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

                                      No. 15-70030                             FILED
                                                                       September 9, 2016
                                                                          Lyle W. Cayce
OBIE D. WEATHERS, III,                                                         Clerk

              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee



                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:06-CV-868


Before DAVIS, JONES, and HAYNES, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       Obie Weathers III (“Weathers”) was convicted and sentenced to death for
a murder committed during the course of a robbery of a San Antonio tavern.
His conviction was affirmed on direct appeal, and, after exhausting his
remedies in state court, Weathers filed a federal habeas petition under
28 U.S.C. § 2254, claiming, among other points of error, that he is intellectually




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                     No. 15-70030
disabled 1 and therefore ineligible for execution under Atkins v. Virginia,
536 U.S. 304, 122 S. Ct. 2244 (2002). The district court rejected the petition in
a lengthy and detailed opinion.             Weathers now seeks a certificate of
appealability (“COA”) under 28 U.S.C. § 2253(c)(2) to advance his Atkins claim.
For the following reasons, we DENY the application for a COA.
                                   BACKGROUND
Factual Background & Trial Proceedings
      After a crime spree involving a string of burglaries, theft, one murder,
and one sexual assault of an elderly man over the course of just a few months,
one evening in February, 2000, Weathers entered Pierce’s Ice House, a tavern
in San Antonio, Texas, wielding a handgun and concealing his face with a
pillowcase with eyeholes cut out. Weathers informed the patrons that he
intended to rob the ice house, but he told the three black men present to remain
calm because he only wanted to rob the white individuals. Weathers robbed
the white patrons, then ordered a waitress at gun point to empty the cash
register. While the waitress was carrying the till to Weathers, she stumbled
and Weathers pointed his gun at her head. At this time, one of the bar patrons,
Ted Church (“Church”), swung at and grabbed Weathers. In the ensuing
struggle, Weathers shot Church twice in the head and once in the abdomen.
Weathers fled with over two-hundred dollars, but he was apprehended eleven
days later and confessed to this and other crimes. Church was rushed to the
hospital and underwent multiple surgeries, but he died weeks later from
irreparable damage to his pancreas caused by the gunshot wound.
      Weathers was indicted for the murder of Church on June 1, 2000, and a
jury convicted him of capital murder in under three hours. After three days of


      1 The Supreme Court used the term “mental retardation” in Atkins, but has since used
the term “intellectual disability” to describe the identical phenomenon. See, e.g., Hall v.
Florida, 134 S. Ct. 1986, 1990 (2014). We follow the same convention.
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testimony at the punishment phase of the trial—where the jury heard
testimony from the prosecution about Weathers’s lengthy record of
involvement in criminal conduct over a five year period from November 1995
to February 2000, as well as defense testimony from five character witnesses—
they sentenced him to death.
Postconviction Proceedings
       1. Direct Appeal & First State Habeas Petition
       The Texas Court of Criminal Appeals affirmed the conviction and
sentence. Weathers v. State, 2003 WL 22410067 (Tex. Crim. App. Oct. 22,
2003). Weathers filed an application for a writ of habeas corpus in state court
in April 2003, asserting twenty-one grounds for relief, omitting an Atkins
claim.     After an evidentiary hearing, the state trial court recommended
denying the application and the Court of Criminal Appeals adopted the
recommendation. Ex parte Obie Weathers III, 2006 WL 2615531 (Tex. Crim.
App. Sept. 13, 2006).
       2. Second State Habeas Petition
       In September 2007, Weathers filed a federal habeas petition, but moved
to stay and hold his cause in abeyance pending state court exhaustion of an
Atkins claim. Weathers’s second state application received an evidentiary
hearing over five days in May and August 2013.
              a. The Evidence Before the State Habeas Court 2
       In support of his intellectual disability claim, Weathers presented the
testimony of psychologist Dr. Joann Murphey, who examined Weathers for



