Maldonado v. Thaler , 625 F.3d 229 ( 2010 )


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  •                    REVISED NOVEMBER 26, 2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 10-70003                  October 29, 2010
    Lyle W. Cayce
    Clerk
    VIRGILIO MALDONADO,
    Petitioner - Appellant
    v.
    RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent - Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    Before KING, STEWART, and HAYNES, Circuit Judges.
    KING, Circuit Judge:
    The petitioner–appellee, Virgilio Maldonado, was sentenced to death in
    1997 in Texas state court for a murder committed during the course of a robbery
    in 1995. After exhausting state-court avenues for postconviction relief, he
    sought habeas relief under 
    28 U.S.C. § 2254
     in federal district court. The district
    court denied the petition for habeas relief and denied a certificate of
    appealability (COA). We granted a COA as to Maldonado’s claim that he is
    mentally retarded and therefore ineligible for the death penalty under Atkins v.
    Virginia, 
    536 U.S. 304
     (2002), and ordered supplemental briefing on that issue.
    No. 10-70003
    We denied a COA as to all other issues. We now address the Atkins claim and
    affirm the district court’s denial of habeas relief.
    I.   BACKGROUND
    A.    Factual and Procedural Background
    Maldonado, a Mexican national, was tried and convicted of capital murder
    in Texas state court in 1997 for the November 1995 robbery and murder of Cruz
    Saucedo. Saucedo was found shot twice in the head with a .45-caliber semi-
    automatic weapon, his hands bound with the electric cord of a Black & Decker
    iron. The murder went unsolved until several months later, when Maldonado
    confessed to the murder after being arrested for an unrelated bank robbery.
    According to Maldonado’s confession, he entered Saucedo’s house with another
    man while a third accomplice waited in a car. Maldonado’s companion wanted
    to borrow an AK-47 from Saucedo. When Saucedo refused the loan, they bound
    him and demanded to know where the weapon and some marijuana were kept.
    Maldonado’s companion retrieved these items and told Maldonado to kill
    Saucedo. Maldonado did so, using a pillow to muffle the sound of the gunshots.
    The State of Texas charged and tried Maldonado for murder in the course of a
    robbery. The jury convicted Maldonado of capital murder and determined that
    he should receive a death sentence.
    Maldonado filed an automatic direct appeal of his conviction with the
    Texas Court of Criminal Appeals (TCCA), which affirmed his conviction and
    sentence after considering his points of error on the merits. See Maldonado v.
    State, 
    998 S.W.2d 239
     (Tex. Crim. App. 1999). While that appeal was pending,
    he filed his first application for a writ of habeas corpus, which the TCCA denied.
    Ex parte Maldonado, No. 51,612-01 (Tex. Crim. App. 2002). After the Supreme
    Court concluded, in Atkins v. Virginia, 
    536 U.S. 304
    , that the Eighth
    Amendment precludes the execution of mentally retarded persons, Maldonado
    filed a subsequent state habeas application in the TCCA in which he claimed
    2
    No. 10-70003
    that he was mentally retarded and therefore ineligible for the death penalty. Ex
    parte Maldonado, No. 51,612-02 (Tex. Crim. App.). The TCCA remanded to the
    state habeas trial court to take evidence and enter findings of fact and
    conclusions of law on the Atkins claim. Ex parte Maldonado, No. 51,612-02 (Tex.
    Crim. App. 2003).
    After a live evidentiary hearing, the state habeas trial court entered
    findings of fact and conclusions of law recommending that relief be denied on
    Maldonado’s Atkins claim. The TCCA adopted the state habeas trial court’s
    findings of fact and conclusions of law and denied relief.         See Ex parte
    Maldonado, Nos. 51,612-02, 51,612-03, 
    2007 WL 2660292
    , at *1 (Tex. Crim. App.
    Sept. 12, 2007). Maldonado challenged this ruling and others in a federal habeas
    petition under 
    28 U.S.C. § 2254
    . The district court denied all of Maldonado’s
    claims and sua sponte denied a COA. Maldonado v. Thaler, 
    662 F. Supp. 2d 684
    (S.D. Tex. 2009). We granted a COA only as to the Atkins issue—the subject of
    the instant appeal. Maldonado v. Thaler, No. 10-70003, 
    2010 WL 3155236
     (5th
    Cir. Aug. 10, 2010).
    B.    The Atkins Decision and Briseno Framework
    In Atkins v. Virginia, 
    536 U.S. 304
    , the Supreme Court held that the
    Eighth Amendment forbids the execution of mentally retarded persons. The
    Atkins Court, however, “le[ft] to the State[s] the task of developing appropriate
    ways to enforce the constitutional restriction upon their execution of sentences.”
    
    Id. at 317
     (alterations and internal quotation marks omitted). The relevant
    standard in Texas was set out by the TCCA in Ex parte Briseno, 
    135 S.W.3d 1
    ,
    7 (Tex. Crim. App. 2004). The Briseno court held that mental retardation claims
    should be adjudicated under the framework established by the American
    Association on Mental Retardation (AAMR), in conjunction with the standard
    supplied by the Texas Persons with Mental Retardation Act, TEX. HEALTH &
    SAFETY CODE § 591.003(13) (“‘Mental retardation’ means significantly
    3
    No. 10-70003
    subaverage general intellectual functioning that is concurrent with deficits in
    adaptive behavior and originates during the developmental period.”). As quoted
    in Atkins, the AAMR supplies the following definition of mental retardation:
    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 AAMR, MENTAL RETARDATION: DEFINITION,
    CLASSIFICATION, AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992)). Briefly stated,
    Briseno requires three elements for a finding of mental retardation:            (1)
    significantly subaverage intellectual functioning (generally, a full-scale IQ score
    of 70 or below); (2) deficits in adaptive functioning; and (3) onset before age 18.
