MALDONADO v. THALER

• Decision Date: 29 October 2010
• Docket Number: No. 10-70003.,10-70003.
• Parties: Virgilio MALDONADO, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

625 F.3d 229

Virgilio MALDONADO, Petitioner-Appellant,

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

No. 10-70003.

United States Court of Appeals,Fifth Circuit.

Oct. 29, 2010.

COPYRIGHT MATERIAL OMITTED.

Layne E. Kruse (Court-Appointed), Darryl Wade Anderson (argued), Richard N. Carrell, Fulbright & Jaworski, L.L.P., Houston, TX, for Maldonado.

Matthew Dennis Ottoway, Asst. Atty. Gen. (argued), Postconviction Lit. Div., Austin, TX, for Thaler.

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, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and ordered supplemental briefing on that issue. 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, 122 S.Ct. 2242, 153 L.Ed.2d 335, 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 that he was mentally retarded and therefore ineligible for the death penalty. Ex parte Maldonado, No. 51,612-02, 2007 WL 2660292 (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, 2007 WL 2660292 (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, 122 S.Ct. 2242, 153 L.Ed.2d 335, 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, 122 S.Ct. 2242 (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 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, 122 S.Ct. 2242 (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.

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 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...