       2 Weathers presented the testimony of: Dr. Joann Murphey, a clinical psychologist
who evaluated him for intellectual disability in 2011; Cynthia Caruso, his sixth grade reading
teacher; Sherry Logan, his tenth grade home economics teacher; Tammie Donaldson, a
vocational consultant who analyzed his work history; B.D. Viola Weathers, his mother; and
Moral Hill, his employer at a seafood restaurant. Also entered into evidence by petitioner
were Dr. Murphey’s report, which discussed Weathers’s full scale scores on two IQ tests that
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intellectual disability in 2011, after he had been on death row for ten years.
She performed an IQ test on Weathers in May 2011 using the Wechsler Adult
Intelligence Scale—IV (“WAIS—IV”), on which he scored a 53. Dr. Murphey
doubted the accuracy of this result because she believed that Weathers was
exhibiting psychotic symptoms, and she recommended that the Bexar County
jail medical staff evaluate and possibly medicate him.                     See Weathers v.
Stephens, 2015 WL 5098872, at *37 (W.D. Tex. Aug. 31, 2015). After Weathers
was put on anti-psychotic medication, Dr. Murphey tested him again in August
2011, and he scored a 65. Id. Dr. Murphey acknowledged that Weathers was
administered an IQ test in 2008 and scored a 79. She was critical of this score,
however, because the score was obtained using an older IQ test—the WAIS—
III (because the WAIS—IV had not been released yet). Id. at *54. Further,
Dr. Murphey argued that the score of 79 was appropriately adjusted downward
to a 73 by the doctor who administered it pursuant to the so-called Flynn
effect. 3 Id. Based on these scores, Dr. Murphey concluded that Weathers has
significantly sub-average intelligence.
       Dr. Murphey also concluded that Weathers suffered from certain
adaptive functioning deficits.            To make this determination, she asked



she administered to him, as well as a third IQ test administered to Weathers by a Dr. Jesse
Reed in 2008. The State offered the testimony of Dr. Joseph C. Sparks, a retired psychiatrist
who worked for Bexar County and University Health System and evaluated Weathers’s
competency to stand trial in 2000 or 2001. The State also introduced Weathers’s school
records, prison letters, and recordings of his phone conversations while in jail. Finally, the
court took judicial notice of the trial record on the State’s request.

       3 The “Flynn effect” is an academic theory that posits that IQ test scores must be
adjusted downward when administering an older test because over time standardized IQ test
scores increase with the age of the test without a corresponding increase in actual intelligence
in the general population. See Weathers v. Stephens, 2015 WL 5098872, at *39 n.64 (W.D.
Tex. Aug. 31, 2015). The Flynn effect has not been accepted as scientifically valid in the Fifth
Circuit. Gray v. Epps, 616 F.3d 436, 447 n.9 (5th Cir. 2010) cert. denied, 131 S. Ct. 1785
(2011).

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Weathers’s mother, sister, grandmother, a former teacher, a childhood friend,
a neighbor and church youth leader, and a former employer to rate Weathers
in the categories of: communication, community use, functional academics,
home living, health and safety, leisure, self-care, self-direction, and social. Id.
at *38.     After reviewing those ratings, as well as affidavits and other
documents such as some of Weathers’s academic records, Dr. Murphey
concluded that Weathers exhibited adaptive deficits in the areas of
communication, functional academics, and social skills. Id. at *39.
       Weathers also presented the testimony of his sixth grade reading teacher
and his high school home economics teacher. The sixth grade teacher testified
that Weathers lacked the capacity to read, possessed a poor vocabulary, did
not complete reading and writing assignments, and was working at a second
grade level while in her class.       On cross-examination, however, this teacher
had no explanation for why she gave Weathers grades of 87 and 85 for the two
semesters he was in her class. Id. at *40. His high school home economics
teacher similarly testified to Weathers’s educational struggles, noting that he
had difficulty reading materials written at the eleventh and twelfth grade
levels, wrote at the fifth grade level, often did not turn in assignments, was
exempted from state-wide testing because of his poor reading skills, 4 and
earned a 64 in her class, but was performing below that level. Id.
       Weathers’s mother also testified on her son’s behalf. She related that he
was in Special Education classes until sixth grade and was held back a grade
in third or fourth grade. He took a long time to learn how to put on his boots
as a child and had difficulty learning to tie and put on tennis shoes. He was



       4 30–35% of the students at Weathers’s high school were in special education classes,
and if a student possessed poor reading skills, he or she would be exempted from statewide
testing.