    See Briseno, 
    135 S.W.3d at 7
    .
    In Briseno, the TCCA made clear that although the determination of
    whether an applicant meets this three-prong standard requires careful
    consideration of the relevant psychological standards—and expert testimony
    obviously assists with this assessment—the ultimate determination as to mental
    retardation must be made by the court, based on what the Constitution requires.
    The TCCA explained:
    Although experts may offer insightful opinions on the question of
    whether a particular person meets the psychological diagnostic
    criteria for mental retardation, the ultimate issue of whether this
    person is, in fact, mentally retarded for purposes of the Eighth
    Amendment ban on excessive punishment is one for the finder of
    fact, based upon all of the evidence and determinations of
    credibility.
    
    Id. at 9
    .
    4
    No. 10-70003
    C.    Maldonado’s Atkins Claim
    Maldonado’s Atkins claim received extensive consideration in the state
    habeas court. Maldonado submitted to psychological testing by the State’s
    expert, Dr. George Denkowski, a clinical psychologist, and by two of his own
    experts, Dr. Ricardo Weinstein, a forensic neuropsychologist, and Dr. Antonio
    Puente, a professor of psychiatry and neuropsychologist. Each of these experts
    submitted an affidavit to the state habeas trial court. To supplement these
    affidavits with live testimony, and to provide an opportunity for cross-
    examination, the state habeas trial court conducted an extensive, seven-day
    evidentiary hearing on the Atkins issue on September 11, 13, 14, and 15 and
    November 16, 17, and 27, 2006. Dr. Denkowski testified for the State and Dr.
    Puente testified on behalf of Maldonado.         Dr. Weinstein did not testify.
    Maldonado called an additional expert, Dr. Jack Fletcher, who had not examined
    Maldonado but who provided additional testimony intended to rebut Dr.
    Denkowski’s testimony. Both sides also called lay witnesses to testify as to
    Maldonado’s adaptive behavior.
    After considering the expert affidavits and testimony, the lay testimony,
    and numerous exhibits, the state habeas trial court concluded that Maldonado
    had not met his burden of presenting evidence sufficient to satisfy any of the
    three prongs of the Briseno test. Accordingly, it entered findings of fact and
    conclusions of law recommending that Maldonado be found not mentally
    retarded.   Although these findings credited and cited extensively to Dr.
    Denkowski’s testimony, they were also structured such that the result would not
    change if the results of the tests administered by Dr. Denkowski were
    disregarded. The findings and conclusions did, however, rely on Dr. Denkowski’s
    critiques of other experts’ evidence, and were not specifically structured to stand
    if Dr. Denkowski’s critiques were discounted. The TCCA adopted the state
    habeas trial court’s findings and conclusions in their entirety and accordingly
    5
    No. 10-70003
    denied Maldonado’s subsequent habeas application. See Ex parte Maldonado,
    Nos. 51,612-02, 51,612-03, 
    2007 WL 2660292
    , at *1 (Tex. Crim. App. Sept. 12,
    2007). Maldonado then filed the instant federal habeas petition.
    While Maldonado’s federal habeas application was pending, the TCCA
    issued an opinion, Ex parte Plata, No. AP-75820, 
    2008 WL 151296
    , at *1 (Tex.
    Crim. App. Jan. 16, 2008), in which it refused to credit Dr. Denkowski’s
    testimony in connection with another habeas case. The state habeas trial court,
    whose recommendations the TCCA adopted in full, concluded that there were
    “fatal errors in Denkowski’s administration and scoring of Plata’s IQ and
    adaptive deficit tests.” See id.; Ex parte Plata, No. 693143-B (Tex. 351st Dist.
    Sept. 28, 2007). The Texas State Board of Examiners of Psychologists (“State
    Board”) subsequently filed a complaint against Dr. Denkowski with the State
    Office of Administrative Hearings (SOAH), attaching the state habeas trial
    court’s findings in Plata and seeking to sanction him for intentionally
    misapplying psychiatric testing methods in that case. See SOAH Docket No.
    520-09-2882.     The Board’s complaint also alleges that Dr. Denkowski
    “intentionally misused or abused psychological testing . . . in connection with
    [his] forensic assessments of . . . Maldonado.” It contends, in relevant part, that:
    64. The Respondent failed to properly address language and
    cultural issues with Maldonado, a native of Mexico.
    65. Respondent administered the self-report portion of the Adaptive
    Behavior Assessment System (ABAS) to Maldonado using a
    Spanish-language interpreter from the court system to translate
    questions due to the subject’s limited ability to speak English and
    Respondent’s inability to speak Spanish.
    66. Respondent deviated from established testing protocols in the
    evaluation and scoring of Maldonado’s intellectual functioning.
    67. The adjustments Respondent made to Maldonado’s adaptive
    behavior scores were not scientifically valid.
    68. Respondent used maladaptive behavior to assess adaptive
    behavior.
    6
    No. 10-70003
    69. Respondent also used the interpreter as a translator to
    administer the Weschler Adult Intelligence Scale 3rd Ed. (WAIS-III)
    to Maldonado and doing so rendered the test scores invalid.
