                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             August 21, 2007
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 06-70045




Elkie Lee TAYLOR,
                                           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 Northern District of Texas




Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     Elkie Lee Taylor appeals the district court’s denial of

Certificate of Appealability (COA), principally raising an Atkins

claim.   We deny COA.

                                  I

     The petitioner first argues that the federal district court

improperly merged two statutory standards of review – the “clear

and convincing” burden requirement of section 2254 (e) (1) and the

“objectively unreasonable” standard of section 2254 (d) (2) —
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creating a super-standard of review, contrary to the Supreme

Court's admonition in Miller El.1              In short, petitioner argues

that he was required to prove that the state court decision was

objectively unreasonable by clear and convincing evidence.

      The   district    court      applied    the    two   standards     in   the

alternative. It did not merge them, stating that

      [t]he court views the issue of Taylor's mental capacity as one
      of fact. See, e.g., Clark, 457 F.3d at 444 (question of
      whether criminal defendant suffers from significantly
      subaverage intellectual functioning is one of fact). Even if
      viewed as a mixed issue of fact and law, for the reasons
      stated by the court, infra, the trial court's decision on this
      issue was not contrary to or otherwise involved an
      unreasonable application.


                                       II

      Taylor   challenges     the    correctness     of    the   state   court’s

findings regarding mental retardation.                We are not persuaded.

Reasonable jurists would not disagree as to whether the petitioner

failed to present clear and convincing evidence that the state

court’s adaptive behavior analysis was wrong.2                    A person is

mentally    retarded     if   he     has     (1)    significant    sub-average

intellectual functioning; (2) accompanied by related limitations in

adaptive functioning; and (3) onset prior to the age of eighteen.3

      1
       Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
      2
       Taylor maintains that this court should determine de novo whether he is
mentally retarded, applying a preponderance of the evidence standard. This is
incorrect. Under section 2254 (e)(1) we require clear and convincing evidence
that the state court's determination was incorrect.
      3
       See Atkins v. Virginia, 536 U.S. 304, 318 (2002); In re Salazar, 443
F.3d 430, 432 (5th Cir. 2006).

                                       2
     On the first element, Taylor took five IQ tests scoring

somewhere between the mid-sixties and mid-seventies.         At age ten,

he scored a 75 on the Wechsler Intelligence Scale for Children

(WISC).   Taylor's expert argued that this score should be norm

corrected to a score of 68, to account for time lapse from 1948 to

1972. However, the doctor who administered the WISC test to Taylor

stated that he was capable of performing better than a 75, had he

tried.    And, Taylor was not diagnosed as mentally retarded as a

result of the WISC test.

     Twenty-two   years   later   Taylor   scored   a   63   on   a   Texas

Department of Criminal Justice (TDCJ) beta test and then a 69 on

the Wechsler Adult Intelligence Scale-Revised Test (WAIS-R).

However, even after scoring a 69 Taylor was not diagnosed as

mentally retarded.   The test administrator stated that

     [t]aking into account the client's age and cultural group, his
     adaptive behavior is below average, but not the degree
     expected of a mentally retarded person. It appears that Mr.
     Taylor is more capable in terms of adaptive skills than he has
     actually demonstrated.

Finally, in preparation for his state habeas hearing, he scored a

65 on the Wechsler Adult Intelligence Scale (WAIS-III) and a 71 on

the Kaufman test.    But the state habeas court was permitted to

discount these scores due to the incentive to malinger.

     Regarding adaptive behavior, Taylor purportedly had difficulty

maintaining a steady job, got confused using public transportation,

had trouble cooking rice well as a child, made poor use of his

leisure time by sitting in his apartment and just listening to the

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radio and talking on the phone.           However, Texas points to the

circumstances of his two crimes to prove that he was not deficient.

For example, having perceived an opportunity for robbing Otis

Flake, he planned and executed Flake's murder. Further, having

learned from his experience of murdering Ramon Carrillo, Taylor

skipped the use of his hands and went straight to the use of a coat

hanger in order to murder Flake. When the policeman questioned him

about the television stolen from Flake’s apartment, he quickly

thought up a lie that worked. Then, when ultimately found, he

successfully maneuvered an 18-wheeler cab for over 150 miles and

then, when caught, tried to blame someone else for his crimes.

     Finally, regarding the date of onset of Taylor's alleged

mental retardation, the only IQ test taken of Taylor prior to his

turning eighteen yielded a result of 75, above the mild retardation

cut off of 70. The administrator of the test thought Taylor was

capable   of   performing    better   than   75.   While   Talyor's   expert

concluded that this test result overstated Taylor's IQ by seven

points, the trial court was not unreasonable in finding otherwise.

In light of this standard of review, we hold that the petitioner

did not present clear and convincing evidence that the state court

erred.4   COA is DENIED.


     4
       Taylor argues that the CCA's decision in Ex parte Briseno, 135 S.W.3d 1
(Tex. Crim. App. 2004), fails to properly implement Atkins.   As noted by the
federal district court, Briseno has been cited favorably several times by this
court in contexts indicating that Briseno is not contrary to clearly
established Supreme Court precedent. See, e.g., In re Hearn, 418 F.3d 444,
446-47 (5th Cir. 2005).

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