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                                      No. 15-70030
hyperactive and often ran around the house and broke things. He did poorly
in Sunday School and was unable to understand lessons on Sunday morning
even after going over the lessons Saturday evening.                Her son obtained a
learner’s permit but never a driver’s license although he occasionally drove
himself to work. Although Weathers earned money from his job at a seafood
restaurant, the money often disappeared and he had hundreds of dollars in
overdraft fees. Id. at *41–42.
       Finally, Moral Hill, Weathers’s former employer at a seafood restaurant,
testified that he hired Weathers when he was 15 or 16 years old, and Weathers
worked for him for about three years. Weathers was initially employed as a
busboy, but was later moved to the kitchen because he was clumsy and could
not take orders well. Id. at *42. Weathers required training, but eventually
learned to operate the fryer and to cut and scale fish. Id. Once Weathers
caught on, he was promoted to be a supervisor of two individuals; this
supervisory position did not last long, however, because Hill eventually
suspended Weathers for missing work. Id. Nonetheless, Weathers was later
re-hired, although he became involved with drugs and his work became slower
and sloppy. 5 Id.
       As its mental health expert, the State put on Dr. John C. Sparks, a
retired psychiatrist whose professional career spanned fifty years and who
worked with jail inmates while employed by Bexar County and University
Health System from 1980–2006. Id. At the Bexar County jail, Dr. Sparks
evaluated inmates’ competency to stand trial and initially screened them for
intellectual disabilities. If he suspected an intellectual disability, he would



       5Moral Hill also testified at the sentencing phase of Weathers’s trial. The testimony
then had a different tone. At sentencing, Hill testified that: Weathers was an “excellent
employee” with “a great work history; Weathers worked well with others; and Weathers was
the youngest employee ever promoted to supervisor because of his skills.
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                                  No. 15-70030
forward such individuals to the staff psychologists who conducted standardized
intellectual disability testing. Id. at *42–43. At the request of a trial judge,
Dr. Sparks evaluated Weathers in 2000 or 2001 for his competency to stand
trial. Id. at *43. In addition to a clinical interview, Weathers filled out a “basic
history” screening form, which helped Dr. Sparks to gauge Weathers’s reading
and writing skills and obtain background information. Id. at *44. Dr. Sparks
testified that he did not perceive that Weathers was performing below the
average level for inmates at the Bexar County jail—at about the sixth grade
level—and did not otherwise find evidence to indicate that Weathers was sub-
average in his intellectual abilities. As a result Dr. Sparks did not refer
Weathers for IQ testing. Id. at *43. Dr. Sparks did not take issue with the
results of IQ tests administered by others, but he testified that isolation (like
that experienced by death row prisoners) could make an individual appear to
be intellectually disabled, psychotic, anxious, or even schizoid. Id.
      The State also presented approximately twenty hours of recorded
telephone conversations between Weathers and a variety of individuals during
his time as an inmate at Bexar County Detention Center in late 2012 and early
2013. Three hours of recordings involved Weathers’s conversations with the
chairman of Vassar College’s art department, during which Weathers
discussed, inter alia, the work of various artists, art concepts, the differences
in the conditions of confinement of two prison units, television shows that he
has watched, and the progress of his appeal. Id. at *45–46 n.76. Four hours
of conversation between Weathers and family members included topics such as
Weathers’s explaining the difference between the BCADC inmate trust fund
and TDCJ inmate trust fund; discussing his mother’s surgery; reminding his
mother to wish his sister a happy birthday; pondering why “an all-powerful
God needs us to worship Him”; discussing television shows that he had
watched; instructing his parents to have his brother give him the order number
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of the package that was sent to the wrong unit; and asking whether federal
spending cuts would have an impact on his father’s job. Id. at *47–48 n.77.
Finally, more than eleven hours of phone conversations occurred between
Weathers and two disparate individuals, a retired businessman from
Arkansas, and a female acquaintance to whom he offered emotional support
and with whom he entered into a quasi-romantic relationship.                           These
conversations covered subjects including college football, Weathers’s views on
mentally coping with incarceration, the different possible outcomes of his
appeal, and Weathers’s questions to both individuals about certain aspects of
their lives. Id. at 48–49 n.78. 6
      Commenting on the phone calls, Dr. Sparks opined that the ability to
converse about complex subjects such as the meaning of certain works of art,
different emphases in certain artwork, and the consequences of a post-
conviction capital habeas hearing, would not be indicative of intellectual
disability. Id. at *43–44. When asked about these phone calls, Dr. Murphey
acknowledged that Weathers communicated in an above-average manner, but
she argued that this was simply evidence of Weathers’s ability to “mask” his
intellectual disability. Id. at *61 n.116.
               b. The State Trial Court’s Recommendation
      Applying Ex Parte Briseno, 135 S.W.3d 1, 5 (Tex. Crim. App. 2004), the
state habeas court concluded that Weathers had not demonstrated by a
preponderance of evidence 7 that he was intellectually disabled. First, the court




