Wednesday, June 5, 2013
Media Advisory: Elroy Chester scheduled for execution

HOUSTON – Pursuant to a court order of the Criminal District Court of Jefferson County, Texas, Elroy Chester is scheduled for execution after 6 p.m. on June 12, 2013. Elroy Chester pled guilty to capital murder – the killing of Willie “Billy” Ryman III during the course of committing a burglary – and was sentenced to death following a jury trial on punishment.

FACTS OF THE CASE

The U.S. District Court for the Eastern District of Texas, taking largely from the Court of Criminal Appeals, described the events preceding Ryman’s murder, and the murder itself, as follows: On the night of February 6, 1998, Erin DeLeon, age seventeen at the time, was home alone with her one-year-old son Tony. Erin and Tony lived in the home of Erin’s mother, Kim Ryman DeLeon, along with Erin’s sisters Claire and Sasha. After putting Tony to bed, Erin spoke briefly on the phone with her boyfriend, and then began watching a movie in the living room.

Unbeknownst to Erin, [Chester] was outside the house, watching her. He had been walking through her neighborhood, searching for a place to burglarize. He had with him a pair of gloves, a knitted hat in which he had cut two holes to make a ski mask, and a gun which he had stolen in a previous burglary. He had scratched the serial numbers off of the gun. Upon reaching the Ryman home, he recognized it as one he had burglarized previously. He watched Erin through the open window blinds and, when it appeared that she was home alone, he went around the side of the house and cut the phone lines, which he later said was his normal practice when committing a burglary. He checked the side door to the house and found it unlocked. [He] put on his mask and gloves, and entered the house through the side door. That door opened into the kitchen, which he entered, and then came into the living room where Erin was.

[Chester] grabbed Erin by the hair, held the gun to her head, and demanded money or jewelry. Erin replied that she had a little jewelry, but no money, in the house. [Chester] then took her through the house, still holding her by the hair, searching her mother’s and sisters’ bedrooms to confirm that no one else was at home. He asked Erin where her mother was and if she was coming home. Erin said her mother would be home in the morning. He then asked Erin who she had been on the phone with earlier. Erin replied that she had spoken with her boyfriend. [Chester] then took Erin into her mother’s bedroom, from which he took some jewelry. He then did the same in her sisters’ and in Erin’s own bedroom. He took her to the dining room, and then had her turn off all remaining lights in the home. He then took her into the garage, still pulling her by the hair.

Once in the garage, Erin offered to turn on the lights but [Chester] refused. Instead, he began feeling around in the dark until he found a roll of duct tape. Erin later testified that she believed by the way he was feeling around that he knew exactly what he was looking for in the dark garage. As they re-entered the house, Erin’s sister Claire was arriving at the side door with her boyfriend Tim. They attempted to enter through the side door but [Chester] had made Erin lock it, so Claire knocked on the door. [Chester] pulled Erin by her hair toward the door and, while hiding behind her with his gun pointed at her head, ordered Erin to unlock the door and let her sister into the house. When Claire entered the house, [Chester] pushed Erin forward and yelled at Claire not to say anything. Claire began to babble incoherently and Erin tried to quiet her.

Tim, still unaware of what was happening, was still outside on the porch and asked Claire what was wrong. [Chester] ordered Claire to tell Tim that nothing was wrong and that he should leave. Claire complied, but Tim persisted, and [Chester] then told him directly to come into the house. Tim’s car was still running, so he asked [Chester] if he could turn it off first, and Chester said yes, but if Tim attempted to leave that he would kill both girls. Tim went to turn off his car ignition, and then entered the house. Once inside, [Chester], still holding Erin by her ponytail and with the gun pointed at her head, demanded jewelry or money from Claire and Tim. They said they had none—Tim showed [Chester] his empty wallet, and Claire went to her mother’s bedroom to confirm that there was no more jewelry in the house. When Claire returned, [Chester] asked Tim what kind of car he had, and specifically whether it was an automatic or a stick shift. Erin later testified that she presumed from those questions that [Chester] was thinking of using Tim’s car to escape. [Chester] then ordered Tim and Claire into the bathroom.

Alone with Erin in the dining room, [Chester] ordered her to remove her clothes. Erin began to do so. [Chester] used the duct tape to blindfold her. [Chester] then called for Tim to come out of the bathroom. He ordered Tim to strip, and Tim removed all of his clothes except for his underwear and socks. [Chester] then used the duct tape to blindfold Tim, and to bind his wrists and ankles. After that, [Chester] dragged Tim into Erin’s bedroom. [Chester] returned to the living room and ordered Claire to come out of the bathroom. He ordered Claire to remove her clothes, and she complied. He then blindfolded Claire with the duct tape, and seated her on the floor next to Erin. Erin then removed the tape over her eyes enough to see [Chester] unzipping his pants and removing his mask, but he came over to push the tape back down over her eyes.

[Chester] then raped Erin, on the floor, next to her sister. When he was done and had removed himself from on top of her, Erin tried to get up, but [Chester] pulled her over to where he was now sitting in a chair, and forced her to perform oral sex on him. [Chester] kept the gun next to Erin’s forehead and threatened to shoot her if she tried to bite him. After the oral sex, Erin moved to the floor area at one side of the room, and [Chester] ordered Claire to perform oral sex on him, which she did. He repeated the same threat that he would shoot her if she bit him.

At this point, a car approached the house. [Chester] heard the car, ran into the kitchen to dress himself, and went to stand by the side door to wait for the person approaching, who turned out to be Willie (“Billy”) Ryman, Kim Ryman’s brother and the girls’ uncle. Billy would often come to the house to check on the girls, when he knew their mother was at work. Billy opened the door and turned on the light. [Chester] yelled at him to come inside, and, upon entering, he shot him. Billy fell to the ground immediately, and [Chester] dragged his body into the kitchen, where Billy eventually died. [Chester] then ran out of the house. Claire got up and locked the side door, locking him out of the house.

Billy’s girlfriend Marcia Sharp had been waiting outside in Billy’s truck in the driveway while he went up to the house. Marcia heard the gunshot fired at Billy but thought perhaps it was a car backfiring. Moments later, she saw [Chester] run out of the house and then try to go back in, after realizing that he had been locked out by Claire. [Chester] then approached the truck on the passenger side, where Marcia was sitting. The door was unlocked but, just as he reached for the handle, Marcia locked it. [Chester] was now wearing his mask again. He pulled out his gun and shot once at the lock on the car door. He then noticed that the driver’s door was unlocked, so he ran around to the driver’s side of the truck, but Marcia quickly reached over and locked that door, too. [Chester] shot twice at the lock on the driver’s door, but it did not open. He then stepped back, looked at Marcia, and shot twice more at the driver’s door window. None of the gunshots hit Marcia. He then ran down the street, away from the house.

PROCEDURAL HISTORY

On Feb. 12, 1998, Chester was indicted in Jefferson County, Texas for the capital murder of Willie “Billy” Ryman.
Chester pled guilty to the capital murder of Ryman and on Aug. 24, 1998, a death sentence was imposed by the trial court.
On Jan. 26, 2000, Chester’s conviction and sentence were affirmed on direct appeal by the Court of Criminal Appeals.
Chester filed an initial state habeas application on Nov. 17, 1999, which the Texas Court of Criminal Appeals denied on May 31, 2000.
On May 22, 2001, Chester filed an initial federal habeas petition in the United States District Court for the Eastern District of Texas. That court granted relief on July 2, 2002.

The U.S. Court of Appeals for the Fifth Circuit reversed the grant of habeas relief and dismissed Chester’s initial federal habeas petition on Feb. 26, 2003.

Chester, on June 19, 2003, filed a second state habeas application, which was denied by the Court of Criminal Appeals on Feb. 28, 2007. The U.S. Supreme Court denied Chester’s petition for writ of certiorari from this decision on Oct. 9, 2007.

On March 1, 2007, Chester filed a second federal habeas petition that was amended on June 5, 2007, and which was denied by the U.S. District Court for the Eastern District of Texas on April 28, 2008.

On Dec. 30, 2011, the U.S. Court of Appeals for the Fifth Circuit affirmed the denial of Chester’s second federal habeas petition. The U.S. Supreme Court denied Chester’s petition for writ of certiorari from this decision on Oct. 29, 2012.

On Dec. 11, 2012, the Criminal District Court of Jefferson County, Texas, set Chester’s execution for April 24, 2013.

On April 15, 2013, the Criminal District Court of Jefferson County, Texas, withdrew Chester’s initial execution date and re-set it for June 12, 2013.

On June 4, 2013, Elroy Chester filed three motions in the United States Court of Appeals for the Fifth Circuit: (1) motion to recall mandate; (2) motion to recuse Judge Edith Jones; and (3) motion for stay of execution.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

Following his release from prison in March 1997, where Chester was serving time for burglary, Chester engaged in a nearly year-long crime spree leaving five people dead, five others shot, three girls 17 or younger sexually assaulted, and 25 homes burglarized.

On Aug. 9, 1997, Chester broke into the home of Desire Johnson and sexually assaulted her 10-year old daughter. One week later, Chester shot two individuals, including a 16-year-old boy, while attempting to burglarize their houses. The victims of these crimes lived.

On Sept. 20, 1997, Chester broke into the home of John Henry Sepeda, who was asleep in a room with his wife and grandson. As Chester was rummaging through the house, Sepeda awoke and Chester shot and killed him as he was getting up from his bed. About a month later, Chester shot and killed Etta Stallings, an 87-year-old woman living with her bedridden husband, during the burglary of her home. Chester took the pistol Stallings used in an attempt to defend herself and, that evening, shot two more women – who lived – and a dog.

On Nov. 20, 1997, Chester attempted to rob his former co-worker, Cheryl DeLeon, and shot and killed her during a struggle for her belongings. On Dec. 7, 1997, Chester shot Lorenzo Coronado in the head as he lay sleeping on the ground and then took his wallet. Coronado lived.

Chester also killed Albert Bolden, the common-law husband of his sister in late December 1997 in revenge. Bolden approached Chester to burglarize a home together and during the course of the burglary, Chester shot Bolden in the back of the head and left him in the residence. Chester’s crime spree culminated on Feb. 6, 1998, when Chester broke into Kim Ryman’s home, sexually assaulted her 17 and 14-year-old daughters, bound one of the daughters’ boyfriends, killed her brother, Billy Ryman, and tried to kill Billy Ryman’s girlfriend.

On top of these crimes, Chester testified at trial that he wanted to kill “white folks” and stated that, had he not been arrested, he would still be killing them. Chester also testified that his 10-year-old rape victim was lucky to be alive and expressed regret that he did not kill Erin and Claire DeLeon, and Erin’s one-year-old son. Additionally, Chester stated that he wanted to torture law enforcement officers involved in bringing him to trial and that, if given a death sentence, he would have his “homeboys” kill a law enforcement officer or, if given a life sentence, he would kill a correctional officer. Chester ended his testimony by saying that burglarizing homes was “a whole lot of fun.”.

Texas Execution Information Center by David Carson.

Elroy Chester, 43, was executed by lethal injection on 12 June 2013 in Huntsville, Texas for the murder of a man and rape of two girls during a burglary of their home.

On 6 February 1998, Chester, then 28, was walking through a Port Arthur neighborhood, searching for a house to burglarize. He had with him a pair of gloves, a knitted hat in which he had cut two eyeholes, wire cutters, and a gun he had stolen in a previous burglary. He had scratched the serial number off of the gun. That night, Erin DeLeon, 17, was at home alone with her one-year-old son, Tony. They lived with Erin's mother, Kim DeLeon, and Erin's sisters, Claire and Sasha. After Erin put Tony to bed, she spoke briefly on the phone with her boyfriend. She then began watching a movie in the living room.

When Chester reached the DeLeon home, he recognized it as one he had burglarized previously. He watched Erin through the open blinds. Seeing that she was alone, he went around the side of the house and cut the phone lines. He checked the side door and found it unlocked. He then put on his mask and gloves and entered the house. He walked through the kitchen into the living room. He then grabbed Erin by her ponytail, held the gun to her head, and demanded money or jewelry. Erin said they had a little jewelry, but no money. Still holding her by the hair, Chester led Erin around the house to confirm that no one else was home. He then took jewelry from Erin's room and from her mother and sisters' rooms. He had her turn off all of the lights in the house and had her lock the outside door by the kitchen. Chester then took Erin into the garage, still pulling her by her hair. He felt around the dark garage, looking for something. Erin offered to turn on the lights, but he refused. He felt around until he found a roll of duct tape. He then took her back inside the house.

As they were returning inside, Claire, 14, was arriving home with her boyfriend, Tim. They attempted to enter through the side door, which was now locked. Claire knocked on the door. Chester ordered Erin to unlock it and let her in. When Claire entered the house, Chester pushed Erin forward and yelled at Claire to not say anything, or he would "blow her [Erin's] head off." Claire began babbling, and Erin tried to quiet her. From outside, Tim heard Claire and asked her what was wrong. Chester ordered Claire to tell him nothing was wrong, and he should leave. Claire complied, but Tim persisted in staying. Chester then told Tim to come inside. Tim asked if he could turn off his car engine first. Chester said yes, but told him he would kill both girls if he attempted to leave. Tim turned off the engine and entered the house.

Still holding Erin by her ponytail, Chester demanded jewelry or money from Claire and Tim. They said they had none, and Tim showed him his empty wallet. Claire went to her mother's bedroom to confirm that there was no more jewelry in he house. When Claire returned, Chester asked Tim what kind of car he had, and whether it had an automatic or standard transmission. He then ordered Claire and Tim into the bathroom. Now alone with Erin in the dining room of the dark house, Chester told her to remove her clothing. She removed her outer clothing. Chester tried to remove Erin's bra, then had her do it. He removed her panties himself. He then made her kneel, wearing only her socks. He used the duct tape to blindfold her. Chester then called for Tim to come out of the bathroom. He made Tim remove all of this clothing except for his underwear and socks. He blindfolded Tim with the duct tape and also bound his wrists and ankles. He then dragged Tim into Erin's bedroom.

Next, Chester returned to the dining room and ordered Claire to come. She removed her clothes, as he ordered. He then blindfolded her with the duct tape and seated her on the floor next to Erin. Erin removed the tape over her eyes enough to see Chester unzipping his pants and removing his mask, but he pushed the tape back down over her eyes. Chester then raped Erin on the floor. Afterward, she got up and sat on a chair. Chester then made Erin, then Claire, perform oral sex on him. With each girl, he held the gun to her head and threatened to shoot her if she bit him.

At this point, Kim DeLeon's brother, Billy Ryman, drove up. Ryman frequently came over to the house to check on his nieces when their mother was at work. Chester dressed himself, ran into the kitchen, and waited by the door. Ryman opened the door and turned on the light. Chester yelled at him to come inside. When he did, Chester shot him. Ryman fell to the ground. Chester ran out of the house. Claire then got up and locked the door. Chester tried to come back inside, but he couldn't.

Ryman's girlfriend, Marcia Sharp, was waiting in Ryman's truck in the driveway. She heard a loud pop, but thought perhaps it was a car backfiring. Moments later, she saw Chester run out of the house and then try to go back in. Chester then ran toward the passenger side of the truck. Sharp locked it just as Chester reached for the handle. Wearing his mask again, he shot once at the lock on the car door. He then noticed that the driver's door was unlocked, so he ran around to that side of the truck. Sharp quickly reached over and locked that door, too. Chester shot twice at the lock on the driver's side, but it did not open. He then stepped back, looked at Sharp, and fired twice through the driver's window. She was not hit. Chester then ran down the street.

After his arrest, Chester told investigator Timothy Smith that he would take him to the gun used in the murder. Smith and four other investigators accompanied Chester to his father's house. Chester was wearing handcuffs and leg restraints, which were both chained to his waist. Smith told Chester that he would not be able to touch or handle the gun, but Chester insisted that it was well-hidden in a place only he could reach, and assured them it was not loaded. He kept attempting to move ahead of Smith and the others. When they reached his bedroom, Chester moved a nightstand underneath a hole in the ceiling and quickly attempted to climb the nightstand when he was told to stop. Investigator Rose then climbed the nightstand and reached in the direction Chester instructed him to, but was unable to locate the gun. Chester then climbed the nightstand and, while continuing to direct Rose to search in one direction, attempted to reach in the other direction with his shackled hands. Investigator Smith then drew his gun on Chester and ordered him to be still and get down. Smith then climbed the nightstand and retrieved the loaded gun from where Chester had tried to reach.

While in custody, Chester confessed to at four other murders over the preceding six months. Using wire cutters, a mask, a flashlight, and a gun, he entered the home of John Sepeda, 78, and his wife on 20 September 1997 while they slept. When Sepeda woke up and approached him, Chester shot and killed him. He robbed Sepeda's wife of her ring before he left. He similarly burglarized Etta Stallings' home on 15 November 1997 while she and her husband were sleeping, and shot and killed the 87-year-old woman after she woke up and attempted to draw a gun on him. Five days later, he waited in a storage shed for a former co-worker, Cheryl DeLeon, 40, to come home and shot her in the head during a struggle. He also murdered his brother-in-law, Albert Bolden, 35, on 21 December 1997 by staging a burglary of a home Chester knew to be vacant. When Bolden walked in the home in front of him, Chester shot him in the back of the head. He told police he killed Bolden for beating his sister and for setting him up on a date with someone who turned out to be a transvestite. Chester also confessed to four other non-fatal shootings and to anally raping a 10-year-old girl. According to the Texas Attorney General's office, he burglarized a total of 25 homes in the year preceding Ryman's murder.

In addition to Chester's confession and the witness testimonies, Chester was connected to Billy Ryman's murder through DNA evidence and ballistics testing. Chester pleaded guilty to Ryman's murder. Against the advice of his attorneys, Chester took the stand at his punishment hearing. He stated that he had "a whole lot of fun" burglarizing homes. He said he wanted to kill "white folks", that he wished he'd killed more victims and that the DeLeon girls were "lucky they ain't dead." He told jurors that if they sentenced him to death, he would order his "homeboys" to kill a Port Arthur police officer. If they gave him a life sentence, he would kill a guard in prison.

Chester was convicted of capital murder in August 1998, and the jury sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in January 2000. In 2002, the U.S. Supreme Court ruled that prisoners who are mentally retarded cannot be executed. A federal district court subsequently vacated Chester's death sentence on the grounds that he was retarded. The U.S. Fifth Circuit Court of Appeals reversed the district court's ruling in February 2004, however, reinstating the death sentence. All of his subsequent appeals in state and federal court were denied, including a last-day appeal to the U.S. Supreme Court alleging that U.S. Fifth Circuit Court of Appeals judge Edith Jones demonstrated bias against Chester in public remarks she made in February 2013.

