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

                                                                            FILED
                                                                        September 19, 2008

                                       No. 07-70006                   Charles R. Fulbruge III
                                                                              Clerk

JEFFREY DEMOND WILLIAMS

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent-Appellee



                   Appeals from the United States District Court
                        for the Southern District of Texas
                               USDC No. H-04-2945


Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Jeffrey Demond Williams (“Williams”) appeals the
district court’s denial of his petition for a writ of habeas corpus. For the
following reasons, we affirm the district court’s denial of Williams’s habeas
petition and remand for the district court to consider whether to grant a
certificate of appealability (“COA”) on Williams’s post-judgment motions.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-70006


     I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A.   Factual Background
     The district court set forth the relevant facts in this case:
            On the night of May 19, 1999, Officer Tony Blando drove
     around the parking lot of the Roadrunner Inn [in Houston, Texas]
     looking for stolen vehicles. Blando was in plainclothes and drove an
     unmarked car. Blando saw Williams driving a Lexus. He inquired
     about the car [via a computer search in his car], and learned that
     the car was stolen in an aggravated robbery. As Williams stepped
     out of the car, Blando approached him with his weapon drawn.
     Trial testimony explained that it was departmental practice for
     officers to draw their weapons when approaching a suspect in a
     stolen vehicle. Blando and Williams tussled, and Williams pulled
     out a gun and fatally shot Blando.
            Two witnesses also testified that they saw the shooting. One
     was staying at the Roadrunner Inn, and the other at a hotel next
     door. One of the witnesses testified that she heard two men arguing
     in the parking lot. When she looked out the window, she saw a
     white man and a black man arguing, and heard the black man
     telling the white man not to handcuff him. After the white man got
     one handcuff on the black man, the black man spun around and shot
     the white man. Williams was arrested near the scene a short while
     later. He was wearing one handcuff at the time.
            After his arrest, Houston Police Officer Allen Brown read
     Williams his Miranda warnings and interviewed him. Williams
     acknowledged that he understood his rights and gave two
     statements in which he admitted shooting Blando. At trial the
     medical examiner testified that the cause of Blando’s death was a
     perforating gunshot wound to the chest.
            Police recovered shell casings fired from .380 caliber, .40
     caliber, and 9 millimeter weapons. Blando fired a .380. At least
     some of the other bullets were fired by Williams’ gun. Williams’
     fingerprints were on the Lexus and on Blando’s Jeep Cherokee.
            The defense presented no witnesses during the
     guilt-innocence phase. In his statement to the police, however,
     Williams contended that he did not know Blando was a police
     officer, but thought that Blando was trying to rob him, and shot in
     self-defense. One of the officers who responded to Blando’s call for
     help, however, testified that Blando was wearing his badge around

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                                       No. 07-70006

       his neck. The jury found Williams guilty of capital murder for the
       murder of Officer Blando.
             During the penalty phase the State presented the testimony
       of Jennifer Null, the owner of the stolen Lexus. On May 10, 1999,
       nine days before the shooting, the car was stolen from Null at
       gunpoint. The thief attempted to force Null into the car, but she
       refused. Officer Allen Brown testified that Williams admitted to
       committing several robberies and expressed no remorse over the
       Blando shooting. Two witnesses also identified Williams as the
       gunman in a robbery-shooting in January of 1999. The victim of
       that shooting was Ezzard McCowan. The same gun was used in the
       McCowan and Blando shootings. Blando’s wife offered victim
       impact testimony and testified that Blando was a Boy Scout leader.

(citations omitted).
B.     State Court Proceedings
       A Houston jury found Williams guilty of capital murder and concluded
that he posed a future danger to commit criminal acts of violence that would
constitute a continuing threat to society. The jury also found insufficient
mitigating evidence to warrant a life sentence.               The trial court therefore
sentenced Williams to death. The Texas Court of Criminal Appeals (“TCCA”)
affirmed the conviction and sentence, Williams v. State, No. 73,796 (Tex. Crim.
App. 2002), and denied Williams’s application for postconviction relief, Ex Parte
Williams, No. 50,662-01 (Tex. Crim. App. 2003).
       On June 17, 2003, Williams filed a successive state habeas petition,
claiming that he is mentally retarded and therefore that the Eighth Amendment,
as interpreted by the Supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002),
bars his execution. Williams also argued that the Sixth Amendment bars his
execution because the jury did not make a determination on his mental
retardation claim.1 Finding that Williams failed to make a prima facie case of


       1
         Williams’s argument that the district court erred in not requiring the state to prove
a lack of mental retardation beyond a reasonable doubt is foreclosed by our prior precedent.
See In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003) (“[N]either Ring and Apprendi nor Atkins

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mental retardation, the TCCA dismissed the petition as an abuse of the writ. Ex
Parte Williams, No. 50,662-02 (Tex. Crim. App. 2003).
C.     Federal Court Proceedings
       On July 20, 2004, Williams filed the present federal habeas petition. In
it, Williams raises the same issues as in his state petition.2 The district court
found that the state court’s conclusion that Williams failed to plead a prima facie
case of mental retardation “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), and accordingly found Williams’s petition was not barred by this
threshold inquiry under AEDPA.              The district court therefore ordered an
evidentiary hearing on the question of Williams’s mental retardation.
       The district court dismissed Williams’s petition with respect to his various
other claims. On Williams’s ineffective assistance of counsel (“IAC”) claim, the
court concluded that Williams had failed to raise this argument in state court,
rendering that claim unexhausted and procedurally barred. The court found
Williams’s various other claims either procedurally defaulted or unexhausted.
       A magistrate judge held a seven-day evidentiary hearing on the issue of
mental retardation. After responsive briefing, the magistrate judge issued a 78-
page memorandum and recommendation summarizing the evidence adduced
from the evidentiary hearing and recommending that the district court deny
Williams’s petition. However, the magistrate judge also recommended that the


render the absence of mental retardation the functional equivalent of an element of capital
murder which the state must prove beyond a reasonable doubt.”); see also Ex parte Briseno, 135
S.W.3d 1, 9 (Tex. Crim. App. 2004 ) (“Ring and Atkins do not require a post-conviction jury
determination of applicant’s claim of mental retardation.”).
       2
         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) bars federal
habeas relief on issues that were adjudicated on the merits in state court unless the state
court’s decision was (1) “contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States” or (2) “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).