    First Amended Complaint, SOAH Docket No. XXX-XX-XXXX (Feb. 9, 2010). The
    complaint has not yet been resolved. Proceedings before the SOAH are pending;
    discovery is ongoing; and counsel represented at oral argument that a hearing
    is not to occur before May 2011.1 Maldonado timely notified the federal district
    court about the Plata case and about the State Board’s proceedings against Dr.
    Denkowski.
    The district court conducted a careful and detailed review of the record,
    and in particular considered whether the new revelations about Dr. Denkowski’s
    work in the Plata case and the pending State Board complaint against him in
    the SOAH provided a basis to question or reject the state habeas court’s
    analysis. The district court noted that many of the errors that Dr. Denkowski
    apparently committed in the Plata case did not appear to have been repeated in
    his assessment of Maldonado, but allowed that the Plata errors might raise
    issues as to Dr. Denkowski’s credibility. Maldonado v. Thaler, 
    662 F. Supp. 2d at
    715 n.31, 729 n.51. The district court also noted, however, that “[t]he state
    court’s adjudication denied relief independent of Dr. Denkowski’s testing,
    1
    The complaint alleges that Dr. Denkowski violated the following State Board rules in
    connection with his evaluation of Maldonado: Rule 465.9(a)–(e), (h)–(j) (requiring that
    licensees provide “only services for which they have the education, skills, and training to
    perform competently”; take into account subjects’ “age, gender, ethnicity, national origin,
    disability, language, and socio-economic status”; “maintain current knowledge of scientific and
    professional information”; employ “new techniques only after first undertaking appropriate
    study and training”; and withdraw from providing services if lacking the appropriate skills);
    Rule 465.10 (requiring that “[l]icensees rely on scientifically and professionally derived
    knowledge when making professional judgments”); Rule 465.16(b)(1), (2) (requiring that
    licensees use assessment techniques or tests “only if they are familiar with the reliability,
    validation and related standardization or outcome studies of, and proper applications of, the[se]
    techniques”); Rule 465.18(a)(2)–(4), (b)(1),(2) (requiring that licensees base all assessments and
    recommendations upon “information and techniques sufficient to provide appropriate
    substantiation for each finding” and decline to render opinion in areas “about which the
    licensee does not have the appropriate knowledge and competency”).
    7
    No. 10-70003
    possibly in recognition [of] the concerns raised by Maldonado’s experts.” 
    Id.
     at
    724–25, 729. The district court concluded, in agreement with the state habeas
    court, that even if the results of Dr. Denkowski’s testing of Maldonado were
    disregarded completely, Maldonado could not meet his burden of establishing
    mental retardation. 
    Id. at 724, 729
    . Like the state habeas court, however, the
    district court did rely on criticisms supplied by Dr. Denkowski in reaching this
    conclusion. The district court held that “the state habeas court was [not]
    unreasonable in finding that Maldonado was not mentally retarded as
    understood by Atkins.” 
    Id. at 735
    .
    This appeal followed. Maldonado contends that the district court erred in
    concluding that Dr. Denkowski’s alleged administrative and scoring errors,
    particularly in light of the Plata case and the State Board proceedings against
    Dr. Denkowski, did not provide a basis for disregarding Dr. Denkowski’s
    testimony in its entirety. Maldonado argues in particular that the court’s
    assessment of the other experts’ testimony relied too heavily on criticisms by Dr.
    Denkowski.
    II.   STANDARD OF REVIEW
    This habeas proceeding is subject to the Antiterrorism and Effective Death
    Penalty Act (AEDPA), 
    28 U.S.C. § 2254
    , because Maldonado filed his federal
    petition on May 9, 2007, well after AEDPA’s effective date. See Lindh v.
    Murphy, 
    521 U.S. 320
    , 335–36 (1997). “Under AEDPA, if a state court has
    adjudicated a habeas petitioner’s claims on the merits, he may receive relief in
    the federal courts only where the state court decision ‘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,’ or
    ‘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.’” Rivera
    v. Quarterman, 
    505 F.3d 349
    , 356 (5th Cir. 2007) (quoting 
    28 U.S.C. § 2254
    (d)).
    8
    No. 10-70003
    “A state court’s decision is deemed contrary to clearly established federal
    law if it reaches a legal conclusion in direct conflict with a prior decision of the
    Supreme Court or if it reaches a different conclusion than the Supreme Court
    based on materially indistinguishable facts.” Gray v. Epps, 
    616 F.3d 436
    , 439
    (5th Cir. 2010) (citing Williams v. Taylor, 
    529 U.S. 362
    , 404–08, 
    120 S. Ct. 1495
    (2000)). To merit habeas relief, a state habeas court’s application of federal law
    must be not only incorrect but “objectively unreasonable.” Renico v. Lett, 
    130 S. Ct. 1855
    , 1865 (2010). A state court’s factual findings are “presumed to be
    correct,” although a habeas petitioner may rebut this presumption by “clear and
    convincing evidence.” 
    28 U.S.C. § 2254
    (e)(1). We review the district court’s
    conclusions of law de novo, applying the same standard of review that the
    district court applied to the state court decision. Jones v. Cain, 
    600 F.3d 527
    ,
    535 (5th Cir. 2010).
    The question of whether a defendant suffers from mental retardation
    involves issues of fact, and thus is subject to a presumption of correctness that
    must be rebutted by clear and convincing evidence under § 2254(e)(1). Clark v.
