                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   July 20, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                               No. 05-70008


                           JAMES LEE CLARK,

                         Petitioner-Appellant,

                                  versus

                   NATHANIEL QUARTERMAN, Director,
               Texas Department of Criminal Justice,
                 Correctional Institutions Division,

                         Respondent-Appellee.

                         --------------------
            Appeal From the United States District Court
                  for the Eastern District of Texas
                         --------------------

Before DAVIS, GARZA and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

     The defendant, James Lee Clark, has filed a successive habeas

petition in this case, arguing that the evidence presented to the

state courts established that he suffers from significantly sub-

average intellectual functioning to the point of mental retardation

and thus may not be executed. The district court concluded that the

state court did not err in finding that Clark had failed to

establish    that   he   had     significantly   sub-average     general

intellectual functioning, the first element of the Texas test for

mental retardation, and did not proceed further to the other

elements. Clark argues that the district court erred in upholding

the state court’s findings on that element and erred in refusing to
                           No. 05-70008
                                -2-

consider Clark’s arguments as to the other elements of the test.

Upon our review, we determine that the district court did not err

in affirming the state court as to the “significantly sub-average

intellectual functioning” element of mental retardation and that

the district court did not err in considering only that element.



                        Standard of Review

     This case is governed by AEDPA. For questions of law and mixed

questions of law and fact, habeas relief may not be granted unless

the adjudication of the claim resulted in a decision that was

contrary to, or 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). A state court decision is contrary

to clearly established federal law if it “applies a rule that

contradicts the governing law set forth in [Supreme Court] cases”

or “confronts facts that are materially indistinguishable from a

relevant Supreme Court precedent” and arrives at an opposite

result. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). A state

court decision unreasonably applies clearly established federal law

if it “identifies the correct governing legal rule” from Supreme

Court cases, but unreasonably applies it to the facts of the

particular case, or if it unreasonably extends a principle to a new

context where it should not apply or unreasonably refuses to extend

that principle where it should apply. Id. at 407-09. For questions

of fact, relief may not be granted unless the decision was based
                                No. 05-70008
                                     -3-

upon an unreasonable determination of the facts in light of the

evidence presented in the State court proceedings. 28 U.S.C. §

2254(d)(1); Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). A

factual determination made by a state court must be rebutted by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1).



                                  Analysis

     Initially, we note that Clark is incorrect in arguing that the

district court erred in failing to address the other elements of

mental    retardation   under    the    Texas   definitions       after       it   had

determined that the state court did not err in finding that Clark

did not have significantly sub-average intellectual functioning.

     The Texas Court of Criminal Appeals adopted two definitions of

mental retardation in the aftermath of Atkins, both of which

contain    the   same   substantive     elements.     The    first,      the       AAMR

definition,      defined    mental       retardation        as   a      disability

characterized      by    “(1)    ‘significantly        subaverage’        general

intellectual functioning; (2) accompanied by ‘related’ limitations

in adaptive functioning; (3) the onset of which occurs prior to the

age of 18.” Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App.

2004). The second, from the Texas Health and Safety Code, requires

“significantly subaverage general intellectual functioning that is

concurrent with deficits in adaptive behavior and originates during

the developmental period.” Id. It is plain from the use of the

words    “accompanied    by”    and    “concurrent”    that      both    of    these
                               No. 05-70008
                                    -4-

definitions require that all three elements exist to establish

mental retardation. It therefore was not in error for the district

court to determine that Clark could not prevail once it had already

held that the state court had not erred in holding that Clark

failed to meet the first element. If the state court correctly

found that Clark failed to meet any of the three elements, he

cannot demonstrate mental retardation under the Texas definitions.