                                              4
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district court grant a COA. The district court adopted the magistrate judge’s
memorandum and recommendation and dismissed Williams’s habeas petition
with prejudice, granting a COA on the mental retardation claim and denying a
COA on Williams’s other claims (although Williams had not sought a COA on
any of his claims).
      Subsequently, the district court denied two motions made by Williams.
First, the court considered Williams’s Motion to Alter or Amend Judgment
Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. In this motion,
Williams made (1) an actual innocence claim based on newly discovered evidence
and (2) an IAC claim. On the actual innocence claim, the court reasoned that
even if the claim were substantiated, it would not entitle Williams to relief. See
Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based
on newly discovered evidence have never been held to state a ground for federal
habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding.”).
      Although the district court previously held Williams’s IAC claim to be
unexhausted and procedurally defaulted, Williams argued that new evidence of
actual innocence provided a basis to excuse that default. He also claimed the
evidence of his mental retardation adduced at the evidentiary hearing was
further proof of ineffective assistance for his trial counsel’s failure to present
that information as mitigating evidence. The district court concluded that even
if Williams could overcome the procedural default bar, the evidence adduced at
the evidentiary hearing did not support an IAC claim because “the substance of
this evidence was already before the jury [and] there is no reasonable probability
that this evidence would have led to a different result.”
      Second, the district court considered Williams’s motion for relief from
judgment under Rule 60(b). In his Rule 60(b) motion, Williams alleged that the
government failed to comply with Federal Rule of Criminal Procedure 45(b)(1)’s

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requirement that opposing counsel be served with copies of subpoenas duces
tecum. At the evidentiary hearing, the magistrate judge had recognized that
Rule 45(b) violations occurred but nevertheless allowed the subject documents
into evidence. Concluding that Williams failed to show how these violations
prejudiced his ability to present his case, the district court denied the Rule 60(b)
motion.
D.    Evidentiary Hearing
      The evidentiary hearing produced significant evidence supporting and
refuting Williams’s claims of mental retardation.
i.    IQ tests and achievement tests
      Williams scored a 70 or 71 in three different IQ test administrations.
Williams’s first IQ score was recorded at age 16. On July 7, 1992, the Houston
Independent School District (HISD) administered to Williams the Wechsler
Intelligence Scale for Children—III (“WISC-III”). Williams scored a verbal IQ
of 79, a performance IQ of 65, and a full scale IQ of 70. Dr. Joyce Hood, who
administrated these tests, interpreted the results:
      Jeffrey’s Full Scale score is in the Borderline range, two standard
      deviations below the mean, and places him in the 2nd percentile
      relative to children his age in the normal population.

      Jeffrey’s verbal score is in the Borderline range, more than one
      standard deviation below the mean, and in the 8th percentile
      relative to children his age in the normal population.

      Jeffrey’s performance score is in the Mentally Retarded range, more
      than two standard deviations below the mean, and in the 1st
      percentile relative to children his age in the normal population.

Williams was not considered mentally retarded at the time because HISD’s
cutoff for that determination was a full scale IQ score of 69.
      At the same testing session, Williams took several achievement tests.
These tests indicated that his academic achievement in reading, math, and


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written language was above his assessed IQ level. As the district court noted,
“while [Williams’s] IQ showed that he was in the second percentile intellectually,
he functioned academically in between the twenty-first and fifty-eighth
percentiles.” Dr. Hood offered no explanation for this discrepancy. She did,
however, state her opinion that “Jeffrey Williams is mentally retarded.”
       Williams next took an IQ test after his murder conviction, in a test3
administered by the defense expert, Dr. Gilda Kessner. His verbal IQ score was
70, with a 95 percent confidence interval of 664 to 76. His performance IQ score
was 77, with a 95 percent confidence interval of 72 to 85. The full scale score
was 71,5 with a full scale confidence interval between 68 and 76.6 Dr. Kessner
also administered the Mini Mental State Examination, a test for functionality
and concentration, and the REY 15, a memory test. Dr. Kessner concluded that
Williams made an adequate effort on those tests and was not malingering.
       Dr. Kessner also administered two achievement tests.7 Williams scored
in the non-mentally-retarded range on both. Dr. Kessner testified that in her
opinion, Williams’s scores on various academic achievement tests were not

       3
           Williams completed the Wechsler Adult Intelligence Scale, Third Edition (“WAIS-III”).
       4
         The magistrate judge’s memorandum lists the bottom of this range as 68, but the
transcript of Dr. Kessner’s testimony reveals a range of 66 to 76.
       5
        The magistrate judge’s memorandum lists the full scale score as 70, but the transcript
of Dr. Kessner’s testimony reveals a score of 71.
       6
        Again, the magistrate judge mixed up these numbers. The magistrate judge lists the
range as 66 to 76, but Dr. Kessner’s testimony was that the 95 percent confidence interval was
68 to 76.
       7
         She administered the Wide Range Achievement Test-Revision 3 (“WRAT-3”) and the
Kaufman Functional Academic Skills Test (“K-FAST”). On the K-FAST, Williams scored a 78
in arithmetic and an 82 in reading with a composite score of 79. Dr. Kessner noted that the
confidence intervals of Williams’s K-FAST and WISC-3 scores overlapped. The 95 percent
confidence interval for Williams’s WISC-3 IQ test was 68 to 76, and the 95 percent confidence
interval for his F-KAST scores was 69 to 89. Of course, these are only 95 percent confidence
intervals, meaning that, according to Dr. Kessner, “[f]ive times out of a hundred, you might
test him and he might get outside of this [confidence interval] range.”