    Quarterman, 
    457 F.3d 441
    , 444, 447 (5th Cir. 2006). On appeal, as in the district
    court, Maldonado bears the burden of establishing by a preponderance of the
    evidence that he is mentally retarded. Briseno, 
    135 S.W.3d at 12
    ; Woods v.
    Quarterman, 
    493 F.3d 580
    , 585 & n.3 (5th Cir. 2007).
    III.    DISCUSSION
    Maldonado’s chief contention on appeal is that Dr. Denkowski’s testing
    and scoring methodologies were egregiously and fatally flawed.           Although
    Maldonado does not dispute that the state habeas court structured its opinion
    so as not to rely on Dr. Denkowski’s test results, he argues that Dr. Denkowski’s
    methodology in administering and scoring those tests was so flawed that all of
    Dr. Denkowski’s testimony—including his critiques of other evidence in the
    record—should be disregarded in its entirety as non-credible. As discussed
    9
    No. 10-70003
    below, we do not agree that the specific challenges that Maldonado has raised
    regarding Denkowski’s methodology in calculating the raw WAIS-III score
    provide a basis for concluding that the state habeas court was unreasonable in
    considering that score. More troubling, however, are the scoring enhancements
    that   Dr.   Denkowski    applied   to    Maldonado’s   WAIS-III    and   ABAS
    results—enhancements that are presently a subject of the State Board complaint
    against Dr. Denkowski, and that are similar to those that the TCCA declined to
    credit in Plata. As discussed below, however, assuming without deciding that
    this evidence rebuts the presumption of correctness that attaches to the state
    habeas court’s decision to credit Dr. Denkowski’s testimony, Maldonado is not
    entitled to habeas relief because even disregarding that testimony, he cannot
    meet his burden of showing that the state court’s finding that he is not mentally
    retarded was either an unreasonable application of Atkins or an unreasonable
    determination of the facts in light of the evidence presented in state court.
    A.     Dr. Denkowski’s Results
    Dr. Denkowski examined Maldonado on May 23 and 24, 2005. Along with
    a number of other tests, he administered the Wechsler Adult Intelligence Scale,
    Third Edition (WAIS-III) to measure Maldonado’s intellectual functioning and
    the Adaptive Behavior Assessment Scale (ABAS) to measure Maldonado’s
    adaptive functioning. The parties agreed that, when administered under proper
    conditions, the WAIS-III is the “gold standard” for evaluating intellectual
    functioning. Both tests were administered with the assistance of an interpreter
    who, though State licensed in Spanish–English translation, did not have a
    background in psychology and had never translated a written psychological
    instrument before Maldonado’s examination. Dr. Denkowski concluded, based
    on that examination and relying in particular on the results of the WAIS-III and
    ABAS, that Maldonado was not mentally retarded. Maldonado challenges both
    10
    No. 10-70003
    his raw WAIS-III score and the upward enhancements that D r . D e n k o w s k i
    applied to both the WAIS-III and ABAS scores.
    1.    The Raw WAIS-III Score
    Dr. Denkowski’s administration of the WAIS-III yielded a raw score of 74
    on the verbal portion, 74 on the performance portion, and a full-scale IQ of
    72—all above the threshold of 70 typically required to establish a showing of
    significantly subaverage intellectual functioning, although the low end of the
    confidence band for these scores could potentially qualify. Maldonado contends
    that Dr. Denkowski’s use of an interpreter invalidates these raw scores because
    “the use of a translator renders data and conclusions generated from an
    examination [per se] unreliable.” This argument is not persuasive. As the
    district court noted, the WAIS-III manual states that “administering the test
    with the assistance of a translator” is one “useful” approach employed by
    experienced examiners “when testing individuals who are not fluent in English.”
    Maldonado v. Thaler, 
    662 F. Supp. 2d at 714
     (internal quotation marks omitted;
    quoting David Wechsler, WAIS-III ADMINISTRATION AND SCORING MANUAL 34 (3d
    ed. 2003)). Furthermore, the evidence at the state evidentiary hearing showed
    that two of Maldonado’s own experts, Drs. Puente and Fletcher, have endorsed
    the use of translators in psychological testing at least in certain contexts.
    Maldonado’s arguments do not demonstrate unreasonableness in the state
    habeas court’s conclusion that Dr. Denkowski’s use of a translator did not render
    the WAIS-III results per se invalid.
    Maldonado urges, however, that the particular way in which Dr.
    Denkowski used the interpreter rendered the test results unreliable, because the
    interpreter was required to translate the test contemporaneously and informally,
    without advance preparation, and because the interpreter did not have a
    background in psychology. At the evidentiary hearing, Maldonado’s experts
    testified that the interpreter’s lack of advance preparation and lack of
    11
    No. 10-70003
    psychological expertise could—and in Maldonado’s case, did—result in
    significant translation errors. But Maldonado’s own experts disagreed as to
    whether these problems could have artificially increased his score. Dr. Puente
    testified, in agreement with Dr. Denkowski, that translation problems would
    only tend to lower the resulting score. Dr. Fletcher, however, opined that errors
    could also raise the score. The state habeas court discounted Dr. Fletcher’s
    testimony, concluding that to the extent that the use of a translator might have
    affected Maldonado’s score, “such impact would most likely interfere with [his]
    optimal performance and suppress [his] IQ scores.” The state habeas court
    concluded that because translation errors would have had, if anything, a
    suppressive effect, they did not provide a basis for concluding that Dr.
