Bobby Hines v. Rick Thaler, Director , 456 F. App'x 357 ( 2011 )


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  •      Case: 11-70010     Document: 00511707653         Page: 1     Date Filed: 12/27/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    December 27, 2011
    No. 11-70010                        Lyle W. Cayce
    Clerk
    BOBBY LEE HINES,
    Petitioner–Appellant
    v.
    RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent–Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:06-CV-320
    Before KING, BENAVIDES, and ELROD, Circuit Judges.
    KING, Circuit Judge:*
    Bobby Lee Hines was convicted of capital murder in a jury trial in Texas
    and sentenced to death. The Texas Court of Criminal Appeals affirmed his
    conviction and sentence on direct appeal, and Hines unsuccessfully sought both
    state and federal habeas relief. Hines now seeks a certificate of appealability
    pursuant to 28 U.S.C. § 2253 to challenge the district court’s denial of successive
    habeas relief, arguing, under Atkins v. Virginia, 
    536 U.S. 304
    (2002), that he
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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    cannot be executed because he is mentally retarded. We hold that reasonable
    jurists could not debate the district court’s conclusion that Hines has failed to
    show that he is ineligible for a death sentence under Atkins. Accordingly, we
    DENY his request for a certificate of appealability.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Petitioner–Appellant Bobby Lee Hines (“Hines”)1 was convicted of capital
    murder on March 19, 1992, and sentenced to death. The Texas Court of
    Criminal Appeals (“CCA”) rejected his direct appeal in May 1995. See Hines v.
    State, No. 71,442 (Tex. Crim. App. May 10, 1995) (unpublished). His initial state
    habeas appeal was also denied by the CCA. Ex parte Hines, No. 40,347-01 (Tex.
    Crim. App. 1999) (unpublished). The district court denied Hines’s initial federal
    habeas appeal, see Hines v. Cockrell, No. 3:99–CV–0575–G, 
    2002 WL 108301
    (N.D. Tex. Jan. 22, 2002), and this court subsequently denied his request for a
    Certificate of Appealability (“COA”), see Hines v. Cockrell, 57 F. App’x 210, 
    2002 WL 31956173
    , at *7 (5th Cir. Dec. 31, 2002), cert. denied Hines v. Dretke, 
    540 U.S. 827
    (2003).
    After this initial round of appeals by Hines, the Supreme Court decided
    Atkins v. Virginia, 
    536 U.S. 304
    (2002), on June 20, 2002, in which it held that
    the execution of the mentally retarded violated the Eighth Amendment. 
    Id. at 320–21.
    Shortly before his scheduled execution date of December 11, 2003,
    Hines filed in state court another application for a writ of habeas corpus,
    asserting that he is mentally retarded and therefore could not be executed
    pursuant to Atkins. After finding that Hines met the requirements for a
    subsequent writ application, the CCA stayed Hines’s execution pending review
    of his Atkins claim. Ex parte Hines, No. 40,347-02 (Tex. Crim. App. Dec. 9,
    2003).
    1
    We refer to Respondent–Appellee as “the State.”
    2
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    Hines filed supplemental briefs and attached multiple exhibits and
    affidavits to support his claim in the state court. The State responded with its
    own briefs and evidence. The trial court reviewed this new evidence, but did not
    hold a live evidentiary hearing. The trial court entered detailed findings of fact
    and conclusions of law holding that Hines is not mentally retarded and
    therefore eligible for the death penalty.       Ex parte Bobby Lee Hines, No.
    W91-21411-I(B), at 54, ¶ 246–51 (June 23, 2005). The CCA adopted the trial
    court’s findings and conclusions, and denied Hines habeas relief. Ex parte Bobby
    Lee Hines, WR-40,347-02, 
    2005 WL 3119030
    (Tex. Crim. App. Nov. 23, 2005).
    Hines then applied for and received authorization from this court to file
    a successive habeas corpus application in the district court. In re Hines, No. 05-
    11342 (5th Cir. Feb. 2, 2006). Hines filed a motion for an evidentiary hearing,
    which was granted, and the magistrate judge held a live evidentiary hearing on
    August 26 and 27, 2009, to determine whether Hines is mentally retarded.
    Following this hearing, the magistrate judge concluded that Hines is not
    retarded and recommended that habeas relief be denied. Hines v. Thaler, No.
    3:06-cv-00320-G, Findings and Recommendation of the United States Magistrate
    Judge (N.D. Tex. Mar. 22, 2010). Over Hines’s objection, the district court
    adopted the magistrate judge’s findings and conclusions and denied Hines
    habeas relief. Hines v. Thaler, No. 3:06-cv-00320-G, Order Accepting Findings
    and Recommendation of the United States Magistrate Judge and Denying a
    Certificate of Appealability (N.D. Tex. Aug. 18, 2010). After a second, and
    explicitly de novo, review of the record, the district court also rejected Hines’s
    Rule 59(e) motion to alter its judgment. Hines v. Thaler, No. 3:06-cv-00320-G,
    Memorandum Opinion and Order (N.D. Tex. Apr. 4, 2011).
    Hines now seeks a COA in order to appeal the district court’s decision not
    to grant him habeas relief on Atkins grounds. In determining whether Hines is
    entitled to a COA, inter alia, we analyze what level of deference the district court
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    should have applied to the state court’s determination of Hines’s Atkins claim.
    II. DISCUSSION
    A.      Standard of Review
    As Hines filed his federal habeas petition in 2003, his request for a COA
    is governed by the Antiterrorism and Effective Death Penalty Act of 1996
    (“AEDPA”). See 28 U.S.C. § 2253. In order to appeal, Hines must first obtain a
    COA, which is a jurisdictional prerequisite to our ability to review the district
    court’s dismissal of a habeas petition and denial of relief.           28 U.S.C.
    § 2253(c)(1)(A); Miller-El v. Cockrell, 
    537 U.S. 322
    , 335–36 (2003). A COA can
    be granted “only if the applicant has made a substantial showing of the denial
    of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has
    rejected the constitutional claims on the merits, the showing required to satisfy
    § 2253(c) is straightforward: The petitioner must demonstrate that reasonable
    jurists would find the district court’s assessment of the constitutional claims
    debatable or wrong.”      Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000). This
    standard does not necessitate success on the underlying merits of the habeas
    claim: “[A] claim can be debatable even though every jurist of reason might
    agree, after the COA has been granted and the case has received full
    consideration, that petitioner will not prevail.” 
