     Case: 11-70006   Document: 00511741281   Page: 1   Date Filed: 01/30/2012




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

                                                                  FILED
                                                              January 30, 2012

                                 No. 11-70006                    Lyle W. Cayce
                                                                      Clerk

YOKAMON LANEAL HEARN,

                                          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 Northern District of Texas



Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
        Yokamon Laneal Hearn was charged in Texas state court with the murder
of Joseph Franklin Meziere. A jury found Hearn guilty of murder committed in
the course of a kidnapping and robbery—a capital offense—and the state court
sentenced him to death based on the jury’s verdict on the two special issues at
sentencing. Hearn petitioned unsuccessfully for post-conviction relief in state
court and his initial federal habeas petition in federal district court was
dismissed. However, on the basis of the Supreme Court’s decision in Atkins v.
Virginia, 536 U.S. 304 (2002), Hearn was eventually authorized to bring a
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successive habeas petition to assert a mental retardation claim. The district
court dismissed the successive habeas petition and sua sponte declined to issue
a certificate of appealability (“COA”). Hearn has filed an application for a COA
to this court on one issue: whether the Texas Court of Criminal Appeals (“CCA”)
unreasonably applied federal law as established in Atkins when it refused to
allow Hearn to wholly replace full-scale IQ scores with a clinical assessment to
establish his claim of mental retardation.
      Because the CCA’s decision was not an unreasonable application of federal
law, we deny Hearn’s application.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      The details of the murder giving rise to this case and the lengthy
procedural history are accurately recited in opinions by the CCA, Hearn v. State,
No. 73,371 (Tex. Crim. App. Oct. 3, 2001) (per curiam) (unpublished), Ex parte
Hearn, 310 S.W.3d 424, 426–27 (Tex. Crim. App. 2010), and the federal district
court, Hearn v. Thaler, No. 3:04-CV-0450, 2011 WL 825744, at *1 (N.D. Tex.
Mar. 3, 2011).
      Hearn and three accomplices abducted Joseph Franklin Meziere from a
self-service car wash in March 1998. They took Meziere’s car and drove him to
a remote location where Hearn killed Meziere by shooting him several times in
the head at close range. A jury found Hearn guilty of capital murder and he was
sentenced to death by the trial court. The CCA affirmed his conviction and
sentence, Hearn v. State, No. 73,371 (Tex. Crim. App. Oct. 3, 2001) (per curiam)
(unpublished), and certiorari was denied. Hearn v. Texas, 535 U.S. 991 (2002).
      While his direct appeal was pending, Hearn filed state and federal habeas
corpus petitions, both of which were denied. Ex parte Hearn, WR-50, 116-01
(Tex. Crim. App. Nov. 14, 2001); Hearn v. Cockrell, No. 3:01-CV-2551, 2002 WL
1544815 (N.D. Tex. July 11, 2002); Hearn v. Dretke, 73 F. App’x 79 (5th Cir.
2003). The Supreme Court again denied Hearn’s petition for writ of certiorari.

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Hearn v. Dretke, 540 U.S. 1022 (2003). Hearn’s execution was subsequently
scheduled for March 4, 2004.
      On the eve of his scheduled execution, this court stayed the execution,
granted Hearn’s motion for appointment of counsel to investigate his claim of
mental retardation under Atkins, and remanded to the district court for
consideration of a successive habeas petition to present his Atkins claim. In re
Hearn, 376 F.3d 447, 457–58 (5th Cir. 2004), clarified and reh’g denied, 389 F.3d
122 (5th Cir. 2004). After additional factual development on Hearn’s Atkins
claim, his successive habeas petition was authorized in July 2005. In re Hearn,
418 F.3d 444, 448 (5th Cir. 2005) (“Hearn I”).
      Once Hearn’s successive habeas petition was authorized, the district court
conducted an evidentiary hearing on Hearn’s Atkins claim. The district court
initially found that Hearn had failed to make the prima facie showing of mental
retardation and dismissed his successive petition with prejudice without
reaching the merits. Hearn v. Quarterman, No. 3:04-CV-0450, 2007 WL 2809908
(N.D. Tex. Sept. 27, 2007) (“Hearn II”) (applying 28 U.S.C. § 2244(b)). The court
later allowed additional briefing, Hearn v. Quarterman, No. 3:04-CV-0450, 2008
WL 679030 (N.D. Tex. Mar. 13, 2008) (“Hearn III”), and eventually granted
Hearn’s Fed. R. Civ. P. 59(e) motion to alter or amend the judgment due to the
intervening opinion in Hall v. Quarterman, 534 F.3d 365 (5th Cir. 2008) (per
curiam), finding that Hearn had made a prima facie showing of mental
retardation under Atkins. Hearn v. Quarterman, No. 3:04-CV-0450, 2008 WL
3362041, at *7 (N.D. Tex. Aug. 12, 2008) (“Hearn IV”). The court also granted a
stay and abatement to permit Hearn to exhaust his Atkins claim in state court
in the first instance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Hearn IV
at *4–6.
      With the federal proceedings stayed, Hearn returned to state court and
presented his Atkins claim. The state trial court forwarded Hearn’s state habeas