      We agree with Clark’s contention that the question of whether

he suffers from significantly subaverage intellectual functioning

is a question of fact, and not a mixed question of law and fact as

determined by the district court.        See United States v. Webster,

162 F.3d 308, 351-52 (5th Cir. 1998) (discussing, in the context of

the Federal Death Penalty Act, that the judge may act as fact-

finder on the issue of mental retardation).           However, Clark also

raises the separate, legal question of whether federal law permits

the state court the discretion to choose as the relevant score the

base IQ score or the low point on the range that the score

represents.



      We review questions of law to determine whether the State

court adjudication “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.”   28 U.S.C. § 2254(d)(1).     But we review questions of fact

for   whether   the   state    court   decision     was   based    upon   “an
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                                        -5-

unreasonable determination of the facts in light of the evidence

presented in the State court proceedings.” 28 U.S.C. § 2254(d)(2).

The burden is on Clark to rebut the state court’s determination

with clear and convincing evidence.            28 U.S.C. § 2254(e)(1).

      Clark raises issues with respect to each of the three elements

of mental retardation in Texas. With respect to the first element,

the   question      of   whether    Clark     had    significantly      subaverage

intellectual functioning, Clark argues that the state court erred

in considering the numerical IQ scores of Clark’s tests instead of

the “confidence band,” or range of potential “true” scores someone

with Clark’s score falls within. This confidence band is designed

to account for the measurement error inherent in intelligence

testing, and indicates the upper and lower scores between which a

psychologist     conducting    the     test    can    be   ninety-five    percent

confident that the “true” score lies.

      The Texas Court of Criminal Appeals held when adopting its

tests   for    mental     retardation       that     scores   gathered    through

intelligence     testing     are    necessarily       imprecise   and    must    be

interpreted flexibly. Briseno, 135 S.W.3d at 7, n. 24. The testing

error, coupled with the differences between various IQ tests, mean

that in many cases an individual who tests as having an IQ above

70,   the   rough    cut-off   for    mental       retardation,   may    still   be

diagnosed as mentally retarded, and vice versa. Id. Under this

approach, courts should not rigidly consider an IQ score to be

determinative of the defendant’s intellectual functioning.
                                 No. 05-70008
                                      -6-

      To support his argument that the state court erred in choosing

his base IQ score as the relevant IQ score rather than the lowest

number in the confidence band, Clark argues that the Texas courts

must apply the approach articulated by the American Association on

Mental Retardation (“AAMR”), which dictates that IQ examiners

account for the appropriate confidence band.             He argues that the

AAMR approach is the proper standard for determining whether an

individual has subaverage intellectual functioning.               Clark is thus

asking us to consider whether the Texas courts were properly given

the discretion to choose between a base IQ score and a confidence

band, see Briseno, 135 S.W.3d at 14 n.53.

      The Supreme Court, in Atkins v. Virginia, 536 U.S. 304 (2002),

“[left] to the State[s] the task of developing ways to enforce the

constitutional restriction upon [their] execution of sentences.”

Id.   at    317.      Although   the   Court   did   refer   to   the   clinical

definitions of mental retardation promulgated by the AAMR and the

American Psychiatric Association (“APA”), it did not dictate that

the approach and the analysis of the State inquiry must track the

approach of the AAMR or the APA exactly. It also did not mention

the portion of the AAMR Manual upon which Clark relies in his

argument. Therefore it is not “clearly established Federal law as

determined by the Supreme Court of the United States” that state

court      analysis    of   subaverage    intellectual       functioning    must

precisely track the AAMR’s recommended approach.                  See 28 U.S.C.

§ 2254(d)(1).
                                No. 05-70008
                                     -7-

     Under the definition of mental retardation as established by

the Texas Court of Criminal Appeals, the state court did not

unreasonably determine the facts in light of the evidence relating

to Clark’s intellectual functioning. The court was confronted with

multiple IQ tests taken by Clark. The first, taken in November of

1983 when Clark was 15, measured his IQ at 74. The “true” IQ range

indicated by the confidence band for this test was 69 to 79. On

April 17, 2003, after the Atkins decision, Clark took another test

which measured his IQ at 65. The confidence band of this test

indicated that his IQ ranged from 60 to 70. On June 5, 2003, Clark

took a third IQ test which measured his IQ at 68, with a confidence

range of 64 to 72.

