘resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.’” Rivera
v. Quarterman, 505 F.3d 349, 356 (5th Cir. 2007) (quoting 28 U.S.C. § 2254(d)).

                                        8
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      “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
based 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, 120 S. Ct. 1495
(2000)). To merit habeas relief, a state habeas court’s application of federal law
must be not only incorrect but “objectively unreasonable.” Renico v. Lett, 130
S. Ct. 1855, 1865 (2010). A state court’s factual findings are “presumed to be
correct,” although a habeas petitioner may rebut this presumption by “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). We review the district court’s
conclusions of law de novo, applying the same standard of review that the
district court applied to the state court decision. Jones v. Cain, 600 F.3d 527,
535 (5th Cir. 2010).
      The question of whether a defendant suffers from mental retardation
involves issues of fact, and thus is subject to a presumption of correctness that
must be rebutted by clear and convincing evidence under § 2254(e)(1). Clark v.
Quarterman, 457 F.3d 441, 444, 447 (5th Cir. 2006). On appeal, as in the district
court, Maldonado bears the burden of establishing by a preponderance of the
evidence that he is mentally retarded. Briseno, 135 S.W.3d at 12; Woods v.
Quarterman, 493 F.3d 580, 585 & n.3 (5th Cir. 2007).
                              III.    DISCUSSION
      Maldonado’s chief contention on appeal is that Dr. Denkowski’s testing
and scoring methodologies were egregiously and fatally flawed.           Although
Maldonado does not dispute that the state habeas court structured its opinion
so as not to rely on Dr. Denkowski’s test results, he argues that Dr. Denkowski’s
methodology in administering and scoring those tests was so flawed that all of
Dr. Denkowski’s testimony—including his critiques of other evidence in the
record—should be disregarded in its entirety as non-credible. As discussed

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below, we do not agree that the specific challenges that Maldonado has raised
regarding Denkowski’s methodology in calculating the raw WAIS-III score
provide a basis for concluding that the state habeas court was unreasonable in
considering that score. More troubling, however, are the scoring enhancements
that   Dr.   Denkowski    applied   to    Maldonado’s   WAIS-III    and   ABAS
results—enhancements that are presently a subject of the State Board complaint
against Dr. Denkowski, and that are similar to those that the TCCA declined to
credit in Plata. As discussed below, however, assuming without deciding that
this evidence rebuts the presumption of correctness that attaches to the state
habeas court’s decision to credit Dr. Denkowski’s testimony, Maldonado is not
entitled to habeas relief because even disregarding that testimony, he cannot
meet his burden of showing that the state court’s finding that he is not mentally
retarded was either an unreasonable application of Atkins or an unreasonable
determination of the facts in light of the evidence presented in state court.
A.     Dr. Denkowski’s Results
       Dr. Denkowski examined Maldonado on May 23 and 24, 2005. Along with
a number of other tests, he administered the Wechsler Adult Intelligence Scale,
Third Edition (WAIS-III) to measure Maldonado’s intellectual functioning and
the Adaptive Behavior Assessment Scale (ABAS) to measure Maldonado’s
adaptive functioning. The parties agreed that, when administered under proper
conditions, the WAIS-III is the “gold standard” for evaluating intellectual
functioning. Both tests were administered with the assistance of an interpreter
who, though State licensed in Spanish–English translation, did not have a
background in psychology and had never translated a written psychological
instrument before Maldonado’s examination. Dr. Denkowski concluded, based
on that examination and relying in particular on the results of the WAIS-III and
ABAS, that Maldonado was not mentally retarded. Maldonado challenges both



