Lewis v. Quarterman

• Decision Date: 12 August 2008
• Docket Number: No. 07-70024.,07-70024.
• Citation: 541 F.3d 280
• Parties: Rickey Lynn LEWIS, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

541 F.3d 280

Rickey Lynn LEWIS, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 07-70024.

United States Court of Appeals, Fifth Circuit.

August 12, 2008.

John E. Wright (argued), Huntsville, TX, James W. Volberding, Tyler, TX, for Lewis.

Stephen M. Hoffman (argued), Austin, TX, for Quarterman.

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

Before BARKSDALE, GARZA and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Rickey Lynn Lewis appeals the denial, pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), of his successive-habeas claim, under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (execution of mentally-retarded defendant cruel and unusual punishment prohibited by Eighth Amendment). The issue for which the district court granted a certificate of appealability (COA) is whether, based on the evidence submitted in the state-court Atkins proceeding, and pursuant to our deferential review under AEDPA, the following decision by the Texas Court of Criminal Appeals (TCCA) was unreasonable: that Lewis failed to establish, by a preponderance of the evidence, that he had significantly subaverage general intellectual functioning. In April 2008, this panel denied Lewis' request to certify other issues for appeal. Lewis v. Quarterman, 272 Fed.Appx. 347 (5th Cir.2008) (unpublished).

Primarily at issue is the district court's refusal to consider an affidavit, first offered in that court, challenging the administration of an IQ test to Lewis. The affidavit was offered in reply to the State's response to Lewis' federal habeas application. VACATED and REMANDED.

I.

In September 1990, during the burglary of a residence, Lewis murdered one person and sexually assaulted that person's fiancée. A state-court jury convicted Lewis in April 1994 of capital murder; he was sentenced to death. Holding the trial court had not applied the recently revised special issues, the Texas Court of Criminal Appeals (TCCA) upheld the conviction but remanded for a new punishment-phase hearing. Lewis v. State, No. 71,887 (Tex. Crim.App. 19 Jun. 1996) (unpublished).

On remand, Lewis was again sentenced to death; the TCCA affirmed. Lewis v. State, No. 71,887 (Tex.Crim.App. 23 Jun. 1999) (unpublished). Lewis did not petition for review by the Supreme Court of the United States.

While his direct appeal was pending, Lewis requested state post-conviction relief. It was denied. Ex parte Lewis, No. 44,725-01 (Tex.Crim.App. 19 Apr. 2000) (unpublished).

Lewis then requested federal habeas relief, which was denied in 2002. Our court affirmed that denial. Lewis v. Cockrell, 58 Fed.Appx. 596 (5th Cir.2003) (unpublished). The Supreme Court denied review in October 2003. Lewis v. Dretke, 540 U.S. 841, 124 S.Ct. 108, 157 L.Ed.2d 75 (2003).

Following the 2002 Atkins decision, Lewis filed a successive-habeas application in state court, contending: he is mentally retarded; and thus, in the light of Atkins, he is ineligible for execution. The TCCA, in July 2003, stayed Lewis' scheduled execution and remanded the matter to a state-habeas trial court to consider the Atkins claim. Ex parte Lewis, No. 44,725-02, 2003 WL 21751491 (Tex.Crim.App. 24 Jul. 2003) (unpublished).

The state-habeas trial court conducted an evidentiary hearing in December 2004. In February 2005, it rendered proposed findings of fact and conclusions of law, and recommended denying relief. The TCCA agreed, based on the state-habeas trial court's findings and conclusions, and on the TCCA's independent review. Ex parte Lewis, No. 44,725-02 (Tex.Crim.App. 29 Jun. 2005) (unpublished).

Between the state-habeas trial court's February 2005 recommendation and the TCCA's denial of relief that June, and concerned about AEDPA's limitations period, our court permitted Lewis to file a successive federal habeas application for his Atkins claim, conditioned on the denial of relief by the TCCA. In re Lewis, No. 05-40484 (5th Cir. 15 Apr. 2005) (unpublished). Lewis filed that application in district court on 20 April 2005. Therefore, when the TCCA denied relief that June, which prompted Lewis' execution being set, the federal district court granted Lewis' unopposed motion to stay execution.