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application to the CCA to determine whether Hearn’s Atkins claim had merit.
Hearn’s argument before the CCA focused on the use of IQ scores as a defining
characteristic of mental retardation. In light of the Supreme Court’s direction
in Atkins, which “le[ft] to the States the task of developing appropriate ways to
enforce the constitutional restriction” against executing mentally retarded
persons, 536 U.S. at 317, the CCA previously announced that “[u]ntil the Texas
Legislature provides an alternate statutory definition of ‘mental retardation,’
. . . we will follow the AAMR [American Association of Mental Retardation] or
section 591.003(13) of the Texas Health and Safety Code criteria in addressing
Atkins mental retardation claims.” Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim.
App. 2004).
      The AAMR relied upon by the CCA defines mental retardation by three
characteristics: “(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.” Briseno, 135 S.W.3d at 7 (citing AMERICAN
PSYCHIATRIC ASSOCIATION DIAGNOSTIC          AND   STATISTICAL MANUAL    OF   MENTAL
DISORDERS (Text Revision, 4th ed. 2000) (DSM–IV), AMERICAN ASSOCIATION ON
MENTAL DEFICIENCY (AAMD), CLASSIFICATION            IN   MENTAL RETARDATION N 1
(Grossman ed.1983), and AAMR, MENTAL RETARDATION: DEFINITION ,
CLASSIFICATION, AND SYSTEMS OF SUPPORT (9th ed.1992)). Similarly, the Texas
Health and Safety Code defines mental retardation as “significantly subaverage
general intellectual functioning that is concurrent with deficits in adaptive
behavior and originates during the developmental period.” TEX. HEALTH &
SAFETY CODE § 591.003(7-a), (13). Under these definitions, “significantly
subaverage general intellectual functioning” has been defined as the individual’s
having an IQ of about 70 or below, which is approximately two standard
deviations below the mean. Briseno, 135 S.W.3d at 7 n.24 (citing DSM–IV and
AAMD). The medical authorities cited by the court in Briseno also noted:

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      Psychologists and other mental health professionals are flexible in
      their assessment of mental retardation; thus, sometimes a person
      whose IQ has tested above 70 may be diagnosed as mentally
      retarded while a person whose IQ tests below 70 may not be
      mentally retarded.
Id. (citing AAMD). While a full-scale IQ score of 70 or below is generally
acknowledged as the defining point for subaverage intellectual functioning, there
can be measurement error of approximately five points in either direction when
assessing IQ, depending on the testing instrument. Ex parte Hearn, 310 S.W.3d
424, 428 (Tex. Crim. App. 2010), cert. denied, 543 U.S. 960 (2010); see also
Atkins, 536 U.S. at 309 n.5 (“It is estimated that between 1 and 3 percent of the
population has an IQ between 70 and 75 or lower, which is typically considered
the cutoff IQ score for the intellectual function prong of the mental retardation
definition.” (citing 2 COMPREHENSIVE TEXTBOOK OF PSYCHIATRY 2952 (B. Sadock
& V. Sadock eds. 7th ed. 2000))).
      Hearn’s argument to the CCA challenged this use of IQ scores in making
a determination of mental retardation. In 2005, psychologist Dr. Alice Conroy
administered a WAIS–III IQ test to Hearn which resulted in a full-scale IQ score
of 74—potentially within the five point margin of error. Another defense expert
testifying on behalf of Hearn, Dr. James Patton, concluded that Hearn’s full
scale IQ score of 74 was within the standard error of measurement and therefore
could meet the requirement of significant subaverage intellectual functioning.
Hearn, 310 S.W.3d at 429.
      However, three additional tests estimated Hearn’s IQ to be substantially
higher. A 1999 WAIS-R short-form test administered by the Texas Department
of Criminal Justice estimated Hearn’s full-scale IQ to be 82. Two other tests
administered by state experts in January 2007, a WAIS-III test and a Stanford-
Binet Intelligence Scales (5th ed.) test, estimated Hearn’s IQ to be 88 and 93
respectively. Id.


