                           UNITED STATES COURT OF APPEALS
                                    For the Fifth Circuit
                               ___________________________

                                         No. 01-11475
                                 ___________________________

                               KENNETH DEWAYNE THOMAS,
                                                                              Petitioner - Appellant,

                                             VERSUS

                                JANIE COCKRELL, Director,
                   Texas Department of Criminal Justice, Institutional Division,
                                                                           Respondent - Appellee.


                          Appeal from the United States District Court
                        for the Northern District of Texas, Dallas Division
                                         3:00-CV-051-P

                                        November 18, 2002

Before DAVIS, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:1

       Petitioner Kenneth DeWayne Thomas seeks a certificate of appealability regarding the district

court’s denial of habeas corpus relief. Because Thomas has failed to make a substantial showing of

a denial of a constitutional right, we deny Thomas’s Application for COA.

                                                 I.

       Thomas was convicted and sentenced t o death in August 1987 for the capital murder of

Mildred Finch in the course of committing or attempting to commit a burglary. The facts of the crime

are gruesome and also involved the murder and molestation of Mrs. Finch’s husband. On direct

       1
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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appeal, the Texas Court of Criminal Appeals originally abated the appeal and remanded the case to

the trial court. Thomas v. State, 837 S.W.2d 106 (Tex. Crim. App. 1992) (Thomas I). On appeal

after remand, the court affirmed the conviction and deat h sentence in an unpublished opinion.

Thomas v. State, No. 69,938 (Tex. Crim.App. June 8, 1994) )(Thomas II). The court subsequently

denied Thomas’s motion for rehearing. Thomas did not file a petition for writ of certiorari to the

United States Supreme Court.

       In May 1997, Thomas filed an application for writ of habeas corpus in the state trial court.

The court filed findings of fact and conclusions of law recommending the denial of relief. The Court

of Criminal Appeals adopted the trial court’s findings and conclusions and denied the application.

       Thomas filed this federal habeas petition in July 2000. In August 2001, the magistrate judge

issued findings of fact and conclusions of law recommending denial of federal habeas relief. In

October 2001, the district court entered an order adopting the magistrate’s recommendations and

denied Thomas’s petition. This appeal and application for COA followed.

       More detail on the evidence related to the legal issues presented and the specific findings of

the state courts with regard to that evidence are provided below.

                                                 II.

       A certificate of appealability may issue only where the petitioner makes a substantial showing

of a denial of a const itutional right. To do so, the petitioner must show that (1) the issues are

debatable among jurists of reason, (2) a court could resolve the issues in a different manner, or (3)

the questions presented are adequate to deserve encouragement for further proceedings. Barefoot

v. Estelle, 463 U.S. 880, 893, n. 4 (1983). In reviewing a state prisoner’s federal habeas petition, a

“determination of a factual issues made by a State court shall be presumed to be correct.” 28 U.S.C.


                                                  2
§ 2254.

                                                 III.

                                                  A.

       Thomas’s main argument is that the punishment phase jury charge did not allow the jury to

give effect to his evidence of mental impairment and mental retardation. In Penry v. Lynaugh (Penry

I), 492 U.S. 302 (1998), the Supreme Court held that Penry “had been sentenced to death in violation

of the Eighth Amendment because his jury had not been adequately instructed with respect to

mitigation evidence.” Penry v. Lynaugh (Penry II), 121 S.Ct. 1910, 1915 (2001) (describing the

decision in Penry I.) In Penry II, the Supreme Court held that the jury instructions on mitigating

circumstances given in response to Penry I failed to provide the jury with a vehicle to give effect to

mitigating circumstances of mental retardation and childhood abuse, as required by the Eighth and

Fourteenth Amendments.

       The jury instructions in this case are substantially similar to those given in Penry I . Thomas’s

jury was asked to answer the Texas statutory “special issues”:

       (1) Was the conduct of the defendant that caused the death of the deceased
       committed deliberately and with the reasonable expectation that the death of the
       deceased or another would result?

       (2) Is there a reasonable probability that the defendant would commit criminal acts of
       violence that would constitute a continuing threat to society?

Under the Texas statute, if either question is answered “no,” then the death penalty is not imposed.

No “nullification” instruction of the type addressed in Penry II was given.

       Thomas’s mitigating evidence on the issues of mental retardation and mental impairment came

primarily from his expert, Dr. Crowder. Dr. Crowder testified that Thomas’s I.Q. was tested twice



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and yielded scores of 75 and 77, that Thomas reads at the beginning 4th grade level and that his math

and spelling skills fall below the 3rd grade level. Dr. Crowder testified that Thomas was “mentally

impaired to the point that he’s borderline retarded . . . But in essence, he’s mentally retarded, can’t

learn as well, can’t think as well, can’t reason through things well.” He also diagnosed Thomas with

organic affective syndrome, as a result of brain damage during the birth process (umbilical cord

around t he neck) and a head injury he suffered as a teen. Dr. Crowder concluded that the brain

damage resulted in poor impulse control. The opinion of the Texas Court of Criminal Appeals notes

that “Dr. Crowder specifically testified that treatment was available for the applicant’s condition and

that with this treatment the applicant would be substantially less likely to constitute a continuing

danger to society.”

       The Texas Court of Criminal Appeals concluded that this evidence did not establish mental

retardation by applying a three part test adopted by the Texas state courts.