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his raw WAIS-III score and the upward enhancements that D r . D e n k o w s k i
applied to both the WAIS-III and ABAS scores.
      1.    The Raw WAIS-III Score
      Dr. Denkowski’s administration of the WAIS-III yielded a raw score of 74
on the verbal portion, 74 on the performance portion, and a full-scale IQ of
72—all above the threshold of 70 typically required to establish a showing of
significantly subaverage intellectual functioning, although the low end of the
confidence band for these scores could potentially qualify. Maldonado contends
that Dr. Denkowski’s use of an interpreter invalidates these raw scores because
“the use of a translator renders data and conclusions generated from an
examination [per se] unreliable.” This argument is not persuasive. As the
district court noted, the WAIS-III manual states that “administering the test
with the assistance of a translator” is one “useful” approach employed by
experienced examiners “when testing individuals who are not fluent in English.”
Maldonado v. Thaler, 662 F. Supp. 2d at 714 (internal quotation marks omitted;
quoting David Wechsler, WAIS-III ADMINISTRATION AND SCORING MANUAL 34 (3d
ed. 2003)). Furthermore, the evidence at the state evidentiary hearing showed
that two of Maldonado’s own experts, Drs. Puente and Fletcher, have endorsed
the use of translators in psychological testing at least in certain contexts.
Maldonado’s arguments do not demonstrate unreasonableness in the state
habeas court’s conclusion that Dr. Denkowski’s use of a translator did not render
the WAIS-III results per se invalid.
      Maldonado urges, however, that the particular way in which Dr.
Denkowski used the interpreter rendered the test results unreliable, because the
interpreter was required to translate the test contemporaneously and informally,
without advance preparation, and because the interpreter did not have a
background in psychology. At the evidentiary hearing, Maldonado’s experts
testified that the interpreter’s lack of advance preparation and lack of


                                       11
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psychological expertise could—and in Maldonado’s case, did—result in
significant translation errors. But Maldonado’s own experts disagreed as to
whether these problems could have artificially increased his score. Dr. Puente
testified, in agreement with Dr. Denkowski, that translation problems would
only tend to lower the resulting score. Dr. Fletcher, however, opined that errors
could also raise the score. The state habeas court discounted Dr. Fletcher’s
testimony, concluding that to the extent that the use of a translator might have
affected Maldonado’s score, “such impact would most likely interfere with [his]
optimal performance and suppress [his] IQ scores.” The state habeas court
concluded that because translation errors would have had, if anything, a
suppressive effect, they did not provide a basis for concluding that Dr.
Denkowski’s administration of the WAIS-III resulted in an artificially high raw
score. Particularly because Maldonado’s own experts conflicted as to the effect
or significance of translation errors, we agree with the district court that
Maldonado’s arguments do not rebut the presumptive correctness of the state
habeas court’s conclusion. Cf. Moore v. Quarterman, 517 F.3d 781, 784 (5th Cir.
2008) (declining to find the state habeas court even arguably unreasonable in
crediting one side of conflicting expert testimony, when that testimony was
sufficient to sustain the state habeas court’s finding).2
       Maldonado also argues that this court should not credit Dr. Denkowski’s
testimony because he failed to take account of the “Flynn Effect,” which “posits
that, over time the IQ scores of a population rise without corresponding
increases in intelligence and thus the test must be re-normalized over time.” In
re Mathis, 483 F.3d 395, 398 n.1 (5th Cir. 2007). As the district and state habeas


       2
         The complaint filed against Dr. Denkowski in the SOAH accuses him of improperly
using an interpreter in administering the WAIS-III test. We take no position as to whether
the way in which Dr. Denkowski used the interpreter was in fact improper. We hold only that
the state habeas court was not unreasonable in its conclusion that the use of an interpreter did
not artificially increase Maldonado’s raw WAIS-III full-scale IQ score.

                                              12
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courts recognized, however, neither this court nor the TCCA has recognized the
Flynn Effect as scientifically valid. See id.; see also In re Salazar, 443 F.3d 430,
433 n.1 (5th Cir. 2006); Neal v. State, 256 S.W.3d 264, 273 (Tex. Crim. App.
2008) (“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 concluding that an appellant has significant sub-average general intellectual
functioning.” (quoting Ex parte Blue, 230 S.W.3d 151, 166 (Tex. Crim. App.
2007)).       Maldonado’s arguments do not show that the state habeas court
unreasonably applied federal law, nor do they rebut the presumption of
correctness that attaches to the state habeas court’s decision to credit the raw
score.
         2.     The Adjusted WAIS-III and ABAS Scores
         Of different and greater concern, however, are the upward adjustments
that Dr. Denkowski made to Maldonado’s WAIS-III and ABAS scores. In both
cases, Dr. Denkowski opined that “cultural and educational factors,” as well as
mild anxiety and depression, could have artificially suppressed Maldonado’s raw
score. Applying these factors, Dr. Denkowski estimated that Maldonado’s “true”
WAIS-III score was between 74 and 83.           Although the WAIS-III manual
instructs that an artificially low score may result from, among other factors,
“[c]ultural or linguistic discrepancy from the test standardization table,
distractability, anxiety, deafness, poor motivation or inadequate persistence,”
Maldonado contends, as his experts urged at the hearing, that Dr. Denkowski’s
proposed adjustments were fatally flawed because they did not result from any
statistical formula or established methodology, and because Dr. Denkowski
lacked the cultural knowledge that would allow him to properly and accurately
adjust for the effects of Maldonado’s impoverished upbringing in rural Mexico.
         Dr. Denkowski applied similar factors when scoring the ABAS, relying
upon his “clinical judgment” and his purported knowledge of Mexican cultural