     Clark    contends   that    the   state   court      acknowledged    the

confidence bands, but “simply chose not to apply the standard error

of measurement to Clark’s IQ score of 74." This is incorrect.

Regarding the 1983 IQ test, the state court noted that the test

showed Clark’s IQ to be “in the range of 69 to 79." More important

to the state court were its findings based on its evaluation of

expert testimony on the IQ tests. The court evaluated both of the

tests administered to Clark in 2003, and it found that these

specific tests were subject to manipulation that would result in

lower scores and that in 2003 Clark had motivation to lower his

scores deliberately. The court also found that there was an unusual

discrepancy   in   Clark’s   subscores    on   one   of    the   2003    tests

indicating a higher IQ. The court further found that the 1983 score
                                 No. 05-70008
                                      -8-

was     considered    reliable    by    Clark’s     experts   and   that   the

psychologist who conducted the test noted based on his observations

that Clark’s intellectual functioning fell between the dull average

and average range.

      Clark has not challenged any of these findings, and instead

asserts only that it was error for the state court to find mental

retardation where the lowest potential score in the confidence band

of the 1983 test was below 70. The explanation provided by the

Texas Court of Criminal Appeals in adopting its definition of

mental retardation plainly forecloses this argument. Briseno, 135

S.W.3d at 7, n. 24. The state court was required to evaluate the

intelligence testing and make a flexible determination based on

those tests as to whether Clark had “significantly subaverage

general intellectual functioning.” The court was not required to

find Clark to be mentally retarded merely because the low end of

Clark’s confidence band was below 70, just as it would not be

required to find that Clark could be executed on the basis that the

high end of this band fell above 70. Clark thus has not shown that

the state court made an unreasonable determination of the facts in

light    of   the    evidence    as    to   the   first   element   of   mental

retardation.

      While, as discussed above, all three elements of mental

retardation must be shown in order to meet the Texas definition, we

review Clark’s arguments as to the other elements out of an

abundance of caution and because the evidence as to these elements
                                No. 05-70008
                                     -9-

is informative as to the state court’s belief that Clark may have

attempted to manipulate his 2003 IQ scores.

     Clark has challenged the state court’s finding that he did not

have adaptive deficits. Clark argues here that “limitations often

coexist   with     strengths”   and   that   the   state    court   erred   in

dismissing adaptive behavior testing and relying “exclusively upon

the court’s own interpretation of lay testimony about Clark’s

adaptive strengths.”

     The record shows that the state court made a number of

findings of fact that support its finding that Clark did not have

significant limitations in his adaptive skills. The court found

that records from Clark’s youth showed that he completed his GED

with improving grades after initial problems, that he completed a

welding program at Cooke County College in 1985, that he was

employed by the Gainesville State School with numerous duties and

positive reports from supervisors, and that he was able to get

along with other people.

     The state court also heard testimony from Clark’s former

landlord that he was a tenant of a mobile home park, where he was

paying his own bills, doing chores in exchange for rent reduction,

playing   cards,    and   successfully   socializing       with   others.   The

landlord testified that he followed the rules of the park, kept his

mobile home clean and cut the nearby grass, and was able to both

drive a car and follow the speed limits of the park. The landlord’s
                               No. 05-70008
                                   -10-

daughter testified to similar activities by Clark, and added that

they had conversed on a number of occasions without difficulty.

     A Texas Ranger who investigated the case testified that he

interviewed Clark for several hours without noticing any difficulty

by Clark in understanding the questions. He stated that Clark was

able to think on his feet, modifying his story in response to

inconsistencies that were pointed out to him. He further testified

that Clark’s actions in the crime included several that showed

adaptive functioning, including removing the butt stock of his gun

to make it easier to conceal, purchasing ammunition for the gun,

practicing with the gun, and removing evidence from the scene and

concealing it. He testified that his investigation of Clark showed

no evidence of adaptive limitations or problems meeting basic human

needs.