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      Hearn argued however that the tests showing his IQ to be well above the
clinical cutoff for mental retardation did not fully reflect his actual mental
functioning. To support this argument, Hearn produced two additional experts,
Dr. Dale Watson and Dr. Stephen Greenspan. Id. at 430. Dr. Watson reviewed
the previous test results and administered an additional IQ test using the
Woodcock Johnson Test of Cognitive Abilities (3d ed.). The Woodcock Johnson
test resulted in a full-scale IQ score of 87 but Dr. Watson noted deficits in
adaptive behavior. Because he believed there were inconsistencies between
Hearn’s full-scale IQ scores, which were above the range for mental retardation,
and the observed adaptive behavior deficits, Dr. Watson administered a
neuropsychological test battery. Id. From the test, “Dr. Watson concluded that
[Hearn’s] neuropsychological deficits ‘appear’ to underlie previous findings of
deficits in adaptive functions, and are ‘likely’ developmental in nature.” Id.
      Based on the neuropsychological deficits identified by Dr. Watson, Dr.
Greenspan testified as to whether the deficits exhibited by Hearn “could satisfy
the requirement of significantly subaverage general intellectual functioning,
despite full-scale IQ scores ranging from 87 to 93.” Id. Based in part on an
ancillary finding by another doctor that Hearn suffers from Fetal Alcohol
Syndrome, Dr. Greenspan opined that substituting neuropsychological measures
for full-scale IQ scores could be justified when there is a complicating medical
diagnosis such as Fetal Alcohol Spectrum Disorder because such conditions can
cause a mixed pattern of intellectual impairments that, “while just as serious
and handicapping as those found in people with a diagnosis of MR, are not
adequately summarized” by full-scale IQ scores. Id. Dr. Greenspan concluded
that Hearn could establish a mental-retardation claim under a more expansive
definition of mental retardation. Id. Hearn therefore argued that the court
should find him to be mentally retarded, relying on the opinions of Drs. Patton,



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Watson, and Greenspan, despite the results of the IQ tests that placed him
above the commonly accepted mental retardation threshold. Id.
      The CCA applied Atkins and denied his claim on the merits, holding that
Hearn had not established that he was mentally retarded. Id. at 430–31. In
denying his claim, the CCA rejected Hearn’s “attempts to use neuropsychological
measures to wholly replace full-scale IQ scores in measuring intellectual
functioning.” Id. at 431. While recognizing that habeas applicants should be
given the opportunity to present clinical assessment evidence to demonstrate
why their full-scale IQ scores were within the margin of error for standardized
IQ testing, the court held that “applicants may not use clinical assessment as a
replacement for full-scale IQ scores in measuring intellectual functioning.” Id.
Because Hearn’s evidence did not demonstrate significantly subaverage
intellectual functioning, the CCA denied his application. Id.
      Following the CCA’s denial of his application, Hearn returned to the
federal district court seeking habeas relief for his now-exhausted Atkins claim
under 28 U.S.C. § 2254. Hearn v. Thaler, No. 3:04-CV-0450, 2011 WL 825744
(N.D. Tex. Mar. 3, 2011) (“Hearn V”). Hearn argued that the CCA decision
refusing to substitute clinical assessment evidence for full-scale IQ scores was
contrary to and an unreasonable application of clearly established federal law
under Atkins. Id. at *1, 3. The district court denied Hearn’s petition, explaining
that the CCA “has done nothing more than perform the task left open to it by
Atkins” by exercising the state’s authority to prescribe what evidence can be
considered when determining mental retardation. Id. at *4. Moreover, because
the Supreme Court has not clearly established any precise boundaries on the
state’s limits for determining mental retardation, “the CCA’s decision in Hearn’s
case could not have been an unreasonable application of Atkins.” Id. Finally, the
district court sua sponte denied Hearn a COA, finding that reasonable jurists