                                        13
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norms to revise Maldonado’s raw ABAS score significantly upward to 67. The
ABAS is based upon a self-reporting examination.          As the district court
explained:
      The ABAS asks the subject whether he can perform certain tasks or
      skills. He rates his own abilities from 0 (the skill cannot be
      performed) to 3 (the skill is almost always performed correctly) on
      239 skills [in 10 skill areas]. The examiner then tabulates the
      answers into a composite score that, if below [70], shows deficits in
      adaptive behavior.
Maldonado v. Thaler, 662 F. Supp. 2d at 728.          Dr. Denkowski adjusted
Maldonado’s scores upward on approximately 30% of the questions and did not
adjust any of the scores downward. Maldonado argues that the problems with
Dr. Denkowski’s methodology in scoring the ABAS were compounded by the facts
that Dr. Denkowski administered the test using an interpreter and failed to
verify Maldonado’s self-reported responses by interviewing Maldonado’s
teachers, relatives, or associates.
      The challenges that Maldonado’s experts raised to these scoring
enhancements at the state evidentiary hearing are echoed in the State Board’s
complaint against Dr. Denkowski and in Plata, in which the TCCA rejected Dr.
Denkowski’s testimony in its entirety as non-credible because he employed
similar methodology. Maldonado urges that these authorities show that the
state habeas court was unreasonable in failing to disregard Dr. Denkowski’s
testimony in its entirety, and further urges that if Dr. Denkowski’s testimony is
completely disregarded, he can meet his burden of establishing mental
retardation. We need not decide whether these authorities are sufficient to
rebut the presumption of correctness that attaches to the state habeas court’s
decision, however, because assuming without deciding they are, we conclude that
Maldonado could not, with the evidence that would remain, meet his burden for
obtaining federal habeas relief.



                                       14
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      Upon federal habeas review of a state court’s adjudication, we ultimately
“review only a state court’s ‘decision,’ and not the written opinion explaining that
decision.” 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.”). The state court’s determination here was that
Maldonado failed to meet the Briseno test for showing that he is mentally
retarded. Even if we disregard Dr. Denkowski’s testimony, we conclude that
Maldonado fails to show the state habeas court’s decision was an unreasonable
application of federal law or an unreasonable determination of the facts in light
of the remaining evidence. See § 2254(d). An analysis of this remaining
evidence, and the reasons for this conclusion, are set out below.
B.   The Remaining Evidence
      1.   Intellectual Functioning
      Two of Maldonado’s experts, Drs. Weinstein and Puente, administered
tests of intellectual functioning to him. Dr. Weinstein administered two such
tests. The first was the verbal portion of a Spanish version of the WAIS-III,
called the Escala Inteligencia Wechsler para Adultos (WAIS-Español).
Maldonado scored an 83 on the verbal portion and scored a 90 on the
comprehension, similarities, and vocabulary subsections of that verbal
portion—all well above the score of 70 that roughly forms the upper bound for
a finding of significantly subaverage intellectual functioning. Dr. Weinstein did
not disclose in his expert report that he had administered this test—the results
were only brought to the state habeas court’s attention because Dr. Denkowski
discovered the administration while researching Dr. Weinstein’s testing
protocols. We are troubled, as were the district and state habeas courts, that
“Dr. Weinstein never explained why he chose to administer that test, why he did