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inconsistent with his IQ scores because the confidence intervals for the
achievement tests overlapped with confidence intervals on the IQ tests.
However, the district court concluded that Dr. Kessner presented “no credible
explanation” for this discrepancy. Another expert testifying for Williams, Dr.
Richard Garnett, stated that IQ testing is the best measure of intelligence
because it is the broadest measure of the diffuse elements of intelligence, unlike
achievement tests, which measure a narrower portion of intelligence.
      The government’s expert, Dr. Thomas Allen, administered the Stanford-
Binet V (“SB-5”) Test of Intelligence. Williams scored a non-verbal IQ of 70, a
verbal IQ of 75, and a full scale IQ of 71. Dr. Allen also used Green’s Word
Memory Test (“GWMT”) to assess Williams’s level of effort on the IQ test. Dr.
Allen testified that he believed Williams’s low IQ score was the result of his
failure to put forth a good effort on the test. Williams’s score on a portion of the
GWMT was lower than if he had been randomly guessing. On another section,
Williams scored so low that in Dr. Allen’s opinion, Williams was deliberately
giving the wrong answers.
      Williams most recently took an intelligence test when he arrived on death
row. A licensed professional counselor working for the Texas Department of
Criminal Justice administered the TONI-3, a test of nonverbal intelligence.
Williams scored a nonverbal IQ of 83, a score in the thirteenth percentile and too
high to qualify Williams for a place in the counselor’s mental health case load.
      The district court also considered Williams’s scores in routine standardized
tests administered while he was in school. In his sixth, seventh, and eighth-
grade years, Williams took the Metropolitan Achievement Test (“MAT”), a
national standardized achievement test. In three sittings of the exam, he scored
below grade level in some subjects and above grade level in others. In a different
achievement test administered in the seventh grade, the Texas Educational
Assessment of Minimum Skills (“TEAMS”), Williams’s scores reflected subject


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mastery in mathematics, reading, and writing. In the ninth grade, Williams
passed the Texas Assessment of Academic Skills (“TAAS”) test in reading and
writing, but he failed the mathematics portion.
ii.   Other expert testimony
      Dr. Garnett testified about Williams’s adaptive deficits. He opined that
Williams showed significant adaptive limitations in the areas of self care, home
living, social and personal skills, work, and leisure. With respect to self care, Dr.
Garnett cited Williams’s failure to dress appropriately for the weather. In the
area of home care, Dr. Garnett noted that during the only time Williams lived
alone for a brief period, he ended up losing his apartment, becoming homeless,
and his car broke down because he failed to maintain it. In the area of social
skills, Dr. Garnett noted that Williams was beaten up as child and that he had
difficulty interacting with people. In the area of work, Dr. Garnett noted that
Williams had held five or six jobs in his life and was fired from all of them. In
the area of leisure, Dr. Garnett noted testimony that Williams could not play
video games or basketball, and that he had no independent hobbies or other
leisure activities.
      As further evidence of adaptive limitations, Dr. Garnett cited Williams’s
reluctance to bathe as an adolescent, inability to play sports and games,
becoming homeless after losing his job, and failure to maintain his cars. Dr.
Garnett also testified that mentally retarded people often adopt strategies to
function in everyday life, such as relying on “ambassadors”—caretakers or
enablers to help them.      According to Dr. Garnett, Williams adopted such
strategies.
      Dr. Garnett admitted that these deficits could be explained by other
diagnoses, such as a conduct disorder, oppositional defiance, or learning
disabilities. He testified that Williams did not suffer from antisocial personality
disorder based on testimony that Williams was empathetic and joked with


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friends. Dr. Garnett also testified that Williams did not have ADHD because
Williams could focus at times.
iii.   Williams’s school records
       During middle school and at the beginning of high school, Williams was
in a regular classroom. In April 1992, in Williams’s tenth grade year, he was
expelled from high school after he was blamed for a series of locker thefts,
setting a trash can on fire, and truancy. He then was admitted to West Oaks
psychiatric hospital, where he received counseling and attended group therapy
sessions. Doctors at West Oaks diagnosed Williams with a conduct disorder and
hyperactivity and prescribed medication for short attention span and
impulsivity.   Williams completed the second semester of his tenth-grade
coursework at a community service campus of West Oaks. He passed all of his
classes except Algebra.
       He returned to his high school in the fall. In November 1992, a committee
at Williams’s high school decided that he qualified for special education
accommodations because of emotional disturbance. He took some classes in the
regular classroom and others in a special education environment. All classes
were taught at the tenth-grade level. Required modifications included frequent
breaks, defined physical space, cooling-off periods, positive reinforcers, and a
discipline management plan. The following April, the school modified Williams’s
education plan to mainstream him into some regular education classes at the
eleventh-grade level in the fall. In the 1992-1993 academic year, Williams
passed all his classes and earned several A’s. The following year, Williams took
coursework at the twelfth-grade level, earning passing scores but with a
deterioration in his behavior in the spring term. He earned grades in the 70 to
71 range for his regular English and government classes and scores in the 80s
for his special education classes. Williams’s high-school grades were generally
low but passing. At the times he received his lowest grades, he also had a large


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number of recorded absences. Williams graduated from high school with a grade
point average of 2.19 and a class rank of 326 out of 480.
      James Claypool, the principal at one of Williams’s high schools, recounted
Williams’s self-destructive behavior (as summarized by the magistrate judge):
      Claypool described Williams as soft-spoken and respectful, but
      prone to getting into trouble when not supervised by an authority
      figure. Claypool described Williams as being fascinated by crime
      and criminals and gravitated toward those peers who engaged in
      criminal activities. Claypool stated that Williams often informed
      school officials of his friends’ illegal activities and then returned to
      his friends and told them what he had just done. As a result,
      Williams was frequently beaten up by his friends. Claypool often
      counseled Williams about this attention-getting/self-destructive
      behavior, but Williams was unable to stop the cycle of informing on
      his friends and then informing on himself. This behavior continued
      until Williams was moved to a different classroom.

(footnotes omitted).
iv.   Character testimony
      The evidentiary hearing included testimony of people who knew Williams
at various stages of his life. The court considered, for example, an assessment
of Williams at age 16 by his own parents:
      Jeffrey is not very talkative and is oppositional at times. He has
      been a problem since kindergarten. He is a habitual liar, has cut
      teachers’ tires, and has stolen from stores in the mall. He runs with
      a bad crowd and is easily influenced by them. He shows no remorse
      for things he does.