On a web site set up for prisoners to request pen pals, Chester stated that he had turned his life over to Christ. He said he preferred to write to a woman from Switzerland or France, aged 38 to 44. Several dozen policemen and firefighters from Port Arthur traveled to Huntsville for Chester's execution as a gesture of support for Billy Ryman, who was a Port Arthur firefighter. Members of Ryman's family watched Chester's execution from a viewing room. "I just want to say I don't want you to have hate in your heart for me, because I took your loved one," Chester told them in his last statement. "I know it doesn't mean anything, I told the truth because I feel like you should know who killed your loved one. God watches everything, don't hate me. I'm sorry for taking your loved one."

After thanking his lawyer, Chester concluded his confession. "Elroy Chester wasn't a bad man, I knew me," he said. "A lot of people say I didn't commit those murders, I really did it. That's my statement, Warden, you can go ahead." The lethal injection was then started. He was pronounced dead at 7:04 p.m.

Houston Chronicle

"Appeals court upholds death sentence for Port Arthur killer." (December 30, 2011)

A divided federal appeals court panel upheld Friday the death sentence of a Port Arthur man convicted of killing a firefighter in 1998 after sexually assaulting the man's two nieces. Lawyers for 42-year-old Elroy Chester contended he was mentally impaired, making him ineligible for execution under U.S. Supreme Court guidelines for the 1998 shooting death of Willie Ryman III.

Two judges on a three-judge panel of the 5th U.S. Circuit Court of Appeals agreed that Chester was not mentally impaired. "The state's legal conclusions neither contradicted nor unreasonably applied federal law, nor were its factual conclusions unreasonable in light of the evidence presented in the state proceedings," according to the opinion issued Friday. A third judge said the majority ruling was contrary to federal law established by the Supreme Court.

During his trial, Chester admitted killing Ryman after raping the firefighter's two nieces. He also told police he had killed four other people, including his brother-in-law. He also was suspected in five other shootings and three other rapes. On the witness stand, Chester said that if he had known one of his rape victims was only 10, he would have raped her mother instead. He also said: "If I hadn't shot my brother-in-law, I'd still be out there shooting white folks."

It took a jury 11½ minutes to give him the death penalty.

Huntsville Item

"Texas executes man who confessed to killing five," by Cody Stark. (Wed Jun 12, 2013, 11:24 PM CDT)

HUNTSVILLE — A serial killer who terrorized a southeastern Texas city 15 years ago was executed Wednesday for the murder of a decorated firefighter. Elroy Chester, who confessed to four other slayings in the Port Arthur area during a six month crime spree, fatally shot Willie Ryman III in February 1998.

Wednesday night before the lethal injection was carried out, Chester told the victim’s family not to hate him. “I just want to say I don’t want you to have hate in your heart for me because I took your loved one,” Chester said. “I know it doesn’t mean anything. I told the truth because I feel like you should know who killed your loved one.” Chester said he “wasn’t a bad man” and apologized to Ryman’s family before confessing to the murders one more time. “For me live your life but don’t hate me,” he said. “I’m sorry for taking your loved ones. ... A lot of people say I didn’t commit those murders, (but) I really did.” Chester then told the warden he was ready for the execution to continue. He began breathing heavily and yawned before losing consciousness. He was pronounced dead at 7:04 p.m., 27 minutes after the lethal dose of pentobarbital was administered.

Chester, who is the seventh convicted killer to be put to death in Texas this year, had broken into the home of Ryman’s sister, Kim Chiasson, where her two teenage daughters were staying by themselves. He sexually assaulted the girls and Ryman surprised Chester when the 38-year-old firefighter stopped by to check on his nieces. Chester, who was on probation at the time, was arrested soon after and subsequently pleaded guilty to the murder.

DNA evidence tied him to the rapes. Ballistics tests matched his gun to the slayings of Ryman and four others; the gun was stolen in one of 25 burglaries in Port Arthur attributed to Chester. He also confessed to killing 78-year-old John Henry Sepeda and Etta Mae Stallings, 87, during burglaries. He told police he stalked Cheryl DeLeon, 40, then fatally beat her with his gun as she arrived home from work. And he admitted to shooting his 35-year-old brother-in-law, Albert Bolden Jr., in the head.

Chiasson wanted to thank everyone for their support throughout the entire ordeal, especially a group of firefighters and law enforcement officers who worked along side Ryman and were present Wednesday. She said that she “would not say” Chester’s execution “brings closure.” Instead she wanted to pass along a message to the family of Chester’s other victims. “Justice has been done,” she added. “His reign of terror is over.”

The execution was carried out after the U.S. Supreme Court rejected a last-ditch appeal from Chester’s attorneys that focused on the conduct of a judge on the 5th U.S. Circuit Court of Appeals who ruled earlier in Chester’s case. Judge Edith Jones was in a 2-1 majority two years ago that determined Chester was not mentally impaired and was therefore eligible for execution. Chester’s attorneys argued Jones subsequently displayed bias against Chester when she discussed his case during a February lecture on the death penalty at the University of Pennsylvania law school. Jones’ remarks in February were not recorded, but attorneys for Chester obtained affidavits from several people who attended and backed an account from a lawyer who described Jones’ “outrage and incredulity” that Chester and others would raise mental impairment claims in their appeals. Attorney Susan Orlansky said the comments “infected” Jones’ judgment and called her impartiality into question.

Chester’s attorneys requested a reprieve to give new judges on the case time to study it and the allegations against Jones. They did not contest his guilt. When a new 5th Circuit panel reviewing the arguments Wednesday said it perceived “no injustice, nor any incorrectness,” Chester’s lawyers took their case to the Supreme Court.

ProDeathPenalty.Com

On the evening of February 6, 1998, Chester broke into a home in Port Arthur while seventeen-year-old Erin D. was at home alone with her one-and-a-half year old son, Tony. Unbeknownst to Erin, Chester was outside the house, watching her. He had been walking through her neighborhood, searching for a place to burglarize. He had with him a pair of gloves, a knitted hat in which he had cut two holes to make a ski mask, and a gun which he had stolen in a previous burglary. He had scratched the serial numbers off of the gun.

Upon reaching the Ryman home, he recognized it as one he had burglarized previously. He watched Erin through the open window blinds and, when it appeared that she was home alone he went around the side of the house and cut the phone lines, which he later said was his normal practice when committing a burglary. He checked the side door to the house and found it unlocked. Chester put on his mask and gloves, and entered the house through the side door. That door opened into the kitchen, which he entered, and then came into the living room where Erin was. Chester grabbed Erin by the hair, held the gun to her head, and demanded money and jewelry. Erin replied that they had a little jewelry, but no money, in the house. He then took her through the house, still holding her by the hair, searching her mother's and sisters' bedrooms to confirm that no one else was at home.

He asked Erin where her mother was and if she was coming home. Erin said her mother would be home in the morning. He then asked Erin who she had been on the phone with earlier. Erin replied that she had spoken with her boyfriend. After that Chester took Erin into her mother's bedroom, from which he took some jewelry. He then did the same in her sisters' and in Erin's own bedroom. He took her to the dining room, and then had her turn off all remaining lights in the home. He then took her into the garage, still pulling her by her hair. Once in the garage, Erin offered to turn on the lights but Chester refused. Instead, he began feeling around in the dark until he found a roll of duct tape. Erin later testified that she believed by the way he was feeling around that the he knew exactly what he was looking for in the dark garage.

As they re-entered the house, Erin's sister Claire was arriving at the side door with her boyfriend Tim. They attempted to enter through the side door but Chester had made Erin lock it, so Claire knocked on the door. Chester pulled Erin by her hair toward the door and, while hiding behind her with his gun pointed at her head, ordered Erin to unlock the door and let her sister into the house. When Claire entered the house, he pushed Erin forward and yelled at Claire to not say anything or he would "blow her [Erin's] head off." Claire began to babble incoherently and Erin tried to quiet her. Tim, still unaware of what was happening, was outside on the porch and asked Claire what was wrong. Chester ordered Claire to tell Tim that nothing was wrong and that he should leave. Claire complied, but Tim persisted, and Chester told him directly to come into the house. Tim's car was still running, so he asked Chester if he could turn it off first, and Chester told him yes, but if Tim attempted to leave that he would kill both girls. Tim went to turn off his car ignition, and then entered the house.

Once inside, Chester was still holding Erin by her ponytail, and with the gun pointed at her head demanded jewelry or money from Claire and Tim. They said they had none. Tim showed Chester his empty wallet, and Claire went to her mother's bedroom to confirm that there was no more jewelry in the house. When Claire returned, Chester asked Tim what kind of car he had, and specifically whether it was an automatic or a stick shift. Erin later testified that she presumed from those questions that Chester was thinking of using Tim's car to escape. Chester then ordered Claire and Tim into the bathroom.

Alone with Erin in the dining room, the gunman ordered her to remove her clothes. Erin began to do so. Chester tried to remove her bra himself, and did remove her underwear himself. Erin was now kneeling and wearing only her socks, and Chester used the duct tape to blindfold her. He then called for Tim to come out of the bathroom. He ordered Tim to strip, and Tim removed all of his clothes except for his underwear and socks. The applicant then used the duct tape to blindfold Tim, and to bind his wrists and ankles. After that, Chester dragged Tim into Erin's bedroom. He returned to the dining room and ordered Claire to come out of the bathroom. He ordered Claire to remove her clothes, and she complied. He then blindfolded Claire with the duct tape, and seated her on the floor next to Erin. Erin then removed the tape over her eyes enough to see the applicant unzipping his pants and removing his mask, but Chester came over to push the tape back down over her eyes.

Then Chester raped Erin vaginally, on the floor, next to her sister. When he was done and had removed himself from on top of her, Erin tried to get up, but he pulled her over to where he was now sitting in a chair, and forced her to perform oral sodomy on him. Chester kept the gun next to Erin's forehead and threatened to shoot her if she tried to bite him. After the oral sex, Erin moved to the floor area at one side of the room, and Chester ordered Claire to perform oral sex on him, which she did. The applicant repeated the same threat that he would shoot her if she bit him. Then a car pulled up outside. Chester heard the car, ran into the kitchen to dress himself, then went to stand by the side door to wait for the person approaching, who turned out to be Willie ("Billy") Ryman, Kim Ryman's brother, the girls' uncle and a local firefighter.

Billy would often come to the house to check on the girls, when he knew their mother was at work. Billy opened the door and turned on the light. Chester yelled at him to come inside and, upon entering, he shot him. Billy fell to the ground immediately, and Chester dragged his body into the kitchen, where he eventually died. Chester then ran out of the house. Claire got up and locked the side door, locking him out of the house. Billy's girlfriend Marcia Sharp had been waiting outside in Billy's truck in the driveway while he went up to the house. Marcia heard the gunshot fired at Billy but thought perhaps it was a car backfiring. Moments later, she saw Chester run out of the house and then try to go back in, after realizing he had been locked out by Claire. Chester then approached the truck on the passenger side, where Marcia was sitting. The door was unlocked but, just as he reached for the handle, Marcia locked it. Chester was now wearing his mask again. He pulled out his gun and shot once at the lock on the car door. He then noticed that the driver's door was unlocked, so he ran around to the driver's side of the truck, but Marcia quickly reached over and locked that door, too. He shot twice at the lock on the driver's door, but it did not open. He then stepped back, looked at Marcia, and shot twice more at the driver's door window. None of the gunshots hit Marcia. Chester then ran down the street, away from the house.

The events at the Ryman-Deleon home were the culmination of a six-month spree of criminal activity by Chester, in which he burglarized at least five residences, sexually assaulted two people, murdered at least five people, and fired shots at no fewer than five others.

On August 3, 1997, six months before the murder of Willie Ryman, Chester burglarized the home of Kenneth Risinger. There, he obtained the .380 semi-automatic pistol he later used to shoot several victims. Six days later, Chester broke into the home of a ten-year-old girl while wearing a hockey mask. He forced the girl into a closet, tied her up with tape, and anally raped her.

On the night of August 16, 1997, Chester attempted to burglarize two homes and ended up shooting the residents. First, he awoke sixteen-year-old Oscar Morales by shouting through his bedroom window and demanding money. When Morales tried to leave the room, Chester shot him in the leg. Later that evening, Chester awakened Matthew Horvarich in a similar manner. When Horvatch got up and came to the window, Chester shot him in the shoulder.

Among the crimes that Elroy Chester eventually confessed to committing during this period were the following: The burglary and homicide of John Henry Sepeda. Like the Ryman murder case, he used wire cutters to cut the phone lines to John Sepeda's home before entering it, he wore a mask which he had brought with him, and he carried a gun. He also carried a flashlight. He entered the bedroom where John and his wife of 55 years, Lupe were sleeping, and began to burglarize the room while they slept. John woke up, and approached Chester, who shot and killed him. Before fleeing, he demanded that Lupe Sepeda give him a ring that she was wearing.

The murder of Albert Bolden, Chester's common-law brother-in-law: Chester gave two reasons to the police for his motive: Bolden had been beating his sister, and/or Bolden had set him up on a date with a woman who turned out to be a transvestite. Chester invited Bolden to commit a burglary with him, and brought him to a vacant home he knew of in Port Arthur. In fact, he had no intention of burglarizing the home and instead admitted that he just wanted to kill Bolden. After leading Bolden to the vacant home, Chester directed him to walk through the door first, and then shot him in the back of the head. He then fled the scene and hid the gun that he used.

The burglary and homicide of Etta Stallings: Again, Chester wore a ski mask, carried a gun and a flashlight, staked out the home beforehand to see who was there, and cut the phone lines outside before breaking into the home on November 15, 1997. As in the Sepeda case, he attempted to burglarize the home while Etta Stallings and her husband were asleep, but Etta woke up. She pulled a gun out of her dresser drawer, and he shot her to death. He then took the property he had stolen, as well as Stallings' gun, and stashed it all under a nearby vacant house.

•The murder of Cheryl DeLeon. Chester knew Cheryl DeLeon because they had worked together at a local Luby's restaurant for eleven months in 1992. He admitted he would often sexually harass her, and she would complain about it to their boss. Knowing that she still worked at Luby's, he likewise knew that she got off work at 8:00 in the evening. On November 20, 1997, after it had gotten dark outside, he went to Cheryl's home. As in the Ryman case, Chester was wearing a mask, carrying a gun, and wearing gloves. This time, he unscrewed the light bulb illuminating a storage shed near the back door of her house, so that he could lay in wait under cover of darkness. He lied down on the ground by the storage shed, and waited thirty to forty-five minutes in the dark until Cheryl DeLeon's car pulled into the driveway. As Cheryl got out of her car and walked to her back door, he ran up and grabbed her. They struggled, she screamed, and he hit her in the side of the head with the gun. According to Chester, the gun went off accidentally when he hit her with it, shooting her dead. He then fled to his father's home, where he hid the gun in the attic.

Even before Chester's arrest, Port Arthur police had recognized that the series of recent burglaries, assaults, rapes and murders in the Port Arthur area shared a similar modus operandi. For instance, at many of the burglarized homes, Chester would cut the telephone lines, unscrew outdoor security lights, and wear a mask to conceal his identity. The evidence later presented in trial suggested that Chester used the .380 pistol in the shooting deaths of Willie Ryman, John Sepeda, Cheryl DeLeon, Etta Stallings, and Albert Bolden. Shell casings found at the crime scenes and bullets removed from the victims bodies matched characteristics of the pistol found in Chester's home. Chester had also attempted to use some object to alter the physical characteristics of the barrel and had filed off the serial number.

The Port Arthur police arrested him. While in custody, and after being asked to provide a blood sample, Chester told investigator Timothy Smith that he would take him to where the gun that was used in the crime was located. Chester knew Smith and seemed to trust him more than he did the other officers. Smith, two other investigators from the District Attorney's office, and two local detectives then accompanied Chester to his father's house. He was wearing a jail jumpsuit, as well as leg restraints attached by a chain to another chain around his waist, which in turn connected to a pair of handcuffs, thereby shackling his wrists to his waist, such that his mobility was extremely limited. Upon reaching his father's house, Chester attempted to move ahead of the others. Smith had admonished him that he would not be allowed to handle or touch the gun himself, but Chester insisted that he would have to locate the gun personally because it was in a place that was difficult to reach. He assured the detective that the gun was unloaded, and that he himself was the only one who would be able to reach it.

Chester led the others to his bedroom and, despite efforts to prevent him from moving ahead too quickly, walked over near his bed and dragged a small nightstand to a position directly underneath a hole in the ceiling. He began to climb on top of the nightstand, but was quickly told to stop. One of the investigators, Reginald Rose, climbed on top of the nightstand to look in the hole, and Chester directed him to look in a specific direction for the gun. Rose looked and reached around inside the hole as directed by Chester, but could not find the gun. Chester then climbed atop the same nightstand where Rose was standing and, while continuing to direct Rose to look in the same direction he had previously indicated, attempted to reach with his shackled hands in the opposite direction from where he had told Rose to look. Smith had been watching him the entire time and, when he saw Chester reach with his hands in the other direction, drew his gun and ordered him to stop moving. He was taken down from the nightstand and escorted to sit on a nearby couch. Smith then climbed atop the nightstand himself and looked in the direction where the applicant had attempted to reach. He immediately saw the gun and retrieved it. The gun was fully loaded.

After being sentenced to death, the lawyers for Chester sought relief from the sentence on the ground that he was mentally retarded and it would be cruel and unusual punishment to put him to death. The court in which he was convicted found the evidence insufficient to support the claim. The trial court also found that Chester was capable of hiding facts and lying to protect his own interests, as demonstrated by the episode in which he told the investigators that he would take them to where he had hidden his gun, all the while apparently planning to get to the gun himself before the investigators could. Finally, the court found that the specifics of the various crimes to which he confessed, including the use of masks and gloves, his practice of cutting exterior phone lines before entering homes to burglarize, and his deliberate targeting of victims like Cheryl DeLeon and his brother-in-law Albert Bolden, showed persuasively that he was capable of forethought, planning, and complex execution of purpose.

Chester pleaded guilty to capital murder. Texas law requires that a jury decide punishment in a case in which death is a possible penalty. At the punishment phase, the facts of the offense were undisputed. After hearing evidence of the offense and other evidence relevant to the punishment issues, the jury returned findings that required the trial court to enter a sentence of death.

Prior to Chester's murderous rampage he had already qualified himself as a career criminal. He had been given a ten year sentence from Jefferson County for one count of Burglary of a Habitation and two counts of Burglary of a Building. He served a 13 year sentence concurrently with a 10 year sentence and was released on parole on February 13, 1990. However, he went back to prison on January 11, 1994 when he violated parole. He was released on Mandatory Supervision on March 21, 1997 beginning his rampage five months later.

UPDATE: Lina DeLeon Ihle says she cannot wait to watch Chester die. DeLeon was Chester's third victim. She was only 40-years-old when he killed her. The two had worked at Luby's Cafeteria in Port Arthur together. On November 20, 2007, seven days before Thanksgiving, Chester ambushed her in her driveway, tried to rob her and shot her through her neck. Ihle calls her sister's killer, "scum of the Earth" and "the Devil's spawn". The son of Chester's first victim, John Henry Sepeda, says his family has found closure, and had no comment about the impending execution.

