Clark v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
July 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-70008
JAMES LEE CLARK,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
--------------------
Appeal From the United States District Court
for the Eastern District of Texas
--------------------
Before DAVIS, GARZA and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The defendant, James Lee Clark, has filed a successive habeas
petition in this case, arguing that the evidence presented to the
state courts established that he suffers from significantly sub-
average intellectual functioning to the point of mental retardation
and thus may not be executed. The district court concluded that the
state court did not err in finding that Clark had failed to
establish that he had significantly sub-average general
intellectual functioning, the first element of the Texas test for
mental retardation, and did not proceed further to the other
elements. Clark argues that the district court erred in upholding
the state court’s findings on that element and erred in refusing to

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consider Clark’s arguments as to the other elements of the test.
Upon our review, we determine that the district court did not err
in affirming the state court as to the “significantly sub-average
intellectual functioning” element of mental retardation and that
the district court did not err in considering only that element.
Standard of Review
This case is governed by AEDPA. For questions of law and mixed
questions of law and fact, habeas relief may not be granted unless
the adjudication of the claim resulted in a decision that was
contrary to, or an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States. 28 U.S.C. § 2254(d)(1). A state court decision is contrary
to clearly established federal law if it “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases”
or “confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent” and arrives at an opposite
result. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). A state
court decision unreasonably applies clearly established federal law
if it “identifies the correct governing legal rule” from Supreme
Court cases, but unreasonably applies it to the facts of the
particular case, or if it unreasonably extends a principle to a new
context where it should not apply or unreasonably refuses to extend
that principle where it should apply. Id. at 407-09. For questions
of fact, relief may not be granted unless the decision was based

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upon an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings. 28 U.S.C. §
2254(d)(1); Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). A
factual determination made by a state court must be rebutted by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Analysis
Initially, we note that Clark is incorrect in arguing that the
district court erred in failing to address the other elements of
mental retardation under the Texas definitions after it had
determined that the state court did not err in finding that Clark
did not have significantly sub-average intellectual functioning.
The Texas Court of Criminal Appeals adopted two definitions of
mental retardation in the aftermath of Atkins, both of which
contain the same substantive elements. The first, the AAMR
definition, defined mental retardation as a disability
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.” Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App.
2004). The second, from the Texas Health and Safety Code, requires
“significantly subaverage general intellectual functioning that is
concurrent with deficits in adaptive behavior and originates during
the developmental period.” Id. It is plain from the use of the
words “accompanied by” and “concurrent” that both of these

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definitions require that all three elements exist to establish
mental retardation. It therefore was not in error for the district
court to determine that Clark could not prevail once it had already
held that the state court had not erred in holding that Clark
failed to meet the first element. If the state court correctly
found that Clark failed to meet any of the three elements, he
cannot demonstrate mental retardation under the Texas definitions.
We agree with Clark’s contention that the question of whether
he suffers from significantly subaverage intellectual functioning
is a question of fact, and not a mixed question of law and fact as
determined by the district court. See United States v. Webster,
162 F.3d 308, 351-52 (5th Cir. 1998) (discussing, in the context of
the Federal Death Penalty Act, that the judge may act as fact-
finder on the issue of mental retardation). However, Clark also
raises the separate, legal question of whether federal law permits
the state court the discretion to choose as the relevant score the
base IQ score or the low point on the range that the score
represents.
We review questions of law to determine whether the State
court adjudication “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). But we review questions of fact
for whether the state court decision was based upon “an

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unreasonable determination of the facts in light of the evidence
presented in the State court proceedings.” 28 U.S.C. § 2254(d)(2).
The burden is on Clark to rebut the state court’s determination
with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Clark raises issues with respect to each of the three elements
of mental retardation in Texas. With respect to the first element,
the question of whether Clark had significantly subaverage
intellectual functioning, Clark argues that the state court erred
in considering the numerical IQ scores of Clark’s tests instead of
the “confidence band,” or range of potential “true” scores someone
with Clark’s score falls within. This confidence band is designed
to account for the measurement error inherent in intelligence
testing, and indicates the upper and lower scores between which a
psychologist conducting the test can be ninety-five percent
confident that the “true” score lies.
The Texas Court of Criminal Appeals held when adopting its
tests for mental retardation that scores gathered through
intelligence testing are necessarily imprecise and must be
interpreted flexibly. Briseno, 135 S.W.3d at 7, n. 24. The testing
error, coupled with the differences between various IQ tests, mean
that in many cases an individual who tests as having an IQ above
70, the rough cut-off for mental retardation, may still be
diagnosed as mentally retarded, and vice versa. Id. Under this
approach, courts should not rigidly consider an IQ score to be
determinative of the defendant’s intellectual functioning.