       According to the American Association on Mental Retardation (AAMR), a person is
       considered to be mentally retarded only when there is evidence of: (1) subaverage
       general intellectual functioning, (2) concurrent deficits in adaptive behavior, and (3)
       onset during the early development period. See David L. Rumley, Comment: A
       License to Kill: The Categorical Exemption of the Mentally Retarded from the Death
       Penalty, 24 St. Mary's Law Journal Number 4 1299, 1312-14 (1993). Texas has
       adopted the AAMR three-part definition of mental retardation in the "Persons With
       Mental Retardation Act." See V.T.C.A., Health & Safety Code, Section 591.003(13)
       ("mental retardation" means significantly subaverage general intellectual functioning
       that is concurrent with deficits in adaptive behavior and originates during the
       developmental period); V.T.C.A., Health & Safety Code, Section 591.003(16)
       ("person with mental retardation" means a person determined by a physician or
       psychologist licensed in this state or certified by the department to have subaverage
       general intellectual functioning with deficits in adaptive behavior).

Ex Parte Tennard, 960 S.W.2d 57, 60 (Tex. Ct. Crim. App. 1997).

       In Atkins v. Virginia, the Supreme Court declared that execution of criminals who are



                                                  4
mentally retarded is cruel and unusual punishment in violation of the Eighth Amendment. 122 S.Ct.

2242 (2002). The Court, however, left “to the States the task of developing appropriate ways to

enforce the constitutional restriction upon its execution of sentences” Id. at 2250, quoting Ford v.

Wainwright, 477 U.S. 399, 405 (1986). The test adopted by the Texas state courts conforms

subst antially to the clinical definitions of mental retardation noted in Atkins. Id. at 2245, n.3.2

Further, because the question of whether a defendant is mentally retarded presents a question of fact,

the state’s determination that Thomas is not mentally retarded, using this reasonable test, is presumed

correct. 28 U.S.C. § 2254(e)(1); Tennard v. Cockrell, 284 F.3d 591 (5th Cir. 2002), vacated and

remanded for further consideration in light of Atkins, 154 L. Ed. 2d 4, 123 S. Ct. 70, (2002).

Relatedly, this court has rejected assertions of mental retardation and the need for a Penry instruction


       2
         The following definitions of mental retardation were cited in Atkins:
       The American Association of Mental Retardation (AAMR) defines mental
       retardation as follows: "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." Mental
       Retardation: Definition, Classification, and Systems of Supports 5 (9th ed. 1992).

       The American Psychiatric Association's definition is similar: "The essential feature
       of Mental Retardation is significantly subaverage general intellectual functioning
       (Criterion A) that is accompanied by significant limitations in adaptive functioning
       in at least two of the following skill areas: communication, self-care, home living,
       social/interpersonal skills, use of community resources, self-direction, functional
       academic skills, work, leisure, health, and safety (Criterion B). The onset must
       occur before age 18 years (Criterion C). Mental Retardation has many different
       etiologies and may be seen as a final common pathway of various pathological
       processes that affect the functioning of the central nervous system." American
       Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 41
       (4th ed. 2000). "Mild" mental retardation is typically used to describe people with
       an IQ level of 50-55 to approximately 70. Id., at 42-43.


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for petitioners with I.Q. scores similar to Thomas’s. See Jones v. Johnson, 171 F.3d 270, 276 (5th

Cir. 1999)(no Penry instruction required for petitioner with I.Q. between 73 and 77 which amounted

to borderline retardation with no evidence linking condition to offense conduct). For the reasons

stated above, we conclude that the jury could give adequate consideration to Thomas’ mitigation

evidence of alleged mental retardation.

                                                  B.

       Thomas argues next that the jury, as charged, could not give adequate consideration to his

mitigation evidence of other mental impairment. The Texas Court of Criminal Appeals held that even

if Thomas could establish a mental impairment to which the instant offense was attributable, the

special issue on future dangerousness was sufficient to give mitigating effect to this evidence. This

is so because Thomas’s expert testified that Thomas’s condition was treatable if he was maintained

in a controlled environment.

       This court’s decision in Robison v. Johnson, 151 F.3d 256 (5th Cir. 1998), supports the

conclusion reached by the district court. In Robison, the defendant presented evidence of mental

illness, including a diagnosis of schizophrenia. The experts testified that his condition was treatable.

Id. at 264. Like Thomas, Robison contended that he was entitled to a Penry instruction because

neither the future dangerousness or deliberateness questions gave the jury an adequate vehicle to

consider this evidence. Like Thomas, Robison also argued that his mental illness, which affects his

ability to distinguish between right and wrong and his ability to conform to the requirements of the

law, did not prevent him from acting deliberately. Id. at 265. He also argued that despite the

treatable nature of schizophrenia, the jury could have still found him a future danger. Id. This court

concluded that Robison had made a “substantial showing of the denial of a constitutional right” and


                                                   6
granted COA. Id. However it denied Robison’s petition for habeas corpus based on its conclusion

that the jury could have given mitigating effect to Robison’s evidence of mental illness in answering

the question of future dangerousness. Id., citing Davis v. Scott, 51 F.3d 457 (5th Cir. 1995) and

Lucas v. Johnson, 132 F.3d 1069 (5th Cir. 1998). The court also found it unnecessary to consider

whether Robison’s mitigating evidence was beyond the effective reach o f the jury on the issue of

deliberateness, because it affirmed the district court’s conclusion that the jury could give the evidence

effect in answering the question on future dangerousness. Id.

        Accordingly, following Robison, we are satisfied that the district court correctly denied

Thomas’s petition for habeas corpus because (1) Thomas did not establish that he was mentally

retarded, and (2) Thomas’s evidence of mental illness could be considered under the future

dangerousness issue.

                                                  IV.

        Thomas argues finally that his counsel was ineffective for failing to place Thomas’s mental

condition in issue during the guilt/innocence phase of trial. The district court found that Thomas

failed to present this issue to the state courts. Accordingly, as Thomas concedes, this claim is

procedurally barred on federal habeas. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).

                                                   V.

        For the foregoing reasons, Thomas’s Application for COA is DENIED.




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