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would not disagree with the court’s assessment of Hearn’s constitutional claims.
Id. This timely application for a COA followed.
                         II. STANDARD OF REVIEW
      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
petitioner can appeal a district court’s dismissal of a habeas petition only if the
district or appellate court issues a COA. 28 U.S.C. § 2253(c); see also Miller-El
v. Cockrell, 537 U.S. 322, 335–36 (2003). Because the district court sua sponte
declined to issue a COA, Hearn must request a COA from this court to obtain
further review of his claim. See 28 U.S.C. § 2253(c); see also Coleman v.
Quarterman, 456 F.3d 537, 541 (5th Cir. 2006).
      To obtain a COA under § 2253(c), Hearn must make “a substantial
showing of the denial of a constitutional right” by demonstrating that
“reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). At this stage, our inquiry “is a threshold inquiry only, and does not
require full consideration of the factual and legal bases of [Hearn’s] claim.”
Neville v. Dretke, 423 F.3d 474, 482 (5th Cir. 2005). Because Hearn was
sentenced to death, “we must resolve any doubts as to whether a COA should
issue in his favor.” Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir. 2005).
      In determining whether reasonable jurists would debate the district
court’s assessment of Hearn’s Atkins claim, we keep in mind that the district
court’s review of the CCA’s decision must be conducted pursuant to AEDPA’s
highly deferential standards. Tennard v. Dretke, 542 U.S. 274, 282 (2004); see
also Leal v. Dretke, 428 F.3d 543, 548 (5th Cir. 2005). AEDPA permits a federal
district court to grant habeas relief from a state court decision only on two bases:
(1) if it determines that the state court’s 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,” or (2) if it determines the

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state court decision “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2). The state court’s findings of fact are entitled to a presumption
of correctness and the petitioner may overcome that presumption only by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
      Furthermore, the Supreme Court has explained that “an unreasonable
application of federal law is different from an incorrect application of federal
law.” Renico v. Lett, --- U.S. ----, 130 S.Ct. 1855, 1862 (2010) (quoting Williams
v. Taylor, 529 U.S. 362, 410 (2000)). Under this standard, a federal court may
not issue a habeas writ simply because the court concludes the state court
incorrectly applied federal law; instead, the state court’s application of the law
must be “objectively unreasonable.” Id. “AEDPA thus imposes a highly
deferential standard for evaluating state-court rulings, and demands that
state-court decisions be given the benefit of the doubt.” Id. (internal citations and
quotations omitted).
                                 III. ANALYSIS
      Hearn argues in his COA application that the CCA unreasonably applied
federal law as defined in Atkins by establishing an “inflexible rule” when it held
that “while applicants should be given the opportunity to present clinical
assessment to demonstrate why his or her full-scale IQ score is within that
margin of error [for standardized IQ testing of intellectual functioning],
applicants may not use clinical assessment as a replacement for full-scale IQ
scores in measuring intellectual functioning.” Hearn, 310 S.W.3d at 431. We
disagree.
      In denying Hearn’s habeas petition, the district court faithfully adhered
to AEDPA’s deferential standard by finding that the “CCA has done nothing
more than perform the task left open to it by Atkins.” Hearn V at *4. That is, the
CCA in Ex parte Briseno and Hearn v. Thaler has undertaken the task “le[ft] to

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the States . . . of developing appropriate ways to enforce the constitutional
restriction” against imposing the death penalty on mentally retarded
defendants. Atkins, 536 U.S. at 317. This corresponds with the Supreme Court’s
acknowledgment that its opinion in Atkins “did not provide definitive procedural
or substantive guides” for determining when a defendant is mentally retarded.
Bobby v. Bies, 556 U.S. 825, 129 S. Ct. 2145, 2150 (2009) (noting that the Ohio
Supreme Court had announced “a rebuttable presumption that a defendant is
not mentally retarded if his or her IQ is above 70”) (quoting State v. Lott, 779
N.E.2d 1011, 1014 (Ohio, 2002)).
      Additionally, as reasoned by the district court, the CCA’s decision could
not have been an unreasonable application of Atkins because the Supreme Court
has not clearly established the precise boundaries of determining mental
retardation. When the Supreme Court refuses to provide a specific rule, “it is not
an unreasonable application of clearly established Federal law for a state court
to decline to apply a specific legal rule that has not been squarely established by
this Court.” Knowles v. Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1419 (2009)
(internal quotation marks omitted).
      Moreover, this court’s binding precedent states that because “the Court in
Atkins explicitly stated that it left ‘to the States the task of developing
appropriate ways to enforce the constitutional restriction upon its execution of
sentences’ . . . it would be wholly inappropriate for this court, by judicial fiat, to
tell the States how to conduct an inquiry into a defendant’s mental retardation.”
In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003) (citations omitted). Accordingly,
without further instruction from the Supreme Court, we once again decline to
tell the state of Texas how to conduct its inquiry into a defendant’s mental
retardation.