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To support his argument that the state court erred in choosing
his base IQ score as the relevant IQ score rather than the lowest
number in the confidence band, Clark argues that the Texas courts
must apply the approach articulated by the American Association on
Mental Retardation (“AAMR”), which dictates that IQ examiners
account for the appropriate confidence band. He argues that the
AAMR approach is the proper standard for determining whether an
individual has subaverage intellectual functioning. Clark is thus
asking us to consider whether the Texas courts were properly given
the discretion to choose between a base IQ score and a confidence
band, see Briseno, 135 S.W.3d at 14 n.53.
The Supreme Court, in Atkins v. Virginia, 536 U.S. 304 (2002),
“[left] to the State[s] the task of developing ways to enforce the
constitutional restriction upon [their] execution of sentences.”
Id. at 317. Although the Court did refer to the clinical
definitions of mental retardation promulgated by the AAMR and the
American Psychiatric Association (“APA”), it did not dictate that
the approach and the analysis of the State inquiry must track the
approach of the AAMR or the APA exactly. It also did not mention
the portion of the AAMR Manual upon which Clark relies in his
argument. Therefore it is not “clearly established Federal law as
determined by the Supreme Court of the United States” that state
court analysis of subaverage intellectual functioning must
precisely track the AAMR’s recommended approach. See 28 U.S.C.
§ 2254(d)(1).

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Under the definition of mental retardation as established by
the Texas Court of Criminal Appeals, the state court did not
unreasonably determine the facts in light of the evidence relating
to Clark’s intellectual functioning. The court was confronted with
multiple IQ tests taken by Clark. The first, taken in November of
1983 when Clark was 15, measured his IQ at 74. The “true” IQ range
indicated by the confidence band for this test was 69 to 79. On
April 17, 2003, after the Atkins decision, Clark took another test
which measured his IQ at 65. The confidence band of this test
indicated that his IQ ranged from 60 to 70. On June 5, 2003, Clark
took a third IQ test which measured his IQ at 68, with a confidence
range of 64 to 72.
Clark contends that the state court acknowledged the
confidence bands, but “simply chose not to apply the standard error
of measurement to Clark’s IQ score of 74." This is incorrect.
Regarding the 1983 IQ test, the state court noted that the test
showed Clark’s IQ to be “in the range of 69 to 79." More important
to the state court were its findings based on its evaluation of
expert testimony on the IQ tests. The court evaluated both of the
tests administered to Clark in 2003, and it found that these
specific tests were subject to manipulation that would result in
lower scores and that in 2003 Clark had motivation to lower his
scores deliberately. The court also found that there was an unusual
discrepancy in Clark’s subscores on one of the 2003 tests
indicating a higher IQ. The court further found that the 1983 score

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was considered reliable by Clark’s experts and that the
psychologist who conducted the test noted based on his observations
that Clark’s intellectual functioning fell between the dull average
and average range.
Clark has not challenged any of these findings, and instead
asserts only that it was error for the state court to find mental
retardation where the lowest potential score in the confidence band
of the 1983 test was below 70. The explanation provided by the
Texas Court of Criminal Appeals in adopting its definition of
mental retardation plainly forecloses this argument. Briseno, 135
S.W.3d at 7, n. 24. The state court was required to evaluate the
intelligence testing and make a flexible determination based on
those tests as to whether Clark had “significantly subaverage
general intellectual functioning.” The court was not required to
find Clark to be mentally retarded merely because the low end of
Clark’s confidence band was below 70, just as it would not be
required to find that Clark could be executed on the basis that the
high end of this band fell above 70. Clark thus has not shown that
the state court made an unreasonable determination of the facts in
light of the evidence as to the first element of mental
retardation.
While, as discussed above, all three elements of mental
retardation must be shown in order to meet the Texas definition, we
review Clark’s arguments as to the other elements out of an
abundance of caution and because the evidence as to these elements

