Taylor v. Quarterman ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-70045
Elkie Lee TAYLOR,
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 Northern District of Texas
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Elkie Lee Taylor appeals the district court’s denial of
Certificate of Appealability (COA), principally raising an Atkins
claim. We deny COA.
I
The petitioner first argues that the federal district court
improperly merged two statutory standards of review – the “clear
and convincing” burden requirement of section 2254 (e) (1) and the
“objectively unreasonable” standard of section 2254 (d) (2) —
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creating a super-standard of review, contrary to the Supreme
Court's admonition in Miller El.1 In short, petitioner argues
that he was required to prove that the state court decision was
objectively unreasonable by clear and convincing evidence.
The district court applied the two standards in the
alternative. It did not merge them, stating that
[t]he court views the issue of Taylor's mental capacity as one
of fact. See, e.g., Clark, 457 F.3d at 444 (question of
whether criminal defendant suffers from significantly
subaverage intellectual functioning is one of fact). Even if
viewed as a mixed issue of fact and law, for the reasons
stated by the court, infra, the trial court's decision on this
issue was not contrary to or otherwise involved an
unreasonable application.
II
Taylor challenges the correctness of the state court’s
findings regarding mental retardation. We are not persuaded.
Reasonable jurists would not disagree as to whether the petitioner
failed to present clear and convincing evidence that the state
court’s adaptive behavior analysis was wrong.2 A person is
mentally retarded if he has (1) significant sub-average
intellectual functioning; (2) accompanied by related limitations in
adaptive functioning; and (3) onset prior to the age of eighteen.3
1
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
2
Taylor maintains that this court should determine de novo whether he is
mentally retarded, applying a preponderance of the evidence standard. This is
incorrect. Under section 2254 (e)(1) we require clear and convincing evidence
that the state court's determination was incorrect.
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See Atkins v. Virginia, 536 U.S. 304, 318 (2002); In re Salazar, 443
F.3d 430, 432 (5th Cir. 2006).
2
On the first element, Taylor took five IQ tests scoring
somewhere between the mid-sixties and mid-seventies. At age ten,
he scored a 75 on the Wechsler Intelligence Scale for Children
(WISC). Taylor's expert argued that this score should be norm
corrected to a score of 68, to account for time lapse from 1948 to
1972. However, the doctor who administered the WISC test to Taylor
stated that he was capable of performing better than a 75, had he
tried. And, Taylor was not diagnosed as mentally retarded as a
result of the WISC test.
Twenty-two years later Taylor scored a 63 on a Texas
Department of Criminal Justice (TDCJ) beta test and then a 69 on
the Wechsler Adult Intelligence Scale-Revised Test (WAIS-R).
However, even after scoring a 69 Taylor was not diagnosed as
mentally retarded. The test administrator stated that
[t]aking into account the client's age and cultural group, his
adaptive behavior is below average, but not the degree
expected of a mentally retarded person. It appears that Mr.
Taylor is more capable in terms of adaptive skills than he has
actually demonstrated.
Finally, in preparation for his state habeas hearing, he scored a
65 on the Wechsler Adult Intelligence Scale (WAIS-III) and a 71 on
the Kaufman test. But the state habeas court was permitted to
discount these scores due to the incentive to malinger.
Regarding adaptive behavior, Taylor purportedly had difficulty
maintaining a steady job, got confused using public transportation,
had trouble cooking rice well as a child, made poor use of his
leisure time by sitting in his apartment and just listening to the
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radio and talking on the phone. However, Texas points to the
circumstances of his two crimes to prove that he was not deficient.
For example, having perceived an opportunity for robbing Otis
Flake, he planned and executed Flake's murder. Further, having
learned from his experience of murdering Ramon Carrillo, Taylor
skipped the use of his hands and went straight to the use of a coat
hanger in order to murder Flake. When the policeman questioned him
about the television stolen from Flake’s apartment, he quickly
thought up a lie that worked. Then, when ultimately found, he
successfully maneuvered an 18-wheeler cab for over 150 miles and
then, when caught, tried to blame someone else for his crimes.
Finally, regarding the date of onset of Taylor's alleged
mental retardation, the only IQ test taken of Taylor prior to his
turning eighteen yielded a result of 75, above the mild retardation
cut off of 70. The administrator of the test thought Taylor was
capable of performing better than 75. While Talyor's expert
concluded that this test result overstated Taylor's IQ by seven
points, the trial court was not unreasonable in finding otherwise.
In light of this standard of review, we hold that the petitioner
did not present clear and convincing evidence that the state court
erred.4 COA is DENIED.
4
Taylor argues that the CCA's decision in Ex parte Briseno, 135 S.W.3d 1
(Tex. Crim. App. 2004), fails to properly implement Atkins. As noted by the
federal district court, Briseno has been cited favorably several times by this
court in contexts indicating that Briseno is not contrary to clearly
established Supreme Court precedent. See, e.g., In re Hearn, 418 F.3d 444,
446-47 (5th Cir. 2005).
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