UPDATE: Kim Chiasson, sister of Billy Ryman, along with Barry Ryman, his brother, made a statement while a more than a dozen firefighters and supporters lined the sidewalk nearby. “We thank you for the support. It’s been a long road. It was a surreal experience.” Kim said as other family members gathered behind her. Barry Ryman said that despite the execution, the family doesn’t have complete closure. “My brother is not here. Our mom passed away before she could see this,” Barry Ryman said. “This is for you momma, and Billy, it’s finished.” Barry Ryman said he wasn’t sure if Chester’s apology was sincere considering death was impending. He added that the Elroy Chester he saw was a different man then he had seen before.

Erin DeLeon and Claire Howard, nieces of Willie Ryman III, stood at the front of the observation room as Chester pitched his head to the right to deliver chilling final words. Chester said, "I want you to know not to hate me in your heart. I want you to live your life and don't hate me. I'm sorry for taking your love. Elroy Chester wasn't a bad man I don't care what anybody says. Warden, you can go ahead now." He went on to say four final words, "I'll see you later." Many of the assembled group of witnesses held hands and wept. Erin DeLeon stepped to the back of the room after Chester became motionless.

Ex parte Chester, Not Reported in S.W.3d, 2007 WL 602607 (Tex.Crim.App. 2007). (State Habeas)

Background: Applicant who pled guilty to capital murder filed second application for writ of habeas corpus relief, seeking relief from death sentence on the ground that he is mentally retarded and it would be cruel and unusual punishment to put him to death. The 252nd Judicial District Court, Jefferson County, denied the application, and applicant appealed.

Holdings: The Court of Criminal Appeals, Womack, J., held that: (1) applicant met his burden in regard to demonstrating significant limitations in intellectual functioning, but (2) evidence was sufficient to support finding that applicant did not show significant deficits in adaptive behavior. Affirmed. Price, J., dissented.

The applicant in this habeas corpus case is sentenced to death. Under Article 11.071 of the Code of Criminal Procedure, he seeks relief from the sentence on the ground that he is mentally retarded and it would be cruel and unusual punishment to put him to death.FN1 The court in which he was convicted has found the evidence insufficient to support the claim. Because the record supports that finding, we deny relief. FN1. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

Procedural History

The applicant pleaded guilty to capital murder. Our law requires that a jury decide punishment in a case in which death is a possible penalty.FN2 At the punishment phase, the facts of the offense (which we shall discuss below) were undisputed. After hearing evidence of the offense and other evidence relevant to the punishment issues, the jury returned findings that required the trial court to enter a sentence of death.FN3 On the appeal that followed, FN4 we affirmed the judgment and sentence.FN5 We denied habeas corpus relief on Chester's first petition.FN6

FN2. See Code Crim. Proc. art. 1.13. FN3. See id., art. 37.071, § 2(a)-(g). FN4. See id., § 2(h). FN5. Chester v. State, No. 73,193 (January 26, 2000) (not designated for publication). FN6. Ex parte Chester, WR-45,249-01 (May 31, 2000) (not designated for publication).

This second petition is permitted because the Supreme Court's decision applying the Cruel and Unusual Punishments Clause to a death sentence against a mentally retarded person FN7 had not been delivered when Chester filed his first petition. FN7. Atkins, supra note 1.

The convicting court held an evidentiary hearing on the petition. It received evidence that included expert testimony on the issue of mental retardation, the results of various Intelligence Quotient (IQ) tests, and evidence as to the applicant's adaptive behavior functioning. After considering the evidence presented, the trial court entered findings of fact and conclusions of law, ultimately ruling that the applicant had failed to meet his burden to prove his mental retardation by a preponderance of the evidence.

The Briseno Factors

The applicant now claims that the trial court used an improper standard in finding that he was not mentally retarded. In another case on a claim for habeas relief on such a ground, Ex parte Briseno,FN8 we decided that courts should use the definitions of mental retardation as stated by the American Association of Mental Retardation (AAMR), FN9 and in the Health and Safety Code,FN10 and we suggested a series of questions to help fact-finders determine whether applicants have “deficits in adaptive behavior.” FN11

FN8. 135 S.W.3d 1 (Tex.Cr.App.2004).

FN9. “Mental retardation is a disability characterized by significant limitations both in intellectual functioning and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. The disability originates before age 18. “Five assumptions essential to the application of the definition: “1. Limitations in present functioning must be considered within the context of community environments typical of the individual's age peers and culture. “2. Valid assessment considers cultural and linguistic diversity as well as differences in communication, sensory, motor, and behavioral factors. “3. Within an individual, limitations often coexist with strengths. “4. An important purpose of describing limitations is to develop a profile of needed supports. “5. With appropriate personalized supports over a sustained period, the life functioning of the person with mental retardation generally will improve.” American Association of Mental Retardation, Definition of Mental Retardation (2002).

FN10. 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.”) FN11. “1. 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? “2. Has the person formulated plans and carried them through or is his conduct impulsive? “3. Does his conduct show leadership or does it show that he is led around by others? “4. Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable? “5. Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject? “6. Can the person hide facts or lie effectively in his own or others' interests? “7. Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?” Briseno, supra note 8, at 8-9.

Essentially, this results in a three-part test to determine whether an applicant suffers from mental retardation such that Atkins relief is warranted. First, whether the applicant has significant limitations in intellectual functioning, which typically appears in the form of low IQ scores. Second, whether these limitations were accompanied by significant deficits in adaptive functioning, usually expressed by limited conceptual, social, and practical skills. Third, whether these limitations occurred and were recognized before the age of eighteen.

The applicant bears the burden to prove these factors by a preponderance of the evidence, in order to show that he or she is mentally retarded.FN12 As in all habeas corpus applications, the trial court makes findings of fact and conclusions of law concerning a claim of mental retardation. We will accord almost total deference to those factual findings, as long as they are supported by the record, and particularly when they are based on an evaluation of credibility and demeanor.FN13 If the trial court's ruling is not supported by the record, however, we may reject those findings.FN14

FN12. Id., at 12. FN13. Id., at 12-13. FN14. Id., at 13.

In the case at hand, there is no dispute as to the third part of the test, that the evidence in favor of a finding of mental retardation occurred and was recorded before the applicant reached the age of eighteen. The applicant's objections to the trial court's findings concern only the first and second factors. We shall address them in turn.

As to the first factor-the applicant's low IQ scores-there does seem to be a legitimate dispute with the findings entered by the fact-finding habeas court. In the “Findings of Fact” submitted by the trial court, the applicant's IQ test results were listed as follows:

Wechsler Intelligence Scale for Children (WISC-R) administered by the Port Arthur Independent School District (PAISD) in March 1977, when applicant was seven years old:
1. Verbal Score: 77
2. Performance Score: 69
3. Full Scale Score: 69

1. WISC-R administered by the PAISD in March 1982, when applicant was twelve years old:
1. Verbal Score: 64
2. Performance Score: 63
3. Full Scale Score: 69

WISC-R administered by the PAISD in February 1983, when applicant was thirteen years old:
1. Verbal Score: 70
2. Performance Score: 87
3. Full Scale Score: 77

Wechsler Adult Intelligence Scale (WAIS) administered by the Texas Department of Corrections in 1987, when the applicant was eighteen years old:
1. Verbal Score: 70
2. Performance Score: 69
3. Full Scale Score: 69

The trial court found a number of problems and concerns with the IQ evidence presented. First, the trial court noted that there was conflicting testimony regarding the validity of the applicant's IQ test scores, particularly regarding the large discrepancy between the results of the 1982 and 1983 tests. The trial court eventually concluded that this testimony rendered the 1982 and 1983 test results inconclusive as to the applicant's actual intellectual functioning at the time. The trial court also took issue with the fact that the first three tests were all WISC-R tests, which are no longer in use and have now been replaced by the WISC-III test, which has never been administered to the applicant. The court noted that the WISC-III test was designed to counter criticisms of cultural bias within the WISC-R test, and that using the WISC-R test would not adequately account for cultural, regional, or other types of factors that may have influenced the applicant's test results. Finally, the trial court noted that the Texas education system requires that, in order for a student to be classified as mentally retarded, his or her test results must be below 70 for both verbal and performance scores, not only the full scale score. Taking all of these concerns into account, the trial court concluded that the applicant had failed to persuade the court that his intellectual functioning supported a finding of mental retardation.

Our review of the record, however, shows that the applicant's test scores were misstated in the trial court's findings, specifically in two places. First, in the first test, the findings report the applicant's performance score as a 69, when in fact the record shows he scored a 65 (the full scale performance score was still correct). Secondly, in the second test, the findings show the applicant with a full scale score of 69, when the record shows he actually received a full scale score of 59 on his second test. Given that the trial court's findings on the applicant's test scores were in conflict with the record, we now reject the court's findings on this issue, and substitute the correct scores as noted here.

With the scores as corrected, the record shows the applicant had his intelligence tested four times in his first eighteen years of life. On three of those occasions, the applicant was assessed a full scale score below 70, including a score of 59 when he was twelve years old. The only time he was scored above a 70 was in 1983, when he scored a 77. There was testimony by the applicant's expert witness that, in his opinion, this score was invalid due to the fact that the test was administered only eleven months after the previous test, thus increasing the likelihood of “practice effects” in its administration.

Although there is no clear number which experts agree will in every case mark the border between what is or is not “significantly subaverage intellectual functioning” as stated in the AAMR's definition of mental retardation, a full scale score of 70 is generally regarded as the benchmark from which a diagnosis of at least mild mental retardation may be made.FN15 Regardless of his higher 1983 score, we find the applicant's evidence of subaverage intellectual functioning persuasive. The applicant's scores were otherwise consistent with a diagnosis of at least mild mental retardation. We note in particular the fact that the State's expert witness acknowledged on cross-examination that, despite his reluctance to classify the applicant as mentally retarded, a person with similar IQ scores (as well as the adaptive functioning score, discussed below) would properly be diagnosed as mildly mental retarded. The applicant has met his burden in regard to demonstrating significant limitations in intellectual functioning.

FN15. IQ scores alone are generally not relied upon to support a diagnosis of mental retardation, but the “mild” range of mental retardation generally implies an IQ level in the range of between 50-55 and approximately 70. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed.2000); Atkins, supra note, 1 at 309 n. 3.

Headnote Citing References That leaves us with the second factor-adaptive functioning-which, due to its inherently subjective nature, is consistently the most problematic issue for factfinders to resolve when dealing with these types of claims.FN16 In Briseno, we acknowledged this difficulty and offered seven evidentiary factors to assist factfinders in weighing evidence tending to support or refute a finding of adaptive behavior deficits when evaluating mental retardation claims.FN17 As we made clear, however, these factors were intended only to be guidelines for trial courts to work with until the Legislature was to reconvene and establish conclusively both the substantive laws and the procedures that would bring our codes into compliance with the mandate issued by Atkins. Yet to this day, no such guidance has been provided by the Legislature. Thus, the temporary suggestions we offered in Briseno remain today the only judicial standards governing this unique type of claim under Article 11.071.FN18

FN16. Briseno, supra note 8, at 8 (“The adaptive behavior criteria are exceedingly subjective, and undoubtedly expert will be found to offer opinions on both sides of the issue in most cases.”); see also Ex parte Rodriguez, 164 S.W.3d 400, 405 (Tex.Cr.App.2005) (reiterating same concern) (Cochran, J., concurring). FN17. Briseno, supra note 8, at 8-9. FN18. Code Crim. Proc. art. 11.071.

The applicant in his brief criticizes the Briseno factors as inadequate for the purpose of accurately evaluating the adaptive behavior deficits of any given applicant. He points specifically to the Vineland Adaptive Behavior Survey as a more reliable alternative. The applicant was administered the Vineland test in October 1987 upon entering the Mentally Retarded Offender Program (MROP) of the Texas Department of Criminal Justice, and he received a score of 57. As noted above, even the State's expert witness at the hearing acknowledged that a person with a Vineland score of 57, combined with an IQ of 69 as measured at the same time, would be correctly diagnosed as mildly mentally retarded.

Persuasive as that may be, we cannot substitute our own judgment for that of the factfinder, so long as the findings are supported by the trial record.

The Applicant Has Not Shown Significant Deficits in Adaptive Behavior

The trial court's findings addressed all seven evidentiary factors listed in Briseno, and noted carefully how the applicant had failed to persuade the trial court on each one. For example, in response to the first Briseno question (“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?”), the trial court found that the applicant had been classified during his school years as “learning disabled,” rather than as mentally retarded. Conflicting testimony was presented regarding the flexible and often confusing standards under which such classifications were made in the Port Arthur Independent School District. Nevertheless, the trial court considered and found more credible the testimony of Vicki Pitman, a diagnostician and witness for the State. Pitman testified that the applicant's school records labeling him as learning disabled were accurate, and that having a learning disability is not the same thing as being mentally retarded. The trial court likewise was unpersuaded by the applicant's witness Elizabeth Segler, who was the applicant's teacher and who said that, in her opinion, the applicant was moderately retarded. The trial court found Segler's testimony to be contradictory, in that she also testified that the applicant was “certainly” capable of learning if given proper teaching methods, which is also consistent with having a learning disability.

The trial court made similar findings in regards to the planned, rather than impulsive, nature of the applicant's conduct as shown by the facts of the case itself, as well as to the fact that in all of his crimes he acted independently of others instead of being led around. The court found no evidence in either the trial record or the hearing to establish that the applicant's conduct in response to external stimuli was irrational or inappropriate, regardless of its social acceptability.

As to whether the applicant responded coherently and rationally to oral or written questions, the trial court considered the testimony of both parties' experts regarding an evaluation of the applicant conducted by Dr. Ed Gripon, the State's expert. The court was more persuaded by Dr. Gripon's testimony that the applicant was able to converse with him coherently on a wide variety of topics, including current politics, the concept of parole violations, and many specific facts of the crimes to which the applicant had confessed. The trial court also noted the discrepancy in credentials between the two experts, particularly that, while Dr. Gripon had been practicing in the field of psychiatry for thirty-two years and had testified in Texas courts on issues of mental retardation numerous times, the applicant's expert had been licensed for six years, in which time he had held a total of seven jobs, none for longer than two years. The trial court found the State's expert's testimony to be more credible.

The trial court also found that the applicant was capable of hiding facts and lying to protect his own interests, as demonstrated by the episode in which he told the investigators that he would take them to where he had hidden his gun, all the while apparently planning to get to the gun himself before the investigators could. Finally, the court found that the specifics of the various crimes to which the applicant confessed, including the use of masks and gloves, his practice of cutting exterior phone lines before entering homes to burglarize, and his deliberate targeting of victims like Cheryl DeLeon and his brother-in-law Albert Bolden, showed persuasively that the applicant was capable of forethought, planning, and complex execution of purpose. The Facts On the night of February 6, 1998, Erin DeLeon, age seventeen at the time, was home alone with her one-year-old son Tony. Erin and Tony lived in the home of Erin's mother, Kim Ryman DeLeon, along with Erin's sisters Claire and Sasha. After putting Tony to bed, Erin spoke briefly on the phone with her boyfriend, and then began watching a movie in the living room.

Unbeknownst to Erin, the applicant was outside the house, watching her. He had been walking through her neighborhood, searching for a place to burglarize. He had with him a pair of gloves, a knitted hat in which he had cut two holes to make a ski mask, and a gun which he had stolen in a previous burglary. He had scratched the serial numbers off of the gun. Upon reaching the Ryman home, he recognized it as one he had burglarized previously. He watched Erin through the open window blinds and, when it appeared that she was home alone, he went around the side of the house and cut the phone lines, which he later said was his normal practice when committing a burglary. He checked the side door to the house and found it unlocked. The applicant put on his mask and gloves, and entered the house through the side door. That door opened into the kitchen, which he entered, and then came into the living room where Erin was.

The applicant grabbed Erin by the hair, held the gun to her head, and demanded money or jewelry. Erin replied that they had a little jewelry, but no money, in the house. The applicant then took her through the house, still holding her by the hair, searching her mother's and sisters' bedrooms to confirm that no one else was at home. He asked Erin where her mother was and if she was coming home. Erin said her mother would be home in the morning. He then asked Erin who she had been on the phone with earlier. Erin replied that she had spoken with her boyfriend. The applicant then took Erin into her mother's bedroom, from which he took some jewelry. He then did the same in her sisters' and in Erin's own bedroom. He took her to the dining room, and then had her turn off all remaining lights in the home. He then took her into the garage, still pulling her by her hair. Once in the garage, Erin offered to turn on the lights but the applicant refused. Instead, he began feeling around in the dark until he found a roll of duct tape. Erin later testified that she believed by the way he was feeling around that the applicant knew exactly what he was looking for in the dark garage.

As they re-entered the house, Erin's sister Claire was arriving at the side door with her boyfriend Tim. They attempted to enter through the side door but the applicant had made Erin lock it, so Claire knocked on the door. The applicant pulled Erin by her hair toward the door and, while hiding behind her with his gun pointed at her head, ordered Erin to unlock the door and let her sister into the house. When Claire entered the house, the applicant pushed Erin forward and yelled at Claire to not say anything or he would “blow her [Erin's] head off.” Claire began to babble incoherently and Erin tried to quiet her. Tim, still unaware of what was happening, was still outside on the porch and asked Claire what was wrong. The applicant ordered Claire to tell Tim that nothing was wrong and that he should leave. Claire complied, but Tim persisted, and the applicant then told him directly to come into the house. Tim's car was still running, so he asked the applicant if he could turn it off first, and the applicant said yes, but if Tim attempted to leave that he would kill both girls. Tim went to turn off his car ignition, and then entered the house.

Once inside, the applicant, still holding Erin by her ponytail and with the gun pointed at her head, demanded jewelry or money from Claire and Tim. They said they had none-Tim showed the applicant his empty wallet, and Claire went to her mother's bedroom to confirm that there was no more jewelry in the house. When Claire returned, the applicant asked Tim what kind of car he had, and specifically whether it was an automatic or a stick shift. Erin later testified that she presumed from those questions that the applicant was thinking of using Tim's car to escape. The applicant then ordered Claire and Tim into the bathroom. Alone with Erin in the dining room, the applicant ordered her to remove her clothes. Erin began to do so. The applicant tried to remove her bra himself, and did remove her underwear himself. Erin was now kneeling and wearing only her socks, and the applicant used the duct tape to blindfold her. The applicant then called for Tim to come out of the bathroom. The applicant ordered Tim to strip, and Tim removed all of his clothes except for his underwear and socks. The applicant then used the duct tape to blindfold Tim, and to bind his wrists and ankles. After that, the applicant dragged Tim into Erin's bedroom. The applicant returned to the dining room and ordered Claire to come out of the bathroom. He ordered Claire to remove her clothes, and she complied. The applicant then blindfolded Claire with the duct tape, and seated her on the floor next to Erin. Erin then removed the tape over her eyes enough to see the applicant unzipping his pants and removing his mask, but the applicant came over to push the tape back down over her eyes. The applicant then raped Erin vaginally, on the floor, next to her sister. When he was done and had removed himself from on top of her, Erin tried to get up, but the applicant pulled her over to where he was now sitting in a chair, and forced her to perform oral sex on him. The applicant kept the gun next to Erin's forehead and threatened to shoot her if she tried to bite him. After the oral sex, Erin moved to the floor area at one side of the room, and the applicant ordered Claire to perform oral sex on him, which she did. The applicant repeated the same threat that he would shoot her if she bit him.