      6   The federal district court opinion summarizes many of these conversations.

      7  Judges Price and Alcala of the Texas Court of Criminal Appeals issued separate
concurring statements advising that the trial court applied too lenient a standard: because
this was Weathers’s second state habeas corpus petition, and because the Atkins claim was
not raised in his first petition, he was required to demonstrate by clear and convincing
evidence that no rational fact-finder would fail to find him intellectually disabled.
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concluded that Weathers did not establish that he has significantly sub-
average intellectual functioning because his 2008 WAIS-III score of 79 and
Dr. Sparks’s testimony about his impressions of Weathers in 2000 or 2001
contradicted Dr. Murphey’s testimony. The court further credited Dr. Sparks’s
testimony that years on death row could make individuals appear to be less
intelligent than they are; as a result, the court discounted Dr. Murphey’s
WAIS-IV score of 65 because Weathers had been on death row for ten years in
relative isolation when this test was administered.          Finally, although
Dr. Murphey testified that she found no evidence that Weathers was
“malingering” when taking the IQ tests, the court found otherwise. Some
evidence suggested that Weathers may have been attempting to manipulate
the test results, particularly because Weathers understood the nature of the
legal proceedings; Dr. Murphey did not believe the first IQ test she
administered to him was a true reflection of his abilities; and Weathers’s
manipulative capabilities were demonstrated in his phone calls.
      Second, the court concluded that Weathers failed to establish by a
preponderance of evidence that he suffered from adaptive deficits. The court
noted that in over twenty hours of phone conversations, Weathers’s vocabulary
and use of language did not appear to indicate sub-average intelligence. The
court highlighted Weathers’s work history, especially his supervisor’s
testimony that Weathers held the same job for three years, was the youngest
person ever promoted to supervisor, and was an “excellent employee.” The
court determined that the testimony about his school years, provided by former
teachers, was inconclusive. Weathers had both good and bad grades, but the
court viewed the bad grades as reflective of his disruptive behavior, failure to
complete his schoolwork, and possibly untreated ADHD.           The court also
expressed skepticism about a teacher who testified that Weathers struggled in
his reading and writing because, to the contrary, she gave him grades of 87
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and 85. In sum, the evidence produced in support of the notion that Weathers
suffers from adaptive deficits was “scant”, and Dr. Murphey did not interview
a “broad enough range of people” who knew Weathers as a youth.
      Finally and critically, there was no evidence of Weathers’s IQ before the
age of 18. While he took special education classes in elementary school, the
defense’s own witness stated that students were placed in such classes for
behavioral and emotional problems as well as intellectual disability, so it was
not clear why Weathers was placed in such classes.           Further, evidence
contradicted that any intellectual disability commenced before Weathers was
18. Several teachers noted in disciplinary reports that Weathers could do his
schoolwork, but simply would not do it. His high school principal testified that
he was screened for special education, but his teachers thought he could do the
school work.      In kindergarten, Weathers received “Excellents” and
“Satisfactories,” which the trial court interpreted to indicate a child on track.
Weathers also obtained some good grades later on, including a 94 in seventh-
grade reading. The court attributed his bad grades to his disruptive nature
and failure to complete the schoolwork. This conclusion was supported by his
sister’s testimony that Weathers’s problems in school arose from “talking too
much and not staying seated.”
      3. Texas Court of Criminal Appeals
      In a one-page opinion, the Texas Court of Criminal Appeals adopted the
trial judge’s extensive findings and conclusions (with the exception of one
sentence) and denied relief. Ex Parte Weathers, 2014 WL 1758977, at *1 (Tex.
Crim. App. April 30, 2014). Judge Price, joined by Judge Johnson, filed a
separate concurring statement expressing his opinion that, while Weathers
had not demonstrated by clear and convincing evidence that no rational fact-
finder would fail to find him intellectually disabled, he would conclude that
Weathers demonstrated by a preponderance of evidence that he is “mildly
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                                      No. 15-70030
mentally retarded.” Id. at *2, 5 (Price, J., concurring). Judge Alcala, joined by
Judge Cochran, separately concurred, noting that the conflicting evidence
presented at the hearing must be viewed in conjunction with the trial court’s
credibility findings and supported the decision to deny relief. Id. at *6 (Alcala,
J., concurring).
       4. Federal Habeas Petition
       After exhausting his Atkins claim in state court, Weathers returned to
federal court and amended his federal habeas petition to include the Atkins
claim. 8   Weathers contended that the Texas Court of Criminal Appeals
unreasonably determined the facts in light of the evidence presented. After an
exhaustive recitation of the evidence before the habeas court, the district court
concluded that the state court did not unreasonably determine the facts in light
of the evidence presented.
       First, concerning whether Weathers possessed sub-average intelligence,
the court concluded that the state habeas court could have reasonably
concluded that the scores obtained on Dr. Murphey’s tests were not fully
accurate approximations of Weathers’s abilities. See Weathers v. Stephens,
2015 WL 5098872, at *66–67 (W.D. Tex. Aug. 31, 2015). The district court
noted that the state habeas court could have questioned whether Weathers
was motivated to give his best effort on the IQ tests given that his phone
conversations indicated that he was cognizant of the possibility of obtaining a
life sentence instead of a death sentence were he to succeed on any of his