Williams’s high school principal, Claypool, spoke further of Williams’s abilities:
      Claypool testified that he did not interact with Williams as if he
      were mentally retarded. Rather, Claypool considered him to be
      “bright,” “socially skilled with adults,” and “manipulative.”
      Williams was not considered to be mentally retarded academically
      and was not placed in classes for the mentally retarded. Claypool
      considered Williams “above average” in his dress and hygiene.
      Claypool testified that, while a teacher noted that Williams often
      wore a long coat to school, he did not observe that type of clothing

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      when he saw Williams. The teacher’s note dated from a time when
      Williams was breaking into lockers. Claypool believed that the long
      coat was worn to hide stolen items.

(footnotes omitted).

      Williams’s childhood friends testified about odd behavior. For example,
Williams refused to play by the normal rules of childhood games: in a game of
kickball, he threw the ball over the fence; in a game of basketball, he would kick
the ball. Several witnesses testified that Williams often wore inappropriate
clothing, such as an overcoat with a hood during the summer (in Houston) or t-
shirts and shorts in the winter. Several witnesses testified about what appeared
to be attention-getting behavior. Williams would often yell out inappropriate
remarks when he was unable to keep up with conversation.
      Other witnesses spoke of Williams’s self-destructive behavior, poor
hygiene, and inability to cook. Several witnesses testified that they treated
Williams differently because they believed he was “slow.”
v.    Williams’s job history
      Williams enlisted in the Naval Reserve during his senior year in high
school. He reported for active duty in July 1994. Several witnesses testified that
Williams was slower in academics than other soldiers. Williams also was
reluctant to do menial chores or meet the Navy’s standards for neatness. On an
assignment as helmsman of a ship, Williams caused the ship to “roll” by turning
the wheel too quickly. Williams’s supervisor testified that he lacked “military
bearing” and was frequently late. His supervisor ranked Williams “‘towards the
bottom’ in terms of understanding and carrying out his other responsibilities
among the hundreds of seamen” he had supervised. Others testified that
Williams was capable of hard work, but that he had a bad attitude toward
authority.



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         Williams’s Navy disciplinary record recounts episodes of insubordination,
failure to maintain a neat bunk area, and excessive alcohol consumption. He
was counseled and punished for such behavior on numerous occasions. In March
1996, a disciplinary board recommended that Williams be separated from
military service. Williams received a general discharge from the Navy in
October 1996.
         After leaving the Navy, Williams worked briefly as a deck hand on a casino
boat. Williams also worked as a stocker at a grocery store and a delivery truck
driver for an auto parts store.
vi.      Williams’s writing skills
         While in the Navy, Williams wrote a letter—with a few suggestions and
corrections from another sailor—to the Administrative Separation Board to
discourage it from discharging him from the Navy. The letter explained that in
the Navy, Williams was able to escape the atmosphere of drugs and death that
he had lived in while growing up. He expressed his wish to take a Navy exam
to allow him to move to another division. Williams explained that if he stayed
in the Navy, he would have a better chance of finding a job in the civilian world
later. He also wrote of hoping to buy a car and a house in Houston. Dr. Garnett
assessed this letter as written at the seventh-grade level. Other death row
inmates housed near Williams testified that they helped Williams in writing
letters and commissary orders, although a prison official testified that security
procedures would have made it very difficult for inmates to exchange written
notes.
         The district court rejected Williams’s Atkins claim.             However,
acknowledging that it was a “close case,” the court, sua sponte, granted a
certificate of appealability for this court to review the district court’s finding of
no mental retardation. Because the district court granted a COA on the issue



                                         13
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of mental retardation, we have jurisdiction to review the district court’s denial
of habeas relief on Williams’s Atkins claim. 28 U.S.C § 2253.
                                   II. DISCUSSION
A.    Mental Retardation Claim
      The primary claim in this appeal is that Williams is mentally retarded and
therefore ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002).
In Atkins, the Supreme Court held that under the Eighth Amendment’s
“evolving standards of decency” review, “death is not a suitable punishment for
a mentally retarded criminal.” Id. at 321. The Atkins Court did not adopt
specific criteria for determining mental retardation. Rather, the Court left to the
states “the task of developing appropriate ways to enforce the constitutional
restriction . . . .” Id. at 317.
      Since then, the TCCA has developed standards by which it evaluates an
inmate’s claim of mental retardation. See Ex parte Briseno, 135 S.W.3d 1, 8
(Tex. Crim. App. 2004). The TCCA adopted the framework established by the
American Association on Mental Retardation (“AAMR”) in conjunction with
standards contained in the Texas Persons with Mental Retardation Act
(“PMRA”), TEX. HEALTH & SAFETY CODE ANN. § 591.003(13). According to the
AAMR definition,
      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 MENTAL RETARDATION: DEFINITION,
CLASSIFICATION, AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992)). Under the PMRA,
“‘mental retardation’ means significantly subaverage general intellectual

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functioning that is concurrent with deficits in adaptive behavior and originates
during the developmental period.”         TEX. HEALTH & SAFETY CODE ANN.
§ 591.003(13). Combining and summarizing these definitions, Texas courts
define mental retardation as 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.”
Briseno, 135 S.W.3d at 7 (footnotes omitted). To obtain habeas relief, Williams
must show that he meets all three elements. See Clark v. Quarterman, 457 F.3d
441, 444 (5th Cir. 2006). We consider each of these elements in turn.
i.    Standard of review
      In a habeas corpus appeal, this court reviews the district court’s findings
of fact for clear error and its conclusions of law de novo. Ramirez v. Dretke, 396
F.3d 646, 649 (5th Cir. 2005). This court reviews mixed questions of law and fact
under a de novo standard by independently applying the law to the facts found
by the district court, as long as those facts are not clearly erroneous. Id. The
determination of whether Briseno’s three prongs have been met is a factual
finding that we review for clear error. See Rivera v. Quarterman, 505 F.3d 349,
361-63 (5th Cir. 2007). “‘A finding is clearly erroneous only if it is implausible
in the light of the record considered as a whole.’” Id. (quoting St. Aubin v.
Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006)). “If the district court’s account
of the evidence is plausible in light of the record viewed in its entirety, the court
of appeals may not reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently.” Anderson v.
City of Bessemer City, 470 U.S. 564, 573-74 (1985). “Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Id.