    Denkowski’s administration of the WAIS-III resulted in an artificially high raw
    score. Particularly because Maldonado’s own experts conflicted as to the effect
    or significance of translation errors, we agree with the district court that
    Maldonado’s arguments do not rebut the presumptive correctness of the state
    habeas court’s conclusion. Cf. Moore v. Quarterman, 
    517 F.3d 781
    , 784 (5th Cir.
    2008) (declining to find the state habeas court even arguably unreasonable in
    crediting one side of conflicting expert testimony, when that testimony was
    sufficient to sustain the state habeas court’s finding).2
    Maldonado also argues that this court should not credit Dr. Denkowski’s
    testimony because he failed to take account of the “Flynn Effect,” which “posits
    that, over time the IQ scores of a population rise without corresponding
    increases in intelligence and thus the test must be re-normalized over time.” In
    re Mathis, 
    483 F.3d 395
    , 398 n.1 (5th Cir. 2007). As the district and state habeas
    2
    The complaint filed against Dr. Denkowski in the SOAH accuses him of improperly
    using an interpreter in administering the WAIS-III test. We take no position as to whether
    the way in which Dr. Denkowski used the interpreter was in fact improper. We hold only that
    the state habeas court was not unreasonable in its conclusion that the use of an interpreter did
    not artificially increase Maldonado’s raw WAIS-III full-scale IQ score.
    12
    No. 10-70003
    courts recognized, however, neither this court nor the TCCA has recognized the
    Flynn Effect as scientifically valid. See id.; see also In re Salazar, 
    443 F.3d 430
    ,
    433 n.1 (5th Cir. 2006); Neal v. State, 
    256 S.W.3d 264
    , 273 (Tex. Crim. App.
    2008) (“We have previously refrained from applying the Flynn effect . . . , noting
    that it is an ‘unexamined scientific concept’ that does not provide a reliable basis
    for concluding that an appellant has significant sub-average general intellectual
    functioning.” (quoting Ex parte Blue, 
    230 S.W.3d 151
    , 166 (Tex. Crim. App.
    2007)).       Maldonado’s arguments do not show that the state habeas court
    unreasonably applied federal law, nor do they rebut the presumption of
    correctness that attaches to the state habeas court’s decision to credit the raw
    score.
    2.     The Adjusted WAIS-III and ABAS Scores
    Of different and greater concern, however, are the upward adjustments
    that Dr. Denkowski made to Maldonado’s WAIS-III and ABAS scores. In both
    cases, Dr. Denkowski opined that “cultural and educational factors,” as well as
    mild anxiety and depression, could have artificially suppressed Maldonado’s raw
    score. Applying these factors, Dr. Denkowski estimated that Maldonado’s “true”
    WAIS-III score was between 74 and 83.           Although the WAIS-III manual
    instructs that an artificially low score may result from, among other factors,
    “[c]ultural or linguistic discrepancy from the test standardization table,
    distractability, anxiety, deafness, poor motivation or inadequate persistence,”
    Maldonado contends, as his experts urged at the hearing, that Dr. Denkowski’s
    proposed adjustments were fatally flawed because they did not result from any
    statistical formula or established methodology, and because Dr. Denkowski
    lacked the cultural knowledge that would allow him to properly and accurately
    adjust for the effects of Maldonado’s impoverished upbringing in rural Mexico.
    Dr. Denkowski applied similar factors when scoring the ABAS, relying
    upon his “clinical judgment” and his purported knowledge of Mexican cultural
    13
    No. 10-70003
    norms to revise Maldonado’s raw ABAS score significantly upward to 67. The
    ABAS is based upon a self-reporting examination.          As the district court
    explained:
    The ABAS asks the subject whether he can perform certain tasks or
    skills. He rates his own abilities from 0 (the skill cannot be
    performed) to 3 (the skill is almost always performed correctly) on
    239 skills [in 10 skill areas]. The examiner then tabulates the
    answers into a composite score that, if below [70], shows deficits in
    adaptive behavior.
    Maldonado v. Thaler, 
    662 F. Supp. 2d at 728
    .          Dr. Denkowski adjusted
    Maldonado’s scores upward on approximately 30% of the questions and did not
    adjust any of the scores downward. Maldonado argues that the problems with
    Dr. Denkowski’s methodology in scoring the ABAS were compounded by the facts
    that Dr. Denkowski administered the test using an interpreter and failed to
    verify Maldonado’s self-reported responses by interviewing Maldonado’s
    teachers, relatives, or associates.
    The challenges that Maldonado’s experts raised to these scoring
    enhancements at the state evidentiary hearing are echoed in the State Board’s
    complaint against Dr. Denkowski and in Plata, in which the TCCA rejected Dr.
    Denkowski’s testimony in its entirety as non-credible because he employed
    similar methodology. Maldonado urges that these authorities show that the
    state habeas court was unreasonable in failing to disregard Dr. Denkowski’s
    testimony in its entirety, and further urges that if Dr. Denkowski’s testimony is
    completely disregarded, he can meet his burden of establishing mental
    retardation. We need not decide whether these authorities are sufficient to
    rebut the presumption of correctness that attaches to the state habeas court’s
    decision, however, because assuming without deciding they are, we conclude that
    Maldonado could not, with the evidence that would remain, meet his burden for
    obtaining federal habeas relief.