    Miller-El, 537 U.S. at 338
    . As
    Hines faces the death penalty, “‘any doubts as to whether a COA should issue
    must be resolved in [Hines’s] favor.’” Foster v. Quarterman, 
    466 F.3d 359
    , 364
    (5th Cir. 2006) (quoting Hernandez v. Johnson, 
    213 F.3d 243
    , 248 (5th Cir.
    2000)).
    In assessing whether to grant a COA, we are restricted “to a threshold
    inquiry into the underlying merit of [Hines’s] claims.” 
    Miller-El, 537 U.S. at 327
    .
    In essence, we are limited to “an overview of the claims in [Hines’s] habeas
    petition and a general assessment of their merits.” 
    Id. at 336.
    However, we
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    carry out this analysis with the understanding that AEDPA normally mandates
    deference to the state court’s findings of fact and conclusions of law.
    A federal court “may grant habeas corpus relief to [Hines] only if the state
    court’s adjudication of his claim on the merits:
    (1) 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; or
    (2) resulted in a decision that was based on an unreasonable
    determination of the facts in light of the evidence presented in the
    State court proceeding.”
    Rabe v. Thaler, 
    649 F.3d 305
    , 308 (5th Cir. 2011) (quoting 28 U.S.C. § 2254(d)).
    In interpreting § 2254(d)’s provisions, the Supreme Court has explained that “a
    federal habeas court may not issue the writ simply because that court concludes
    in its independent judgment that the relevant state-court decision applied
    clearly established federal law erroneously or incorrectly.          Rather, that
    application [by the state court] must also be unreasonable.” Williams v. Taylor,
    
    529 U.S. 362
    , 411 (2000) (emphasis added). In light of this admonition, “[a] state
    court’s 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 decide[s] a case differently than the United States Supreme Court
    previously decided a case on a set of nearly identical facts.” Jones v. Cain, 
    600 F.3d 527
    , 535 (5th Cir. 2010) (internal quotation marks and citations omitted).
    Similarly, “[a] state court’s 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.’” Fields v. Thaler, 
    588 F.3d 270
    , 273 (5th Cir. 2009) (quoting
    
    Williams, 529 U.S. at 407
    –08).
    Recently, the Supreme Court, in Cullen v. Pinholster, 
    131 S. Ct. 1388
    , 1398
    (2011), made clear that “review under [28 U.S.C.] § 2254(d)(1) is limited to the
    5
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    record that was before the state court that adjudicated the claim on the merits.”
    
    Id. at 1398;
    see also Greene v. Fisher, 
    132 S. Ct. 38
    , __ (2011). As the Court
    explained, Ҥ 2254(d)(1) review [should] focus[] on what a state court knew and
    did,” 
    Pinholster, 131 S. Ct. at 1399
    , such that “evidence introduced in federal
    court has no bearing on § 2254(d)(1) review.” 
    Id. at 1400;
    see also Greene, 132
    S. Ct. at __ (holding that under § 2254(d)(1), “clearly established Federal law, as
    determined by the Supreme Court of the United States” includes only Supreme
    Court decisions as of the time of the relevant state-court adjudication on the
    merits).
    B.      AEDPA Deference and Due Process
    As a preliminary matter, Hines argues that the district court incorrectly
    applied AEDPA deference to the state court’s determinations. He contends that,
    by deciding his Atkins claim without a live hearing, the state court violated
    federal law and that therefore the district court should have reviewed his claim
    de novo.
    At the COA stage, we ask “whether the District Court’s application of
    AEDPA deference . . . was debatable amongst jurists of reason.” 
    Miller-El, 537 U.S. at 341
    . As we explained above, AEDPA normally mandates deference to
    state court proceedings. Indeed, a habeas petitioner may not raise a claim for
    federal habeas relief on the basis of deficiencies in his state habeas proceeding.
    See Moore v. Dretke, 
    369 F.3d 844
    , 846 (5th Cir. 2004) (per curiam) (“It is
    axiomatic that infirmities in state habeas proceedings do not constitute grounds
    for federal habeas relief.” (internal quotation marks and citation omitted)).
    Nonetheless, the Supreme Court has clarified that a state court’s
    unreasonable application of federal law within the broader context of
    adjudicating a defendant’s claim can negate the requirement of AEDPA
    deference. See Panetti v. Quarterman, 
    551 U.S. 930
    , 953 (2007) (“When a state
    court’s adjudication of a claim is dependent on an antecedent unreasonable
    6
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    application of federal law, the requirement set forth in § 2254(d)(1) is satisfied.
    A federal court must then resolve the claim without the deference AEDPA
    otherwise requires.”).2 Such federal law may include due process, as “[e]ven
    though Atkins did not specifically mandate any set of procedures, it was decided
    against the backdrop of the Supreme Court’s and lower court’s due process
    jurisprudence.” Rivera v. Quarterman, 
    505 F.3d 349
    , 358 (5th Cir. 2007).
    We applied Panetti’s holding in an Atkins context in both Rivera v.
    Quarterman, 
    505 F.3d 349
    (5th Cir. 2007), and Wiley v. Epps, 
    625 F.3d 199
    (5th
    Cir. 2010). In Rivera, we concluded that the CCA’s decision that a petitioner had
    failed to establish a prima facie case of mental retardation and thus could not
    develop his claim further through a hearing, despite a substantial showing of
    evidence by petitioner, was an unreasonable application of federal law and left
    “our review of petitioner’s underlying incompetency claim . . . unencumbered by
    the deference AEDPA normally requires.” 
    Rivera, 505 F.3d at 358
    (citing
    
    Panetti, 551 U.S. at 947
    –48).3           As we explained, Panetti drew on Ford v.
    Wainwright, 
    477 U.S. 399
    (1986), and “[u]nder Ford, ‘[o]nce a prisoner seeking
    a stay of execution has made a ‘substantial threshold showing of insanity,’ the
    protection afforded by procedural due process includes a ‘fair hearing’ in accord
    with fundamental fairness.’” 
    Id. (quoting Panetti,
    551 U.S. at 949 (quoting 
    Ford, 477 U.S. at 426
    (Powell, J., concurring in part and concurring in the judgment))).
    In Rivera, the CCA’s failure to provide a prisoner a forum in which to develop his
    claim after he made such an evidentiary showing constituted an unreasonable
    2
    In Panetti, the Supreme Court relied on its previous decision in Ford v. Wainwright,
    
    477 U.S. 399
    (1986), in which the Court held that defendants who claim ineligibility for the
    death penalty because of insanity are entitled to a hearing compliant with due process and
    fundamental fairness. See 
    Panetti, 551 U.S. at 949
    –50 (citing 
    Ford, 477 U.S. at 424
    –27
    (Powell, J., concurring in part and concurring in the judgment)).
