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Click here for the full text of this decision FACTS:Robert Madrid Salazar was on death row for the 1997 beating death and sexual assault of his girlfriend’s 2-year-old daughter. He was scheduled execution March 22. On Feb. 14, 2006, after having exhausted his initial state and federal habeas corpus claims, Salazar filed another state application for a writ of habeas corpus, claiming he could not be executed because he was mentally retarded, and Atkins v. Virginia, 536 U.S. 304 (2002), prohibits the execution of the mentally retarded. Salazar’s state writ was dismissed, so Salazar filed for permission from this court to file a writ of habeas corpus similar to his state writ in district court. He also asks for a stay of execution. HOLDING:Motion denied. Noting that the Atkins case did not set forth a mechanism for determining when someone is or isn’t mentally retarded, the court says it will apply a three-part test approved by the American Association on Mental Retardation, found in Texas Health & Safety Code �591.003(13): 1. “significantly subaverage” general intellectual functioning, usually defined as an I.Q. of about 70 or below; 2. accompanied by “related” limitations in adaptive functioning; 3. the onset of which occurs prior to the age of 18. The court finds no evidence that Salazar has subaverage general intellectual functioning. When Salazar was 8, Dr. Michael Ratheal administered several tests, finding that Salazar functioned at an average level, and that he was not mentally retarded. Dr. Antolin Llorente examined Salazar when he was 20 and she did not conclude that Salazar was mentally retarded. The court notes that Salazar’s expert who did not himself examine Salazar found many things wrong with Ratheal’s and Llorente’s examination and conclusions. This is not enough to establish Salazar’s mental retardation under Atkins, however, the court concludes. No professional who has examined Salazar personally has ever found him to be mentally retarded. OPINION:Per curiam.

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