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Click here for the full text of this decision FACTS:Elkie Lee Taylor is on Texas’ death row. He sought a writ of habeas corpus in state court, alleging that mental retardation barred his execution under the U.S. Constitution. Texas state courts denied his petition. Taylor made the same claim in federal court. Eventually, he sought a certificate of appealability from the 5th U.S. Circuit Court of Appeals. In his appeal, Taylor challenged the correctness of the state court’s findings regarding mental retardation. HOLDING:The court denied a certificate of appealability. The court was not persuaded by Taylor. Reasonable jurists, the court stated, would not disagree that Taylor failed to present clear and convincing evidence that the state court’s adaptive behavior analysis was wrong. Explaining its analysis, the court recited the standard for mental retardation for the purpose of an Atkins claim. A person is mentally retarded, the court stated, if he has: 1. significant sub-average intellectual functioning; 2. accompanied by related limitations in adaptive functioning; and 3. onset before the age of 18. The court recounted the evidence that buttressed the state courts’ findings of no mental retardation. On the first element, the court noted that Taylor took five IQ tests in his life, scoring somewhere between the mid-60s and mid-70s. At age 10, he scored a 75 on the Wechsler Intelligence Scale for Children (WISC). Taylor’s expert argued that this score should be norm corrected to a score of 68, to account for time lapse from 1948 to 1972. The doctor who administered the WISC test to Taylor stated that he was capable of performing better than a 75, had he tried. In addition, Taylor was not diagnosed as mentally retarded as a result of the WISC test. Twenty-two years later Taylor scored a 63 on a Texas Department of Criminal Justice (TDCJ) beta test and then a 69 on the Wechsler Adult Intelligence Scale-Revised Test (WAIS-R). However, even after scoring a 69 Taylor was not diagnosed as mentally retarded. The test administrator stated that: “[t]aking into account the client’s age and cultural group, his adaptive behavior is below average, but not the degree expected of a mentally retarded person. It appears that Mr. Taylor is more capable in terms of adaptive skills than he has actually demonstrated.” Finally, in preparation for his state habeas hearing, he scored a 65 on the Wechsler Adult Intelligence Scale (WAIS-III) and a 71 on another test. But the state habeas court did not put credence in those scores “due to the incentive to malinger.” Regarding adaptive behavior, the court noted that Taylor purportedly had difficulty maintaining a steady job, got confused using public transportation, had trouble cooking rice well as a child, made poor use of his leisure time by sitting in his apartment and just listening to the radio and talking on the phone. The state of Texas, however, pointed to the circumstances of his two crimes to prove that he was not deficient. For example, having perceived an opportunity for robbing Otis Flake, he planned and executed Flake’s murder. Further, having learned from his experience of murdering Ramon Carrillo, Taylor skipped the use of his hands and went straight to the use of a coat hanger in order to murder Flake. In addition, the court noted, when the policeman questioned him about the television stolen from Flake’s apartment, the court noted that Taylor “quickly thought up a lie that worked.” Then, when ultimately found, he successfully maneuvered an 18-wheeler cab for over 150 miles and then, when caught, tried to blame someone else for his crimes. Finally, regarding the date of onset of Taylor’s alleged mental retardation, the only IQ test taken of Taylor before he turned 18 yielded a result of 75, above the mild retardation cut off of 70. The administrator of the test thought Taylor was capable of performing better than 75. While Taylor’s expert concluded that this test result overstated Taylor’s IQ by seven points, the trial court was not unreasonable in finding otherwise. In light of this standard of review, the court held that the petitioner did not present clear and convincing evidence that the state court erred in denying Taylor’s habeas claim. OPINION:Higginbotham, J.; Higginbotham, Wiener and Barksdale, JJ.

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