    3
    A “prima facie case of mental retardation ‘is simply a sufficient showing of possible
    merit to warrant a fuller [exploration] by the district court.’” 
    Wiley, 625 F.3d at 213
    (quoting
    In re Henderson, 
    462 F.3d 413
    , 415 (5th Cir. 2006)) (alteration in original).
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    application of clearly established federal law and stripped the state court
    proceedings of AEDPA deference. 
    Id. at 357–58,
    361.
    We again declined to apply AEDPA deference in Wiley, a habeas appeal
    from a Mississippi capital conviction. 
    Wiley, 625 F.3d at 213
    . In that case, a
    prisoner satisfied the specific state law requirements for a prima facie case of
    mental retardation under Mississippi law and was therefore entitled to an
    evidentiary hearing regarding his Atkins claim. 
    Id. at 206–07
    (citing Chase v.
    State, 
    873 So. 2d 1013
    , 1028–29 (Miss. 2004)). The Mississippi Supreme Court
    held in Chase that “[u]pon receiving [a substantial showing of mental
    retardation by the petitioner], and any response filed by the State, the trial court
    shall provide a reasonable amount of time for testing the defendant for mental
    retardation. Thereafter, the trial court shall set a hearing on the motion, and
    the matter shall proceed.” 
    Chase, 873 So. 2d at 1029
    .
    In light of this standard, we found that “the Mississippi Supreme Court’s
    decision in Wiley’s case to deny a hearing and decide the mental retardation
    question appear[ed] to be an anomaly” and at odds with its own stated
    procedures and precedents both prior to and after Wiley’s case. 
    Wiley, 625 F.3d at 209
    –11. This inconsistency was a violation of “the core due process concepts
    of notice and foreseeability . . . . [as] [t]he state court applied an unexpectedly
    more stringent process to Wiley without notice, contrary to its announced
    procedure in numerous cases.” 
    Id. at 211
    (citations omitted). Accordingly, we
    held that the Mississippi Supreme Court unreasonably applied clearly
    established federal law by not remanding Wiley’s petition to the trial court for
    an evidentiary hearing. 
    Id. at 213
    (citing 
    Rivera, 505 F.3d at 357
    ; 
    Panetti, 551 U.S. at 948
    ).
    Hines argues that the district court’s decision to apply AEDPA deference
    to the state court’s findings is debatable because our holding in Wiley
    necessitated a de novo review of the state court’s determinations—i.e., one
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    devoid of AEDPA deference. Hines contends that he presented a prima facie
    case of mental retardation to the state court but was denied a live evidentiary
    hearing in violation of his due process rights. To make this point, Hines argues
    that our decision in Wiley did not turn only on Mississippi’s specific procedures,
    but was a broader holding that a state court’s failure to provide an Atkins
    hearing after any prima facie showing of mental retardation is a due process
    violation.
    We strongly disagree. Hines’s reading of Wiley misapprehends how the
    Mississippi Supreme Court violated federal due process when adjudicating
    Wiley’s state habeas claim. Our decision in Wiley was based on the fact that
    “Wiley presented a prima facie case of mental retardation in his state court
    habeas application under the Mississippi standards for an Atkins claim.” 
    Id. at 213
    (emphasis added). Indeed, over the course of our opinion, we referred to
    multiple Mississippi decisions dealing with Atkins-related procedures, including
    the Mississippi Supreme Court’s controlling decision in Chase v. State, 
    873 So. 2d 1013
    (Miss. 2004), which explicitly held that a prima facie showing of mental
    retardation establishes a prisoner’s right to an evidentiary hearing. See 
    Wiley, 625 F.3d at 205
    –13 (citing 
    Chase, 873 So. 2d at 1029
    –30). Our concern was that
    by disregarding its holding in Chase and “adjudicating Wiley’s mental
    retardation claim without telling him that it would do so [i.e., by not granting an
    evidentiary hearing after Wiley made out a prima facie case of mental
    retardation], the state court implicated the core due process concepts of notice
    and foreseeability.” 
    Id. at 211
    (internal quotation marks and citation omitted).
    Put differently, the Mississippi court’s failure to follow its own procedures, which
    it applied in similar cases before and after Wiley’s, constituted an “unreasonable
    application of federal law [specifically due process], as a predicate for
    adjudicating a defendant’s claim, [and] undermine[d] the AEDPA deference
    given to the state court adjudication.” 
    Id. at 207
    (emphasis added).
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    Hines’s situation is not similar to Wiley’s because Texas law is different
    from Mississippi law. Under the Mississippi law at issue in Wiley, a prima facie
    case of mental retardation guaranteed a prisoner a live evidentiary hearing. No
    such guarantee exists under Texas’s Atkins procedures. At the habeas stage in
    Texas courts, Atkins claims are governed by the same procedures as other
    habeas claims and there is no explicit requirement for a live evidentiary hearing.
    Ex parte Briseño, 
    135 S.W.3d 1
    , 7–9 (Tex. Crim. App. 2004); see, e.g., Ex parte
    Simpson, 
    136 S.W.3d 660
    , 663 (Tex. Crim. App. 2004) (explaining that while “it
    is advisable to have a[] [live] evidentiary hearing to determine mental-
    retardation claims raised for the first time in post-Atkins habeas applications,
    it is not necessary where . . . the habeas applicant relies primarily upon trial
    testimony”); see also 
    id. at 663
    n.8 (“[D]uring this writ proceeding, both parties
    could, and did, present whatever additional evidence they believed supported or
    negated the fact of mental retardation. It was only after consulting with the
    attorneys that the trial judge determined that a live evidentiary hearing was not
    necessary.”). Thus, while a live evidentiary hearing may be recommended in
    some Atkins cases in Texas, a thorough presentation of evidence at the state
    habeas proceeding can obviate the need for such a hearing.
    The CCA properly explained in reviewing Hines’s case that, under Texas
    law, “[w]hile we have said that the better practice is to conduct a live hearing in
    cases [such as Hines’s], . . . the evidence before the trial court was extensive and
    we did not specify that a live hearing was necessary when we remanded the
    case.” Hines, 
    2005 WL 3119030
    at *1 (citation omitted). Unsurprisingly, Hines
    can cite no Texas authority to support the proposition that a live evidentiary
    hearing is required to adjudicate a habeas Atkins claim, the key requirement
    that would be necessary to make his own situation comparable to that of Wiley.