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      Hearn’s arguments that the CCA’s decision is inflexible and could
introduce a significant risk that individuals, such as he, might be subjected to
the death penalty in violation of Atkins are not persuasive.
      First, the CCA’s decision is not as inflexible as Hearn attempts to portray
it. While Hearn attempts to portray the CCA’s decision as an absolute bar to a
finding of mental retardation when a defendant’s full-scale IQ is higher than 75,
that is not a wholly accurate statement of the CCA’s holding. Instead, the CCA
holding was far more nuanced as it pertains to the facts in Hearn’s case. The
court first noted that it had “expressly declined to establish a ‘mental
retardation’ bright-line exemption from execution without ‘significantly greater
assistance from the [] legislature.” Hearn, 310 S.W.3d at 430 (citing Briseno, 135
S.W.3d at 6). The court then explained that “[i]n the present case, applicant
attempts to use neuropsychological measures to wholly replace full-scale IQ
scores in measuring intellectual functioning.” Id. at 431 (emphasis added). The
court then concluded, in light of prior decisions and the facts in Hearn’s case,
that “applicants may not use clinical assessment as a replacement for full-scale
IQ scores in measuring intellectual functioning.” Id. The key is in the context
of the CCA’s decision. It reviewed the facts, notably that Hearn had at least
three full-scale IQ scores that were well above the clinically accepted threshold
for a mental retardation diagnosis, and subsequently refused to accept Hearn’s
argument that it should ignore those test results in favor of a separate clinical
assessment. Under AEDPA, neither the district court nor this court is in a
position to second-guess the state court’s decision in light of the guidance in
Atkins. See also Chester v. Thaler, No. 08-70023, 2011 U.S. App. LEXIS 26077,
at *23–25 (5th Cir. Dec. 30, 2011).
      Second, we do not perceive the significant risk of possible future
constitutional violations argued by Hearn. While Hearn urges this court to be
mindful of the consistent application of the death penalty in light of the Supreme

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Court’s language in Wainwright, Hearn’s own prior statements betray his
argument that the CCA’s decision will result in inconsistent imposition of the
death penalty to others in the future that might be in a similar position. The rule
established in Atkins specifically prohibits the imposition of the death penalty
on mentally retarded defendants. However, Hearn argued to the district court
that he has a disability due to impairments in brain functioning that affect him
in the same way as mental retardation. As far back as 2007, Hearn has also
admitted that “under the prevailing [AAMR] definition of mental retardation,
he does not have mental retardation.” Thus, Hearn, or those potentially like him
in the future, cannot claim the benefit of Atkins because they do not fit within
the clinically accepted definition of mental retardation.
      Furthermore, Hearn’s argued approach of allowing individualized
neuropsychological evaluations to wholly replace full-scale IQ tests would result
in more inconsistent determinations of mental retardation, not less. Dr.
Greenspan’s    position   exemplifies   this   potential    inconsistency.    While
acknowledging that Texas’ definition of mental retardation is widely accepted
and non-controversial, he nonetheless argued that Hearn could establish a
mental retardation claim under a more expansive definition of mental
retardation. Dr. Greenspan also acknowledged that he hoped the court would
change its operational criteria to adopt a definition of mental retardation he
believes is more inclusive than the current clinical definition.
      Adopting Hearn’s argued approach would only invite additional such
testimony in future cases and, considering the variability and subjective nature
of such testimony, it strikes us as implausible that opening the door for courts
to rely on such testimony as a wholesale replacement for full-scale IQ test
results would result in more consistent mental retardation determinations.
Instead, the CCA’s approach of relying primarily on the full-scale IQ tests used
here is reasonable and more likely to result in consistent mental retardation

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determinations because the tests have been widely acknowledged as “the
standard instrument in the United States for assessing intellectual functioning.”
Atkins, 536 U.S. at 309 n.5; see also Rivera v. Quarterman, 505 F.3d 349, 361
(5th Cir. 2007) (describing the WAIS-III IQ test as “the best full-scale IQ test
available in English”).
      In summary, considering that the Supreme Court has delegated to the
states the responsibility of developing appropriate ways to enforce the
constitutional restriction against executing mentally retarded defendants, we
cannot second-guess the CCA’s decision. Were this court to hold that the CCA’s
decision was an unreasonable application of federal law under Atkins, we would
be requiring the state court to substantially alter its established rule despite the
Supreme Court’s delegation of such rulemaking to the state. This is precisely
what a federal court reviewing a state court decision under AEDPA’s deferential
standard cannot do in the absence of an unreasonable application of a clearly
established federal law as defined by the Supreme Court.
                               IV. CONCLUSION
      For the foregoing reasons, Hearn’s COA application is DENIED.




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