At this point, a car approached the house. The applicant heard the car, ran into the kitchen to dress himself, and then went to stand by the side door to wait for the person approaching, who turned out to be Willie (“Billy”) Ryman, Kim Ryman's brother and the girls' uncle. Billy would often come to the house to check on the girls, when he knew their mother was at work. Billy opened the door and turned on the light. The applicant yelled at him to come inside and, upon entering, the applicant shot him. Billy fell to the ground immediately, and the applicant dragged his body into the kitchen, where Billy eventually died. The applicant then ran out of the house. Claire got up and locked the side door, locking the applicant out of the house.

Billy's girlfriend Marcia Sharp had been waiting outside in Billy's truck in the driveway while he went up to the house. Marcia heard the gunshot fired at Billy but thought perhaps it was a car backfiring. Moments later, she saw the applicant run out of the house and then try to go back in, after realizing he had been locked out by Claire. The applicant then approached the truck on the passenger side, where Marcia was sitting. The door was unlocked but, just as the applicant reached for the handle, Marcia locked it. The applicant was now wearing his mask again. The applicant pulled out his gun and shot once at the lock on the car door. He then noticed that the driver's door was unlocked, so he ran around to the driver's side of the truck, but Marcia quickly reached over and locked that door, too. The applicant shot twice at the lock on the driver's door, but it did not open. He then stepped back, looked at Marcia, and shot twice more at the driver's door window. None of the gunshots hit Marcia. The applicant then ran down the street, away from the house. The events at the Ryman Deleon home were the culmination of a six-month spree of criminal activity by the applicant, in which he burglarized at least five residences, sexually assaulted two people, murdered at least five people, and fired shots at no fewer than five others. Among the crimes that the applicant eventually confessed to committing during this period were the following:

• •The burglary and homicide of John Henry Sepeda. Like the case at hand, the applicant used wire cutters to cut the phone lines to Sepeda's home before entering it, he wore a mask which he had brought with him, and he carried a gun. He also carried a flashlight. The applicant entered the bedroom where Sepeda and his wife were sleeping, and began to burglarize the room while they slept. Sepeda woke up, and approached the applicant, who shot and killed him. Before fleeing, he demanded that Sepeda's wife give him a ring that she was wearing.

• •The murder of Albert Bolden, the applicant's common-law brother-in-law. He gave two reasons to the police for his motive: Bolden had been beating his sister, and/or Bolden had set him up on a date with a woman who turned out to be a transvestite. The applicant invited Bolden to commit a burglary with him, and brought him to a vacant home he knew of in Port Arthur. In fact, the applicant had no intention of burglarizing the home and instead admitted that he just wanted to kill Bolden. After leading Bolden to the vacant home, the applicant directed him to walk through the door first, and then shot him in the back of the head. The applicant then fled the scene and hid the gun that he used.

• •The burglary and homicide of Etta Stallings. Again, the applicant wore a ski mask, carried a gun and a flashlight, staked out the home beforehand to see who was there, and cut the phone lines outside before breaking into the home. As in the Sepeda case, he attempted to burglarize the home while Stallings and her husband were asleep, but Stallings woke up. She pulled a gun out of her dresser drawer, and the applicant shot her, killing her. The applicant then took the property he had stolen, as well as Stallings' gun, and stashed it all under a nearby vacant house.

• •The murder of Cheryl DeLeon. The applicant knew DeLeon because they had worked together at a local Luby's restaurant for eleven months in or around 1992. He admitted he would often sexually harass her, and she would complain about it to their boss. Knowing that she still worked at Luby's, the applicant likewise knew that she got off work at 8:00 in the evening. After it had gotten dark outside, the applicant went to DeLeon's home. As in the case at hand, he was wearing a mask, carrying a gun, and wearing gloves. This time, he unscrewed the lightbulb illuminating a storage shed near the back door of her house, so that he could lay in wait under cover of darkness. He laid down on the ground by the storage shed, and waited thirty to forty-five minutes in the dark until DeLeon's car pulled into the driveway. As DeLeon got out of her car and walked to her back door, the applicant ran up and grabbed her. They struggled, she screamed, and he hit her in the side of the head with the gun. According to the applicant, the gun went off accidentally when he hit her with it, shooting her dead. The applicant then fled to his father's home, where he hid the gun in the attic.

The Port Arthur police arrested him. While in custody, and after being asked to provide a blood sample, the applicant told investigator Timothy Smith that he would take him to where the gun that was used in the crime was located. The applicant knew Smith and seemed to trust him more than he did the other officers. Smith, two other investigators from the District Attorney's office, and two local detectives then accompanied the applicant to his father's house. The applicant was wearing a jail jumpsuit, as well as leg restraints attached by a chain to another chain around his waist, which in turn connected to a pair of handcuffs, thereby shackling his wrists to his waist, such that his mobility was extremely limited.

Upon reaching his father's house, the applicant attempted to move ahead of the others. Smith had admonished the applicant that he would not be allowed to handle or touch the gun himself, but the applicant insisted that he would have to locate the gun personally because it was in a place that was difficult to reach. The applicant assured Smith that the gun was unloaded, and that he himself was the only one who would be able to reach it.

The applicant led the others to his bedroom and, despite efforts to prevent him from moving ahead too quickly, walked over near his bed and dragged a small nightstand to a position directly underneath a hole in the ceiling. The applicant began to climb on top of the nightstand, but was quickly told to stop. One of the investigators, Rose, then climbed on top of the nightstand to look in the hole, and the applicant directed him to look in a specific direction for the gun. Rose looked and reached around inside the hole as directed by the applicant, but could not find the gun. The applicant then climbed atop the same nightstand where Rose was standing and, while continuing to direct Rose to look in the same direction he had previously indicated, attempted to reach with his shackled hands in the opposite direction from where he had told Rose to look.

Smith had been watching the applicant the entire time and, when he saw the applicant reach with his hands in the other direction, drew his gun and ordered the applicant to stop moving. The applicant was taken down from the nightstand and escorted to sit on a nearby couch. Smith then climbed atop the nightstand himself and looked in the direction where the applicant had attempted to reach. He immediately saw the gun and retrieved it. The gun was fully loaded.

Conclusion

The trial court did not err in concluding that the applicant failed to meet his burden of proving he was mentally retarded. The application for habeas corpus relief is denied.

Chester v. Thaler, 666 F.3d 340 (5th Cir. 2011). (Federal Habeas)

Background: Following affirmance of his Texas conviction for capital murder, and his death sentence, and denial of his state application for habeas relief, 2007 WL 602607, inmate petitioned for writ of habeas corpus. The United States District Court for the Eastern District of Texas, David Folsom, Chief Judge, 2008 WL 1924245, denied relief, and petitioner appealed.

Holdings: The Court of Appeals, Edith H. Jones, Chief Judge, held that: (1) Texas court's use of the factors set forth in Ex parte Briseno, when determining that petitioner was not mentally retarded, was not an unreasonable application of, nor contrary to, clearly established federal law, and (2) state court's determination was not result of an unreasonable determination of the facts. Affirmed. Dennis, Circuit Judge, filed dissenting opinion.

EDITH H. JONES, Chief Judge:

Petitioner Elroy Chester (“Petitioner”) confessed and pled guilty to capital murder and was sentenced to death by a Texas jury. His conviction and sentence were affirmed on direct appeal. He sought post-conviction relief from the Texas courts, alleging that he is mentally retarded, and his execution will therefore be unconstitutional. The Texas trial court and Court of Criminal Appeals determined that Chester was not mentally retarded. Petitioner then applied for a writ of habeas corpus via 28 U.S.C. § 2254. The federal district court denied relief, and he now appeals. The state's legal conclusions neither contradicted nor unreasonably applied federal law, nor were its factual conclusions unreasonable in light of the evidence presented in the state proceedings. See 28 U.S.C. § 2254(d)(1)–(2); Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir.2002). We therefore AFFIRM.

BACKGROUND

In 1997 and 1998, Petitioner embarked on a criminal spree too long and too gruesome to recount here in its full detail. He perpetrated at least five burglaries and five non-lethal assaults; worse, he left in his wake the victims, ranging from ten to eighty-seven years old, of at least five murders and three rapes. Petitioner's career as a serial murderer and rapist culminated in the events of February 6, 1998, when his final victim, Willie Ryman III, discovered Petitioner raping his nieces, and Petitioner shot and killed Ryman.

On that evening, Erin DeLeon was at home alone with her small child. After cutting the telephone wires and tampering with the security light between the garage and house, Petitioner entered the house through the unlocked kitchen door, wearing a ski-mask and gloves. With a gun to the back of Erin's head and her ponytail in his hand, he led her from room to room to retrieve valuables. He then brought her to the living room and ordered her to turn off the lights and draw the blinds. When Claire DeLeon, Erin's sister, returned to the home with her boyfriend Tim, Petitioner demanded their money and jewelry, then ordered them into the bathroom. Alone again with Erin, he forced her to undress, then blindfolded her with duct tape. He then ordered Tim to return, forced him to strip as well, and restrained him with duct tape. Finally he ordered Claire to enter and strip and blindfolded her with duct tape. He raped Erin and forced other sex acts, holding a gun against her head and threatening to “blow her head off” if she resisted. He repeated this threat when he forced Claire to perform sex acts.

Willie Ryman III, the DeLeon sisters' uncle, arrived at this scene with his girlfriend Marcia Sharp, who stayed in the car while Ryman approached the house. Petitioner went to the back door and murdered Ryman with a single shot. He then approached the car, where he began shooting at its locked doors. He fired two more shots into the car before fleeing the scene.

Chester was quickly implicated and captured. He confessed to Ryman's murder and led police to the murder weapon. Although he lied to the police about where it was hidden, and about the fact that it was loaded, apparently trying to mount a violent escape, he did not succeed. He also confessed to a host of other horrific crimes. After pleading guilty to capital murder, he was sentenced to death by a Texas jury. His conviction and sentence were affirmed on direct appeal. Chester sought post-conviction relief at the state and federal levels on the grounds that he could not be executed because he is mentally retarded. Relying on the United States Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the execution of the mentally retarded violates the Eighth Amendment), and on the factors set forth in Ex Parte Briseno, 135 S.W.3d 1, 5 (Tex.Crim.App.2004) (implementing Atkins ), the use of which our court has repeatedly blessed, the Texas trial court and Texas Court of Criminal Appeals (“TCCA”) determined that Chester was not mentally retarded. Ex parte Chester, 2007 WL 602607 (Tex.Cr.App.2007) (unpublished) (“ Chester I”).

The TCCA's detailed and thorough opinion concluded that Chester met two of the three necessary requirements for a finding of mental retardation—significant limitations in intellectual functioning and deficiencies that appeared early in life—but that he did not show “significant deficits in adaptive behavior.” Id. at *3–*4. It cited Briseno for the proposition “that courts should use the definitions of mental retardation as stated by the American Association of Mental Retardation” and for a suggested series of questions which would assist in determining the existence of deficits in adaptive behavior. Id. at *1. It acknowledged that these suggested questions were “intended only to be guidelines for the trial courts” to help them make the mental retardation determination required by Atkins “until the Legislature was to ... establish conclusively both the substantive laws and the procedures that would bring our codes into compliance with the mandate issued by Atkins.” Id. at *3. The legislature had not intervened, however, and so the Briseno factors remained the only legal guidance for lower Texas courts in applying the AAMR definition and determining the presence or absence of “significant deficits in adaptive behavior.” Id.

The TCCA concluded that the trial court's finding that Petitioner failed to demonstrate significant deficits in adaptive behavior was supported by the evidence. The trial court had heard Petitioner's evidence regarding his 1987 “Vineland test,” on which he achieved a Vineland Adaptive Behavioral Scales score (“VABS”) which would typically indicate mild mental retardation. It also, however, heard evidence regarding Chester's classification during his school years as “learning disabled” (rather than retarded), and found more credible the testimony of a diagnostician who testified that Petitioner's school records were accurate and that a “learning disability” designation does not imply mental retardation. It also noted the planned nature of Petitioner's crimes, both the capital crime and other crimes, in which Petitioner took a great many steps to avoid detection. It noted that he acted independently rather than as an accomplice. The trial court considered conflicting testimony regarding Petitioner's ability to converse coherently, and found more credible the testimony of the expert who testified that Petitioner could converse coherently on a wide range of topics. It found that Petitioner could lie and hide facts to protect himself, as evidenced by his scheme to mislead investigators in order to obtain his loaded gun while in custody. The TCCA therefore affirmed the trial court's factual finding that Petitioner failed to demonstrate significant deficits in adaptive behavior by a preponderance of the evidence. Id. at *9.

Petitioner then applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, now alleging (as he must) not only his own mental retardation and the resulting unconstitutionality of his sentence, but that the TCCA's determination was contrary to and an unreasonable application of the holding of Atkins, and that the TCCA's decision was based on an unreasonable finding of fact in light of the record before it. The federal district court denied relief, and he appealed.

DISCUSSION
I. AEDPA Review

28 U.S.C. § 2254(d) bars relitigation of any claim “adjudicated on the merits” in state court, subject only to exceptions in Section 2254(d)(1) and (d)(2). Harrington v. Richter, –––U.S. ––––, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Section 2254(d)(1) contains two overlapping but distinct exceptions: an “unreasonable application” prong and a “contrary to” prong. See Terry Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). Federal courts may not grant habeas relief pursuant to § 2254(d)(1) “unless the adjudication of the claim ... 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.” 28 U.S.C. § 2254(d)(1). In this context, “clearly established federal law ‘refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.’ ” Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir.2001) (quoting Terry Williams, 529 U.S. at 412, 120 S.Ct. at 1523).

Section 2254(d)(2) excepts from the general bar on relief those cases in which the adjudication of the claim “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). A reviewing federal court presumes that the state court's factual findings are sound unless the petitioner rebuts the “presumption of correctness by clear and convincing evidence.” Miller–El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005); Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir.2010). This standard is demanding but not insatiable; deference does not by definition preclude relief. Miller–El, 545 U.S. at 240, 125 S.Ct. at 2325.

As the Supreme Court has recently reminded, “If [§ 2254(d)'s] standard is difficult to meet, that is because it was meant to be.... It preserves authority to issue the writ where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedent. It goes no farther.” Harrington, 131 S.Ct. at 786 (emphasis added) (internal quotation marks and citation omitted). Petitioner claims that he is entitled to relief under both 28 U.S.C. § 2254(d)(1) and 28 U.S.C. § 2254(d)(2); he asserts that the state court's adjudication resulted in a decision contrary to and involving an unreasonable application of clearly established federal law and was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding. We address these claims in turn.

II. Section 2254(d)(1) Claims

A state court's judgment falls within the “unreasonable application” exception of § 2254(d)(1) if the state court correctly identifies the governing legal principle from the Supreme Court's decisions, but unreasonably applies it to the facts of the particular case, Busby, 359 F.3d at 713, or where it “ ‘extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.’ ” LaCaze v. Warden of La. Corr. Inst. for Women, 645 F.3d 728, 734 (5th Cir.2011) (quoting Terry Williams, 529 U.S. at 407, 413, 120 S.Ct. at 1520, 1523). A federal court cannot reverse the denial of habeas relief simply by concluding that the state court decision applied clearly established federal law erroneously; rather, the court must conclude that such application was also unreasonable. See Horn, 508 F.3d at 313. In fact, “a condition for obtaining habeas corpus from a federal court” is a showing “that the state court's ruling on the claim being presented ... was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 131 S.Ct. at 786–87 (emphasis added).

The first step in determining whether a state court unreasonably applied clearly established federal law is to identify the Supreme Court holding that the state court supposedly unreasonably applied. See Valdez, 274 F.3d at 946 (citation omitted). In the instant case the relevant holding is that of Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the Supreme Court held that “death is not a suitable punishment for a mentally retarded criminal.” Id. at 321, 122 S.Ct. at 2252. It based this holding on its conclusion that the Eighth Amendment's meaning is to be drawn “from the evolving standards of decency that mark the progress of a maturing society.” Id. at 311–12, 122 S.Ct. at 2247. To determine what “evolving standards of decency” would dictate in this context, the Court turned to a consideration of “the judgment of legislatures that have addressed the suitability of imposing the death penalty on the mentally retarded[.]” Id. at 313, 122 S.Ct. at 2247. After considering these judgments, the Court stated that “a national consensus” had developed against the imposition of the death penalty on the mentally retarded. Id. at 316, 122 S.Ct. at 2249.

While it found that there was a national consensus opposing the execution of the mentally retarded, the Court acknowledged that there existed disagreement “in determining which offenders are in fact retarded.” Id. at 317, 122 S.Ct. at 2250. In addition, it observed that “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Id. Rather than formulating a rule for what subset of those who claimed to be mentally retarded would be ineligible for the death penalty, the Court left to the states “ ‘the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ ” Id. (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416–17, 106 S.Ct. 2595, 2605, 91 L.Ed.2d 335 (1986)); see, e.g., Hill v. Humphrey, 662 F.3d 1335, 1342, 1360–61 (11th Cir.2011) (en banc) (stating that the United States Supreme Court “did not provide definitive procedural or substantive guides for determining when a person” is mentally retarded and holding that the Georgia Supreme Court did not violate any “clearly established” federal law by upholding Georgia's reasonable doubt standard for establishing mental retardation).

Petitioner argues that Atkins requires state courts to apply the clinical definitions of mental retardation promulgated by the American Association on Mental Retardation (“AAMR”) and American Psychological Association (“APA”) in evaluating murderers like Petitioner for possible mental retardation. Petitioner relies in particular on footnote 22 of Atkins, which noted, in the course of recounting the perceived national consensus, that state definitions of mental retardation “generally conform ... to the clinical definitions set forth” by the AAMR and APA. Atkins, 536 U.S. at 317 n. 22, 122 S.Ct. at 2250 n. 22. This means the Texas court's analysis unreasonably applied Atkins' holding, Petitioner concludes, because he believes the state court analysis does not conform with the AAMR and APA definitions, under which he contends he is retarded.