                                        15
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not perform the entire test, or why he did not report his partial conclusions.”
Maldonado v. Thaler, 662 F. Supp. 2d at 718.
      Maldonado’s experts at the evidentiary hearing, Drs. Puente and Fletcher,
urged that the state habeas court should not credit the WAIS-Español score. Dr.
Puente testified that Dr. Weinstein’s use of the WAIS-Español was problematic
because it was normed for Spanish speakers from Puerto Rico, who may have
linguistic differences from Maldonado’s native Mexico. Dr. Fletcher urged that
the WAIS-Español was likely to yield scores “substantially higher than those you
would get on the WAIS[-III],” but did not quantify the amount by which the
result might overstate Maldonado’s IQ. Drs. Puente and Fletcher, however,
made no effort to explain why, given these shortcomings, Maldonado’s own
expert had decided to administer a portion of the WAIS-Español. We agree with
the district court, therefore, that Maldonado fails to show that the state habeas
court’s reliance on the partial administration of the WAIS-Español was
unreasonable.    This reliance was one basis upon which the state court
determined that Maldonado had not met his burden of demonstrating
significantly subaverage intellectual functioning, and Maldonado has not
presented evidence sufficient to rebut the presumption of correctness in that
conclusion.
      Dr. Weinstein also administered the Woodcock-Munoz Bateria-R (“Bateria-
R”), the Spanish language version of the Woodcock-Johnson Test of Cognitive
Abilities, Revised. That administration, which Dr. Weinstein did report, yielded
an IQ score of 61. As the state habeas court noted, and Maldonado does not
dispute, the AAMR has not cited the Bateria-R as an appropriate test for
assessing the intellectual functioning aspect of a mental retardation diagnosis.
Because the AAMR has not specifically cited the test as appropriate, and
because Dr. Weinstein never attempted to explain the discrepancy between the
WAIS-Español result and the Bateria-R result—or why the latter should be


                                       16
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credited over the former—we cannot conclude that the state habeas court’s
decision to accord little weight to the Bateria-R result was unreasonable. See
Woods, 493 F.3d at 586–87 (state habeas court was not unreasonable in deciding
to accord less weight to certain test results, where testimony supported the
conclusion that those results were less reliable).
      Dr. Puente also administered two tests, the Beta-III and the
Comprehensive Test of Nonverbal Intelligence (CTONI). Dr. Puente testified
that both are neuropsychological tests that measure nonverbal ability. As with
the Bateria-R, the state habeas court noted and Maldonado does not dispute that
the AAMR does not cite these tests as providing a basis for assessing intellectual
functioning. Another of Maldonado’s experts, Dr. Fletcher, testified on cross-
examination that neither of these testing instruments could be used to produce
a full-scale IQ score. In a recent decision, the TCCA has indicated that a full-
scale IQ score should provide the basis for any assessment of intellectual
functioning. See Ex parte Hearn, 310 S.W.3d 424, 431 (Tex. Crim. App. 2010)
(“[N]europsychological measures [may not] wholly replace full-scale IQ scores in
measuring intellectual functioning.”); see also Moore v. Quarterman, 342
F. App’x 65, 81 n.27 (5th Cir. 2009) (noting the “standard professional view” that
the CTONI is not a measure of general intelligence).               Dr. Puente’s
administration of the Beta-III yielded an IQ score of 70—which Dr. Puente
agreed did not, by itself, qualify Maldonado for a diagnosis of mental
retardation. Dr. Puente’s administration of the CTONI yielded an IQ score of 61.
Because the AAMR has not cited either test as providing a basis for assessing
intellectual functioning; because Maldonado’s own expert, Dr. Fletcher, opined
that neither of these tests was an appropriate method of calculating a full-scale
IQ score; and because Dr. Puente conceded that the Beta-III results would not
support a diagnosis of mental retardation, Maldonado has not shown that the
state habeas court unreasonably determined that he lacked subaverage

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intellectual functioning. This is particularly true in light of the TCCA’s recent
pronouncement in Hearn, 310 S.W.3d at 429.
      In sum, the state habeas court’s decision was not contrary to or an
unreasonable application of Atkins, and Maldonado did not rebut the
presumption of correctness that attaches to the state habeas court’s conclusion
that Maldonado did not meet his burden of showing significantly subaverage
intellectual functioning under the first prong of the Briseno mental retardation
standard. He therefore cannot show that the state habeas court’s factual
determination was unreasonable. See Woods, 493 F.3d at 587 (“[T]o the extent
Woods argues that the state court’s decision was ‘based on an unreasonable
determination of the facts in light of the evidence presented,’ 28 U.S.C.
2254(d)(2), he has failed to rebut, by clear and convincing evidence, the
presumption that the state court’s factual findings are correct.”). And because
fulfillment of each prong is necessary to a finding of mental retardation, this
conclusion ends the inquiry. As discussed below, however, we also find that
Maldonado did not present evidence sufficient to rebut the presumed correctness
of the state habeas court’s decision that Maldonado did not meet the second
Briseno prong.
      2.      Adaptive Deficits
      Maldonado’s experts extensively criticized Dr. Denkowski’s methodology
in administering and scoring the ABAS. They did not, however, themselves
administer to Maldonado the ABAS or any other formal testing instrument for
adaptive deficits. Dr. Weinstein’s affidavit did not discuss the adaptive behavior
prong at all. Dr. Fletcher addressed adaptive behavior only to the extent of
criticizing Dr. Denkowski’s administration of the ABAS. The only non-rebuttal
testimony as to Maldonado’s adaptive deficits came from Dr. Puente, who
testified, based on affidavits prepared by Maldonado’s father and others who
knew him, that Maldonado had exhibited some adaptive deficits, particularly in