       8  In addition to the Atkins claim, Weathers’s federal habeas petition included one
ineffective assistance of counsel claim, which the district court rejected, and a variety of
challenges to the constitutionality of Texas’s capital sentencing scheme, which the district
court held were procedurally defaulted, and in the alternative, lacked merit. Weathers also
requested a federal evidentiary hearing, which the district court denied pursuant to Cullen
v. Pinholster, 563 U.S. 170, 131 S. Ct. 1388 (2011). Weathers, however, only seeks a COA
from this court to pursue his Atkins claim.
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habeas claims. Id. Moreover, given that the Fifth Circuit has not recognized
the “Flynn effect,” the district court concluded that the state habeas court was
not required to accept the statistical manipulation of the IQ score of 79. Id. at
*67. The court agreed that the state court could have reasonably questioned
Dr. Murphey’s conclusion that she found no evidence of malingering in the face
of some evidence that Weathers understood the significance of his ongoing
legal proceedings, as well as evidence that he had Antisocial Personality
Disorder, which Dr. Murphey acknowledged would affect her ability to
diagnose him correctly. Id. at *61–62 & nn.116, 121.
      Second, the district court held that the state habeas court could have
reasonably determined that Weathers failed to demonstrate adaptive deficits.
The state court could have reasonably discounted Dr. Murphey’s testimony
because she conducted her analysis of Weathers on an incomplete record.
Notably, Dr. Murphey did not review any of the evidence presented during the
punishment phase of Weathers’s trial. Id. at *56. Because of this, Dr. Murphey
was unaware of: the full extent of Weathers’s criminal history; the school
records indicating that Weathers obtained good grades in middle school; the
testimony of Weathers’s middle and high school teachers—including his high
school principal—indicating that Weathers was capable of doing the work, but
chose not to; the testimony of Moral Hill describing Weathers as a good
employee that contradicted his affidavit submitted to Dr. Murphey indicating
that Weathers was a problem employee; and the testimony of Weathers’s sister
that: Weathers successfully hid his drug use from her, was not disruptive at
home, and was about average in terms of emotional development and maturity.
Id. at *56–59.
      In addition to the trial evidence not considered by Dr. Murphey, the
district court concluded that recordings of Weathers’s phone calls provided
further reason to call into question Dr. Murphey’s assessment that Weathers
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demonstrated adaptive deficits in the areas of communication and social skills.
Id. at *62. In the district court’s estimation, these recordings revealed that
Weathers is “capable of being extremely personable and possesses knowledge
of, and is able to communicate effectively on, a wide range of subjects, ranging
from popular culture to historical topics.” Id. Additionally, the district court
noted the conversations indicated that Weathers is “highly manipulative,
knowledgeable regarding his legal situation, and capable of communicating at
a level well above that of a person with deficits in the adaptive functioning area
of communication.” Id. at *63. In fact, the district court stated that these
conversations “refute any contention that Petitioner possess[es] any deficits in
terms of his ability to communicate complex, even abstract, concepts” and that
“anyone who listens to all of these conversations would inevitably reach the
same conclusion as did the state habeas trial court, the Texas Court of
Criminal Appeals, and Dr. Sparks—there is nothing about Petitioner’s oral
communications or social skills which would lead a rational person to even
suspect Petitioner is intellectually disabled.” Id. at *66–67 n.135.
      A final reason for questioning Dr. Murphey’s conclusion that Weathers
has an intellectual disability, the district court noted, was that she obtained
the adaptive functioning ratings from Weathers’s friends and family who
certainly knew that an intellectual disability diagnosis would provide
Weathers’s last chance to avoid execution. Id. at *63. Moreover, these ratings
were made in 2011, more than a decade after Weathers had reached the end of
his developmental period. Id.
      In sum, the district court held that the state court did not unreasonably
determine the facts in light of the evidence presented at the trial and
accordingly denied habeas relief, as well as a certificate of appealability
(“COA”). Weathers seeks a COA from this court to appeal the district court’s
denial of habeas relief on his Atkins claim.
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                                  No. 15-70030
                          STANDARD OF REVIEW
      In order to appeal a federal district court’s denial of habeas relief, the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires a state
court prisoner first to obtain a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may
issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). A petitioner satisfies this standard if he
makes a showing that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029,
1039 (2003) (internal citation omitted). This determination is a “threshold
inquiry,” and AEDPA in fact forbids a “full consideration of the factual or legal
bases adduced in support of the claims” at this stage. Id. In death penalty
cases, “any doubts as to whether a COA should issue must be resolved in [the
petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
      The decision to grant a COA is evaluated in light of “the deferential
standard of review the district court applied to the habeas petition as required
by AEDPA.” Williams v. Stephens, 761 F.3d 561, 566 (5th Cir. 2014) (internal
citation and brackets omitted). To obtain federal habeas relief from state
custody, AEDPA requires the petitioner to demonstrate that the state court’s
adjudication of the claim “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law,”
28 U.S.C. § 2254(d)(1), or, as relevant here, “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” id. § 2254(d)(2). Williams, 761 F.3d
at 566.
      “[A] state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in
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                                    No. 15-70030
the first instance.” Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849 (2011).
“Instead § 2254(d)(2) requires that we accord the state trial court substantial
deference.” Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015). It is therefore
“not enough to show that a state court’s decision was incorrect or erroneous”;
the state court decision must be “objectively unreasonable,” which would be
the case if “‘a reasonable factfinder must conclude’ that the state court’s
determination of the facts was unreasonable.” Blue v. Thaler, 665 F.3d 647,
654–55 (5th Cir. 2011) (emphasis original) (citing Rice v. Collins, 546 U.S. 333,
341, 126 S. Ct. 969, 975 (2006)).
       Findings of fact by a state court are, moreover, accorded a “presumption
of correctness” when under review by a federal habeas court, which the
petitioner has the burden of rebutting by “clear and convincing evidence.”
28 U.S.C. § 2254 (e)(1); Miller-El, 537 U.S. at 340, 123 S. Ct. at 1041; Blue,
665 F.3d at 654. While section 2254(e)(1)’s clear and convincing standard
governs a state court’s resolution of “particular factual issues,” section
2254(d)(2)’s unreasonable determination standard governs “the state court’s
decision as a whole.” Blue, 665 F.2d at 654.
                                 DISCUSSION
      Weathers argues that his death sentence was imposed in violation of the
Eighth Amendment pursuant to the Supreme Court’s decision in Atkins v.
Virginia, which proscribed the death penalty for anyone who is intellectually
disabled. 536 U.S. 304, 321, 122 S. Ct. 2242, 2252 (2004). In Texas, intellectual
disability claims are evaluated in accordance with the definition of intellectual
disability provided by the American Association on Mental Retardation
(“AAMR”). Williams, 761 F.3d at 572.          Under that standard, intellectual
disability is 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.” Id. (citing Ex Parte Briseno,
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                                      No. 15-70030
135 S.W.3d 1, 7 (Tex. Crim. App. 2004)). Briseno additionally enumerated
seven evidentiary factors to aid the factfinder in assessing intellectual
disability claims under the AAMR standard. Id. Whether an individual is
intellectually disabled is a question of fact. Maldonado v. Thaler, 625 F.3d 229,
236 (5th Cir. 2010).
       Weathers advances two arguments in support of his contention that the
state court unreasonably determined the facts in light of the evidence
presented. 9 First, he argues that the state court was unreasonable in crediting
Dr. Sparks’s testimony that a prolonged period of isolation on death row could
make an individual appear to be less intelligent than he is because Dr. Sparks
was not qualified to render an opinion about intellectual disability. Id. Second,
Weathers contends that the state court’s determination that Dr. Murphey was
not credible was made in the face of clear and convincing evidence to the
contrary. Id. We disagree that reasonable jurists could debate the propriety
of the district court’s conclusions that (a) the state court did not unreasonably
determine the facts in light of the evidence in the record, and (b) nor were the
state court’s factual findings incorrect by clear and convincing evidence.
       1. Dr. Sparks’s Credibility
       Weathers’s first point of error focuses narrowly on the state court’s
conclusion, pertinent to the first AAMR/Briseno criterion, that Weathers failed
to establish that he suffers from significantly sub-average intellectual
functioning.    Weathers contends this conclusion was clearly erroneous by
questioning the psychiatrist’s qualifications to offer an expert opinion
regarding whether or not an individual is intellectually disabled. Weathers