To evaluate his claim, we turn to the TCCA's decision and its grounding in Ex parte Briseno, 135 S.W.3d 1 (2004). Petitioner specifically alleges that the TCCA's reliance on the Briseno factors for determining his retardation, rather than the AAMR definition, was an unreasonable application of and contrary to Atkins. We disagree. It is impossible to conclude that the state court's analysis here, and its reliance on the factors outlined in Briseno, resulted in a decision that was based on an unreasonable application of Atkins's holding. Before Atkins, the Texas legislature determined that to be classified as retarded, a person must prove three facts by a preponderance of the evidence: (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). See Tex. Health & Safety Code § 591.003(13). This definition is almost identical to the AAMR definition of mental retardation. The Texas Court of Criminal Appeals adopted the AAMR definition of retardation for death penalty cases in Briseno. 135 S.W.3d at 8.

The Briseno court recognized that the AAMR definition was designed for the purpose of providing social services, not for the purposes of determining whether a person was “so impaired as to fall within the range of mentally retarded offenders about whom there is national consensus.” It also recognized that determining deficits in adaptive behavior (the second element) was highly subjective. Id. at 8. To account for these weaknesses in definition, the Briseno court listed seven factors to flesh out the AAMR definition to determine whether the convict falls within Atkins so as to be protected against the death penalty. The court held: The adaptive behavior criteria [second element] are exceedingly subjective, and undoubtedly experts will be found to offer opinions on both sides of the issue in most cases. There are, however, some other evidentiary factors which factfinders in the criminal trial context might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder:

• 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?

135 S.W.3d 1, 8 (2004). The Briseno court, in other words, fashioned these evidentiary factors as a means “of developing appropriate ways to enforce the constitutional restriction” set out in Atkins. And on their face, nothing about them contradicts Atkins, as they were developed explicitly to comply with Atkins. FN1. Indeed, the Briseno factors obviously evoke Atkins's language which, in turn, evokes the AAMR findings. The first Briseno factor, regarding developmental stages, ties to the Atkins discussion of the onset of mental retardation before age 18. 536 U.S. at 318, 122 S.Ct. 2242. The second and third, regarding impulsive behavior and leadership, tie to the Atkins note that the retarded “often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.” Id. The fourth, regarding rational actions and social propriety, ties to the Atkins discussion of “understand[ing] the reactions of others.” Id. The fifth, regarding focused responses to questions, evokes the Atkins discussion of “diminished capacities to understand and process information, to communicate....” Id. The sixth, concerning the ability to deceive, seems related to Atkins's mention of “capacit[y] to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning....” Id. And the seventh, involving forethought and planning, seems tied to Atkins's mention of action “pursuant to a premeditated plan.” Id. The Briseno factors thus are not arbitrary creations of the Texas judiciary but rather carefully constructed considerations that tie directly to Atkins.

This court has never cast doubt on this approach. To the contrary, in Clark v. Quarterman, 457 F.3d 441 (5th Cir.2006), this court held that “it is not ‘clearly established Federal law as determined by the Supreme Court of the United States' that state court analysis of subaverage intellectual functioning must precisely track the AAMR's recommended approach.” 457 F.3d at 445. Clark specifically rejected Petitioner's argument that “the Texas courts must apply the approach articulated by the [AAMR], which dictates that IQ examiners account for the appropriate confidence band.” Id. If Texas need not follow AAMR procedures when determining subaverage intelligence (a relatively objective determination), then it would be senseless to think Texas must follow AAMR procedures when determining deficits in adaptive behavior (a far more subjective determination). In light of this court's previous treatment of the Briseno factors, the Supreme Court's broad holding in Atkins, and the irrelevance for the purposes of this inquiry of Atkins' dicta (such as footnote 22), we conclude that the application of the Briseno factors, even in the absence of specific employment of the AAMR's methodology for determining deficiencies in adaptive behavior, cannot be an “unreasonable application” of Atkins' broad holding. Atkins clearly did not hold—and Petitioner does not even assert that Atkins held—that states must employ the AAMR or APA definitions of mental retardation, let alone that they must employ the same underlying clinical analysis that the AAMR and APA use to determine which patients meet each prong of those organizations' definitions; the absence of such a holding is determinative here. This analysis also disposes of Petitioner's overlapping argument that the state court decision was “contrary to” clearly established federal law. A state court's decision is “contrary to” clearly established federal law if “it relies on legal rules that directly conflict with prior holdings of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713 (5th Cir.2004). For the same reasons that employment of the Briseno factors to determine adaptive functioning is not an unreasonable application of Atkins, the Briseno factors themselves do not “contradict” the Supreme Court's holding in Atkins. See Terry Williams, 529 U.S. at 405, 120 S.Ct. at 1519 (holding state court decision is “contrary” when it “applies a rule that contradicts the governing law set forth in our cases”). This will come as no surprise, since this court has already concluded that the Briseno is not “contrary to” Atkins in precisely this regard. See Woods v. Quarterman, 493 F.3d 580, 587 n. 6 (5th Cir.2007) (“[Petitioner] also argues that Ex parte Briseno, relied on by the state habeas court, is contrary to Atkins in the way it allows courts to evaluate limitations in adaptive behavior .... We find nothing in Briseno that is inconsistent with Atkins in this regard.”).

III. Section 2254(d)(2) Claims

With Section 2254(d)(1) unavailable as a means for obtaining federal habeas relief, Petitioner must rely on Section 2254(d)(2), but ultimately in vain. Section 2254(d)(2) excepts from the section's general prohibition on habeas relief cases where the adjudication of the claim in state court “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). The TCCA concluded that Petitioner lacked the deficits in adaptive behavior which, combined with his subaverage intellectual ability, FN2 would have yielded the characteristics of mental retardation that render him not morally culpable of a capital crime. Petitioner, on the other hand, argues that the VABS test is dispositive: Under AAMR guidelines, a person with a VABS score of 57 and an IQ test of 69 usually would be classified as mildly mentally retarded. Petitioner argues that the Briseno factors are not adequate tools to determine whether a person is retarded, and that the TCCA's determination was unreasonable. FN2. Chester's IQ tests have resulted in varying numbers, but most of those numbers would qualify him as mentally retarded under the AAMR definition if coupled with deficits in adaptive behavior.

We must consider these claims through AEDPA's discriminating lens, noting that “relief may not be granted unless the decision was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. A factual determination made by a state court must be rebutted by clear and convincing evidence.” Clark, 457 F.3d at 443. “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2).” Miller–El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931. As factfinder, the trial court is entitled to deference in credibility determinations. Thompson v. Keohane, 516 U.S. 99, 111, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995) (quoting Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985)). “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 Section 2254(e)(1).” Maldonado v. Thaler, 625 F.3d 229, 236 (5th Cir.2010).

Accordingly, the state courts' factual determination is presumed correct unless Petitioner rebuts it with clear and convincing evidence. The state trial court relied on three pieces of evidence to determine that Petitioner had no significant deficits in adaptive behavior: • Expert testimony stated that Chester could communicate clearly, understood current, topical matters, and understood his current legal situation. • Chester's criminal spree demonstrated the ability to plan, avoid detection, and lie. • Chester attempted to escape police custody by lying about the location of the hidden murder weapon so that he could grab it. Petitioner responds that the Briseno factors and the state's evidence only focus on recent events (the crimes and recent interviews) as opposed to his full history. Petitioner presented (and represents in his petition) the following evidence: • The Vineland Adaptive Behavior Survey score of 57. Under AAMR guidelines, this indicates that Chester has deficits in adaptive behavior. • Expert testimony from Dr. Orloff. • Testimony from family members that Chester was always “stupid.” • Testimony from school personnel stating that Chester was stupid or retarded. • Evidence that Chester enrolled and participated in the Mentally Retarded Offenders Program of the Texas Department of Criminal Justice.

The state trial court found, however, that Petitioner's evidence was unpersuasive or not credible. It discounted the family and school administrator's testimony as indicative only of a learning disability, not retardation. Further, the court found that the family had an incentive to lie. Similarly, it found that Dr. Orloff's testimony was not credible, due to his insufficient exposure to Petitioner and to his lesser credentials. Also, Petitioner's enrollment in the Mentally Retarded Offenders Program was not dispositive because official policy allowed non-retarded convicts to participate.

The Texas Court of Criminal Appeals, while acknowledging that test scores alone might have indicated mental retardation, nevertheless was compelled to find that the evidence supported the trial court's finding that Petitioner is not mentally retarded.FN3 Petitioner has offered no “clear and convincing evidence” rebutting the underlying findings or the ultimate finding against mental retardation. While a different factfinder might reach a different conclusion than the state courts, this court only reviews the proceedings to determine whether Petitioner presented clear and convincing evidence that rebuts the presumption that the state trial court's determination was correct. § 2254(d)(2), (e)(1). Petitioner failed to do so. Proceedings at the state trial court were a battle between experts with additional testimony and evidence that was inconclusive and invited credibility testing. It is not this court's place to second-guess the court's credibility determinations.

FN3. Petitioner and the dissent repeatedly claim that the state courts relied “solely” on the Briseno factors. The dissent uses this device to assert that the TCCA's decision is “contrary” to Atkins legally. But the TCCA opinion (a) states the proper test, (b) states how the AAMR guidelines are informed by the Briseno factors, and (c) corrects the state habeas court to confirm that Petitioner's diagnostic tests alone usually indicated a diagnosis of mild mental retardation. The court clearly took the test results into account but found them overborne by evidence and credibility determinations of the trial court. This is not “sole reliance” on improper factors but a faithful application of the principle, acknowledged in Atkins itself, that the adaptive functioning component of mental retardation is complex. The dissent would, contrary to Atkins, either prevent the state court from applying its expertise here, or confine the state “solely” to diagnostic test results in debatable cases.

This analysis conclusively establishes that § 2254(d)(2) avails Petitioner nothing. But we wish to note a few striking facts from the record that highlight the deficiency of petitioner's claim that the state courts' factual findings regarding deficiencies in adaptive behavior were “unreasonable.” Petitioner carefully cased the house of his victims, located the telephone box, cut the telephone wires, entered through an unlocked door (presumably to avoid the noise that would accompany breaking in), disguised himself in a ski mask, and raped/sodomized the two women inside using all the precautions one might expect to see from a clever criminal. After murdering the girls' uncle, Petitioner fired his gun into the locked doors of the victim's car, apparently reasoning that shooting a lock would break it and cause it to fail. This was hardly the work of a person with diminished mental capacity; it was problem-solving in response to a crisis.

Atkins explains: [C]linical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct than others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders. 536 U.S. at 318, 122 S.Ct. at 2250 (emphasis added). It seems obvious that Petitioner did not act on an impulse, but rather “pursu[ed] a premeditated plan,” acting of his own volition rather than as a “follower[ ].” Id. Indeed, he masterminded a sophisticated break-in and dealt with a crisis as it developed. Nothing about this crime suggests Petitioner had difficulties “process[ing] information” or “engag[ing] in logical reasoning.” Id. FN4. Petitioner's other crimes, fully documented in the state court record and in the TCCA's opinion, further illustrate his cunning criminal calculations. As an example, the murder of John Sepeda—to which Petitioner confessed—similarly involved the cutting of telephone lines leading into a residence's call box. And before murdering Cheryl DeLeon, Petitioner unscrewed the lightbulb in the outdoor security light. Evidently, Petitioner was able “to abstract from mistakes and learn from experience....” Atkins, 536 U.S. at 318, 122 S.Ct. at 2250.

Of course, the Petitioner's burden here is much higher than simply convincing us that Petitioner is not mentally retarded under Atkins. He has to show by clear and convincing evidence that the state court's determination was unreasonable; he falls far short of this burden.

CONCLUSION

Because the TCCA's decision was not contrary to or an unreasonable application of clearly established federal law, and because it was not based on an unreasonable factual determination in light of the evidence before it, we AFFIRM the district court's denial of habeas relief.

DENNIS, Circuit Judge, dissenting:

I respectfully dissent because the majority opinion affirms a Texas Court of Criminal Appeals (TCCA) death penalty judgment that is contrary to the federal law clearly established by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002): When Atkins banned the execution of mentally retarded offenders, it defined mental retardation as generally conforming to the three-part clinical definitions set forth by the American Association on Mental Retardation (AAMR) and the American Psychiatric Association (APA), which were quoted by the Court in Atkins. In the present case, the TCCA, instead of applying the “adaptive skill areas” part of that definition, id. at 308 n. 3, 122 S.Ct. 2242, applied its own substantively contrary state law, known as the “ Briseno factors,” in erroneously deciding that Elroy Chester failed to prove that he is mentally retarded. For this reason, I would vacate the federal district court's judgment affirming the TCCA's judgment and remand the case to the federal district court for further proceedings applying the entire correct clinical definition of mental retardation as required by Atkins.

In Atkins, the Supreme Court held that the Eighth Amendment's prohibition of “cruel and unusual punishments” bars the execution of mentally retarded offenders. The Court reasoned that: (1) there is a national consensus among state legislatures and Congress that the execution of mentally retarded offenders is excessive punishment, id. at 314–16, 122 S.Ct. 2242; (2) the statutory definitions of “mental retardation” used by states in that national consensus are not identical, but generally conform to, the clinical definitions of “mental retardation” set forth by the AAMR and APA, id. at 317 n. 22, 122 S.Ct. 2242; and (3) the Supreme Court's independent evaluation of the issue revealed no reason for the Court to disagree with the national legislative consensus, id. at 321, 122 S.Ct. 2242. Based on this rationale, the Atkins Court concluded that the Eighth Amendment “ ‘places a substantive restriction on the State's power to take the life’ of a mentally retarded offender,” id. (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)), and that this constitutional restriction protects individuals who “fall within the range of mentally retarded offenders about whom there is a national consensus,” id. at 317, 122 S.Ct. 2242. Further, Atkins made plain that the AAMR and APA “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.” Id. at 318, 122 S.Ct. 2242.FN1 Thus, in deciding whether a person is mentally retarded and therefore exempt from execution under the Eighth Amendment, a state court must apply each of the three prongs—subaverage intellectual functioning; adaptive functioning limitations; and onset prior to age eighteen—of a definition that generally conforms to the AAMR and APA clinical definitions of “mental retardation.”

FN1. Authorities have used the terms “adaptive functioning,” “adaptive behavior,” and “adaptive skills” to refer to this element of mental retardation. See Am. Ass'n on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports 1 (10th ed.2002) [hereinafter AAMR–10] (referring to “limitations ... in adaptive behavior as expressed in conceptual, social, and practical adaptive skills”); Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed., text rev.2000) [hereinafter DSM–IV–TR] (referring to “limitations in adaptive functioning in at least two of [eleven] skill areas”); Am. Ass'n on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed.1992) [hereinafter AAMR–9] (referring to “limitations in two or more of [ten] adaptive skill areas”). Neither the state nor Chester argues that these terminological differences have any effect on the issues in this appeal. Accordingly, this opinion refers to adaptive functioning, adaptive behavior, and adaptive skills interchangeably.

In Atkins, the Court also concluded that “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright with regard to insanity, ‘we leave 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 in original) (citation omitted) (quoting Ford, 477 U.S. at 416–17, 106 S.Ct. 2595). In so doing, the Ford Court made clear that when “the Eighth Amendment bars execution of a category of defendants defined by their mental state[,] [t]he bounds of that category are necessarily governed by federal constitutional law.” Ford, 477 U.S. at 419, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment, but speaking for the majority on this point).FN2 Thus, by closely following Ford, Atkins signals clearly that federal constitutional law governs the bounds of the category of mentally retarded individuals who are exempt from execution, although the states, within the confines of due process, may devise procedures to govern mental retardation determinations. FN2. See Panetti v. Quarterman, 551 U.S. 930, 949, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (“Justice Powell's opinion constitutes ‘clearly established’ law for purposes of [28 U.S.C.] § 2254 and sets the minimum procedures a State must provide to a prisoner raising a Ford-based competency claim.”)

Our en banc court and panels have adopted this understanding of Atkins. See Moore v. Quarterman, 533 F.3d 338, 341 (5th Cir.2008) (en banc) (“ Atkins specifically reserved to the states the adoption of procedures to implement its new constitutional rule....” (emphasis added)); Wiley v. Epps, 625 F.3d 199, 207 (5th Cir.2010) (“[E]ven though Atkins left to the states the job of implementing procedures for determining who is mentally retarded, ‘it was decided against the backdrop of the Supreme Court's and lower court's due process jurisprudence.’ ” (emphasis added) (quoting Rivera v. Quarterman, 505 F.3d 349, 358 (5th Cir.2007))). Accordingly, the states retain substantial discretion to create appropriate procedures, but they may not substantively redefine mental retardation so as to permit the execution of those who “fall within the range of mentally retarded offenders about whom there is a national consensus.” Atkins, 536 U.S. at 317, 122 S.Ct. 2242.

In Atkins, the Supreme Court quoted and referred to the AAMR definition of mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning. It is characterized by [ (1) ] significantly subaverage intellectual functioning, [ (2) ] 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[; and (3) ] Mental retardation manifests before age 18.” 536 U.S. at 309, 122 S.Ct. 2242. FN3. In Atkins, the Court also quoted and referred to the similar APA clinical definition of mental retardation. Because the Texas courts have adverted only to the AAMR clinical definition, and the two clinical definitions are substantively the same, I set forth and refer here only to the AAMR clinical definition of mental retardation.

The Texas habeas trial court, in considering Chester's habeas petition, did not apply the second element of the AAMR definition to determine if Chester had “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.” Instead, the trial court applied the “ Briseno factors,” a series of questions originally suggested by the TCCA in Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App.2004), which the TCCA itself has described as being “non-diagnostic criteria.” Ex parte Van Alstyne, 239 S.W.3d 815, 820 (Tex.Crim.App.2007). Although the factors were initially conceived of as “evidentiary factors which factfinders ... might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder,” Briseno, 135 S.W.3d at 8, the TCCA in the present case used the Briseno factors as a substantive part of its mental retardation definition, instead of the second prong of the AAMR definition (the AAMR clinical adaptive skills criteria) to determine that Chester had not proved he had adaptive skills deficits, and, therefore, that Chester failed to prove he is mentally retarded. See Ex parte Chester, No. AP–75037, 2007 WL 602607 (Tex.Crim.App. Feb. 28, 2007) (unpublished).

Chester introduced evidence that he scored under 70 in 4 of the 5 full-scale IQ tests that he has taken since the age of seven years, and scored 57 on the Vineland Adaptive Behavior Survey (VABS), a clinical adaptive functioning test. His evidence showed he has been unable to live or work independently, and his experts and lay witnesses related that he suffered from mild mental retardation and was deficient in several adaptive behavioral areas. The state habeas trial court, which gave no reason for applying the Briseno factors to the exclusion of the AAMR adaptive skills criteria and the VABS test results, found that Chester failed to disprove any of the Briseno factors, was therefore not limited in adaptive functioning, and thus not mentally retarded for this reason alone. See Chester, 2007 WL 602607, at *4. The TCCA affirmed, approving of the trial court's use of the Briseno factors to the exclusion of clinical adaptive skills criteria to define mental retardation. Id. at *9. The U.S. District Court denied federal habeas relief, on the ground that Chester's application failed under the seventh Briseno factor alone. Chester v. Quarterman, No. 5:05cv29, 2008 WL 1924245, at *7 (E.D.Tex. Apr. 29, 2008) (unpublished).