    14
    No. 10-70003
    Upon federal habeas review of a state court’s adjudication, we ultimately
    “review only a state court’s ‘decision,’ and not the written opinion explaining that
    decision.” Neal v. Puckett, 
    286 F.3d 230
    , 246 (5th Cir. 2002) (en banc); see also
    Santellan v. Cockrell, 
    271 F.3d 190
    , 193 (5th Cir. 2001) (“The statute compels
    federal courts to review for reasonableness the state court’s ultimate decision,
    not every jot of its reasoning.”). The state court’s determination here was that
    Maldonado failed to meet the Briseno test for showing that he is mentally
    retarded. Even if we disregard Dr. Denkowski’s testimony, we conclude that
    Maldonado fails to show the state habeas court’s decision was an unreasonable
    application of federal law or an unreasonable determination of the facts in light
    of the remaining evidence. See § 2254(d). An analysis of this remaining
    evidence, and the reasons for this conclusion, are set out below.
    B.   The Remaining Evidence
    1.   Intellectual Functioning
    Two of Maldonado’s experts, Drs. Weinstein and Puente, administered
    tests of intellectual functioning to him. Dr. Weinstein administered two such
    tests. The first was the verbal portion of a Spanish version of the WAIS-III,
    called the Escala Inteligencia Wechsler para Adultos (WAIS-Español).
    Maldonado scored an 83 on the verbal portion and scored a 90 on the
    comprehension, similarities, and vocabulary subsections of that verbal
    portion—all well above the score of 70 that roughly forms the upper bound for
    a finding of significantly subaverage intellectual functioning. Dr. Weinstein did
    not disclose in his expert report that he had administered this test—the results
    were only brought to the state habeas court’s attention because Dr. Denkowski
    discovered the administration while researching Dr. Weinstein’s testing
    protocols. We are troubled, as were the district and state habeas courts, that
    “Dr. Weinstein never explained why he chose to administer that test, why he did
    15
    No. 10-70003
    not perform the entire test, or why he did not report his partial conclusions.”
    Maldonado v. Thaler, 
    662 F. Supp. 2d at 718
    .
    Maldonado’s experts at the evidentiary hearing, Drs. Puente and Fletcher,
    urged that the state habeas court should not credit the WAIS-Español score. Dr.
    Puente testified that Dr. Weinstein’s use of the WAIS-Español was problematic
    because it was normed for Spanish speakers from Puerto Rico, who may have
    linguistic differences from Maldonado’s native Mexico. Dr. Fletcher urged that
    the WAIS-Español was likely to yield scores “substantially higher than those you
    would get on the WAIS[-III],” but did not quantify the amount by which the
    result might overstate Maldonado’s IQ. Drs. Puente and Fletcher, however,
    made no effort to explain why, given these shortcomings, Maldonado’s own
    expert had decided to administer a portion of the WAIS-Español. We agree with
    the district court, therefore, that Maldonado fails to show that the state habeas
    court’s reliance on the partial administration of the WAIS-Español was
    unreasonable.    This reliance was one basis upon which the state court
    determined that Maldonado had not met his burden of demonstrating
    significantly subaverage intellectual functioning, and Maldonado has not
    presented evidence sufficient to rebut the presumption of correctness in that
    conclusion.
    Dr. Weinstein also administered the Woodcock-Munoz Bateria-R (“Bateria-
    R”), the Spanish language version of the Woodcock-Johnson Test of Cognitive
    Abilities, Revised. That administration, which Dr. Weinstein did report, yielded
    an IQ score of 61. As the state habeas court noted, and Maldonado does not
    dispute, the AAMR has not cited the Bateria-R as an appropriate test for
    assessing the intellectual functioning aspect of a mental retardation diagnosis.
    Because the AAMR has not specifically cited the test as appropriate, and
    because Dr. Weinstein never attempted to explain the discrepancy between the
    WAIS-Español result and the Bateria-R result—or why the latter should be
    16
    No. 10-70003
    credited over the former—we cannot conclude that the state habeas court’s
    decision to accord little weight to the Bateria-R result was unreasonable. See
    Woods, 
    493 F.3d at
    586–87 (state habeas court was not unreasonable in deciding
    to accord less weight to certain test results, where testimony supported the
    conclusion that those results were less reliable).
    Dr. Puente also administered two tests, the Beta-III and the
    Comprehensive Test of Nonverbal Intelligence (CTONI). Dr. Puente testified
    that both are neuropsychological tests that measure nonverbal ability. As with
    the Bateria-R, the state habeas court noted and Maldonado does not dispute that
    the AAMR does not cite these tests as providing a basis for assessing intellectual
    functioning. Another of Maldonado’s experts, Dr. Fletcher, testified on cross-
    examination that neither of these testing instruments could be used to produce
    a full-scale IQ score. In a recent decision, the TCCA has indicated that a full-
    scale IQ score should provide the basis for any assessment of intellectual
    functioning. See Ex parte Hearn, 
    310 S.W.3d 424
    , 431 (Tex. Crim. App. 2010)
    (“[N]europsychological measures [may not] wholly replace full-scale IQ scores in
    measuring intellectual functioning.”); see also Moore v. Quarterman, 342
    F. App’x 65, 81 n.27 (5th Cir. 2009) (noting the “standard professional view” that
    the CTONI is not a measure of general intelligence).               Dr. Puente’s
    administration of the Beta-III yielded an IQ score of 70—which Dr. Puente
    agreed did not, by itself, qualify Maldonado for a diagnosis of mental
    retardation. Dr. Puente’s administration of the CTONI yielded an IQ score of 61.