       9 Weathers’s brief invokes Florida v. Hall, 134 S. Ct. 1986 (2014) repeatedly for the
proposition that Dr. Sparks’s testimony was inconsistent with that case because he did not
employ “the medical community’s diagnostic framework” in evaluating Weathers. Weathers
does not contend, however, that the state court unreasonably applied Florida v. Hall under
28 U.S.C. § 2254(d)(1).
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                                   No. 15-70030
asserts that the state court erroneously relied on Dr. Sparks’s statement that
an individual kept in isolation could appear less intelligent than he actually is
on an IQ test because: (1) Dr. Sparks could not recall the three (AAMR) prongs
involved in diagnosing intellectual disability at one point during his testimony;
(2) Dr. Sparks is not familiar with the 11th edition of the book Intellectual
Disabilities, which was published after he retired in 2006; and (3) Dr. Sparks’s
evaluation of Weathers for competency to stand trial was not based on any
peer-reviewed protocol and he did not employ a diagnostic team as required by
Texas law.
      Reasonable jurists, however, could not debate whether the state court’s
reliance on Dr. Sparks’s testimony was “objectively unreasonable.” To find
otherwise, “a reasonable factfinder must conclude” that the state court’s factual
reliance was unreasonable. Blue, 665 F.3d at 654–55 (emphasis in original).
Dr. Sparks was an experienced psychiatrist employed for sixteen years by
Bexar County and University Health Systems where he routinely evaluated
thousands of inmates of the Bexar County jail for competency to stand trial.
While Dr. Sparks did not personally test inmates for intellectual disability, he
initially evaluated them. When he suspected an inmate was suffering from an
intellectual disability, he would forward the individual to licensed staff
psychologists for appropriate standardized IQ testing.
       Because Dr. Sparks spent sixteen years evaluating inmates’ competency
to stand trial, it was not objectively unreasonable for the state court to conclude
that Dr. Sparks had sufficient familiarity with the characteristics of
intellectual disabilities in prison inmates and to credit Dr. Sparks’s statement
about the effects of prolonged isolation on an inmate’s mental capacity. As we
have previously noted, in cases involving a “battle between experts” at the
state trial court, “[i]t is not this court’s place to second-guess the [state] court’s


