Lewis v. Thaler

• Decision Date: 20 November 2012
• Docket Number: No. 10–70031.,10–70031.
• Citation: 701 F.3d 783
• Parties: Rickey Lynn LEWIS, Petitioner–Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

701 F.3d 783

Rickey Lynn LEWIS, Petitioner–Appellant,

v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 10–70031.

United States Court of Appeals, Fifth Circuit.

Nov. 20, 2012.

James Wesley Volberding (argued), Tyler, TX, for Petitioner–Appellant.

Stephen M. Hoffman, Asst. Atty. Gen. (argued), Austin, TX, for Respondent–Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before JOLLY, DAVIS and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Petitioner Rickey Lynn Lewis filed a successive federal habeas petition, contending he is mentally retarded and ineligible for execution under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that execution of mentally retarded criminals is “cruel and unusual punishment” prohibited by Eighth Amendment). The district court denied relief, but granted a certificate of appealability (“COA”) on the issue of whether the state court's determination that Lewis did not establish by a preponderance of the evidence that he had significantly subaverage general intellectual functioning was unreasonable. We conclude that the state court's determination was not unreasonable, and we AFFIRM the judgment of the district court.

I

In 1993, a state court jury convicted Lewis of capital murder and sentenced him to death. State v. Lewis, No. 13160, 1993 WL 13634358 (217th Dist. Ct., Angelina County, Tex. June 24, 1993). Lewis appealed, and the Texas Court of Criminal Appeals (“TCCA”) upheld the conviction but remanded for resentencing. Lewis v. State, No. 71,887 (Tex.Crim.App. June 19, 1996) (unpublished). On remand, the trial court again sentenced Lewis to death, and the TCCA affirmed. Lewis v. State, No. 71,877 (Tex.Crim.App. June 23, 1999) (unpublished). Lewis did not petition for review by the United States Supreme Court.

In 2000, Lewis was denied state habeas relief. Ex parte Lewis, No. 44,725–01 (Tex.Crim.App. Apr. 19, 2000) (unpublished). Lewis was also denied federal habeas relief, and we affirmed the denial. Lewis v. Cockrell, 58 Fed.Appx. 596 (5th Cir.2003). The Supreme Court denied Lewis's petition for certiorari. Lewis v. Dretke, 540 U.S. 841, 124 S.Ct. 108, 157 L.Ed.2d 75 (2003).

In 2002, the Supreme Court held for the first time that execution of mentally retarded criminals is “cruel and unusual punishment” prohibited by the Eighth Amendment. Atkins, 536 U.S. at 321, 122 S.Ct. 2242. Lewis subsequently filed a successive state habeas application, citing Atkins and contending that he is mentally retarded. Texas law defines mental retardation as “(a) significantly subaverage general intellectual functioning (proven by showing an IQ below 70) and (b) deficits in adaptive behavior that (c) originated during the developmental period (before age 18).” Chester v. Thaler, 666 F.3d 340, 346 (5th Cir.2011) (citation omitted); accord Ex parte Briseno, 135 S.W.3d 1, 8 (Tex.Crim.App.2004); see also Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (“[W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” (quoting Ford v. Wainwright, 477 U.S. 399, 416–17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986))).

The TCCA stayed Lewis's scheduled execution and ordered the state trial court to conduct a hearing regarding Lewis's Atkins claim. Ex parte Lewis, No. 44725–02, 2003 WL 21751491 (Tex.Crim.App. July 24, 2003). The parties presented large amounts of documentary evidence as well as expert testimony on the issue of Lewis's alleged mental retardation. Central to this appeal are the testimonies of four experts, summarized as follows:

(1) Dr. Susana A. Rosin is a clinical psychologist with a Ph.D. and is licensed to administer cognitive tests to diagnose mental retardation. The State of Texas retained Dr. Rosin to evaluate Lewis, and she administered to him the Stanford–Binet Fifth–Edition (“SB 5”) test, accepted in the psychological community as an accurate method of ascertaining IQ. Dr. Rosin determined that Lewis has an IQ of 79. (2) Dr. Stephen Martin is a neuropsychologist in private practice with Health South Rehabilitation Hospital. He administered the Wechsler Adult Intelligence Scale III (WAIS III) to Lewis and determined that Lewis has an IQ of 59. (3) Dr. Richard Garnett is not a licensed psychologist but has a Ph.D. in psychology. He testified that Dr. Rosin's test results were scored incorrectly and, based on the same data used by Dr. Rosin, concluded that Dr. Rosin's score should have been 75. He also testified that Lewis has a “third grade” intellectual level and that he could not rule out a score of 79. (4) Dr. Edward Gripon is a licensed psychiatrist with a sub-specialty in forensic psychiatry. After evaluating Lewis and reviewing all of the documentation available to him, he testified that an IQ of 59 was not consistent with his evaluation and Lewis's intellectual potential was more consistent with an IQ of 70. The state court found Drs. Gripon and Rosin more credible than Drs. Martin and Garnett, and, considering all of the evidence in the record, concluded that Lewis had not proven by a preponderance of the evidence that he had significantly subaverage general intellectual functioning. See Ex parte Lewis, No. 01–91–32 (114th Dist. Ct., Smith County, Tex. Feb. 14, 2005) (Findings of Fact and Conclusions of Law) (hereinafter, “FFCL”). The TCCA agreed with the trial court and denied relief. Ex parte Lewis, No. 44725–02, 2003 WL 21751491 (Tex.Crim.App. Jun. 29, 2005).

After the state habeas trial court's decision, but before the TCCA's decision, we permitted Lewis to file a successive federal habeas application under 28 U.S.C. § 2254, conditioned on denial of relief by the TCCA. When the TCCA denied relief, the federal district court granted Lewis's motion to stay the execution, and Lewis filed the successive federal habeas petition at issue.

On habeas review, the district court refused to consider the affidavit of Dr. Gale Roid, who testified that Dr. Susana Rosin's IQ score of 79 was invalid. The district court reasoned that § 2254 prevented Lewis from presenting the affidavit for the first time on federal habeas review. The district court ultimately concluded that the state court's determination that “Lewis had failed to prove by a preponderance of the evidence that he had significantly subaverage general intellectual functioning” was not “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.” Lewis v. Quarterman, No. 5:05CV70, 2007 WL 1830748, at *3–4 (E.D.Tex. Jun. 22, 2007). Accordingly, it did not examine the other two elements of Lewis's mental retardation claim (deficits in adaptive behavior and onset before age 18).

On appeal, we vacated the district court's judgment and remanded for rehearing, concluding that the district court erred by excluding Dr. Roid's affidavit. Lewis v. Quarterman, 541 F.3d 280 (5th Cir.2008). We reasoned that where evidence introduced for the first time on federal review supplements, rather than fundamentally alters, the claims made in state court, we analyze such evidence under the “exhaustion” rubric of § 2254(b), rather than as an issue of “factual development” under § 2254(d). Id. at 284 (citing Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir.2000)). We reasoned that Dr. Roid's testimony was “not material additional evidence,” and that Lewis therefore had met the requirements of § 2254(b). Id. at 285.

On remand, the district court reconsidered Lewis's claims in light of all the evidence, including Dr. Roid's affidavit, and again denied relief. Lewis v. Thaler, No. 5:05CV70, 2010 WL 4119239 (E.D.Tex. Oct. 19, 2010). The district court granted a COA with respect to whether the State court's determination that Petitioner did not establish by a preponderance of the evidence that he had significantly subaverage general intellectual functioning was reasonable. Lewis's appeal of that decision is now before us.

II

“In a habeas corpus appeal, we review the district court's findings of fact for clear error and its conclusions of law de novo, applying the same standards to the state court's decision as did the district court.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.2004).

Section 2253(c) strictly limits our appellate jurisdiction to the issues on which the applicant has been granted COA. See 28 U.S.C. § 2253(c) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from [ ] the final order in a habeas corpus proceeding ....”); Carty v. Thaler, 583 F.3d 244, 266 (5th Cir.2009) (“Because neither we nor the district court granted Carty a COA on this issue, we lack jurisdiction to consider this claim.”). Accordingly, we ask only whether the State court's determination that Petitioner did not establish by a preponderance of the evidence that he had significantly subaverage general intellectual functioning was unreasonable.¹ In order to answer this question, we must first discuss the habeas statute generally and the Supreme Court's recent construction of it in Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).

III

Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), sets certain limits on a federal court's power to grant a state prisoner's application for a writ of habeas corpus. Section 2254(a) provides that a federal court may entertain an application for a writ of habeas corpus “only on the ground that [an applicant] is in custody in violation of the Constitution or laws or treaties of the United States.” § 2254(a). Sections 2254(b) and (c) prohibit a federal court from granting such an application unless, with certain exceptions, the applicant has exhausted state remedies. If these first hurdles have been cleared, § 2254(d)...