    Indeed, the central problem in Wiley—that the Mississippi Supreme Court
    behaved inconsistently in Wiley’s case with respect to its own precedents—is
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    vitiated in this case because the CCA has specifically labeled Atkins hearings as
    “advisable” measures. 
    Simpson, 136 S.W.3d at 663
    . Accordingly, the decision
    of the CCA to decide Hines’s case on the basis of a paper record does not fall
    within the ambit of Wiley. Thus, the district court’s decision to apply AEDPA
    deference could not be debated among reasonable jurists.
    Hines, however, further urges that Panetti and Rivera, the cases on which
    we based our decision in Wiley, demanded of their own force that the district
    court review the state court’s decision de novo. Again, he is mistaken. The
    petitioner in Panetti made a “substantial threshold showing of insanity,” but was
    denied a constitutionally adequate opportunity to make his insanity case, as
    required by Ford, in state court. 
    Panetti, 551 U.S. at 949
    –50. These Ford
    requirements “include an opportunity to submit ‘evidence and argument from
    the prisoner’s counsel, including expert psychiatric evidence that may differ from
    the State’s own psychiatric examination.’” 
    Id. at 950
    (quoting 
    Ford, 477 U.S. at 427
    (Powell, J., opinion concurring in part and concurring in judgment)).
    However, there is no indication that a live hearing, Hines’s key complaint with
    regard to the state court’s procedures, is required in an Atkins claim as a matter
    of either federal or state law.4
    Likewise, Rivera cannot support Hines’s claim. In that case,the CCA’s
    “finding that Rivera had not made a prima facie showing [of mental retardation]
    deprived Rivera of the opportunity to develop fully the substance of his claim
    before the state courts.” 
    Rivera, 505 F.3d at 357
    . In light of this, we held that:
    Even though Atkins did not specifically mandate any set of
    procedures, it was decided against the backdrop of the Supreme
    4
    Even the utility of such hearings was questioned by Justice Powell in the insanity
    context in Ford. See 
    Ford, 477 U.S. at 426
    (“Th[e] combination of factors [involved in
    adjudicating insanity] means that ordinary adversarial procedures—complete with live
    testimony, cross-examination, and oral argument by counsel—are not necessarily the best
    means of arriving at sound, consistent judgments as to a defendant’s sanity.”).
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    Court’s and lower court’s due process jurisprudence. The lesson we
    draw from Panetti is that, where a petitioner has made a prima facie
    showing of retardation as Rivera did, the state court’s failure to
    provide him with the opportunity to develop his claim deprives the
    state court’s decision of the deference normally due.
    
    Id. at 358
    (emphasis added and footnote omitted). In contrast, here there is no
    indication that the absence of a live hearing at the state court prevented Hines
    from developing his mental retardation claim. To the contrary, Hines has had
    ample opportunities to develop this claim. Therefore, neither Panetti nor Rivera
    provide grounds for debating the district court’s conclusion.
    Our foregoing analysis reveals that reasonable jurists could not debate the
    district court’s decision to apply AEDPA deference. Texas state law recommends
    but does not require the use of a live hearing in cases such as Hines’s, in which
    a substantial evidentiary record suffices to present a mental retardation claim.
    Nor was Hines denied an opportunity to develop his claim throughout the course
    of the state proceedings. Accordingly, we hold that reasonable jurists could not
    disagree with the district court’s application of AEDPA deference to the state
    court’s findings and conclusions in Hines’s case.
    C.      Hines’s Atkins Claim
    Having determined that reasonable jurists could not debate the district
    court’s application of AEDPA deference to the state court’s factual
    determinations, we now turn to a “threshold inquiry into the underlying merit
    of [Hines’s Atkins] claim[]” to determine whether he is entitled to a COA. Miller-
    
    El, 537 U.S. at 327
    . We look to see if “jurists of reason could disagree with the
    district court’s resolution of [Hines’s] constitutional claims or that jurists could
    conclude the issues presented are adequate to deserve encouragement to proceed
    further.” 
    Id. Whether Hines
    is mentally retarded is a question of fact, reviewed
    under 28 U.S.C. § 2254(d)(2). Clark v. Quarterman, 
    457 F.3d 441
    , 444 (5th Cir.
    2006); see also Maldonado v. Thaler, 
    625 F.3d 229
    , 236 (5th Cir. 2010). Under
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    § 2254(d)(2), a federal district court may grant habeas relief “only if the state
    court’s adjudication of his claim on the merits . . . ‘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.’” 
    Rabe, 649 F.3d at 308
    (quoting 28
    U.S.C. § 2254(d)).5
    In Atkins v. Virginia, 
    536 U.S. 304
    (2002), the Supreme Court held that
    the execution of the mentally retarded violates the Eighth Amendment as a cruel
    and unusual punishment. 
    Id. at 320–21.
    However, in its opinion, the Supreme
    Court did not offer a specific definition for “mental retardation,” instead opting
    to refer to two medical definitions of mental retardation, one from the American
    Association on Mental Retardation (“AAMR”)6 and another from the American
    5
    We also note that under AEDPA “a determination of a factual issue made by a State
    court shall be presumed to be correct,” such that “[t]he applicant shall have the burden of
    rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.
    § 2254(e)(1). The relationship between this provision and § 2254(d)(2) is ambiguous. As this
    court has previously explained, “[w]e do not make any pronouncements as to whether the more
    deferential standard prescribed in § 2254(e)(1) applies in every case presenting a challenge
    under § 2254(d)(2),” a question that the Supreme Court has left open. See Turner v. Epps, 412
    F. App’x 696, 700 n.2 (5th Cir. 2011) (citing Wood v. Allen, 
    130 S. Ct. 841
    , 848–49 (2010)
    (observing, but not resolving, the circuit split among courts regarding the relationship between
    § 2254(d)(2) and § 2254(e)(1))). Below, we hold that reasonable jurists could not debate the
    correctness of the district court’s determination that the state court’s adjudication was not
    based on an unreasonable determination of the facts. Therefore, we see no need to resolve
    which standard—the more rigorous “clear and convincing” or the more lenient “unreasonable
    determination”—should govern this case and do not consider this issue further.
    6
    The AAMR defines mental retardation as the following:
    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.
    AMERICAN ASSOCIATION ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION,
    CLASSIFICATION, AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992).
    In 2002, the AAMR modified its definition accordingly:
    Mental retardation is a disability characterized by significant limitations both
    13
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    Psychiatric Association (“APA”).7 The Court highlighted three relevant elements
    from these clinical definitions: “[M]ental retardation require[s] not only [1]
    subaverage intellectual functioning, but also [2] significant limitations in
    adaptive skills such as communication, self-care, and self-direction that [3]
    became manifest before age 18.” 