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is informative as to the state court’s belief that Clark may have
attempted to manipulate his 2003 IQ scores.
Clark has challenged the state court’s finding that he did not
have adaptive deficits. Clark argues here that “limitations often
coexist with strengths” and that the state court erred in
dismissing adaptive behavior testing and relying “exclusively upon
the court’s own interpretation of lay testimony about Clark’s
adaptive strengths.”
The record shows that the state court made a number of
findings of fact that support its finding that Clark did not have
significant limitations in his adaptive skills. The court found
that records from Clark’s youth showed that he completed his GED
with improving grades after initial problems, that he completed a
welding program at Cooke County College in 1985, that he was
employed by the Gainesville State School with numerous duties and
positive reports from supervisors, and that he was able to get
along with other people.
The state court also heard testimony from Clark’s former
landlord that he was a tenant of a mobile home park, where he was
paying his own bills, doing chores in exchange for rent reduction,
playing cards, and successfully socializing with others. The
landlord testified that he followed the rules of the park, kept his
mobile home clean and cut the nearby grass, and was able to both
drive a car and follow the speed limits of the park. The landlord’s

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daughter testified to similar activities by Clark, and added that
they had conversed on a number of occasions without difficulty.
A Texas Ranger who investigated the case testified that he
interviewed Clark for several hours without noticing any difficulty
by Clark in understanding the questions. He stated that Clark was
able to think on his feet, modifying his story in response to
inconsistencies that were pointed out to him. He further testified
that Clark’s actions in the crime included several that showed
adaptive functioning, including removing the butt stock of his gun
to make it easier to conceal, purchasing ammunition for the gun,
practicing with the gun, and removing evidence from the scene and
concealing it. He testified that his investigation of Clark showed
no evidence of adaptive limitations or problems meeting basic human
needs.
The court listened to testimony from several other officers
and prison officials who had interacted with Clark. It also heard
testimony from the warden’s secretary, responsible for handling
inmate requests, and found that several of Clark’s written requests
indicate adaptive skills ranging from average to sophisticated.
Clark has not challenged the accuracy of any of these
findings, but instead argues only that they do not support the
state court’s determination that Clark did not have adaptive
deficits because they are evidence of strengths and not
limitations. This is incorrect - evidence of a strength in a
particular area of adaptive functioning necessarily shows that the

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defendant does not have a weakness in that particular area. Even
if, as Clark 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, Clark functioned normally across a broad range
of adaptive behaviors. Our review of the evidence of Clark’s
behavior in prison casts serious doubts on his claims of adaptive
limitation, as evidence collected from his cell along with his
handwritten requests include complaints that he needed a technician
to fix his television as it had been several “weeks now of no
reception via my coaxial cable hooked up to the jack on the wall;”
a handwritten diet plan entitled “Eat to Beat Stress” noting that
he should “eat small meals and snacks several times a day to keep
blood sugar from fluctuating” as well as notes about the effects of
various chemicals such as folic acid, pyridoxine, and thiamine;
handwritten puzzles including the decipherment of several extremely
complicated codes; and complaints about delays in approving his
request for a legal visit with another inmate in which Clark
planned to assist the inmate in obtaining parole.
Clark faults the failure of the state court to credit an
adaptive behavior assessment administered at age 34 which attempted
to retroactively determine his abilities at age 25. The court found
that the test was unreliable because it relied on Clark’s self-
reporting of his adaptive limitations coupled only with his ex-

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wife’s memories about what he could and could not do at age 25. The
court found that this testing was unreliable because it did not
account for the incentive of Clark and his ex-wife to misreport
Clark’s adaptive skills and did not take into account Clark’s prior
employment and the written materials he produced during prison. The
court heard the testimony of the State’s expert claiming Clark did
not display limitations in adaptive functioning. This expert
reviewed the testing results along with the various testimony and
documents and was judged more credible by the state court. The
findings by the state court on the issue of adaptive functioning
have not been rebutted by clear and convincing evidence, and its
determination that the evidence of Clark’s actual behavior was more
credible than the adaptive behavior assessment administered to
Clark was not unreasonable in light of the evidence presented.
Finally, Clark objects that as to the third element of
retardation, onset before the age of 18, the state court again
erred in its factual finding that Clark did not show onset before
the age of 18. Clark points to the opinions of his expert
witnesses, his failure of several grades, and his participation in
special education classes in school. While the state court provides
less support for its determination on this issue, pointing only to
documents about Clark produced by the Texas Youth Council when he
was age 15, Clark has not rebutted these findings by clear and
convincing evidence. The TYC documents describe Clark as a troubled
child with intellectual potential between the dull average and

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average range. The TYC conducted an IQ test which, as the state
court determined under the first element, showed that at age 15
Clark was not mentally retarded. The state court did not make an
unreasonable determination of the facts in light of the evidence as
to the age of onset element.
Because Clark has not shown by clear and convincing evidence
that the state court made unreasonable factual determinations in
light of the evidence presented, we AFFIRM the decision of the
district court.

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