In April 2005, Lewis filed the successive-habeas application at issue. It did not mention Dr. Roid or an affidavit by him (discussed below and primarily at issue here). In February 2006, the State responded, advising there was no exhaustion issue and asking the district court, inter alia, to deny relief. In September 2006, Lewis filed his reply to the State's response. In it, Lewis supplemented his Atkins claim with the affidavit of Dr. Roid, which provides: Dr. Rosin committed nine procedural errors in administering an IQ test to Lewis; and the test Dr. Rosin administered was "invalid". On 8 December 2006, the State moved to strike that reply, asserting that Dr. Roid's affidavit is a "new, and unexhausted, exhibit[]".

The district court did not rule on the motion to strike. Instead, in June 2007, it ruled, under AEDPA, that the state-court decision was not unreasonable (that Lewis failed to establish he is mentally retarded); all relief was denied. Lewis v. Quarterman, No. 5:05-CV-70, 2007 WL 1830748 (E.D. Tex. 22 Jun. 2007) (unpublished). In a footnote, citing 28 U.S.C. § 2254(d)(2), the district court ruled it would not consider Dr. Roid's affidavit because it was not presented in the State court proceeding. That cited section provides that habeas relief "shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication ... 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". 28 U.S.C. § 2254(d)(2) (emphasis added).

That August, the district court granted a COA for whether, based upon the evidence submitted in the state-court proceeding, the following TCCA decision was unreasonable: Lewis failed to establish by a preponderance of the evidence that he had significantly subaverage general intellectual functioning.

Lewis requested a COA from this court on three more issues. Those requests were denied in April 2008. One of those issues was whether the district court should have considered the affidavit of Dr. Roid (new evidence offered in district court), challenging Dr. Rosin's administration of an IQ test. We ruled: the admissibility, vel non, of Dr. Roid's affidavit was an evidentiary issue that did not concern the denial of a constitutional right; and, as such, it was possible evidence to be considered when the merits were addressed for the issue on which the district court granted a COA. Lewis, 272 Fed.Appx. at 350-51.

II.

Pursuant to AEDPA, where a state court has rejected a habeas claim, a federal court may grant relief only where the state-court decision: (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "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". 28 U.S.C. § 2254(d). The state-habeas court's fact findings are presumed correct; Lewis can rebut the presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

We apply the same § 2254(d) standard of review to the state-court decision as did the district court. Along that line, we review the district court's findings of fact for clear error; its conclusions of law, de novo. E.g., Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir.2001).

In Atkins, 536 U.S. at 321, 122 S.Ct. 2242, the Supreme Court held that the execution of mentally-retarded defendants violates the Eighth Amendment. The Court acknowledged disagreement will often arise "in determining which offenders are in fact retarded" and, therefore, left to the States the task of defining mental retardation and "developing appropriate ways to enforce th[is] constitutional restriction". Id. at 317, 122 S.Ct. 2242.

Accordingly, the TCCA has held that petitioners must prove by a preponderance of the evidence that they are mentally retarded, as defined by the American Association of Mental Retardation (AAMR) and Texas Health and Safety Code § 591.003(13). Ex parte Briseno, 135 S.W.3d 1, 7-8, 12 (Tex.Crim.App.2004). The definition of mental retardation referenced in Atkins and Briseno has three elements: significantly subaverage general intellectual functioning, generally defined as an IQ of about 70 or below; accompanied by related limitations in adaptive functioning; and onset prior to the age of 18. Atkins, 536 U.S. at 308 n. 3, 318, 122 S.Ct. 2242; Briseno, 135 S.W.3d at 7.

The state-habeas trial court recommended that Lewis failed to prove he is mentally retarded. That court's proposed findings of fact and conclusions of law, adopted by the TCCA, stated that Lewis failed to prove each of the three elements required for finding mental retardation. With regard to the one element for which COA has been granted (significantly subaverage general intellectual functioning), the state-habeas trial court received evidence placing Lewis' IQ at 59, 70, 75, or 79. The state-habeas trial court sided with the State's experts' higher estimates on the basis that Drs. Rosin and Gripon were more credible, reliable, and unbiased than Drs. Martin and Garnett, Lewis' experts.

The score of 79, the highest of the four scores, was recorded by Dr. Rosin following administration of the Stanford-Binet V IQ test to Lewis on 25 October 2004, fairly close to the evidentiary hearing that December. The score of 75 resulted from Dr. Garnett's (one of Lewis' experts) rescoring the test administered to Lewis by Dr. Rosin. The...