    Id. at 318.
    The Court left ““to the State[s] the
    task of developing appropriate ways to enforce the constitutional restriction
    upon [their] execution of sentences.’” 
    Id. at 317
    (quoting Ford, 
    477 U.S. 399
    at
    405, 416–17) (alteration in original).
    Thus, in determining whether Hines merits a COA, we look to Texas’s law
    regarding mental retardation. In Texas, the state legislature has failed to
    provide a statutory definition for what qualifies as mental retardation in the
    wake of Atkins, resulting in the CCA’s crafting of these standards. See Neal v.
    State, 
    256 S.W.3d 264
    , 271–72 (Tex. Crim. App. 2008); see also 
    Briseño, 135 S.W.3d at 5
    –13 (establishing a definition of mental retardation under Atkins).
    The CCA defined mental retardation in Briseno as “a disability
    characterized by: (1) ‘significantly subaverage’ general intellectual functioning;
    (2) accompanied by ‘related’ limitations in adaptive functioning; (3) the onset of
    in intellectual functioning and in adaptive behavior as expressed in conceptual,
    social, and practical adaptive skills. This disability originates before age 18.
    AMERICAN ASSOCIATION ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION,
    CLASSIFICATION, AND SYSTEMS OF SUPPORTS 1 (10th ed. 2002).
    7
    The APA defines mental retardation somewhat similarly:
    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).
    AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
    DISORDERS 41 (4th ed.2000). This definition is often referred to as the DSM-IV-TR definition.
    14
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    which occurs prior to the age of 18.” 
    Briseno, 135 S.W.3d at 7
    (footnotes
    omitted).8 Importantly, this definition draws on the standard provided for in the
    Texas Persons with Mental Retardation Act, which requires that mental
    retardation originate during a person’s “developmental period,” prior to their
    eighteenth birthday. TEX. HEALTH & SAFETY CODE § 591.003(13) (“‘Mental
    retardation’ means significantly subaverage general intellectual functioning that
    is concurrent with deficits in adaptive behavior and originates during the
    developmental period.”). “Significantly subaverage intellectual functioning is
    defined as an IQ of about 70 or below (approximately 2 standard deviations
    below the mean).”          
    Briseno, 135 S.W.3d at 7
    n.24 (citation omitted).9
    “Impairments in adaptive behavior are defined as significant limitations in an
    individual’s effectiveness in meeting the standards of maturation, learning,
    personal independence, and/or social responsibility that are expected for his or
    her age level and cultural group, as determined by clinical assessment and,
    usually, standardized scales.” 
    Id. at 7
    n.25 (citation omitted).10 A defendant who
    seeks to invoke the affirmative defense of mental retardation bears the burden
    8
    More specifically, the CCA adopted the AAMR definition of mental retardation, as
    well as the definition laid out in Texas Health and Safety Code § 591.003(13). See 
    Briseno, 135 S.W.3d at 7
    .
    9
    This is not an inflexible numerical standard, however: “Psychologists and other
    mental health professionals are flexible in their assessment of mental retardation; thus,
    sometimes a person whose IQ has tested above 70 may be diagnosed as mentally retarded
    while a person whose IQ tests below 70 may not be mentally retarded.” 
    Briseno, 135 S.W.3d at 7
    n.24. The Texas Health and Safety Code has further explained, “‘[s]ubaverage general
    intellectual functioning’ refers to measured intelligence on standardized psychometric
    instruments of two or more standard deviations below the age-group mean for the tests used.”
    TEX. HEALTH & SAFETY CODE § 591.003(20).
    10
    Given that “[t]he adaptive behavior criteria are exceedingly subjective, and
    undoubtedly experts will be found to offer opinions on both sides,” the CCA paired this
    definition with a list of “evidentiary factors” relevant in identifying a limitation in adaptive
    functioning. 
    Briseno, 135 S.W.3d at 8
    –9. We discuss these in greater depth below.
    15
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    of showing that he is mentally retarded by a preponderance of the evidence.
    
    Neal, 256 S.W.3d at 273
    .
    Hines makes several arguments generally asserting that a preponderance
    of the evidence presented to the state court showed that he meets the Texas
    criteria for mental retardation.11          First, Hines argues that there was a
    preponderance of the evidence showing that he had subaverage intellectual
    function before the age of eighteen, including the testimony of his second grade
    teacher, evidence that I.Q. tests administered to him prior to the age of eighteen
    were invalid and unreliable measures of intelligence, and expert testimony that
    on later exams after the age of eighteen Hines was not malingering and gave full
    effort. Second, Hines also contends that there was a preponderance of the
    evidence that he had adaptive deficits before the age of eighteen, including
    testimony from family members about Hines’s behavioral and learning deficits,
    as well as evidence that Hines was mostly in special education as a child. We
    parse the district court’s review of the evidence presented to the state court in
    order to ascertain if reasonable jurists could debate the district court’s
    conclusion: Namely, that the state court’s rejection of Hines’s Atkins claim was
    not an unreasonable determination of the facts in light of the evidence before it.
    i.     Significantly Subaverage General Intellectual Functioning
    Hines initially presented several pieces of evidence in making his Atkins
    claim before the state court: “(1) a handful of records from the Texas Youth
    Commission (TYC), Child Protective Services (CPS), and Paris Independent
    School District (PISD), affidavits from three family members, a former school
    counselor, and a former teacher, (3) and the report of Dr. Wesley E. Profit, Ph.D.,
    11
    Hines also argues that the district court, despite its statements to the contrary,
    failed to engage in the de novo review it claims to have carried out when reviewing his Rule
    59(e) motion and instead deferred to the state court’s findings. Since we conclude that AEDPA
    deference was due to the state court’s findings, we reject his contention.
    16
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    J.D.” Ex parte Bobby Lee Hines, No. W91-21511-I(B), at 4, ¶ 9 (June 23, 2005).