The TCCA's decision was contrary to the federal law that was clearly established by the Supreme Court in Atkins. Under Atkins, state courts must apply a mental retardation definition that generally conforms to all three parts of the clinical AAMR or APA definitions. The TCCA's unique nondiagnostic Briseno factors are more constricted than, unrelated to, and substantively contrary to the adaptive deficits criteria identified in the second prongs of the AAMR and APA clinical definitions of mental retardation. Exclusively applying the Briseno factors to assess the substantive adaptive skills prong of the mental retardation definition inevitably leads to anomalous and unreliable results, including the execution of offenders who should be classified as mentally retarded and shielded from execution under Atkins and the comprehensive clinical definitions quoted therein. In other words, by affirming the Texas courts' erroneous use of the Briseno factors in place of the adaptive skills prong of the substantive three-part rule defining mental retardation, the majority allows those state courts to circumvent the constitutional rule of Atkins and to use their more constricted definition of mental retardation to exclude substantial numbers of mentally retarded offenders from protection from execution under the Eighth Amendment. FN4 Because the decisions of the TCCA and the federal district court are based on the same error of clear constitutional law, the judgment of the federal district court should be set aside and the case should be remanded to it for further proceedings generally conforming to the clinical definitions of mental retardation as required by Atkins.

FN4. At least one study suggests that Texas may be favorably resolving far fewer Atkins claims than the national average. As of 2011, of the 81 Texas petitioners whose Atkins collateral review claims have been resolved, only 14 (17% of the total) have been successful. This “is significantly lower than the ‘national average’ success rate of thirty-eight percent identified in a 2008 study of states that had resolved Atkins claims.” Peggy M. Tobolowsky, A Different Path Taken: Texas Capital Offenders' Post-Atkins Claims of Mental Retardation, 39 Hastings Const. L.Q. 1, 71 & nn. 203–04, 373–74 (2011) (citing John H. Blume et al., An Empirical Look at Atkins v. Virginia and its Application in Capital Cases, 76 Tenn. L.Rev. 625, 628–29, 637 (2009)).

I.

The petitioner, Elroy Chester, robbed and raped two young women at gunpoint in their home. When the women's uncle unexpectedly arrived at the house, Chester shot and killed him. He pleaded guilty to the crime of capital murder and was sentenced to death by a Texas jury in 1998. His conviction and sentence were affirmed on direct appeal. Chester then sought post-conviction relief at the state and federal levels on the grounds that he could not be executed because he is mentally retarded. Chester's federal habeas petition was pending in 2002 when the Supreme Court held in Atkins that the Eighth Amendment forbids the execution of mentally retarded offenders. Consequently, Chester's petition was dismissed without prejudice to allow him to renew his claim for state post-conviction relief on the basis of Atkins. Chester v. Cockrell, 62 Fed.Appx. 556 (5th Cir.2003).

The TCCA granted Chester leave to file a successive state habeas petition and remanded his case to the state trial court for further proceedings. The trial court held an evidentiary hearing on the Atkins claim. In order to prove that he was mentally retarded, under Atkins, 536 U.S. 304, 122 S.Ct. 2242, and Briseno, 135 S.W.3d 1,FN5 Chester was required to show by a preponderance of the evidence that he had (1) significantly subaverage general intellectual functioning and (2) related limitations in adaptive functioning, (3) the onset of which had occurred before Chester reached age 18. Briseno, 135 S.W.3d at 7. Chester introduced substantial evidence of his mental retardation, including full-scale IQ scores of 69 at age seven, 59 at age twelve, 77 at age thirteen, 69 at age eighteen, and 66 at age twenty-nine and a score of 57 on VABS, a standardized test of adaptive functioning. The Texas Department of Criminal Justice administered one of these IQ tests—on which Chester scored a 69—and the VABS test in 1987, when Chester was eighteen years old. The State's own expert testified that a person with those test scores would be correctly diagnosed as mentally retarded. In addition, an expert retained by Chester testified that he was indeed mentally retarded. Chester also supplied other evidence tending to show that he suffers from limitations in adaptive functioning. He presented evidence that he was placed in special education early in schooling and admitted into the prison Mentally Retarded Offenders Program (MROP) at approximately age eighteen; achievement testing in prison placed him at third grade levels or below. Two of his sisters testified regarding his adaptive behavior deficits, including his inability to live or work independently. A special education teacher testified regarding his limited abilities at school. One expert diagnosed Chester as mentally retarded based on a review of his records, interviews with Chester, and observation of the State expert's interview with him. Another expert classified him as mildly mentally retarded based on a review of his MROP records.

FN5. In Ex parte Briseno, the TCCA determined how, in the absence of guidance from the state legislature, Texas courts would procedurally “ ‘enforce the constitutional restriction’ ” imposed by Atkins. Briseno, 135 S.W.3d at 5 (quoting Atkins, 536 U.S. at 317, 122 S.Ct. 2242). The Briseno court held that Atkins claims in habeas corpus applications would be decided by judges rather than juries, id. at 11, and that the defendant would bear the burden of proof to establish mental retardation by a preponderance of the evidence, id. at 12. In addition to establishing these procedural specifications, the Briseno court described “some other evidentiary factors which factfinders in the criminal trial context might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder.” Id. at 8. They include: (1) “Did those who knew the person best during the developmental stage ... think he was mentally retarded at that time, and, if so, act in accordance with that determination”; (2) “Has the person formulated plans and carried them through or is his conduct impulsive?”; (3) “Does his conduct show leadership or does it show that he is led around by others?”; (4) “Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?”; (5) “Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?”; (6) “Can the person hide facts or lie effectively in his own or others' interests?”; (7) “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. As will be discussed more fully below, the Briseno court did not initially present these factors as a substitute or alternative definition of mental retardation, but only as additional factors which a court “might also” take into consideration. The Briseno factors differ substantially from the adaptive skill areas identified by the AAMR and APA in the clinical definitions of mental retardation. See infra Sections IV, VI.A.

Chester asserted that he demonstrated deficits regarding the broader conceptual and practical adaptive skill areas, as well as the specific skill areas of communication, work, functional academics, self-direction, and community use. The trial court, adopting the entirety of the prosecution's proposed findings of fact and conclusions of law, concluded that Chester had failed to carry his burden of proof as to either of the first two elements of mental retardation: significantly subaverage general intellectual functioning and related limitations in adaptive functioning. The trial court found that Chester failed to prove that he had adaptive skill deficits but it did not apply the clinical AAMR criteria to make this finding. Instead, it applied the Briseno “evidentiary factors” and concluded that, under the Briseno factors, Chester was not limited in adaptive functioning and therefore failed to satisfy the adaptive functioning prong of the tripartite clinical definitions of mental retardation. He therefore was found to be not mentally retarded. If the trial court had applied the clinical adaptive functioning criteria instead, Chester's evidence arguably would have shown he satisfied this prong as well as the other two and that he is mentally retarded.

On appeal, the TCCA partly overruled the trial court's findings and conclusions. Chester, 2007 WL 602607. The TCCA held that Chester “has met his burden in regard to demonstrating significant limitations in intellectual functioning,” id. at *3, and that “there is no dispute as to the third part of the test, that the evidence in favor of a finding of mental retardation occurred and was recorded before the applicant reached the age of eighteen,” id. at *2. Thus, the TCCA held that Chester had satisfied the first and third prongs of the definition of mental retardation. However, the TCCA denied habeas relief because it concluded that Chester had not “[s]hown [s]ignificant [d]eficits in [a]daptive [b]ehavior” as required by the second prong, id. at *4, and he had therefore not carried the burden of showing that he was mentally retarded. In reaching this conclusion, the TCCA did not consider the AAMR's or APA's clinical definitions of mental retardation, but relied exclusively on the factors that had previously been presented in Briseno as merely “some other evidentiary factors which factfinders in the criminal trial context might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder,” Briseno, 135 S.W.3d at 8. See Chester, 2007 WL 602607, at *4–5.

Chester then filed another federal habeas petition. In that proceeding, the state did not dispute that the evidence of his mental deficits developed before he was eighteen years old or “that Chester suffers from significantly sub-average intellectual functioning.” Chester, 2008 WL 1924245, at *2. But the district court departed even further than the state courts from the Atkins clinical definitions of mental retardation, expressly holding that a finding as to just one of the seven Briseno factors was a sufficient basis for denying an Atkins claim: “[A]n affirmative finding as to the seventh and final Briseno evidentiary factor is sufficient by itself to uphold a denial of relief in a habeas corpus proceeding.” Id. at *7.FN6

FN6. The seventh Briseno evidentiary factor is as follows: “Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?” Briseno, 135 S.W.3d at 8–9. Thus, the district court held that the TCCA's “rejection of [Chester's] mental retardation claim is neither inconsistent with, nor the result of an unreasonable application of, clearly established federal law,” and denied habeas relief. Id. FN7. However, the district court granted Chester a certificate of appealability as to three issues, the first two of which are as follows: 1. The state courts' determination that Mr. Chester is not mentally retarded is unreasonable in light of the evidence presented in the state court and violates the Eighth Amendment by permitting the execution of a mentally retarded defendant. 2. As a way to assess significantly subaverage adaptive functioning, the Briseno factors have no basis in the scientific literature and conflict with the accepted definitions of mental retardation recognized and relied on in Atkins v. Virginia, making the state courts' exclusive reliance on the Briseno factors an unreasonable application of federal law clearly established in Atkins and violating the Eighth Amendment by permitting the execution of a mentally retarded defendant. Chester now appeals from the district court's order denying habeas relief.

II.

“In a habeas corpus appeal, we review the district court's findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court's decision as the district court.” Beazley v. Johnson, 242 F.3d 248, 255 (5th Cir.2001) (quoting Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.1998)) (internal quotation marks omitted). FN8 I conclude that Chester has shown that his habeas petition should be granted under the “contrary to” clause of AEDPA, 28 U.S.C. § 2254(d)(1). Therefore, I need not consider whether he also satisfies the “unreasonable application” clause of AEDPA, 28 U.S.C. § 2254(d)(1), and need not review the district court's findings of fact for clear error.

FN8. Because the TCCA was the last state court to address Chester's arguments, we review the decision of that court. See Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir.2007) (focusing on whether “the last reasoned state court decision” was “contrary to, [or] an unreasonable application of, federal law”); see also Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.2009) (“We review the decision of the last state court to address [the petitioner's] arguments.”); Mark v. Ault, 498 F.3d 775, 783 (8th Cir.2007) (“[W]e apply the AEDPA standard to ... the ‘last reasoned decision’ of the state courts.” (quoting Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991))); Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir.2006) (“[T]he decision we review is that of ‘the last state court to issue a reasoned opinion on the issue.’ ” (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir.2005))); Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.2005) (“When more than one state court has adjudicated a claim, we analyze the last reasoned decision.”).

“Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal court may not grant § 2254 habeas relief on any ground previously disposed of on the merits by a state court unless the state decision ‘was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States,’ or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.’ ” Geiger v. Cain, 540 F.3d 303, 306–07 (5th Cir.2008) (alterations in original) (quoting 28 U.S.C. § 2254(d)(1)–(2)); see also Woods v. Quarterman, 493 F.3d 580, 584 (5th Cir.2007). “A state court decision is contrary to clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases,’ or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Court's] precedent.' A state court decision involves an unreasonable application of clearly established federal law if the state court ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case....’ ” Williams v. Quarterman, 551 F.3d 352, 358 (5th Cir.2008) (alterations in original) (citations omitted) (quoting Williams v. Taylor, 529 U.S. 362, 405–08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

III. In Atkins, the Supreme Court early in its opinion set forth in full the generally accepted clinical definitions of mental retardation: The American Association on Mental Retardation (AAMR) defines mental retardation as follows: “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.” Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed.1992).

The American Psychiatric Association's [ (APA) ] definition is similar: “The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.” Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed.2000). “Mild” mental retardation is typically used to describe people with an IQ level of 50–55 to approximately 70. Id., at 42–43. Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242. The Court then surveyed developments in state and federal law that showed a growing nationwide consensus that mentally retarded defendants should not be executed. See id. at 313–16, 122 S.Ct. 2242. Beginning with a Georgia law enacted in 1988, the Court counted eighteen states, along with the federal government, which had enacted legislation prohibiting the execution of mentally retarded defendants. See id. at 313–15, 122 S.Ct. 2242. Furthermore, the Court observed that “even in those States that allow the execution of mentally retarded offenders, the practice is uncommon[:] ... only five [states] have executed offenders possessing a known IQ less than 70” since 1989. Id. at 316, 122 S.Ct. 2242.

The Court therefore concluded that “a national consensus has developed against” the execution of mentally retarded defendants. Id. “To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded.... Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Id. at 317, 122 S.Ct. 2242. The Court noted that “[t]he [states'] statutory definitions of mental retardation are not identical, but generally conform to the clinical definitions” promulgated by the AAMR and the APA. Id. at 317 n. 22, 122 S.Ct. 2242. Thus, the Court's holding that “a national consensus has developed,” id. at 316, 122 S.Ct. 2242, was based on statutes which employed “definitions of mental retardation” that “generally conform to the clinical definitions” quoted above, id. at 317 n. 22, 122 S.Ct. 2242.

As an additional step in its reasoning, the Court undertook an “independent evaluation of the issue.” Id. at 321, 122 S.Ct. 2242. In this step, the Court reasoned that “by definition,” people with mental retardation have certain characteristics that make their execution cruel and unusual. Id. at 318, 122 S.Ct. 2242. These characteristics include “diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” Id. Because of these characteristics, “executing the mentally retarded will not measurably further the goal of deterrence,” id. at 320, 122 S.Ct. 2242, and “the lesser culpability of the mentally retarded offender ... does not merit that form of retribution.” Id. at 319, 122 S.Ct. 2242. Moreover, mentally retarded defendants “face a special risk of wrongful execution” because of “the possibility of false confessions, [and] the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation.” Id. at 320–21, 122 S.Ct. 2242. Therefore, the Court concluded, there was “no reason to disagree with the judgment of ‘the legislatures that have recently addressed the matter’ and concluded that death is not a suitable punishment for a mentally retarded criminal.” Id. (quoting Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982)).

In short, the holding of Atkins is that the Eighth Amendment prohibits the execution of individuals who are “so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Id. at 317, 122 S.Ct. 2242. And the Court described the parameters of that “national consensus” as “generally conform[ing] to the clinical definitions” of mental retardation used by the AAMR and APA. Id. at 317 & n. 22, 122 S.Ct. 2242. The Court refrained from setting forth procedures for determining whether a particular defendant is “so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Id. at 317, 122 S.Ct. 2242. Rather, it declared, “we leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Id. (quoting Ford, 477 U.S. at 405, 106 S.Ct. 2595) (brackets and internal quotation marks omitted).

The Atkins Court noted that this was the same “approach” that the Court had previously followed “in Ford v. Wainwright with regard to insanity.” 536 U.S. at 317, 122 S.Ct. 2242. We have previously observed that “ Ford is instructive” in Atkins cases “because of the similarity of the competency and mental retardation issues: both decisions affirmatively limit the class of persons who are death penalty eligible.” Rivera, 505 F.3d at 358. The Court's opinions in Atkins and Ford both expressly announced “that the Constitution ‘places a substantive restriction on the State's power to take the life’ ” of certain offenders. Atkins, 536 U.S. at 321, 122 S.Ct. 2242 (quoting Ford, 477 U.S. at 405, 106 S.Ct. 2595); see also Panetti, 551 U.S. at 957, 127 S.Ct. 2842 (same).

In Ford, Justice Powell's controlling concurring opinionFN9 explained that when “the Eighth Amendment bars execution of a category of defendants defined by their mental state[,] [t]he bounds of that category are necessarily governed by federal constitutional law.” 477 U.S. at 419, 106 S.Ct. 2595. Further, the Panetti Court explained that Ford “broadly identif[ied]” a “substantive standard for incompetency”; applying this substantive standard, the Panetti Court “reject[ed] the standard followed by the Court of Appeals” as being inconsistent with Ford. 551 U.S. at 960, 127 S.Ct. 2842. Thus, it is clear under both Ford and Panetti that the definition of incompetency to be executed is a matter of federal substantive constitutional law. Because Atkins expressly adopted Ford's approach by announcing “a substantive restriction,” 536 U.S. at 321, 122 S.Ct. 2242, while giving states procedural room to “develop[ ] appropriate ways to enforce” that restriction, id. at 317, 122 S.Ct. 2242, it follows that under Atkins, too, the substantive definition of mental retardation for Eighth Amendment purposes is a matter of federal constitutional law. FN9. See Panetti, 551 U.S. at 949, 127 S.Ct. 2842 (“Justice Powell's opinion [in Ford] constitutes ‘clearly established law’ for purposes of [28 U.S.C.] § 2254....”).

Atkins identified a substantive standard for mental retardation by announcing that states may not execute offenders who are “so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.” Atkins, 536 U.S. at 317, 122 S.Ct. 2242. The Court explained that the “national consensus” was based on state-law definitions of mental retardation that “generally conform to the clinical definitions” in the AAMR–9 and DSM–IV–TR, which the Court quoted in full in its opinion. Id. at 308 n. 3, 317 & n. 22, 122 S.Ct. 2242. Therefore, in order to “appropriate[ly] ... enforce the constitutional restriction” imposed by Atkins, id. at 317, 122 S.Ct. 2242 (quoting Ford, 477 U.S. at 416, 106 S.Ct. 2595), states must apply definitions of mental retardation that “generally conform to the clinical definitions,” id. at 317 n. 22, 122 S.Ct. 2242. FN10. See Pruitt v. State, 834 N.E.2d 90, 108 (Ind.2005) (plurality opinion) (“[T]he Eighth Amendment must have the same content in all United States jurisdictions.... Because Atkins explains that state statutes that provided the ‘national consensus' against the execution of the mentally retarded ‘generally conform’ to the AAMR or DSM–IV definitions, we conclude that Atkins requires at least general conformity with those definitions, but allows considerable latitude within that range.... [W]e think that the prohibition of the execution of the mentally retarded must have some content. There may be some flexibility in determining mental retardation, but we think that if a state's definition of mental retardation were completely at odds with definitions accepted by those with expertise in the field the definition would not satisfy the prohibition.”).

IV.