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his formative years.     Dr. Puente found deficits in functional academics
(Maldonado was slow in school); banking (when Maldonado and his wife finally
opened a checking account after immigrating to the United States, it was not
clear that he knew how to use it); public transportation (before age 18,
Maldonado’s use of public transportation apparently was limited); leisure
(Maldonado did not report any hobbies beyond recreational drug use); and social
relationships (before age 18, his romantic relationships with females were
unsuccessful and his closest relationship was with his stepfather, with whom he
lived only briefly).   Dr. Puente explained that he had not conducted any
standardized testing for adaptive deficits because there were no standardized
tests written in Spanish and he believed translating would be inappropriate.
The state habeas court relied primarily on lay testimony provided by witnesses
for both parties in concluding that Maldonado had not shown adaptive deficits
sufficient to satisfy the second Briseno prong.
      Although the AAMR contemplates that adaptive deficits, defined as
“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,” will be “determined by
clinical assessment and, usually, standardized scales,” Briseno, 135 S.W.3d at
7 n.25, Briseno does not require that an assessment of adaptive deficits be
premised upon the results of standardized tests or expert opinion, id. at 8; see
also Hearn, 310 S.W.3d at 428 (“[S]tandardized tests are not the sole measure
of adaptive functioning, [but] they may be helpful to the factfinder, who has the
ultimate responsibility for determining mental retardation.”).       Indeed, the
Briseno court emphasized that “[a]lthough experts may offer insightful opinions
. . . the ultimate issue of whether [a] person is, in fact, mentally retarded for
purposes of the Eighth Amendment ban on excessive punishment is one for the
finder of fact.” 135 S.W.3d at 9. Briseno cites the following considerations as

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being particularly important to determining whether the adaptive deficit prong
has been met:
      •       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
              appropriate, regardless of whether it is socially acceptable?
      •       Does he respond coherently, rationally, and on point to oral or
              written questions or do his responses wander from subject to
              subject?
      •       Can the person hide facts or lie effectively in his own or
              others’ interests?
      •       Putting aside any heinousness or gruesomeness surrounding
              the capital offense, did the commission of that offense require
              forethought, planning and complex execution of purpose?
Id. at 8–9.
      The state habeas court found, after hearing the lay testimony presented
at the evidentiary hearing, that “there [wa]s no indication that [Maldonado] was
considered or treated as mentally retarded by those who knew him best, either
during [the] developmental period or as an adult.”          As the district court
observed, most of the “[t]estimony about what Maldonado could not do came . . .
from . . . his childhood.” Maldonado v. Thaler, 662 F. Supp. 2d at 733. This
testimony consisted primarily of evidence that Maldonado was “slow to learn”
and “did not understand much” in school. Id. at 731. The testimony also
revealed, however, that Maldonado had managed to support himself on the
streets from age nine, panhandling and selling illegal drugs. The district court
observed that in adulthood, despite this “disadvantaged and inhibiting

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background, Maldonado sought better life opportunities” and in fact managed
to better his life in many respects. Id. at 733.
      The testimony at the hearing showed that Maldonado married in Mexico
and fathered a child. He crossed the United States border with the aid of a
“coyote” to whom he paid $300. In the United States, he worked with his father
at Greenspoint Dodge in Houston, Texas, washing and waxing cars. He made
“substantial money” there, including a significant amount in tips. He later
obtained a second job working with his father at an apartment complex.
Maldonado then returned to Mexico to retrieve his wife and child; the family
successfully entered the United States illegally. The family lived together in an
apartment and Maldonado was, for a time, the sole breadwinner. Maldonado
subsequently worked for his cousin for several months as the cashier at a
taqueria. Maldonado’s work in Houston ended when he was arrested for
smuggling marijuana from Mexico and was sentenced to two and a half years in
a federal penitentiary. When he was released, he moved to Chicago, where he
joined his wife and her family and obtained a factory job.          Although the
testimony showed that he did not perform his various jobs perfectly, we agree
with the district court that the testimony showed that his performance was at
least to a level that “belie[d] mental retardation.” Id.
      After Maldonado returned to Houston and was arrested for capital murder,
he regularly wrote to his father from prison. Maldonado’s experts did not review
these letters, but we agree with the district court’s conclusion that these, though
“by no means . . . literary masterpieces, do not facially give an impression of
substantial intellectual impairments.”       Id.   Prison guards testified at the
evidentiary hearing that Maldonado kept his cell neat and “very organized”; that
he was always well-groomed; and that he properly filled out commissary
requests and took good care managing that account. Maldonado also properly
completed prison grievance forms.


