IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 14, 2008
No. 07-70026 Charles R. Fulbruge III
Clerk
Curtis MOORE
Petitioner-Appellant
v.
Nathaniel QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Curtis Moore was convicted of capital murder in Texas and sentenced to
death. After his conviction and sentence were affirmed on direct review, Moore
unsuccessfully sought state and federal habeas relief. Following the Supreme
Court’s decision in Atkins v. Virginia,1 Moore sought state habeas relief on a
mental retardation claim. The state courts rejected his claim on the merits.
Moore then filed a motion for authorization to file a successive habeas
1
536 U.S. 304 (2002).
No. 07-70026
application based on the Atkins claim, which we granted.2 The district court
denied Moore relief on his claim,3 and denied Moore’s application for a
Certificate of Appealability (COA). Moore now seeks a COA from this court. We
deny his application for a COA.
Under 28 U.S.C. § 2253(c)(2), a habeas petitioner must obtain a COA in
order to appeal the district court’s denial of relief. “This is a jurisdictional
prerequisite because the COA statute mandates that ‘[u]nless a circuit justice
or judge issues a certificate of appealability, an appeal may not be taken to the
court of appeals . . . .’”4 “A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional
right.”5 “To make such a showing, a petitioner ‘must demonstrate that the issues
are debatable among jurists of reason; that a court could resolve the issues [in
a different manner]; or that the questions are adequate to deserve
encouragement to proceed further.’”6
As the Supreme Court has explained, “The COA determination under §
2253(c) requires an overview of the claims in the habeas petition and a general
assessment of their merits. We look to the District Court’s application of AEDPA
to petitioner’s constitutional claims and ask whether that resolution was
debatable amongst jurists of reason.”7
2
See In re Moore, No. 07-10168, 217 Fed. App’x. 350 (5th Cir. Feb. 9, 2007)
(unpublished).
3
See Moore v. Quarterman, No. 4:07-CV-077-A, 2007 WL 1965544 (N.D. Tex. July 6,
2007).
4
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
5
28 U.S.C. § 2253(c)(2).
6
ShisInday v. Quarterman, 511 F.3d 514, 520 (5th Cir. 2007) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)).
7
Miller-El, 537 U.S. at 336.
2
No. 07-70026
In Atkins, the Supreme Court held that the Constitution prohibits
executing the mentally retarded.8 “The Court . . . left ‘to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences,’ but cited with approval the American Association on
Mental Retardation (‘AAMR’) definition of mental retardation.”9 The Texas
courts have adopted a test for mental retardation that mirrors the AAMR
definition, and thus require an applicant claiming mental retardation to
demonstrate (1) significantly subaverage general intellectual functioning; (2)
accompanied by related limitations in adaptive functioning; and (3) onset prior
to the age of eighteen.10 “To state a successful claim, an applicant must satisfy
all three prongs of this test.”11
Because the state court decided Moore’s Atkins claim on the merits, the
state court decision receives AEDPA deference.12 The district court concluded
that the state court judgment could not be disturbed:
In short, having independently reviewed all of the evidence, the
court concludes that, while there is evidence indicative of perhaps
mild mental retardation, there is ample evidence that Moore is not
mentally retarded. Consequently, the state court’s finding that
Moore is not mentally retarded was not unreasonable. See 28 U.S.C.
§ 2254(d)(2). Moreover, these findings are presumed to be correct
unless controverted by Moore with clear and convincing evidence.
8
See 536 U.S. at 321 (“Construing and applying the Eighth Amendment in the light of
our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive
and that the Constitution ‘places a substantive restriction on the State’s power to take the life’
of a mentally retarded offender.” (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986))).
9
In re Salazar, 443 F.3d 430, 432 (5th Cir. 2006) (quoting Atkins, 536 U.S. at 317).
10
Id.; see Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004).
11
Salazar, 443 F.3d at 432.
12
See 28 U.S.C. § 2254(d), (e).
3
No. 07-70026
See 28 U.S.C. § 2254(e)(1). Moore has failed to meet that burden
here.13
The court also explained that it “views the issue of Moore’s mental capacity as
one of fact. Even if viewed as a mixed issue of fact and law, the state-court
decision on this issue was not contrary to or otherwise involved an unreasonable
application of clearly established federal law.”14
Moore presented a thin case of mental retardation. Moore’s IQ has been
tested numerous times: as reported by Moore, a WISC-R test in 1980 yielded a
full-scale score of 68;15 a WISC-R in 1981 a full-scale score of 72; a WISC-R in
1984 a full-scale score of 72;16 a WAIS-R in 1996 a full-scale score of 76; a WAIS-
III in 2003 a full-scale score of 63; and, finally, a WAIS-III in 2004 a full-scale
score of 76. While these scores could support a finding of subaverage intellectual
functioning, the scores can also sustain a finding that Moore is not retarded.
Furthermore, there was conflicting expert evidence introduced at the state
habeas proceeding concerning these scores; that is, while some expert opinion
supported a finding of subaverage intellectual functioning, there was other
expert evidence indicating that Moore did not suffer from such functioning and
that he underperformed on at least some of the tests.
The evidence as to deficits in adaptive functioning cuts both ways, and the
evidence in support of a finding of adaptive limitations is not without problems.
Although Moore presented affidavits from those who knew him and the expert
13
Moore, 2007 WL 1965544, at *6
14
Id. at *6 n.13.
15
The district court, based on the trial court findings, reported this score as 67 and not
68. Id. at *5 & n.8. The difference is not material to the outcome.
16
Moore argues that the result of this test should be heavily discounted because the
examiner and circumstances of the test “are unknown and the report is not in evidence.”
Discounting the result does not change the outcome.
4
No. 07-70026
opinion of Dr. Rosin describing deficits, there was also credible evidence, both
expert and not, that Moore did not suffer from deficits in adaptive functioning.
Given the conflicted nature of the evidence, and the weaknesses in the evidence
in Moore’s favor, Moore cannot overcome the state court’s findings.
Although Moore’s claim founders on the first two elements of the mental
retardation analysis, we also note that the evidence of onset before age 18 was
conflicted. On this record, reasonable jurists could not disagree with the able
district court’s determination that Moore’s Atkins claim is beyond the reach of
AEDPA relief.
Moore’s application for a Certificate of Appealability is DENIED.
5