    These were later supplemented with the affidavit of a co-worker and a report
    from another expert, Gilda Kessner, Psy.D., who Hines hired to personally
    evaluate him        
    Id. at 4,
    ¶ 9–10.12         The district court also considered six
    documented I.Q. scores:13
    I.Q. Test                Given By            Date   Hines’s      Score
    Age
    1      Otis-Lennon Mental       PISD                1978   6 years      68
    Ability Test
    2      Otis-Lennon Mental       PISC                1980   7 years      73
    Ability Test
    3      WISC-R                   TYC                 1986   13 years     Verbal – 82
    (Wechsler Intelligence   Diagnostician                           Performance – 112
    Scale for Children –                                             Full Scale – 96
    Revised)
    4      TONI                     TYC                 1989   16 years     87
    (Test of Non-Verbal      Diagnostician
    Intelligence)
    5      Beta-II                  TDCJ                1990   17 or 18     97
    (or Culture Fair         Diagnostician              years
    Intelligence Test)
    6      WAIS-III                 Defense             2004   31 years     Verbal – 69
    (Wechsler Adult          Psychologist                            Performance – 75
    Intelligence Scale)                                              Full Scale – 69
    The state court discounted the evidentiary value of the first two I.Q. tests,
    the Otis-Lennon tests from 1978 and 1980. The court found that Otis-Lennon
    is a “brief, group-administered, verbal IQ test” used as “screening tool, not a tool
    for diagnosing mental retardation.” 
    Id. at 7
    , ¶ 24. Children from impoverished
    12
    The state court found that both Drs. Profit and Kessner relied on additional
    documents that were not submitted to either it or the CCA. Hines, No. W91-21511-I(B), at 4,
    ¶ 11. The state court found that these documents contained “significant information refuting
    [Hines]’s retardation claim,” including the evaluation of two TYC psychologists who concluded
    that Hines is not mentally retarded. 
    Id. at 4–5,
    ¶ 12.
    13
    Other I.Q. scores were apparently destroyed along with other records over the course
    of Hines’s education.
    17
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    backgrounds with dysfunctional home lives, like Hines, tend to perform worse
    on such tests, depressing the scores. 
    Id. at 8–9,
    ¶ 27–28. The state court found
    that more weight should be placed on “individually administered tests, [where]
    the administrator focuses attention on the test-taker.” 
    Id. at 8
    ¶ 26.
    The only other test score in the record before the state court supporting
    Hines’s Atkins claim was the WAIS-III carried out by Dr. Kessner in 2004.
    While this is an individually administered test and “well-regarded,” 
    id. at 11,
    ¶ 39, the state court found several problems with this test as well. First, the
    administration of the test occurred within one month of Hines’s consultation
    with Dr. Price, potentially resulting in a “practice effect” phenomenon. 
    Id. at 11,
    ¶ 42. More problematically, however, the test was administered to Hines at age
    thirty-one, making it a poor measure of whether he was mentally retarded
    during his developmental period, a key requirement for finding mental
    retardation under Briseno. 
    Id. at 12,
    ¶ 43; see also Briseno, 135 S.W.3d. at 6–7.
    Third, while there was conflicting evidence as to whether Hines malingered on
    the test, the state court did not find Hines’s proffered evidence sufficient to show
    that he did not malinger given his strong incentive to do so.                   Hines, No.
    W91-21511-I(B), at 12–13, ¶ 44–51. Finally, Hines’s score of 69 was consistent
    with a score as low as 64, as well as one as high as 74, with the higher-end score
    being above the I.Q. line for mild mental retardation. 
    Id. at 13,
    ¶ 52.14
    Consequently, the state court found that the WISC-R score of 96, taken
    when Hines was thirteen in 1986, was the most persuasive evidence regarding
    his alleged mental retardation. 
    Id. at 15,
    ¶ 59. As an individually administered
    and respected test taken by Hines during his developmental period, the WISC-R
    14
    The state court also observed that any deficiencies identified by the WAIS-III result
    may have been due to “chronic substance abuse” and “an acquired organic brain dysfunction”
    on the part of Hines, rather than mental retardation. Hines, No. W91-21511-I(B), at 14–15,
    ¶ 53–56.
    18
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    score provided credible evidence that “[Hines]’s intellect [was] in the borderline
    to average range.” 
    Id. at 15,
    ¶ 61. The state court rejected Hines’s arguments
    that the test was improperly administered, that a practice effect boosted the
    score, or that the WISC-R was an outdated test. The court observed that while
    the raw data were not available for the test, the availability of individual
    component scores, as well as the fact that all the individuals who were involved
    in the administration of the test appeared qualified to administer it, refuted the
    possibility that it was wrongly administered to Hines. 
    Id. at 16–17,
    ¶ 65. The
    court also found that it was unlikely that Hines had been tested in the six
    months prior to taking the WISC-R, resulting in a practice effect that would
    boost the score, given that state law requires I.Q. testing only every three years.
    
    Id. at 17,
    ¶ 66. Moreover, even the boost provided by a practice effect would not
    have been sufficient to raise questions about whether Hines was actually
    mentally retarded. 
    Id. at 17–18,
    ¶ 68. The court also found that the evidence
    of score inflation due to the WISC-R being outdated was mixed, 
    id. at 18,
    ¶ 71,
    but that in any event, this inflation would only have been around 3.6 points,
    leaving Hines’s score “well within the range of borderline to average
    intelligence.” 
    Id. at 18–19,
    ¶ 70–73. Lastly, the court found that any disparities
    among the various components of the WISC-R were likely due to the fact that
    Hines had a learning disability, something established by both TYC and PISD.
    
    Id. at 19–20,
    ¶ 74–78. In sum, the court explained, “[a]lthough any number of
    factors could account for [Hines]’s poor performances on the Otis Lennon and
    WAIS-III tests, . . . there [could] be only one explanation for his elevated
    performance on the WISC-R—[Hines] possesses an intellect in the average
    range.” 
    Id. at 22,
    ¶ 86.
    The state court also noted that while the TONI and Beta II tests were
    normally group administered, 
    id. at 21,
    ¶ 82, it was likely that the TONI test
    was individually administered to Hines. 
    Id. Observing that
    the “TONI [test] is
    19
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    at least as accepted as the Otis-Lennon test,” 
    id. at 21,
    ¶ 83, the court found that
    these tests were sufficient to lend further confidence to the results of the WISC-
    R test. 
    Id. at 20,
    ¶ 79. Thus, the state court concluded that Hines had failed to
    prove by a preponderance of the evidence that he met the first Briseno prong.
    
    Id. at 22,
    ¶ 88.
    The magistrate judge reviewed the state court’s determination, including
    the evidence provided by Hines. Hines, No. 3:06-cv-00320-G, Findings and
    Recommendation, at 3. In concluding that Hines failed to manifest significantly
    subaverage general intellectual functioning during his developmental period, the
    magistrate judge, following the state court, placed particular emphasis on the
    results of the WISC-R test that Hines took when he was thirteen in 1986. 