In 2004, the Texas Court of Criminal Appeals issued an opinion declaring how the Texas courts would “enforce the constitutional restriction” under Atkins. Briseno, 135 S.W.3d at 5 (quoting Atkins, 536 U.S. at 317, 122 S.Ct. 2242). The court observed that it had “previously employed the definitions of ‘mental retardation’ set out by the AAMR, and that contained in section 591.003(13) of the Texas Health and Safety Code. Under the AAMR definition, mental retardation is a disability characterized by: (1) ‘significantly subaverage’ general intellectual functioning; (2) accompanied by ‘related’ limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18. As noted above, the definition under the Texas Health and Safety Code is similar....” Id. at 7 (footnotes omitted) (citing, inter alia, AAMR–9, supra note 1, at 5).FN11 Accordingly, the court concluded that “[u]ntil the Texas Legislature provides an alternate statutory definition of ‘mental retardation’ for use in capital sentencing, we will follow the AAMR or section 591.003(13) criteria in addressing Atkins mental retardation claims.” Id. at 8. FN11. Section 591.003(13) of the Texas Health and Safety Code states: “ ‘mental retardation’ means significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.”

However, the Briseno court expressed some concern with the “adaptive behavior criteria” in the AAMR definition,FN12 which it considered to be “exceedingly subjective.” Id. at 8. For this reason, the court identified “some other evidentiary factors which factfinders in the criminal trial context might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder.” Id.FN13 Those additional factors are as follows:

FN12. As previously noted, the AAMR's 1992 definition of mental retardation, as quoted by the Supreme Court in Atkins, includes an “adaptive functioning” prong, which requires “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.” Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242 (quoting AAMR–9, supra note 1, at 5). The AAMR issued a revised definition of mental retardation in 2002, see AAMR–10, supra note 1, but the differences between the AAMR's 1992 and 2002 criteria for adaptive functioning or adaptive behavior are not relevant to this appeal. FN13. The Briseno court may have mistakenly assumed that a defendant cannot suffer from both mental retardation and a personality disorder, when in fact individuals often suffer both from mental retardation and personality disorders. “[T]he scientific and clinical definitions emphasize that individuals with mental retardation often have mental disorders as well. No reasonable clinician would have determined that [a defendant] did not have mental retardation merely because the evidence also supported a diagnosis of antisocial personality disorder.” John H. Blume et al., Of Atkins and Men: Deviations from Clinical Definitions of Mental Retardation in Death Penalty Cases, 18 Cornell J.L. & Pub. Pol'y 689, 692 (2009). The AAMR has authoritatively explained that “[t]he types of mental health disorders are the same in people with and people without mental retardation.” AAMR–10, supra note 1, at 172. “The prevalence of mental health disorders among individuals with mental retardation is difficult to estimate due to problems in sampling and diagnosis. In general, mental health disorders are much more prevalent in this population compared to the general population.” Id. Thus, an offender might well be correctly diagnosed with both mental retardation and a personality disorder. See Lambert v. State, 126 P.3d 646, 659 (Okla.Crim.App.2005) (“Mental retardation and mental illness are separate issues. It is possible to be mentally retarded and mentally ill.”).

• 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. Although the TCCA identifies the Briseno factors as “adaptive functioning” criteria, the factors bear no resemblance to the AAMR or APA adaptive functioning criteria. The Briseno court cited no sources or authorities for the proposition that these “other evidentiary factors” are an accurate or useful way to tell whether a person is genuinely mentally retarded; thus, the factors appear to be wholly the TCCA's own creation. These factors are “non-diagnostic,” Van Alstyne, 239 S.W.3d at 820, and based on the judges' impressions and assumptions about mental retardation. See Blume, supra note 13, at 712. The court gave no explanation of how the factors are any less “subjective” than the criteria for adaptive functioning in the AAMR's definition of mental retardation, and they are not based on or drawn from the adaptive functioning skill areas identified by the AAMR or the APA. See Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242; see also supra note 1. FN14. It is also unclear how the Briseno factors could be used as an independent, conclusive way to determine whether a person has significant limitations in adaptive functioning. The AAMR–9, DSM–IV–TR, and AAMR–10 definitions of mental retardation clearly specify how their adaptive functioning criteria are to be used: a person fulfills the criteria if he or she has significant limitations in two of ten, or two of eleven, or one of three, areas. By contrast, the Briseno factors do not indicate whether a defendant must negate one factor, or a majority of them, or all seven, or if some factors have more weight than others.

After setting forth these evidentiary factors, the TCCA went on to determine the procedural means by which Atkins claims in state habeas petitions would be resolved. The court decided that “ Atkins does not require a jury determination of mental retardation in a post-conviction proceeding,” id. at 9, and that “[t]he defendant bears the burden of proof, by a preponderance of the evidence, to establish that he is mentally retarded,” id. at 12 (bold face removed). The court then concluded that the petitioner in that case, Jose Garcia Briseño, had failed to prove by a preponderance of the evidence that he was mentally retarded. See id. at 14–18. In summary, as relevant here, the Briseno court first determined that Texas courts “w[ould] follow the AAMR or section 591.003(13) criteria in addressing Atkins mental retardation claims,” and then mentioned seven “other evidentiary factors which factfinders ... might also focus upon” in determining whether a defendant has the limitations in adaptive behavior that are required for a finding of mental retardation. Id. at 8.

V.

In the present case, the TCCA held that Chester fulfilled two of the three requirements of mental retardation: significantly subaverage intellectual functioning and onset before age 18.FN15 It is undisputed in this appeal that Chester meets those requirements. Whether Chester is mentally retarded therefore depends on whether he meets the one remaining requirement: significant limitations in adaptive functioning. In the state habeas proceedings, Chester presented a substantial amount of evidence that tended to prove that he does have significant limitations in adaptive functioning, under the standard clinical definitions of mental retardation to which the national consensus generally conforms, see Atkins, 536 U.S. at 317 & n. 22, 122 S.Ct. 2242. However, the TCCA concluded that Chester is not mentally retarded—a conclusion which was based entirely and exclusively on the TCCA's application of the Briseno evidentiary factors. Chester, 2007 WL 602607, at *4–5, *9.

FN15. The state trial court, on habeas, adopted the prosecution's proposed findings of fact and conclusions of law in their entirety and thereby held that Chester did not have significantly subaverage intellectual functioning. However, the TCCA observed that “the trial court's findings on the applicant's [IQ] test scores were in conflict with the record” and concluded that Chester “has met his burden in regard to demonstrating significant limitations in intellectual functioning.” Chester, 2007 WL 602607, at *2–3.

Chester provided the state courts with factual evidence and expert testimony indicating that he has significant limitations in adaptive functioning as defined by the AAMR and APA criteria.FN16 Notably, he received a score of 57 on the VABS test, which is a clinical method of assessing a person's level of adaptive functioning for the purpose of diagnosing mental retardation.FN17 The TCCA observed that “even the State's expert witness acknowledged that a person with a Vineland score of 57, combined with an IQ score of 69 as measured at the same time, would be correctly diagnosed as mildly mentally retarded.” Chester, 2007 WL 602607, at *3. These two scores were obtained in 1987 by the Texas Department of Criminal Justice, when Chester was eighteen years old. He was admitted to the department's Mentally Retarded Offender Program at that time. Id. That was eleven years before Chester committed the murder for which he was sentenced to death, and fifteen years before the Supreme Court decided Atkins; thus, Chester could not have been faking mental retardation to avoid the death penalty. The TCCA's opinion gave no specific reason for disbelieving or disregarding Chester's VABS score of 57. Neither has the State of Texas given us any reason why the score would not be reliable.

FN16. Chester also argues that the evidence shows that he is mentally retarded under the revised definition promulgated by the AAMR's tenth edition in 2002. See generally AAMR–10, supra note 1. The questions raised in this appeal do not turn on any differences between the AAMR's 2002 definition and the earlier definitions that the Supreme Court quoted in Atkins. Thus, we have no occasion to consider what the result should be if a defendant were to show that he was retarded under one clinical definition but not under another one. Cf., e.g., Wiley v, 625 F.3d at 216 n. 13 (noting that expert witnesses in that case “indicated that their diagnoses of [the defendant] were the same under both” the AAMR's 1992 and 2002 definitions of the adaptive behavior prong); In re Hearn, 418 F.3d 444, 445 (5th Cir.2005) (citing the AAMR–10 in support of a general definition of mental retardation: “Mental retardation is a disability characterized by three criteria: significant limitation in intellectual functioning, significant limitation in adaptive behavior and functioning, and onset of these limitations before the age of 18”); United States v. Hardy, 762 F.Supp.2d 849, 879 (E.D.La.2010) (“While these differences in definition deserve note, they are ultimately of no consequence to the Court's task. Just as in Wiley, ... the court need not decide which is preferable or correct, because the differences between them are mostly theoretical. Both the APA and AAMR direct clinicians to the same standardized measures of adaptive behavior, such as the Vineland Adaptive Behavior Scales–II....”).

FN17. Courts, including the TCCA, have often considered VABS test scores to be a valid way of assessing the adaptive functioning prong of mental retardation. See, e.g., Van Alstyne, 239 S.W.3d at 820 n. 12 (“The Vineland Adaptive Behavior Test is one of the recognized standardized scales for measuring adaptive deficits.” (citing Ex parte Blue, 230 S.W.3d 151, 165 n. 55 (Tex.Crim.App.2007))). Moreover, the AAMR favors the use of standardized tests, such as the VABS, as a way to diagnose mental retardation: “For the diagnosis of mental retardation, significant limitations in adaptive behavior should be established through the use of standardized measures normed on the general population, including people with disabilities and people without disabilities. On these standardized measures, significant limitations in adaptive behavior are operationally defined as performance that is at least two standard deviations below the mean....” AAMR–10, supra note 1, at 76 (emphasis added).

Chester also presented substantial evidence of limitations in at least four out of the AAMR's ten “adaptive skill areas”: communication, home living, functional academics, and work. Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242 (quoting AAMR–9, supra note 1, at 5).FN18 For instance, there was evidence that while growing up, Chester had severe communication difficulties: he spoke in jumbled sentences with misused words and a small vocabulary. His school diagnosed him with a “serious communicative handicap” and provided therapy. Other children called him “stupid” and “retarded.” He attended special education classes from third through twelfth grades. All his classes were taught to him at his own academic level, which was never higher than third grade. As an adult, when out of jail, Chester never lived independently; never had a driver's license or a bank account; held only menial jobs; could not read or write well enough to fill out a job application; and could not shop or cook by himself. At eighteen years of age he could read “only small words” and could not name the months of the year, according to the Texas Department of Criminal Justice's assessment which resulted in his being admitted to the MROP.FN19

FN18. The AAMR and APA definitions of mental retardation require that a person have limitations in only two adaptive skill areas. Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242. FN19. There are disputes about the significance of some of the evidence in the record. For instance, Dr. Edward Gripon, the state's mental retardation expert, testified that the correct diagnosis for someone with an IQ score of 69 and a VABS score of 57 is mental retardation. Yet he also testified that he did not think Chester was mentally retarded. The state emphasizes that although Chester was placed in the MROP, he was officially classified as having “borderline intellectual functioning” rather than mental retardation. However, Dr. Henry Orloff, a psychologist who was the MROP's director at the time, testified that there was no basis for the diagnosis of borderline intellectual functioning, and that the erroneous diagnosis had been allowed to stand because at that time, it made no practical difference.

The state also emphasizes that in school, Chester was categorized as being learning disabled rather than mentally retarded. However, Chester counters that a diagnosis of learning disability would be simply invalid in light of his consistently low IQ test results, since a person with a learning disability by definition has a discrepancy between IQ and academic achievement. The DSM–IV–TR explains: “Learning Disorders are diagnosed when the individual's achievement on individually administered, standardized tests in reading, mathematics, or written expression is substantially below that expected for age, schooling, and level of intelligence.” DSM–IV–TR, supra note 1, at 49 (emphasis added). By contrast, “In Mental Retardation, learning difficulties are commensurate with general impairment in intellectual functioning.” Id. at 51 (emphasis added). Despite Chester's VABS test score of 57—which the state's own expert witness testified was low enough to require a diagnosis of mental retardation—and despite his substantial evidence of adaptive functioning limitations in at least four of the AAMR skill areas, the state courts relied exclusively on the Briseno factors to determine that Chester did not meet this requirement of mental retardation. Thus, the state courts did not use the Briseno factors in the limited way in which the TCCA's Briseno opinion announced that they would be used—as “ other evidentiary factors” that a court “ might also focus upon” in addition to the AAMR's clinical definition. 135 S.W.3d at 8 (emphases added).

The TCCA in Briseno stated that it would apply the AAMR's 1992 definition of mental retardation, which includes adaptive functioning criteria, in Atkins cases. Id. The adaptive functioning prong of the AAMR's 1992 definition of mental retardation, as quoted in Atkins, is satisfied by a finding of “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.” Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242 (quoting AAMR–9, supra note 1, at 5) (quotation marks omitted). Similarly, the APA has stated that mentally retarded individuals will have “significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.” Id. (quoting DSM–IV–TR, supra note 1, at 41 (quotation marks omitted)). Yet the TCCA in this case made no attempt whatsoever to determine whether Chester has significant limitations in two or more of those areas of adaptive functioning.FN20 The state trial court likewise made no such attempt.

FN20. Nor did the TCCA make any attempt to apply any other clinical criteria for assessing adaptive functioning, such as the AAMR's 2002 definition, which requires “performance that is at least two standard deviations below the mean of either (a) one of the following three types of adaptive behavior: conceptual, social, or practical, or (b) an overall score on a standardized measure of conceptual, social, and practical skills.” AAMR–10, supra note 1, at 14.

Instead, the TCCA and the state trial court both treated their findings under the Briseno factors as if they were a sufficient basis, standing alone, for determining whether a person has significant limitations in adaptive functioning. The courts did not employ—nor did they even mention—any of the clinical definitions or criteria for adaptive functioning limitations. The trial court stated: “This Court's review of evidentiary factors relating to adaptive behavior suggested relevant by the Court of Criminal Appeals in Ex parte Briseno weigh conclusively against Applicant's argument that he is mentally retarded.” State v. Chester, No. 76044–B, slip op. at 25 (Crim. Dist. Ct. Jefferson Cnty., Tex. July 26, 2004). The TCCA stated: “The trial court's findings addressed all seven evidentiary factors listed in Briseno, and noted carefully how the applicant had failed to persuade the trial court on each one.” Chester, 2007 WL 602607, at *4. The TCCA, in effect, dispensed with any measurement of “adaptive functioning” as it is conceived of by the clinical mental retardation definitions and the adaptive functioning criteria contained therein. The federal district court, in denying Chester habeas relief, likewise made no attempt to determine whether Chester has significant limitations in adaptive functioning according to a rule generally conforming to the clinical definition of mental retardation. The federal district court relied entirely on the seventh Briseno factor, and nothing else, as the adaptive functioning test: “an affirmative finding as to the seventh and final Briseno evidentiary factor is sufficient by itself to uphold a denial of relief in a habeas corpus proceeding.” Chester, 2008 WL 1924245, at *7. Thus, not only did the federal district court disregard the AAMR and APA clinical criteria that were used by the Atkins Court to define mental retardation, but it disregarded six of the seven Briseno factors as well.

VI.
A.

The TCCA's decision in the present case is contrary to the clear holding of the Court in Atkins. “A state court decision is contrary to clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases....' ” Williams v. Quarterman, 551 F.3d at 358 (first alteration in original) (quoting Williams v. Taylor, 529 U.S. at 405, 120 S.Ct. 1495). The TCCA applied a rule of decision using the Briseno factors as its exclusive basis for holding that Chester does not have significant limitations in adaptive functioning and that he is therefore not mentally retarded for Eighth Amendment purposes. By so holding, the TCCA adopted and applied a rule of decision that the Briseno “other evidentiary factors,” standing alone, can be used to determine that an offender does not have significant limitations in adaptive functioning and is therefore not mentally retarded, even when the offender has presented strong evidence that he satisfies all the AAMR or APA clinical criteria for mental retardation.

The TCCA's rule of decision is contrary to Atkins because, as explained above, Atkins held that the Eighth Amendment imposes a “substantive restriction,” 536 U.S. at 321, 122 S.Ct. 2242, which prevents states from executing offenders who are “so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus,” id. at 317, 122 S.Ct. 2242. In order to “appropriate[ly] ... enforce th[is] constitutional restriction,” states must apply definitions of mental retardation for Eighth Amendment purposes that reflect the “national consensus” by “generally conform[ing] to the [AAMR and APA] clinical definitions” of mental retardation. Id. at 317 & n. 22, 122 S.Ct. 2242. The rule applied by the TCCA in this case involved a radical departure from general conformity with those clinical definitions of mental retardation. It redefined the adaptive functioning element in such a way that it clearly contradicts and fails to carry out Atkins's mandate to protect from execution all offenders who fall within the national consensus's understanding of mental retardation that generally conforms to the AAMR and APA definitions.

The Briseno evidentiary factors, standing alone, cannot be used to accurately determine that a person does not have significant limitations in adaptive functioning according to the national consensus's understanding of mental retardation that the Atkins Court identified. This is because the Briseno evidentiary factors are substantively very different from, and ask different questions than, the AAMR and APA criteria. For instance, the Briseno factors do not consider, and therefore cannot determine, whether a person has significant limitations in the adaptive skill areas of self-care, home living, community use, health and safety, functional academics, leisure, or work. The AAMR–9 and APA criteria or precepts generally conforming to them require only that a person must have significant limitations in two out of ten or eleven adaptive skill areas (as well as showing significantly subaverage intellectual functioning and onset before age 18). The AAMR and APA have noted that mentally retarded individuals have strength areas and that the most appropriate way to identify adaptive functioning deficits is to focus on the individual's limitations. See AAMR–10, supra note 1, at 8 (“[P]eople with mental retardation are complex human beings who likely have certain gifts as well as limitations.... These may include strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation.”); Blume et al., supra note 13, at 706, 710 (quoting AAMR–10, supra note 1, at 8); see also Holladay v. Allen, 555 F.3d 1346, 1363 (11th Cir.2009) (“Individuals with mental retardation have strengths and weaknesses, like all individuals. Indeed, the criteria for diagnosis recognizes this by requiring a showing of deficits in only two of ten identified areas of adaptive functioning.”); Lambert, 126 P.3d at 651 (“Unless a defendant's evidence of particular limitations is specifically contradicted by evidence that he does not have those limitations, then the defendant's burden is met no matter what evidence the State might offer that he has no deficits in other skill areas.”). FN21

FN21. The AAMR's 2002 definition of mental retardation incorporates the following explanation: Assumption 3: “Within an individual, limitations often coexist with strengths.” This means that people with mental retardation are complex human beings who likely have certain gifts as well as limitations. Like all people, they often do some things better than other things. Individuals may have capabilities and strengths that are independent of their mental retardation. These may include strengths in social or physical capabilities, strengths in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise show an overall limitation. AAMR–10, supra note 1, at 8. In accordance with this principle, the Oklahoma Court of Criminal Appeals, has explained that evidence regarding an offender's criminal activity is relevant for Atkins purposes only insofar as it tends to show that the offender does or does not have limitations in the areas specified by the clinical definitions: “Lambert was required to show ... that he had limitations in adaptive functioning in two of nine areas.... None of the evidence of criminal activity went to any of Lambert's claims of adaptive function limitations. Thus, strictly speaking, none of it was relevant to disprove those claims.” Lambert, 126 P.3d at 656.