    Because the AAMR has not cited either test as providing a basis for assessing
    intellectual functioning; because Maldonado’s own expert, Dr. Fletcher, opined
    that neither of these tests was an appropriate method of calculating a full-scale
    IQ score; and because Dr. Puente conceded that the Beta-III results would not
    support a diagnosis of mental retardation, Maldonado has not shown that the
    state habeas court unreasonably determined that he lacked subaverage
    17
    No. 10-70003
    intellectual functioning. This is particularly true in light of the TCCA’s recent
    pronouncement in Hearn, 
    310 S.W.3d at 429
    .
    In sum, the state habeas court’s decision was not contrary to or an
    unreasonable application of Atkins, and Maldonado did not rebut the
    presumption of correctness that attaches to the state habeas court’s conclusion
    that Maldonado did not meet his burden of showing significantly subaverage
    intellectual functioning under the first prong of the Briseno mental retardation
    standard. He therefore cannot show that the state habeas court’s factual
    determination was unreasonable. See Woods, 
    493 F.3d at 587
     (“[T]o the extent
    Woods argues that the state court’s decision was ‘based on an unreasonable
    determination of the facts in light of the evidence presented,’ 28 U.S.C.
    2254(d)(2), he has failed to rebut, by clear and convincing evidence, the
    presumption that the state court’s factual findings are correct.”). And because
    fulfillment of each prong is necessary to a finding of mental retardation, this
    conclusion ends the inquiry. As discussed below, however, we also find that
    Maldonado did not present evidence sufficient to rebut the presumed correctness
    of the state habeas court’s decision that Maldonado did not meet the second
    Briseno prong.
    2.      Adaptive Deficits
    Maldonado’s experts extensively criticized Dr. Denkowski’s methodology
    in administering and scoring the ABAS. They did not, however, themselves
    administer to Maldonado the ABAS or any other formal testing instrument for
    adaptive deficits. Dr. Weinstein’s affidavit did not discuss the adaptive behavior
    prong at all. Dr. Fletcher addressed adaptive behavior only to the extent of
    criticizing Dr. Denkowski’s administration of the ABAS. The only non-rebuttal
    testimony as to Maldonado’s adaptive deficits came from Dr. Puente, who
    testified, based on affidavits prepared by Maldonado’s father and others who
    knew him, that Maldonado had exhibited some adaptive deficits, particularly in
    18
    No. 10-70003
    his formative years.     Dr. Puente found deficits in functional academics
    (Maldonado was slow in school); banking (when Maldonado and his wife finally
    opened a checking account after immigrating to the United States, it was not
    clear that he knew how to use it); public transportation (before age 18,
    Maldonado’s use of public transportation apparently was limited); leisure
    (Maldonado did not report any hobbies beyond recreational drug use); and social
    relationships (before age 18, his romantic relationships with females were
    unsuccessful and his closest relationship was with his stepfather, with whom he
    lived only briefly).   Dr. Puente explained that he had not conducted any
    standardized testing for adaptive deficits because there were no standardized
    tests written in Spanish and he believed translating would be inappropriate.
    The state habeas court relied primarily on lay testimony provided by witnesses
    for both parties in concluding that Maldonado had not shown adaptive deficits
    sufficient to satisfy the second Briseno prong.
    Although the AAMR contemplates that adaptive deficits, defined as
    “significant limitations in an individual’s effectiveness in meeting the standards
    of maturation, learning, personal independence, and/or social responsibility that
    are expected for his or her age level and cultural group,” will be “determined by
    clinical assessment and, usually, standardized scales,” Briseno, 
    135 S.W.3d at
    7 n.25, Briseno does not require that an assessment of adaptive deficits be
    premised upon the results of standardized tests or expert opinion, 
    id. at 8
    ; see
    also Hearn, 
    310 S.W.3d at 428
     (“[S]tandardized tests are not the sole measure
    of adaptive functioning, [but] they may be helpful to the factfinder, who has the
    ultimate responsibility for determining mental retardation.”).       Indeed, the
    Briseno court emphasized that “[a]lthough experts may offer insightful opinions
    . . . the ultimate issue of whether [a] person is, in fact, mentally retarded for
    purposes of the Eighth Amendment ban on excessive punishment is one for the
    finder of fact.” 
    135 S.W.3d at 9
    . Briseno cites the following considerations as
    19
    No. 10-70003
    being particularly important to determining whether the adaptive deficit prong
    has been met:
    •       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.
    The state habeas court found, after hearing the lay testimony presented
    at the evidentiary hearing, that “there [wa]s no indication that [Maldonado] was
    considered or treated as mentally retarded by those who knew him best, either
    during [the] developmental period or as an adult.”          As the district court
    observed, most of the “[t]estimony about what Maldonado could not do came . . .
    from . . . his childhood.” Maldonado v. Thaler, 
    662 F. Supp. 2d at 733
    . This
    testimony consisted primarily of evidence that Maldonado was “slow to learn”
    and “did not understand much” in school. 
    Id. at 731
    . The testimony also
    revealed, however, that Maldonado had managed to support himself on the
    streets from age nine, panhandling and selling illegal drugs. The district court
    observed that in adulthood, despite this “disadvantaged and inhibiting
    20
    No. 10-70003
    background, Maldonado sought better life opportunities” and in fact managed
    to better his life in many respects. 
    Id. at 733
    .
    The testimony at the hearing showed that Maldonado married in Mexico
    and fathered a child. He crossed the United States border with the aid of a
    “coyote” to whom he paid $300. In the United States, he worked with his father
    at Greenspoint Dodge in Houston, Texas, washing and waxing cars. He made
    “substantial money” there, including a significant amount in tips. He later
    obtained a second job working with his father at an apartment complex.