    Id. at 7
    . The district court also adopted this view, observing that I.Q. tests taken
    during a petitioner’s childhood may be given more weight than those conducted
    in the shadow of habeas litigation. See Hines, No. 3:06-cv-00320-G, Order, at
    9–10; see, e.g., Moore v. Quarterman, 
    517 F.3d 781
    , 784 (5th Cir. 2008) (denying
    COA under AEDPA deference and explaining that “[w]hile these [I.Q. test]
    scores [of 68, 72, 72, 76, 63, and 76] could support a finding of subaverage
    intellectual functioning, the scores can also sustain a finding that [petitioner] is
    not retarded”).
    Hines attempted to counter this emphasis on the 1986 WISC-R test’s
    results by arguing that these results were unreliable and that later test results,
    administered well into his conviction and post-conviction litigations in April
    2004 and 2009, demonstrate that he is retarded. See Hines, No. 3:06-cv-00320-
    G, Order, at 11–12 (reporting April 2004 score of 69 on WAIS-III test and April
    2009 scores of 70 on a WAIS-IV test and 71 on a Reynolds test).
    However, as the district court correctly observed, the deferential standard
    of AEDPA presumes that state court determinations of fact are correct,
    rebuttable only with “clear and convincing evidence,” 28 U.S.C. § 2254(e)(1), and
    20
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    that such factual determinations must be “unreasonable,”                          28 U.S.C.
    § 2254(d)(2). In this case, the other evidence presented before the state court
    buttressed the validity of the WISC-R test. First, Hines’s WISC-R score was
    consistent with other I.Q. test results, including a score of 87 on the TONI test
    taken in 1989 when Hines was sixteen and a score of 97 on the Beta-II Test
    taken in 1990 when Hines was either seventeen or eighteen. Second, Hines was
    able to secure a GED at the age of 17, an indicator of some general intellectual
    capacity.15 Third, the state court, which only had before it the WAIS-III result
    of 69 from April 2004, could reasonably determine that Hines did not put forth
    his best effort on this test, despite conflicting evidence on this issue. See 
    Moore, 517 F.3d at 784
    (denying COA because a state court’s finding that a petitioner
    is not mentally retarded is not rendered unreasonable simply because “there was
    conflicting expert evidence” and a range of I.Q. scores). Finally, as the state
    court noted, the WAIS-III result of 69 was not itself determinative of mental
    retardation because it could indicate that Hines’s I.Q. reached as high as 74,
    outside the range of scores required for a finding of mental retardation under
    Briseno.16 See Taylor v. Quarterman, 
    498 F.3d 306
    , 307–08 (5th Cir. 2007)
    (denying COA where petitioner had received I.Q. test scores of 75, 63, 69, 65, and
    71); see also Ex parte Woods, 
    296 S.W.3d 587
    , 608 (Tex. Crim. App. 2009) (“Even
    15
    Hines attempted to argue that his GED was procured with the illegitimate aid of a
    test administrator, Hines, No. W91-21511-I(B), at 35–37, ¶ 147–58, but the state court found
    no persuasive evidence to support this claim. See 
    id. 16 We
    also observe that even if the state court record were supplemented by the hearing
    before the federal magistrate judge, it still would not support Hines’s Atkins claim. The later
    I.Q. tests submitted by Hines suggesting that he is mentally retarded (April 2009 scores of 70
    on a WAIS-IV test and 71 on a Reynolds test), still suffered from the same fundamental defects
    as the WAIS-III test. Namely, they begged the question of whether Hines malingered. While
    Hines was able to present more evidence at the federal hearing that he did not malinger on
    these more recent tests, this was insufficient to persuade either the magistrate judge or the
    district court. Moreover, as we will discuss below, these newer tests cannot show that Hines
    manifested mental retardation during his developmental period, a necessary component of the
    Briseno definition.
    21
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    [assuming an I.Q. score range from 63 to 78], a rational trier of fact could find
    that applicant’s Full Scale IQ falls above 70.”).
    Given the strength of these evidentiary findings, we hold that reasonable
    jurists could not debate the district court’s conclusion that the state court’s
    determination that Hines failed to meet the first Briseno prong was not an
    unreasonable determination of the facts in light of the evidence before it.
    ii.   Related Limitations in Adaptive Functioning
    While a failure on the first Briseno prong would be sufficient to end
    Hines’s Atkins claim, both the state and district courts also rejected the
    contention that Hines suffered from deficits in his adaptive functioning due to
    mental retardation—the second Briseno prong.        In a thorough analysis, the
    state court evaluated all of the evidence provided by both Hines and the State
    in light of the seven “evidentiary factors” given in Briseno:
    • 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?
    22
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    Briseno, 135 S.W.3d at 8
    –9.
    The state court initially observed that both Drs. Profit and Kessner opined
    that Hines suffered from sufficient deficits in his adaptive skills to require a
    finding of mental retardation. Hines, No. W91-21511-I(B), at 23, ¶ 91. However,
    Dr. Jack Randall Price, Ph.D., an expert retained by the State who personally
    interviewed Hines and assessed all relevant records, 
    id. at 5,
    ¶ 16, disagreed
    with their conclusions and opined that Hines’s adaptive behaviors were
    inconsistent with those of a retarded person. 
    Id. at 23,
    ¶ 92. The state court
    credited “Dr. Price’s personal and more thorough evaluation of [Hines] and the
    pertinent records,” 
    id. at 25,
    ¶ 101, observing that Dr. Profit never actually
    interviewed Hines and that Dr. Kessner’s opinions were based “entirely on the
    results of her own, recent testing of him.” 
    Id. at 24,
    ¶ 94–96, 98.
    The state court also examined the evidence produced by Hines, as well as
    countervailing evidence offered by the State, on each of the evidentiary factors.
    Regarding the first factor—whether others regarded and treated Hines as
    mentally retarded—Hines submitted affidavits from family, friends, and co-
    workers of Hines alleging that he was a “slow learner, slow to develop, gullible,
    and a concrete thinker.” 
    Id. at 26–27,
    ¶ 106. The court determined that these
    affidavits lacked credibility because prior to Hines’s death sentence, none of the
    individuals appeared to regard Hines as mentally retarded or treat him as such.
    
    Id. at 27,
    ¶ 109. Indeed, testimony at Hines’s murder trial by these same
    individuals contradicted Hines’s claim of mental retardation, revealing, for
    example, that Hines was “a very good employee . . . . [who] had no problems
    doing what he was asked to do . . . .” 
    Id. at 27,
    ¶ 111.17 Affidavits offered by
    Karol Asay, Hines’s second or third grade teacher, and Rachel Braswell, his
    school’s counselor from third to fifth grades, were based either on a limited recall
    17
    The state court similarly rejected the probative value of affidavits from other death
    row inmates. Hines, No. W91-21511-I(B), at 28–29, ¶ 113–18.