ii.   Significantly subaverage intellectual functioning

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      a.    Applicable law
      In determining intellectual functioning, the Briseno court focused on IQ:
“Significantly subaverage intellectual functioning is defined as an IQ of about
70 or below (approximately 2 standard deviations below the mean).” Briseno,
135 S.W.3d at 7 n.24 (quoting DSM-IV8 at 39). Mental health professionals
apply this standard flexibly, and “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. In Briseno, for example, the petitioner’s
IQ test results ranged from a low of 67 to a high of 88. Id. at 14 n.53. In that
case, the court nevertheless concluded that recent IQ scores of 72 and 74 were
a more accurate reflection of the petitioner’s intelligence. Id. at 14. Therefore,
the petitioner was not mentally retarded. Id. at 18.
      b.    Magistrate judge’s memorandum and recommendation
      The evidence adduced at the evidentiary hearing amounts to a battle of the
experts. The experts agree that Williams achieved a full scale IQ of 70 or 71 on
three separate tests. The experts disagree on whether those scores are a valid
measure of Williams’s intellectual functioning. The government claims these
low scores are the result of malingering—deliberately achieving low scores.
Williams disagrees, arguing that it would have been impossible to achieve such
consistent results over time by malingering.
      The district court credited expert testimony that Williams’s low IQ scores
were lower than if he had been randomly guessing. In other words, he must
have intentionally given wrong answers. The court also contrasted Williams’s
low IQ scores with his academic competence: scores on academic achievement
tests in middle school and high school; grades earned in high school; and
Williams’s writing ability, as evidence by the letter he wrote to the

      8
       AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS (4th ed. 2000) (“DSM-IV”).

                                       16
                                  No. 07-70006

Administrative Separation Board while serving in the Navy.             The court
concluded that “Williams’[s] strengths are simply too strong to support the
conclusion that he has an IQ of 70 or below, or is otherwise significantly
subaverage in intellectual functioning.”
      The court found that the root of Williams’s problems in school was
behavioral, not intellectual, and his academic problems also could have been
related to alcohol and drug abuse. The court also considered testimony of
multiple witnesses who did not believe that Williams was mentally retarded.
      The district court concluded that Williams has an IQ substantially higher
than the threshold of 70. The magistrate judge noted that while Williams’s full
scale IQ scores were consistent over time, the two components of the IQ
test—verbal and performance—fluctuated markedly.
      The district court ultimately sided with the government’s expert in
concluding that “Williams’ performance on academic achievement tests taken in
middle-school, high-school, and as an adult are uniformly inconsistent with his
purported IQ.” The court also cited Williams’s high school grades (“Williams
took classes at the twelfth-grade level, earned an 80 and 89 in two semesters of
Chemistry, graduated with a C average and had a class rank of 326 out of 480”)
and his writing ability (as evidenced by several letters in the hearing record) as
inconsistent with a finding of mental retardation.
      c.    Analysis
      In this appeal, Williams challenges the district court’s conclusion that his
IQ scores are not an accurate indication of his intellectual functioning. Williams
argues that (1) his IQ scores were too consistent over time to be inaccurate or
intentionally low, (2) there is no direct evidence of malingering in two of his
three IQ tests, and (3) other factors relied on by the district court should not
override his IQ scores.



                                       17
                                 No. 07-70006

      In applying Briseno, the Fifth Circuit counsels a flexible approach to
reading IQ scores, warning that “courts should not rigidly consider an IQ score
to be determinative of the defendant’s intellectual functioning.” Clark, 457 F.3d
at 444-45; see also Briseno, 135 S.W.3d at 7 n.24 (“Psychologists and other
mental health professionals are flexible in their assessment of mental
retardation.”).
      Superficially, Williams’s IQ scores are remarkably consistent.          Dr.
Kessner, Williams’s expert, testified about the unlikelihood that a test-taker
could intentionally achieve such consistent scores:
      Q     How would you estimate the difficulty of being able to attain
            intentionally a target score on three tests over a course of 14
            or 15 years with three different administrators?
      A     I think the probability of that is as low or lower than any
            probability of anything I could think of. I mean . . .
      Q     Like winning the Powerball?
      A     Extremely limited. I hesitate to say a number, but will say I
            think it’s almost impossible.

Dr. Kessner added, “I cannot for the life of me figure out how someone could
malinger so elegantly as to get the same scores on these tests over time.”
Nevertheless, the components underlying these scores undermine the
consistency argument. In 1992, Williams’s full scale score of 70 was derived
from a verbal IQ of 79 and a performance IQ of 65.            In Dr. Kessner’s
administration of the IQ test, Williams’s full scale score was 71, but his verbal
score dropped to 70 while his performance score rose to 77. In Dr. Allen’s
administration, the full scale score remained 71 but the component scores flip-
flopped again, with a non-verbal score of 70 and a verbal IQ of 75. Thus, in
different administrations, Williams was capable of scoring as high as a 77 on the
performance section and a 79 on the verbal—both outside the mental retardation
range. Thus, the district court did not commit clear error in concluding that