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                                 No. 15-70030
credibility determinations” even if “a different factfinder might reach a
different conclusion.” Chester v. Thaler, 666 F.3d 340, 349 (5th Cir. 2011).
      Even if Weathers could demonstrate that reliance on Dr. Sparks’s
testimony for this point was clearly erroneous, but cf. Matamoros v. Stephens,
783 F.3d 212, 220 (5th Cir. 2015) (“Alternatively, our review is limited to the
state court’s decision, ‘not the written opinion explaining that decision.’”
(quoting Maldanado, 625 F.3d at 239)), that would not rebut, under a clear and
convincing evidence standard, the state court’s factual finding that Weathers
failed to prove that he has significantly sub-average intelligence. 28 U.S.C.
§ 2254(e)(1). As the district court pointed out, other evidence—wholly apart
from Dr. Sparks’s testimony—supported this finding, including a serious
question whether Weathers gave his best effort on Dr. Murphey’s IQ tests
when he knew that obtaining habeas relief would allow him to avoid the death
penalty, Dr. Murphey’s own disavowal of the IQ score of 53 as inaccurate, and
Weathers’s score of a 79 on the IQ test in 2008. Reasonable jurists could not
debate the district court’s conclusion that the state court’s findings were not
unreasonable or contradicted by clear and convincing evidence.
      2. Dr. Murphey’s Credibility
      Weathers’s second point of error contends that the state court’s refusal
to credit Dr. Murphey’s conclusions was clearly and convincingly incorrect.
Weathers’s brief, however does not challenge any particular aspect of the state
court credibility determination. Indeed, his argument concerning this point
appears simply to recapitulate Dr. Murphey’s trial testimony regarding her
evaluation of Weathers for intellectual disability. His brief does not join issue
with the district court’s conclusion that the state court could have reasonably
questioned Dr. Murphey’s assessment that Weathers is intellectually disabled
for a number of reasons. She did not review the record from the punishment
phase of Weathers’s trial, which contained a bevy of relevant information
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                                      No. 15-70030
contradicting the information she relied on. The ratings used to determine
whether Weathers possessed adaptive deficits were supplied by Weathers’s
family and friends who had an obvious interest in this case. Moreover, the
nearly twenty hours of phone conversations cast doubt on the notion that
Weathers possesses adaptive deficits in the areas of communication and social
skills, cf. Maldonado, 625 F.3d at 243 (noting that an inmate’s prison letters
failed to “facially give an impression of substantial intellectual impairments”).
Even Dr. Murphey admitted the conversations’ content was “above-average.” 10
Weathers’s mere recitation of the testimony of Dr. Murphey is therefore
insufficient to create a dispute among reasonable jurists that the state court’s
doubt about Dr. Murphey’s testimony was rebutted by clear and convincing
evidence, or that the ultimate no intellectual disability finding was
unreasonable in light of the evidence presented.
       Finally, we note the dearth of evidence concerning the third prong of
Briseno (adopting the AAMR), whether any intellectual disability and adaptive
deficits were evident before age 18. See id. at 241 (noting that “fulfillment of
each prong is necessary to a finding of mental retardation”). There was no IQ
evidence before Weathers turned 18, and the anecdotal evidence about his pre-
adult years was decidedly mixed. To repeat, while two of Weathers’s middle
and high school teachers testified that he struggled at reading and writing,
several other teachers noted in school reports that he was capable of doing the