The Briseno evidentiary factors, because they focus heavily on isolated instances of a person's behavior, by design are not meant to indicate whether a person meets the standard clinical criteria for mental retardation, which assess an individual's limitations in adaptive functioning based on his or her typical behavior. The Briseno factors, used exclusive of the clinical definitions, operate in a significantly different manner. As in this case, if the factfinder concludes that the petitioner met one of the Briseno factors even in a limited period of time or situation, the factfinder may then overlook the petitioner's limitations and conclude that the petitioner is not mentally retarded. Thus, a person could easily have significant limitations in two or more of these areas and yet be determined not to be mentally retarded by a court that relied exclusively on the Briseno evidentiary factors. Exclusive reliance on the Briseno factors renders evidence of significant limitations meaningless, and is directly contrary to the clinical definitions.

Moreover, at least some of the Briseno factors are concerned with aspects of a person's behavior that bear no relation to mental retardation as defined by the AAMR and APA. The second Briseno evidentiary factor (“Has the person formulated plans and carried them through or is his conduct impulsive?”) describes impulsivity as a sign of mental retardation, but the DSM–IV–TR flatly contradicts this: “Some individuals with Mental Retardation are passive, placid, and dependent, whereas others can be aggressive and impulsive.” DSM–IV–TR, supra note 1, at 44. The fourth and fifth Briseno evidentiary factors (“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 and written questions or do his responses wander from subject to subject?”) treat rationality and coherent communication as being inconsistent with mental retardation, but the clinical definitions do not indicate that mentally retarded people cannot communicate or behave rationally. On the contrary, the DSM–IV–TR states that people with mild mental retardation—who are “the largest segment (about 85%) of those with the disorder”—“typically develop social and communication skills” and “usually achieve social and vocational skills adequate for minimum self-support.” DSM–IV–TR, supra note 1, at 43.

Finally, the Briseno evidentiary factors also substantially depart from clinical definitions of mental retardation because they focus on isolated instances of a person's behavior rather than on a person's typical, day-to-day level of adaptive functioning. The seventh Briseno factor especially focuses on how the underlying capital crime was committed. This focus on isolated events—and especially on extraordinary events, like a situation in which a person commits murder—runs directly contrary to the clinical definitions' emphasis on day-to-day functioning and on the fact that mentally retarded people, like anyone else, have strengths as well as limitations, in particular circumstances as well as in different skill areas. See Holladay, 555 F.3d at 1363 (criticizing the state's expert for her “predominant focus on [the offender's] actions surrounding the crime,” which “suggest[ed] that she did not recognize [that people with mental retardation have strengths as well as weaknesses]”); see also Caroline Everington & J. Gregory Olley, Implications of Atkins v. Virginia : Issues in Defining and Diagnosing Mental Retardation, 8 J. Forensic Psychol. Prac., no. 1, 2008, at 1, 11 (“[P]erhaps most important, adaptive behavior is the individual's typical performance in his/her community setting. The details of the crime cannot be considered to be a sample of typical behavior.”).

As the Supreme Court explained in Williams v. Taylor, 529 U.S. at 405, 120 S.Ct. 1495 (O'Connor, J., concurring in part and concurring in the judgment, and speaking for the court on this point), “a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.” Further elaborating, the Court stated: The word “contrary” is commonly understood to mean “diametrically different,” “opposite in character or nature,” or “mutually opposed.” Webster's Third New International Dictionary 495 (1976). The text of § 2254(d)(1) therefore suggests that the state court's decision must be substantially different from the relevant precedent of this Court.... A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. Id. (emphasis added). Then, the Court gave two examples to clarify its meaning. First, it explained that:

If a state court were to reject a prisoner's claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be “diametrically different,” “opposite in character or nature,” and “mutually opposed” to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a “reasonable probability that ... the result of the proceeding would have been different.” Id. at 405–06, 120 S.Ct. 1495 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The Court then provided an example of when a state law is not “contrary to” a clearly established federal law: [A] run-of-the-mill state-court decision applying the correct legal rule from our cases to the facts of a prisoner's case would not fit comfortably within § 2254(d)(1)'s “contrary to” clause. Assume, for example, that a state-court decision on a prisoner's ineffective-assistance claim correctly identifies Strickland as the controlling legal authority and, applying that framework, rejects the prisoner's claim. Quite clearly, the state-court decision would be in accord with our decision in Strickland as to the legal prerequisites for establishing an ineffective-assistance claim, even assuming the federal court considering the prisoner's habeas application might reach a different result applying the Strickland framework itself. It is difficult, however, to describe such a run-of-the-mill state-court decision as “diametrically different” from, “opposite in character or nature” from, or “mutually opposed” to Strickland, our clearly established precedent. Id. at 406, 120 S.Ct. 1495.

Applying the Court's precepts to the present case, it is clear that the TCCA has arrived at a decision that is contrary to Atkins because it applied a rule that contradicts the governing law set forth in Atkins. Similarly to the first example given in Williams v. Taylor, the TCCA rejected Chester's Atkins claim on the grounds that he had not established his limitations in adaptive functioning by proving he was so limited or deficient according to the state-law Briseno factors. That decision is “diametrically different,” “opposite in character or nature,” and “mutually opposed” to the Court's clearly established precedent because the Court held in Atkins that Chester need only demonstrate that he has adaptive functioning deficits according to a definition that generally conforms to the AAMR or APA clinical definitions. The Briseno factors do not generally conform to, and indeed are “substantially different” from, either the AAMR or APA adaptive functioning criteria. See Williams v. Taylor, 529 U.S. at 405, 120 S.Ct. 1495. In other words, this is not a run-of-the-mill state-court decision in which the state court correctly identified the clinical adaptive functioning prong of Atkins's clinical definition of mental retardation and, applying that framework, rejected the prisoner's claim. Instead, the TCCA in this case disregarded the adaptive functioning framework recognized by the Court in Atkins and applied the state-court-created Briseno factors, which are “diametrically different,” “opposite in character or nature,” and “mutually opposed” to a definition that generally conforms to the clinical criteria recognized by the Court in Atkins for defining mental retardation. Specifically, the TCCA's decision was contrary to Atkins itself, where the Court held that a defendant may demonstrate his adaptive functioning deficits by showing limitations in specific skill areas that generally conform to the AAMR or APA clinical mental retardation definitions.

Thus, because the Briseno evidentiary factors are substantively different from and contrary to the clinical and diagnostic approaches to determining deficits in adaptive functioning, when they are used as the sole measure of a person's adaptive functioning, rather than concordantly with clinically standardized test results and professionally accepted criteria, they cannot accurately determine whether a person is mentally retarded in accordance with the national consensus's understanding of mental retardation that the Supreme Court identified in Atkins.

B.

In addition to being contrary to Atkins, the TCCA decision in this case did not follow its own earlier opinion in Briseno in which it had stated that it would apply the AAMR definition of mental retardation or the similar Texas Health Code § 591.003(13) definition. Briseno, 135 S.W.3d at 7–8. The Briseno court mentioned some “ other evidentiary factors” that a court “ might also focus upon,” id. at 8 (emphases added), but it did not suggest that those factors could be used as a substitute for substantive clinical criteria in determining whether an offender has significant limitations in adaptive functioning. In this case, the TCCA disregarded the Atkins second prong clinical criteria altogether and used Briseno's “other evidentiary factors” as its sole basis for determining that Chester does not have significant limitations in adaptive functioning. The district court took this substantive definition change a step further and held that an affirmative finding of the seventh Briseno factor alone can serve as the sole basis for affirming the TCCA.

The three-judge dissent in Lizcano v. State, No. AP–75879, 2010 WL 1817772 (Tex.Crim.App. May 5, 2010) (Price, J., concurring and dissenting) (unpublished), made the point forcefully that the TCCA majority, in using or allowing the use of the Briseno factors to the exclusion of clinical diagnostic criteria to determine whether a petitioner has satisfied the second prong of the tripartite definition of mental retardation, contradicts both Atkins and Briseno. In Lizcano, as in Chester, the factfinder used the Briseno factors to the exclusion of clinical diagnostic criteria to reject the petitioner's mental retardation claim and to affirm his death sentence. The dissent acknowledged that there may be “fodder” in the Briseno decision to support the Lizcano majority's argument that the jury is not “bound by the diagnostic criteria,” id. at *34, but then correctly argued that such a belief runs contrary to established federal law: “ Atkins adopted a categorical prohibition. It was founded upon the Supreme Court's ratification of the prevalent legislative judgment that it is inappropriate to execute mentally retarded offenders. That legislative judgment comprehended mental retardation in essentially the same ‘clinical’ terms as the AAMR's and APA's diagnostic criteria.” Id. at *35.

The Lizcano dissent argued that the TCCA was not “justif[ied] [in its] apparent grant of latitude to fact-finders in Texas to adjust the clinical criteria for adaptive deficits to conform to their own normative judgments with respect to which mentally retarded offenders are deserving of the death penalty and which are not.” Id. In failing to “anchor the fact-finder's decision on the specific diagnostic criteria,” id., the majority acted unconstitutionally: “Even if the Supreme Court in Atkins ‘did not mandate the application of a particular mental health standard for mental retardation, ... it did recognize the significance of professional standards and framed the constitutional prohibition in medical rather than legal terms.’ It would be anomalous to allow the fiat of a fact-finder to undermine the essentially diagnostic character of the inquiry. We should not ... permit a [fact-finder] capriciously to deviate from the specific diagnostic criteria in order to conform to its own normative, unnecessarily subjective, and certainly unscientific judgment regarding who deserves the death penalty.” Id. (first alteration in original) (footnotes omitted).

In summary, in order to determine whether Chester is mentally retarded and protected from execution under Atkins, the state courts were constitutionally obligated to employ a definition of mental retardation that would identify and protect the class of offenders covered by Atkins's “substantive restriction on the State's power to take [a] life”—namely, those offenders who are “so impaired as to fall within the range of offenders about whom there is a national consensus.” Atkins, 536 U.S. at 317, 321, 122 S.Ct. 2242. However, in their adjudication of Chester's claim, the state courts transformed the Briseno evidentiary factors into a stand-alone substantive test for the adaptive functioning prong of the mental retardation definition, a test that does not “generally conform to the clinical definitions,” id. at 317 n. 22, 122 S.Ct. 2242, and hence cannot accurately determine whether an offender falls within the class that is protected by Atkins. The state courts did this even though Chester presented standardized test scores and other evidence tending to show that he satisfied the clinical criteria for adaptive functioning limitations (as well as the other two prongs of mental retardation, which he has undisputedly established). Therefore, the state courts' decision that Chester is not mentally retarded was “contrary to” Atkins, under 28 U.S.C. § 2254(d)(1), because the state court applied a rule that contradicted the governing law clearly set forth in Atkins.

VII.

The issue presented by this case is not whether a state or federal court must strictly apply the AAMR or APA clinical definitions of mental retardation in deciding Atkins claims—as the majority suggests —but rather whether a court must apply a definition that generally conforms to those clinical definitions, or whether a court can disregard or depart freely from them and make up its own unscientific and non-clinical definition of mental retardation that contradicts the definitions to which the national consensus generally conforms. Atkins requires that states apply a definition that “generally conforms” to the AAMR and APA clinical definitions and diagnostic assessments of mental retardation, which the national consensus has embraced. In this case, the TCCA utilized parts of the tripartite definition of mental retardation, but its definition of the adaptive functioning prong does not generally conform to the national consensus's definition of this prong and in fact departs substantially from the nationally accepted criteria for determining whether a petitioner has adaptive functioning deficits.

The majority erroneously concludes that the Briseno factors provide a constitutionally acceptable means of limiting the class of defendants who are death eligible, and that Chester's claim must fail. There is a vast distance between a holding requiring strict adherence to a clinical definition and a holding that would allow states to develop their own definitions of mental retardation without regard for the clinical definitions or the national consensus. While the former is not required by Atkins, the latter clearly falls outside Atkins's constitutional bounds because Atkins requires that the state's definition “generally conform” to the clinical definitions that the national consensus relied upon in narrowing the class of death eligible defendants to exclude mentally retarded defendants.

The Atkins holding clearly prohibits the execution of mentally retarded defendants. Although as in Ford, the Supreme Court left to the states the task of enforcing this restriction, Atkins, 536 U.S. at 317, 122 S.Ct. 2242, “[t]he bounds of that category are necessarily governed by federal constitutional law.” Ford, 477 U.S. at 419, 106 S.Ct. 2595 (Powell, J., concurring in part and concurring in the judgment, and speaking for the majority on this point). The prohibition becomes meaningless unless it is moored to a generally agreed upon definition of “mental retardation.” Yet this is what the majority does: it releases the definition from its moorings. The TCCA should not be permitted to circumvent Atkins's constitutional prohibition by totally supplanting the definition of adaptive functioning that, prior to Briseno, had been utilized by Texas courts and which “generally conform[ed]” both with the AAMR clinical definition and with the national consensus that had developed around the AAMR and APA definitions.

The majority does not attempt to argue that the Briseno factors, standing alone, fall within the national consensus. Indeed, the opinion seems to suggest that states are empowered to ignore the national consensus. This national consensus tracks the “ ‘evolving standards of decency that mark the progress of a maturing society,’ ” which underlies Eighth Amendment jurisprudence. Atkins, 536 U.S. at 312, 122 S.Ct. 2242 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)). States may not ignore it in favor of their own restrictions that would allow for the execution of individuals that the national consensus has decided should not be executed. This is clear from the text of Atkins, which left to the states only “ ‘the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ ” Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (alteration in original) (emphasis added) (quoting Ford, 477 U.S. at 416–17, 106 S.Ct. 2595). It does not give states the power to define what the constitutional restriction is; that had already been determined by the national consensus upon which the Atkins Court based its holding.

In this case, the TCCA used the Briseno factors as a substitute for the clinical definition that Texas had previously pledged to follow and to which the national consensus generally conforms. It presents a “scientifically unsound and Atkins-violative assessment[ ] of adaptive functioning.” Blume, supra note 13, at 706. Moreover, standing alone, the Briseno factors turn on its head the consensus's approach to determining whether the petitioner has significant limitations in adaptive functioning. The AAMR and APA correctly assess adaptive functioning by analyzing the petitioner's limitations. According to the AAMR, a person who is deficient in two out of the ten AAMR adaptive skill areas may be categorized as having significant limitations in adaptive functioning. The Briseno factors function in the opposite manner. According to the district court below, which the majority today affirms, the fact finder may find that a petitioner is not mentally retarded merely because he meets one of the seven Briseno factors. Moreover, several of the Briseno factors are markedly different from the clinical adaptive skill areas, and several are based on a person's actions in a single moment instead of over a person's lifetime. In other words, if the Briseno factors, standing alone, are allowed to replace an analysis that generally conforms to the clinical definitions, a single area or moment of strength can discount substantive evidence of significant limitations in numerous areas of adaptive functioning. See Blume, supra note 13, at 717–18. Furthermore, the TCCA, in developing the Briseno factors, did not conduct an assessment of the national consensus or draw from the clinical definitions of mental retardation around which the national consensus has coalesced. The factors are unmoored from the national consensus's general understanding of what constitutes mental retardation. Used alone, these factors may determine that a subclass of persons protected by Atkins's holding are, indeed, death eligible in Texas. The use of the Briseno factors in the present case therefore is clearly “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

VIII.

Chester's claim that he is mentally retarded must be adjudicated in a manner that is consistent with Atkins. The TCCA's adjudication of Chester's claim was contrary to the law that Atkins clearly established. See Williams v. Quarterman, 551 F.3d at 358 (5th Cir.2008) (“A state court decision is contrary to clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases....' ” (first alteration in original) (quoting Williams v. Taylor, 529 U.S. at 405, 120 S.Ct. 1495)). Accordingly, I would vacate the judgment of the district court and remand this case to allow the district court to determine, not inconsistently with this opinion and pursuant to the federal law clearly established by the Supreme Court in Atkins, whether Chester is mentally retarded under a definition of mental retardation that “generally conform[s] to the clinical definitions” set forth in Atkins, 536 U.S. at 317 n. 22, 122 S.Ct. 2242, and thus “fall[s] within the range of mentally retarded offenders about whom there is a national consensus,” id. at 317, 122 S.Ct. 2242, and hence is protected from execution by the Eighth Amendment.

Chester v. Thaler, --- Fed.Appx. ----, 2013 WL 2489940 (5th Cir. 2013). (Federal Habeas)

PER CURIAM:

FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

In Chester v. Thaler, 666 F.3d 340, 340–51 (5th Cir.2011), cert. denied, 133 S.Ct. 525 (2012) (mem.), this court affirmed the district court's denial of Chester's 28 U.S.C. § 2254 habeas petition, which challenged his Texas conviction for capital murder and resulting death sentence. Chester's execution is currently scheduled for 6:00 P.M. tomorrow, June 12, 2013. Chester has now filed a Motion for Stay of Execution and a Motion to Recall Mandate.FN1 For the reasons set out below, the panel has determined that this case should be assigned to a different three-judge panel. FN1. Chester also filed a motion to recuse one of the members of the panel. The motion has been denied by the subject judge.

Chester attached to his motion to recall the mandate a copy of a complaint of judicial misconduct against one of the members of the panel that was subsequently filed with the clerk of court. He asserts that the allegations of the complaint and its attached affidavits raise questions about the impartiality of the judge as respects petitioners like himself and his underlying claims. In addition to the allegations relied on by Chester, the complaint also alleges that in a different case, the subject judge showed disrespect toward a second member of this panel. The third member of this panel is the Chief Circuit Judge, whose duties under 28 U.S.C. §§ 351 et seq. give him a substantial role in the consideration of any complaint of judicial misconduct, including this one.

Given these extraordinary circumstances, the panel has concluded that another panel must be assigned to consider the pending motions. This conclusion is based on the connections between all three members of the panel and the complaint of judicial misconduct; no inferences should be drawn about the merits of that complaint. It is hereby ORDERED that the clerk's office assign this matter to another panel forthwith.FN2 FN2. Judge Jones dissents.

DENNIS, Circuit Judge, concurring:

I concur in the order to transfer this case to another panel and write separately only to express my view that this court should stay Chester's execution scheduled for 6:00 p.m. tomorrow in order to afford the new panel adequate time to consider whether to recall the mandate and take further action in this case. If this court ultimately concludes that Chester's motion to recall the mandate is without merit, no irreparable harm will have been done to the state and the execution can be rescheduled. Unless a temporary stay of the execution is granted, however, the court may be unable to give the issues presented the deliberate and judicious attention they deserve before the execution takes place. Chester's execution, of course, will moot those issues and any constitutional injury to his rights will be irreparable.