    Maldonado then returned to Mexico to retrieve his wife and child; the family
    successfully entered the United States illegally. The family lived together in an
    apartment and Maldonado was, for a time, the sole breadwinner. Maldonado
    subsequently worked for his cousin for several months as the cashier at a
    taqueria. Maldonado’s work in Houston ended when he was arrested for
    smuggling marijuana from Mexico and was sentenced to two and a half years in
    a federal penitentiary. When he was released, he moved to Chicago, where he
    joined his wife and her family and obtained a factory job.          Although the
    testimony showed that he did not perform his various jobs perfectly, we agree
    with the district court that the testimony showed that his performance was at
    least to a level that “belie[d] mental retardation.” 
    Id.
    After Maldonado returned to Houston and was arrested for capital murder,
    he regularly wrote to his father from prison. Maldonado’s experts did not review
    these letters, but we agree with the district court’s conclusion that these, though
    “by no means . . . literary masterpieces, do not facially give an impression of
    substantial intellectual impairments.”       
    Id.
       Prison guards testified at the
    evidentiary hearing that Maldonado kept his cell neat and “very organized”; that
    he was always well-groomed; and that he properly filled out commissary
    requests and took good care managing that account. Maldonado also properly
    completed prison grievance forms.
    21
    No. 10-70003
    Based on this record, we find no evidence sufficient to rebut the presumed
    correctness of the state habeas court’s factual findings that Maldonado
    “formulated and carried through plans for living, i.e., panhandling as a child;
    coming to the United States from Mexico; working at a car dealership, an
    apartment complex, and a factory; transporting marijuana to the United States;
    and engaging in robbery and murder, albeit criminal activities.” Nor does the
    evidence rebut the presumed correctness of the state habeas court’s conclusion
    that Maldonado “fail[ed] to show adaptive deficits in adaptive behavior based,
    in part, on the applicant’s history of driving, procuring and transporting drugs,
    sometimes working in legitimate jobs, attempting to escape detection during his
    criminal offenses, his interactions with others [in prison], his correspondence
    with others, his maintaining his commissary account [in prison], and his use of
    the grievance system [in prison].”3 In short, Maldonado has not presented
    3
    A different result is not required by our recent decision in Wiley v. Epps, __ F.3d __,
    No. 09-70037, 
    2010 WL 4227405
     (5th Cir. Oct. 27, 2010), a case originating in Mississippi in
    which lay evidence was present about the defendant’s ability to drive, work, and support his
    family, but we affirmed the district court’s holding that Wiley was mentally retarded. Courts
    are often confronted with similar evidence that a defendant claiming to be mentally retarded
    under Atkins can perform various activities. But the mental retardation question is very much
    case-specific and fact-intensive, and there are critical differences between Wiley and
    Maldonado’s case. Most important, unlike the instant case, we determined in Wiley that the
    district court was not bound by the AEDPA’s deferential standards and so reviewed the district
    court’s conclusions only for clear error. See 
    id.,
     slip op. at 20. Here we consider the
    reasonableness of the state habeas court’s decision. We also determined in Wiley that the
    State had failed to brief, and so waived, the district court’s findings on adaptive deficits. 
    Id. at 30
    . Furthermore, Wiley presented expert evidence that mentally retarded persons could
    perform certain minimal functions, which did not preclude a mental retardation finding in his
    case, and he supported his claim of adaptive deficits with expert testing and assessments, as
    well as with work, school, and military records. 
    Id. at 27
    , 30–34. In contrast, the state court
    in Maldonado’s case was faced with only limited evidence about Maldonado’s adaptive skills,
    no formal adaptive testing by his experts, and lay evidence that was contrary to his claims.
    Maldonado’s case is also governed by the Texas standards for mental retardation established
    by Briseno, which specifically contemplate consideration of how the defendant is viewed by
    friends and family and how he has generally functioned and conducted himself. In light of the
    foregoing, the state court’s determination in this case was neither contrary to nor an
    unreasonable application of federal law, nor an unreasonable determination of the facts. See
    § 2254(d).
    22
    No. 10-70003
    evidence sufficient to rebut the presumption of correctness that attaches to the
    state habeas court’s conclusion that Maldonado did not meet his burden of
    satisfying the second prong of the Briseno test. Cf. Woods, 
    493 F.3d at 587
    (concluding that presumption of correctness was not overcome where the
    petitioner himself had submitted little evidence of deficits, and the
    persuasiveness of even that evidence was “significantly diminished by the
    evidence of [the defendant’s competent] performance” at his job).
    IV. CONCLUSION
    At the evidentiary hearing on the Atkins issue and in his federal habeas
    petition and appeal, Maldonado has emphasized the shortcomings of Dr.
    Denkowski’s testimony. Whatever the validity of these criticisms, however, we
    conclude that, discounting Dr. Denkowski’s testimony in its entirety and
    considering only the evidence and testimony remaining in the record, this
    evidence does not rebut the presumption of correctness that attaches to the state
    habeas court’s conclusion that Maldonado did not meet his burden of
    establishing mental retardation. Therefore, the state court’s denial of relief was
    neither an unreasonable application of federal law nor an unreasonable
    determination of the facts in light of the evidence. We AFFIRM the district
    court’s denial of habeas relief on Maldonado’s Atkins claim. Maldonado’s motion
    for a stay is DENIED.
    AFFIRMED. MOTION DENIED.
    23