     The court listened to testimony from several other officers

and prison officials who had interacted with Clark. It also heard

testimony from the warden’s secretary, responsible for handling

inmate requests, and found that several of Clark’s written requests

indicate adaptive skills ranging from average to sophisticated.

     Clark    has   not   challenged   the   accuracy   of   any   of    these

findings, but instead argues only that they do not support the

state court’s determination that Clark did not have adaptive

deficits     because   they   are   evidence    of   strengths     and    not

limitations. This is incorrect - evidence of a strength in a

particular area of adaptive functioning necessarily shows that the
                           No. 05-70008
                               -11-

defendant does not have a weakness in that particular area. Even

if, as Clark argues, adaptive limitations rather than strengths

often define mental retardation, the evidence in this case shows

primarily adaptive strengths and does not show limitation in any

significant area. The evidence in this case showed that prior to

being incarcerated, Clark functioned normally across a broad range

of adaptive behaviors. Our review of the evidence of Clark’s

behavior in prison casts serious doubts on his claims of adaptive

limitation, as evidence collected from his cell along with his

handwritten requests include complaints that he needed a technician

to fix his television as it had been several “weeks now of no

reception via my coaxial cable hooked up to the jack on the wall;”

a handwritten diet plan entitled “Eat to Beat Stress” noting that

he should “eat small meals and snacks several times a day to keep

blood sugar from fluctuating” as well as notes about the effects of

various chemicals such as folic acid, pyridoxine, and thiamine;

handwritten puzzles including the decipherment of several extremely

complicated codes; and complaints about delays in approving his

request for a legal visit with another inmate in which Clark

planned to assist the inmate in obtaining parole.

     Clark faults the failure of the state court to credit an

adaptive behavior assessment administered at age 34 which attempted

to retroactively determine his abilities at age 25. The court found

that the test was unreliable because it relied on Clark’s self-

reporting of his adaptive limitations coupled only with his ex-
                                No. 05-70008
                                    -12-

wife’s memories about what he could and could not do at age 25. The

court found that this testing was unreliable because it did not

account for the incentive of Clark and his ex-wife to misreport

Clark’s adaptive skills and did not take into account Clark’s prior

employment and the written materials he produced during prison. The

court heard the testimony of the State’s expert claiming Clark did

not   display    limitations    in   adaptive      functioning.       This   expert

reviewed the testing results along with the various testimony and

documents and was judged more credible by the state court. The

findings by the state court on the issue of adaptive functioning

have not been rebutted by clear and convincing evidence, and its

determination that the evidence of Clark’s actual behavior was more

credible than the adaptive behavior assessment administered to

Clark was not unreasonable in light of the evidence presented.

      Finally,    Clark   objects    that    as    to   the   third    element   of

retardation, onset before the age of 18, the state court again

erred in its factual finding that Clark did not show onset before

the   age   of   18.   Clark   points   to   the    opinions    of    his    expert

witnesses, his failure of several grades, and his participation in

special education classes in school. While the state court provides

less support for its determination on this issue, pointing only to

documents about Clark produced by the Texas Youth Council when he

was age 15, Clark has not rebutted these findings by clear and

convincing evidence. The TYC documents describe Clark as a troubled

child with intellectual potential between the dull average and
                           No. 05-70008
                               -13-

average range. The TYC conducted an IQ test which, as the state

court determined under the first element, showed that at age 15

Clark was not mentally retarded. The state court did not make an

unreasonable determination of the facts in light of the evidence as

to the age of onset element.

     Because Clark has not shown by clear and convincing evidence

that the state court made unreasonable factual determinations in

light of the evidence presented, we AFFIRM the decision of the

district court.