                                       18
                                       No. 07-70006

these IQ scores do not support a finding of mental retardation because the
district court’s finding is plausible in light of the record.
       Williams also challenges the district court’s reliance on Dr. Allen’s finding
of malingering. The district court credited Dr. Allen’s testimony on the results
of the GWMT, which revealed that Williams was not putting forth a good effort
during that test administration. According to Dr. Allen, Williams’s score on one
portion of the GWMT—“immediate recall”—was worse than chance; in other
words, Williams must have intentionally missed questions. In another portion
of that test—“delayed recall”—Williams’s score was lower than a score expected
from a person hospitalized with advanced dementia. Dr. Allen testified that the
GWMT is “the most widely researched test of effort in literature and on the
market.” Williams failed this test while groups of mentally retarded children
and adults have passed it. Adjusting Williams’s IQ score for poor effort, Dr.
Allen estimated that Williams’s true IQ score is “in the 90 range.”
       Dr. Kessner administered a different test for effort, the REY 15. Based in
part on Williams’s performance on that test, Dr. Kessner believed that he put
forth adequate effort. However, the district court found this testimony less
persuasive than Dr. Allen’s testimony on effort. Further, Drs. Kessner and
Garnett conceded that the REY 15 is not an effective test of effort—they both
testified there is no instrument that can be used to reliably test effort in
institutionalized individuals that has been published, researched, and supported
in scientific literature.       Dr. Allen testified at length about the research
underlying the GWMT and various cutoff scores for effort. By contrast, Dr.
Kessner’s testimony about Williams’s effort was highly subjective. It therefore
was not clear error for the district court—given this contradictory testimony—to
credit Dr. Allen’s opinion.9


       9
        In Williams’s first IQ test, Dr. Hood did not administer a standardized test for effort.
In her notes, Dr. Hood wrote that Williams appeared to put forth a good effort, but he did not

                                              19
                                     No. 07-70006

      Finally, Williams argues that the district court erred in using achievement
test scores to override IQ scores that suggested borderline mental retardation.
To the extent that this argument urges us to credit IQ scores to the exclusion of
all other measures of intelligence, we decline to do so. Dr. Allen testified that
achievement tests and IQ scores are highly correlated, and he discredited at
least one of Williams’s IQ scores on the basis of malingering. Dr. Kessner could
provide no rationale for the discrepancy between Williams’s IQ scores and his
academic achievement.          Ultimately, the district court found Dr. Allen’s
explanation to be “more credible.” Such a credibility determination is a finding
of fact that this court reviews for clear error. See Lewis v. Dretke, 355 F.3d 364,
368 (5th Cir. 2003); see also Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375
(5th Cir. 2000) (“‘The burden of showing that the findings of the district court are
clearly erroneous is heavier if the credibility of witnesses is a factor in the trial
court’s decision.’” (quoting Dunbar Med. Sys., Inc. v. Gammex Inc., 216 F.3d 441,
453 (5th Cir.2000))). In light of the record before us, we cannot conclude that the
district court clearly erred.
      The district court was persuaded that the evidence as a whole—including
Williams’s performance in the classroom and on standardized achievement tests,
his writing ability, and the opinions of numerous witnesses who did not believe
that Williams was retarded—was inconsistent with a finding of mental
retardation. Nothing in the Briseno standard compels a blind adherence to IQ.
In fact, Briseno itself recognizes that IQ alone is not determinative of mental
retardation. Briseno, 135 S.W.3d at 7 n.24 (quoting DSM-IV at 39). The mental
retardation standard is designed to be flexible: “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. Furthermore, we



persist when questions became more difficult.

                                           20
                                       No. 07-70006

have previously observed that there is “no binding authority that requires an IQ
test specifically, that is, entirely alone, at the core, or as any singular threshold,
to provide the basis for a finding of mental retardation.” Morris v. Dretke, 413
F.3d 484, 497 (5th Cir. 2005).
       Because Williams carries the burden of proving mental retardation, failure
to prove the first Briseno prong should end our inquiry. However, because the
district court considered this issue to be a “close call,” we continue to the second
prong to illustrate that, even if Williams has significantly subaverage
intellectual functioning, he did not exhibit the type of adaptive deficits required
under Briseno.10
iii.   Related adaptive limitations
       a.     Applicable law
       The AAMR definition of mental retardation requires a showing of “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.”
Atkins, 536 U.S. at 309 n.3. The Texas PMRA similarly requires deficits in
“adaptive behavior,” meaning “the effectiveness with or degree to which a person
meets the standards of personal independence and social responsibility expected
of the person’s age and cultural group.” TEX. HEALTH & SAFETY CODE ANN.
§ 591.003(1).
       Briseno noted that “[t]he adaptive behavior criteria are exceedingly
subjective, and undoubtedly experts will be found to offer opinions on both sides
of the issue in most cases.” 135 S.W.3d at 8. Therefore, the TCCA offered a list


       10
          We do not address the third prong—onset before age eighteen—because Williams took
an IQ test at age 16. If we were to find that test determinative, the third Briseno prong would
be satisfied. However, because we conclude that the district court did not err in discrediting
that and other IQ tests, Williams’s intelligence is not subaverage and we need not address the
issue of onset.

                                              21
                                   No. 07-70006

of other “evidentiary factors” to consider in deciding whether evidence suggests
mental retardation or a personality disorder:
      •       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.
      b.      Magistrate judge’s memorandum and recommendations
      The district court considered evidence of Williams’s bizarre and antisocial
conduct. The court also noted Dr. Garnett’s testimony that Williams showed
adaptive limitations in the areas of self care, home living, social and personal
skills, work, and leisure. However, the court was not persuaded that these
limitations were caused by mental retardation. Dr. Garnett conceded, in cross
examination, that those deficits could all be explained by other diagnoses such
as conduct disorder, oppositional defiance, or learning disabilities. The district
court found more credible Dr. Allen’s testimony that Williams’s strange behavior
was due to anti-social personality rather than mental retardation.
      In contrast to Dr. Garnett’s subjective evaluation, the state’s expert, Dr.
Allen, administered the Vineland Adaptive Behavior test to measure Williams’s