       10  Weathers’s reply brief points out that Dr. Murphey concluded that Weathers
possesses adaptive deficits in the area of functional academics in addition to communication
and social skills. The district court does not appear to have addressed this contention
explicitly, but Weathers’s middle school and high school teachers during the punishment
phase of his trial testified that Weathers was capable of doing the work, but simply would
not do it. This testimony casts doubt on Dr. Murphey’s contention that he had adaptive
deficits in the area of academics and therefore supports the state court’s determination that
Weathers failed to carry his burden of demonstrating that he possesses adaptive deficits by
clear and convincing evidence.
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                                 No. 15-70030
work but simply would not. The trial court found reason to question the
credibility of one of the teachers testifying in support of Weathers because she
in fact awarded Weathers grades of 87 and 85. Additionally, that Weathers
was placed in special education classes when he was younger was not probative
because students were placed in such classes for a variety of reasons, including
emotional and behavioral disorders, and no reason was produced why
Weathers was so classified. In any event, Weathers’s high school principal
testified during trial that Weathers was screened for special education courses,
but his teachers believed he could do the work. The state court added that
Weathers received a smattering of good grades throughout school, and his
decline in performance corresponded with his disruptive and defiant behavior.
Also, Weathers held a job for three years as a teenager and was promoted to a
supervisor position.
      For these and other reasons, abundantly detailed in the district court
and state court opinions, the state court could have reasonably concluded that
the sufficiency of Weathers’s proof of a low IQ score was doubtful, and that he
failed to prove the other Briseno (AAMR) criteria of adaptive functioning
deficits and onset before age 18. The district court’s conclusion sustaining the
state court decision under AEDPA criteria is not debatable among jurists of
reason.
                               CONCLUSION
      Weathers has not presented evidence in his application for a COA that
would cause reasonable jurists to debate whether the petition should have been
resolved in a different manner. Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039.
Weathers’s application for a COA is DENIED.




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