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       Based on this record, we find no evidence sufficient to rebut the presumed
correctness of the state habeas court’s factual findings that Maldonado
“formulated and carried through plans for living, i.e., panhandling as a child;
coming to the United States from Mexico; working at a car dealership, an
apartment complex, and a factory; transporting marijuana to the United States;
and engaging in robbery and murder, albeit criminal activities.” Nor does the
evidence rebut the presumed correctness of the state habeas court’s conclusion
that Maldonado “fail[ed] to show adaptive deficits in adaptive behavior based,
in part, on the applicant’s history of driving, procuring and transporting drugs,
sometimes working in legitimate jobs, attempting to escape detection during his
criminal offenses, his interactions with others [in prison], his correspondence
with others, his maintaining his commissary account [in prison], and his use of
the grievance system [in prison].”3 In short, Maldonado has not presented



       3
          A different result is not required by our recent decision in Wiley v. Epps, __ F.3d __,
No. 09-70037, 2010 WL 4227405 (5th Cir. Oct. 27, 2010), a case originating in Mississippi in
which lay evidence was present about the defendant’s ability to drive, work, and support his
family, but we affirmed the district court’s holding that Wiley was mentally retarded. Courts
are often confronted with similar evidence that a defendant claiming to be mentally retarded
under Atkins can perform various activities. But the mental retardation question is very much
case-specific and fact-intensive, and there are critical differences between Wiley and
Maldonado’s case. Most important, unlike the instant case, we determined in Wiley that the
district court was not bound by the AEDPA’s deferential standards and so reviewed the district
court’s conclusions only for clear error. See id., slip op. at 20. Here we consider the
reasonableness of the state habeas court’s decision. We also determined in Wiley that the
State had failed to brief, and so waived, the district court’s findings on adaptive deficits. Id.
at 30. Furthermore, Wiley presented expert evidence that mentally retarded persons could
perform certain minimal functions, which did not preclude a mental retardation finding in his
case, and he supported his claim of adaptive deficits with expert testing and assessments, as
well as with work, school, and military records. Id. at 27, 30–34. In contrast, the state court
in Maldonado’s case was faced with only limited evidence about Maldonado’s adaptive skills,
no formal adaptive testing by his experts, and lay evidence that was contrary to his claims.
Maldonado’s case is also governed by the Texas standards for mental retardation established
by Briseno, which specifically contemplate consideration of how the defendant is viewed by
friends and family and how he has generally functioned and conducted himself. In light of the
foregoing, the state court’s determination in this case was neither contrary to nor an
unreasonable application of federal law, nor an unreasonable determination of the facts. See
§ 2254(d).

                                              22
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evidence sufficient to rebut the presumption of correctness that attaches to the
state habeas court’s conclusion that Maldonado did not meet his burden of
satisfying the second prong of the Briseno test. Cf. Woods, 493 F.3d at 587
(concluding that presumption of correctness was not overcome where the
petitioner himself had submitted little evidence of deficits, and the
persuasiveness of even that evidence was “significantly diminished by the
evidence of [the defendant’s competent] performance” at his job).
                             IV. CONCLUSION
      At the evidentiary hearing on the Atkins issue and in his federal habeas
petition and appeal, Maldonado has emphasized the shortcomings of Dr.
Denkowski’s testimony. Whatever the validity of these criticisms, however, we
conclude that, discounting Dr. Denkowski’s testimony in its entirety and
considering only the evidence and testimony remaining in the record, this
evidence does not rebut the presumption of correctness that attaches to the state
habeas court’s conclusion that Maldonado did not meet his burden of
establishing mental retardation. Therefore, the state court’s denial of relief was
neither an unreasonable application of federal law nor an unreasonable
determination of the facts in light of the evidence. We AFFIRM the district
court’s denial of habeas relief on Maldonado’s Atkins claim. Maldonado’s motion
for a stay is DENIED.
      AFFIRMED. MOTION DENIED.




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