                                         22
                                      No. 07-70006

adaptive deficits. The only area where Williams showed an adaptive deficit was
in socialization, and that deficit could be explained by antisocial personality
disorder rather than mental retardation.
       Further, the district court noted Williams’s substantial adaptive strengths,
finding that Williams rented an apartment, bought at least two vehicles, washed
his clothes, and could conform his conduct to social norms when he wanted.
Although some witnesses reported that Williams did not understand the rules
of sports and games, other testimony suggested that Williams did play sports
and understand the rules. Ultimately, the court concluded that “Williams’s
eccentric behaviors are just as easily seen as attention-getting behaviors as they
are evidence of mental retardation.” If Williams does suffer from some adaptive
deficits, the court concluded, they are not “significant.”
       c.     Analysis
       As in our analysis of the first Briseno prong, we give great weight to the
district court’s credibility determinations.11 At the evidentiary hearing, the court
heard from many witnesses who testified about Williams’s abilities throughout
his life, including numerous examples of bad behavior and antisocial conduct.
Although Williams’s expert, Dr. Garnett, testified that this evidence supports a
finding of mental retardation, the state’s expert, Dr. Allen, gave compelling




       11
          Indeed, as we have noted previously, the subjectiveness of evaluating the district
court’s analysis of the “adaptive deficits” prong counsels significant deference:
        As the CCA has noted, the adaptive behavior criteria are “exceedingly
        subjective.” The district courts each held extensive evidentiary hearings, which
        included testimony on this issue from, among other witnesses, [the petitioner’s]
        family members and teachers, and multiple experts. That this case presents, in
        Judge Hanen’s words, “a close call” strengthens the need to be mindful of the
        district court’s conclusions. Judge Hanen, having actually presided over the
        second evidentiary hearing, is in a better position than this court to judge and
        weigh the credibility of the witnesses who testified on the extent, duration, and
        causes of [the petitioner’s] adaptive functioning limitations.
Rivera v. Quarterman, 505 F.3d 349, 363 (5th Cir. 2007) (footnotes omitted).

                                            23
                                  No. 07-70006

testimony attributing Williams’s bizarre behavior to diagnoses other than
mental retardation.
      Before this court, Williams does little more than recount testimony
adduced at the evidentiary hearing, charging that the district court discounted
evidence of his “repeated failures to live a normal life,” including “his inability
to keep a job, maintain a car, live on his own, have a girlfriend, or maintain his
hygiene.” Williams argues that witnesses from each stage of his life testified
that he “could not live like a normal person for his age.” Williams’s brief
includes a two-and-a-half-page chart summarizing the testimony of various
witnesses about his adaptive deficits.
      However, the only specific point of error Williams raises is an argument
that the district court should not have considered adaptive strengths in
evaluating Williams’s adaptive deficits. The experts spent some time battling
over this point in the evidentiary hearing. Dr. Garnett testified that the AAMR’s
standard is a deficits-only model. In other words, a person’s strengths should be
ignored in making a diagnosis.         Dr. Garnett cited the DSM manual’s
“exclusionary clause,” which dictates that once a subject meets minimum
thresholds for deficits, the diagnosis of mental retardation holds regardless of
other adaptive strengths. Dr. Garnett did concede, however, that strengths in
specific adaptive areas should be balanced against deficits in those areas to
determine if the deficits are “significant.”
      Dr. Allen criticized the deficits-only model for its tendency to produce
confirmation bias. As he explained, if an expert evaluates a subject with a
borderline IQ, the deficits-only model encourages the expert to look for deficits
which tend to confirm a diagnosis of mental retardation while ignoring contrary
evidence. Thus, the deficits-only model is too likely to confirm a suspected
diagnosis of mental retardation if evidence of adaptive abilities is not



                                         24
                                     No. 07-70006

considered.12    To be sure, the Briseno definition does reference adaptive
limitations without reference to strengths. However, the standard also requires
that these limitations in certain adaptive categories be “significant.”                As
Williams’s expert testified, weighing strengths against weaknesses is a crucial
part of determining whether purported adaptive limitations are “significant.”
      Furthermore, this court has previously held that courts are not barred
from considering adaptive strengths in evaluating mental retardation claims.
See Clark v. Quarterman, 457 F.3d 441, 447 (5th Cir. 2006). In Clark, the
petitioner argued that evidence of his adaptive skills did not support the state
court’s determination that he was not mentally retarded because this was
evidence of strengths and not limitations. Id. The court reasoned that
      [t]his is incorrect—evidence of a strength in a particular area of
      adaptive functioning necessarily shows that the defendant does not
      have a weakness in that particular area. Even if, as [the petitioner]
      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, [the petitioner] functioned normally across a broad
      range of adaptive behaviors.
Id.
      Similarly, the district court in the instant case concluded that the evidence
showed significant adaptive strengths—especially in the area of functional
academics—and adaptive weaknesses that were either insignificant or could be
more credibly explained by other behavioral diagnoses. To find clear error, we
must do more than merely disagree with the district court’s conclusion.
Anderson, 470 U.S. at 573-74. We therefore find no clear error in the district
court’s crediting the state’s expert testimony over Williams’s expert on the issue


      12
         Dr. Allen explained that the best scientific method is to begin with the “null
hypothesis”—in this case, a diagnosis of no mental retardation—then assess the evidence to
determine whether it meets the burden of proving mental retardation.

                                           25
                                  No. 07-70006

of adaptive deficits. Williams exhibited numerous adaptive strengths to support
a conclusion that he lacked significant adaptive weaknesses. Williams made
long-distance calls with calling cards, bought plane tickets unassisted, traveled
out of state, rented an apartment, applied for unemployment benefits on his
own, and washed his own clothes. Although the magistrate judge observed that
several witnesses noted Williams’s “various odd behaviors,” the court concluded
that Williams “could conform his conduct to expected social norms when he
wanted to” and that his “eccentric behaviors are just as easily seen as attention-
getting behaviors as they are evidence of mental retardation.” We find that the
district court did not clearly err in reaching that conclusion.
B.    Rule 59(e) Motion and Rule 60(b) Motion
      Williams challenges the district court’s denial of his post-judgment
motions under Federal Rules of Civil Procedure 59(e) and Rule 60(b), both filed
after the district court issued its order denying habeas corpus relief. In his 59(e)
motion, Williams sought (1) the opportunity to pursue a claim of actual
innocence based on newly discovered evidence; (2) the opportunity to pursue an
ineffective assistance of counsel claim based on the evidence of mental
retardation presented at the evidentiary hearing but not at his sentencing; and
(3) a stay and abeyance to allow him to exhaust state court remedies. The
district court denied this motion. In his Rule 60(b) motion, Williams alleged a
series of violations of Federal Rule of Civil Procedure 45(b)(1)—which imposes
a notice requirement on the issuance of subpoenas duces tecum—by the state’s
counsel. The district court also denied Williams’s Rule 60(b) motion. Williams
did not seek a COA to review the denial of these motions, either from this court
or from the district court. The district court did not grant or deny a COA on
these issues.
      As a threshold matter, we consider whether this court has jurisdiction to
hear an appeal on these motions. A COA is required to appeal “the final order