    23
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    of encounters with Hines, 
    id. at 29,
    ¶ 122–23, or contradicted by school records
    which failed to demonstrate that Hines was actually retarded, instead describing
    him as “learning disabled and emotionally disturbed.”         
    Id. at 30,
    ¶ 125.
    Affidavits from other educators and school officials further indicated that Hines
    was never diagnosed and never regarded as mentally retarded. 
    Id. at 31,
    ¶129–32. This was further corroborated, the court found, by Hines’s encounters
    with the police, CPS, juvenile probation, and TYC. Affidavits and records from
    these various organizations revealed no indication that Hines was diagnosed as
    mentally retarded or ever regarded as such, instead noting that while Hines may
    not have been bright, he was capable of attaining average grades at school and
    seeking out help when necessary. See 
    id. at 31–34,
    ¶ 133–44. Together this
    evidence indicated, the trial court found, that Hines was not regarded as
    mentally retarded by others.
    The state court also found that the second, third, fourth, and fifth Briseno
    evidentiary factors did not indicate that Hines had deficits in adaptive
    functioning. For the second factor—whether Hines could develop and carry out
    plans—the state court found that the record revealed that Hines was capable of
    formulating and executing various plans, including seeking out the authorities
    to prevent his father’s abuse, planning and carrying out crimes, and escaping
    punishment while on probation. 
    Id. at 37–38,
    ¶ 163–67. This was coupled with
    evidence on the third factor—whether Hines showed leadership—demonstrating
    that Hines was not “led around by others,” including the affidavits of CPS
    caseworkers and teachers averring that Hines was capable of manipulation and
    leading others, as well as acting on his own to protect himself. 
    Id. at 38–42,
    ¶168–90. On the fourth factor—whether Hines’s conduct was “rational and
    appropriate” regardless of whether it was socially acceptable—the state court
    found that the record also demonstrated that Hines had “an aptitude for judging
    and responding to people and events,” showing some capacity to react rationally
    24
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    to the chaotic events of his childhood. 
    Id. at 43–44,
    ¶ 191–200. The fifth
    factor—whether Hines could respond coherently, rationally, and on point to
    questions—also indicated to the state court that Hines is not mentally retarded,
    as there was evidence that Hines was able to respond to questions from both
    investigators and journalists and produce coherent pieces of writing. 
    Id. at 44–48,
    ¶ 201–17.
    The state court also found that the last two factors further militated
    against finding Hines mentally retarded. For the sixth factor—dealing with
    whether Hines could hide facts or lie in his own interest—the state court found
    that there was broad and consistent evidence that Hines lied frequently and well
    when his self-interest demanded it. 
    Id. at 48–49,
    ¶ 218–24. The state court
    further observed that Hines had not confessed to the murder and had, in fact,
    resisted custodial interrogation about it, in contrast to other mentally retarded
    offenders who inadvertently admit their crimes. 
    Id. at 49
    ¶ 225. Indeed, in a
    typewritten letter dated February 20, 2005, Hines joked about his mental
    retardation defense, writing “WELL WAIT A DAMN MINUTE I’m a returd
    remember, can’t blame me . . . . . (smile).” 
    Id. at 49
    –50, ¶ 226 (errors in original).
    These findings dovetail with those probative of the seventh factor—whether the
    commission of the offense required forethought, planning, and complex
    execution. The nighttime entry to catch his victim unaware and vulnerable, the
    obtaining of a key in advance, the taking of a weapon, and the careful eluding
    of the police in the wake of the murder all signaled to the state court that
    “Hines[’s] conduct showed that he contemplated, designed and improvised the
    attack on Ms. Haupt with a degree of skill absent in those of lesser intellect.” 
    Id. at 50–52,
    ¶ 233, 236.
    These substantial findings indicated to the state court that Hines suffered
    no deficits in adaptive functioning and thus did not meet the second prong of the
    Briseno definition. 
    Id. at 54,
    ¶ 246. The magistrate judge accepted the findings
    25
    Case: 11-70010     Document: 00511707653      Page: 26   Date Filed: 12/27/2011
    No. 11-70010
    of the state court with relatively little comment, other than to note that “[n]o
    new evidence regarding [Hines]’s adaptive functioning was presented to this
    court at the evidentiary hearing based on his federal writ.”           Hines, No.
    3:06-cv-00320-G, Findings and Recommendation, at 12. The district court, in
    accepting the magistrate judge’s findings, observed that the depth and detail of
    the state court’s findings, as well as the importance of leaving credibility
    determinations to the trial court, made clear that Hines did not meet the second
    Briseno prong. Hines, No. 3:06-cv-00320-G, Order, at 15–17.
    We agree. There is no indication in the record that the state court’s
    determinations of fact were unreasonable. Reasonable jurists could not debate
    whether the district court was correct in accepting the state court’s
    determinations.
    3.      Onset Before Age 18
    The final Briseno prong is that mental retardation must manifest during
    the petitioner’s developmental period. Briseno, 135 S.W.3d. at 7. The state trial
    court found that “any deficiency [on Hines’s part] did not commence during
    applicant’s developmental period, i.e., before the age of 18,”         Hines, No.
    W91-21511-I(B), at 54, ¶ 249, based on its findings regarding the other two
    Briseno prongs. The magistrate judge said relatively little on this issue, instead
    concluding that “[Hines] ha[d] failed to adduce any evidence . . . that would shed
    new light on the Briseno factors. . . . [leaving] no basis for disturbing the state
    court’s determination that [Hines] has no corresponding limitations in adaptive
    functioning or that any purported deficiency commenced during the
    developmental      period.”    Hines,     No.   3:06-cv-00320-G,   Findings    and
    Recommendation, at 13. The district court added little to this determination.
    Hines, No. 3:06-cv-00320-G, Order, at 14.
    Again, we see no unreasonable determination on the part of the state court
    in finding that Hines did not manifest mental retardation before the age of
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    No. 11-70010
    eighteen. Consequently, Hines has failed to show that reasonable jurists would
    disagree with the district court’s conclusion that state court’s findings were not
    unreasonable determinations of fact.
    III. CONCLUSION
    Hines has failed to persuade any court, federal or state, of his Atkins
    claim, and has failed to make a showing sufficient to merit a COA. The state
    court’s determination was properly subject to AEDPA deference, and Hines has
    failed to show that reasonable jurists could debate whether the district court’s
    rejection of his Atkins claim was correct. Accordingly, we DENY Hines’s request
    for a COA.
    27