                                        26
                                  No. 07-70006

in a habeas corpus proceeding in which the detention complained of arises out
of process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A). Although the
circuits are split on whether a COA is required to appeal a district court’s denial
of a Rule 60(b) motion, Gonzalez v. Crosby, 545 U.S. 524, 535 n.7 (2005), the
Fifth Circuit requires a COA only if a Rule 60(b) motion seeks “to amend or alter
the judgment of a first habeas proceeding, in which case the Rule 60(b) motion
should be treated as a successive habeas petition.” Dunn v. Cockrell, 302 F.3d
491, 492 n.1 (5th Cir. 2002). However, the court has read this exception to the
COA requirement narrowly, concluding that Dunn’s exception that “a COA is not
required to appeal the denial of a Rule 60(b) motion applies only when the
purpose of the motion is to reinstate appellate jurisdiction over the original
denial of habeas relief.” Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th
Cir. 2007) (per curiam). In Dunn, the court allowed a petitioner to appeal the
district court’s denial of his Rule 60(b) motion because the motion merely sought
to reinstate his final judgment so he could file a timely notice of appeal. Dunn,
302 F.3d at 493. The petitioner in that case did not seek to appeal the merits of
his habeas petition via the Rule 60(b) motion. Id. at 492.
      In Ochoa Canales, by contrast, the petitioner sought relief from a district
court judgment that his earlier habeas petition was barred for failure to exhaust
state remedies.     Ochoa Canales, 507 F.3d at 886.            Citing a “narrow
interpretation” of Dunn, the court held that the petitioner was attempting to use
Rule 60(b) to alter the judgment in a habeas proceeding and therefore was
required to obtain a COA. Id. at 888.
      Williams seeks specific relief—an order compelling the government to
disclose documents and granting additional time for supplemental briefing—and
thus seeks relief other than the mere “reinstate[ment of] appellate jurisdiction
over the original denial of habeas relief” sought in Dunn. See Ochoa Canales,
507 F.3d at 888. If the exception to the COA requirement articulated in Dunn

                                        27
                                  No. 07-70006

is indeed limited to the facts of Dunn, a COA is required in this case. Compare
Hunt v. Quarterman, 270 F. App’x 357, 357 (5th Cir. 2008) (per curiam) (“[The
petitioner’s] Rule 60(b) motion did not merely seek authorization for out-of-time
appeal. Rather, he raised several claims related to the judgment dismissing his
§ 2254 petition. Consequently, the COA requirement applies to his appeal from
the judgment denying his Rule 60(b) motion.”) with Davis v. King, 270 F. App’x
355, 356 (5th Cir. 2008) (per curiam) (“As [the petitioner] was not attempting to
use his motion for reconsideration to alter the judgment in his underlying
habeas petition, but instead attempting to vacate the judgment and have it
reentered so that he could file a timely notice of appeal, a COA is not
necessary.”).
      Williams also must obtain a COA to appeal his Rule 59(e) motion.
Although we have not previously addressed this issue, we find the Second
Circuit’s reasoning persuasive:
      [T]he evident Congressional intent of § 2253(c)(1) is to weed out
      unmeritorious appeals taken from denials of habeas petitions; that
      it would be rather anomalous for Congress to have intended that
      appeals be allowed from the denial of Rule 60(b) motions without
      the same scrutiny; and that the interest served by the COA
      requirement—relieving the state and the court system of the
      burdens resulting from the litigation of insubstantial appeals—is
      served by the application of that requirement to appeals from orders
      denying post-judgment relief. These rationales apply with equal
      force to Rule 59(e) motions. We therefore conclude that the
      § 2253(c)(1) COA requirement applies to an appeal from an order
      denying a Rule 59(e) motion when the underlying judgment is a
      denial of a § 2254 petition.

Jackson v. Albany Appeal Bureau Unit, 442 F.3d 51, 54 (2d Cir. 2006) (internal
quotation marks, citations, and footnote omitted).
      Normally, we may construe a petitioner’s notice of appeal as a request for
a COA. See FED. R. APP. P. 22(b). However, Williams never sought a COA from
the district court on the denials of his Rule 60(b) and 59(e) motions. Even if we

                                       28
                                  No. 07-70006

were to construe his notice of appeal as a request for a COA from this court, a
petitioner must first request a COA from the district court before requesting it
from an appellate court. See Sonnier v. Johnson, 161 F.3d 941, 945-46 (5th Cir.
1998); Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998). “Compliance
with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the lack
of a ruling on a COA in the district court causes this court to be without
jurisdiction to consider the appeal.” Whitehead, 157 F.3d at 388 (citing Muniz
v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997)). Therefore, we will not consider the
merits of Williams’s 60(b) and 59(e) motions.
      We have previously remanded a case to the district court where a
petitioner failed to seek a COA from the district court before appealing the
denial of Rule 59(e) and 60(b) motions. See, e.g., United States v. Arzola-Amaya,
247 F.3d 240, 2001 WL 43527, at *1 (5th Cir. 2001) (per curiam) (unpublished
table decision). Because our precedent requires a district court to first consider
whether to grant a COA, we remand these two issues to the district court to
make that determination.
                             III. CONCLUSION
      For the reasons stated above, we affirm the district court’s denial of
habeas corpus relief on Williams’s claim of mental retardation. However,
because we lack jurisdiction to consider Williams’s appeal of his post-judgment
motions, we remand to the district court to consider whether to grant or deny a
COA on those issues.
      AFFIRMED IN PART AND REMANDED.




                                       29
