which the district court granted the certificate of people believe he is has mr henderson satisfied his for under section twenty two fifty forty of showing that he is not eligible for the death penalty under that can first was for ginia because of his intellectual disability want to get in my remarks this afternoon with the pocus on the standard review and the level of different that's appropriate to the state court's decision in this matter under the a prongs of the intellectual disability test dr gil howes and testimony is incorrect and misleading according to the state's own authority set out in the text of the book assessment of children which was admitted into evidence at the hearing mr henderson should have had the opportunity as is required by the state statutes to point out mr gill housings errors before the state court made its credibility call the state court could have then weighed all of the evidence to hear it right we did have a hearing in that state trial court in the convicting court or so we had three excuse me for it we had requested in advance of the hearing to do discovery that was denied at the hearing the state's expert what were you going to scrub the basis of the experts opinions regarding the question the atkins question did you know his opinion before we hear the basis of his opinion we knew his opinion was that mr henderson was did did not qualify as intellectually to say what did you not kno that his reliance on that particular text the problem is he testified regarding his opinions that the reliability was the opposed to dr rozen those full i q testing those scores were very different he was eighty three on the short form test and sixty six tape we did not know before it came out of his now to be hearing that his position that the short form test reliability and validity were mixed up and it's not that we d in psychology would have mixed up those fundamental fundamental ideas about how i q testing is done the book was presented to the it's possible that somebody could no one did the books like over a thousand pages and we were not able during that short time that he was on the stand with we had a short break during there he was a one day he there was evidence that mr henderson was assigned to special education classes there were two of his teachers who were in the personally familiar with him they taught him one at a very young tests barring some trauma or other explanation are generally level throughout and individual's life so testing post eighteen will give us information regarding what that individual's i q was hired to eighteen so that testing subsequent to age eighteen was evidence of what his i q was prior to eighteen there was  that the supreme court decided to smarting they did acknowledge that assignment to special education classes could be considered that was wheezy and a case that doesn't involve the regime no factors but the factors are fairly simple the testimony was that she believed he had an onset during development stage because of the circumstantial evidence and she did testify that there was no testing that was available to the court for review due to the fact that his educational records had been in a school fire very many ways similar and we agree with all of that we believe that in fact under madame warmest that madame morris actually informs the appropriate answer for mr henderson in today's case the reason is that the matter mor opinion empathize of the standard of review that a d p a deference to the state court decision was central to the outcome of the analysis that was conducted under twenty two fifty four  of this court violations of due process including the violations of state law that occurred in this proceeding mandates a reversal of the district court position and  for an appropriate in waiting of the credibility there were two experts that were the core of the decisions that were made in this case and the credibility decisions were made in the context of the state there are con tracks staying evidence contrast being opinions by experts somebody has got to weigh them the person who laid them is the federal district court excuse me the state trial court that was then deferred to by the court of criminal appeals but no differences do no difference was due by the court criminal appeals to the state court because of the due process violation no if there is no due process violation if the state of texas can violate its own laws and protection we are den left with deference to the court of criminal appeals and we're back under madam morris and we would have to do the way just as the as the fifth circuit did in the matter mor given what this court knows about the errors that were made by the expert that testified for the state we believe we still should prevail because i'm really waiting given those contrasts saying opinions by experts once we know one of the experts was so sloppy and so wrong he couldn't even get the fundamental difference between validity and reliability right then reliance on his testimony with that then i believe its name was didn't koski doctor didn't caskey opinions taken out of the equation three way and those credibility determinations fell where they failed and that's what well that's what this court all the way up to the court of criminal appeals and to the federal court to ford due process of law and due process of law in this case was denied to mr henderson because the state of texas did not even give him the minimum not that he might have or not that he could have but that he was required to give him under the texas state statute which is eleven o seven one section that we that we relied on in the brief they didn't follow their long and their law is designed to produce a truth finding tribunals that was not done in court did wade in your honor but they but the state court weighed them in the absence of due process of law that would have allowed those experts opinions  respect to ballots let it be and reliabilities it and i haven't been articulate enough about that the largest mistake that we see here is that after that hearing the state court dictate our ability to review the record a transcribed record that was due to us within thirty days that we didn't get for over a year and to submit findings of fact and conclusions of law for the fed for the trial court to to review and were not given an opportunity to give findings of fact and conclusions of law so the court did it in the absence of any input from mr henderson and want to mention that there were two of the key briefs filed before this court by professional organizations who represent the scientific and clinical communities involved in the diagnosis of the actual disability in our country they are unanimous in urging th  court to to correct the state courts errors in reliance on dr phil house and it's misleading incorrect testimony and also the state courts conclusion of law that he knows it when he sees it that he could diagnose mr hender they please the court i want to start by disagreeing with my friend's statement about what the state does and does not dispute the state absolutely disputes their allegation of dr bill howes and gave inaccurate or false testimony he did not mean what dr gill hasn't testified about was reliability he explained the standard error of measurement and how that factors into determining a range of likely i q based on the short form test that testimony is fully consistent with assessment of children he did not nix up the concepts of validity and reliability i'm not sure where in the record they're getting that but all he said was that this is what we get when we apply the correct coefficient which he did this is what we get done you see there are a lot of these yes he did use the term reliability yes and they to use a term for later i think that maybe what they're arguing maybe there may be that they're saying he should have testified about politically but that does it doesn't follow from his failure to specifically address the lid of the that his testimony on reliability was somehow wrong and in fact to the even if we presume that he was intending to talk about validity and not reliability reliable that's what he said more reliable than a short form but the short form is still reliable enough so even if he were supposed to testify about the comparative validity he acknowledged that a short form is not as somebody else said necessarily the gold standard but in his professional opinion that's good enough it's reliable enough and he explained exactly what it means and i mean that's  district courts factual finding about adaptive deficit's was incorrect that alone is enough to deny his petition and he has not proven  i'm responding to her misstatement that we had somehow and acknowledged that the testimony was falls i would respectfully disagree however that reliance on the short form is somehow against the overwhelming weight of scientific opinion b i don't have any reason to do so disagree with the statement of whomever made that statement but as a legal matter it has not been established by this court or the supreme court that short form i q tests are invalid and so to the extent even if we assume that it was somehow improper to give that any weight he cannot overcome at his real it occasion bar because he that did not violate clearly established law i don't know why they didn't give him the transcript for so long nor do i i don't understand why they tried to stay trial court did what it did however failure to comply with the letter of state process does not e due process violation in this case it certainly does not because he got a hearing where he was allowed to put on his own testimony by experts he was allowed to cross examine the state's experts so that takes him out positions they did not get the chance to submit proposed findings although there is no evidence new in the record that anyone submitted proposed findings and i should point out to you that there is evidence in the record that mr henderson was able to file objections to the trial court's proposed findings of fact and conclusions of law before the court of criminal appeals made the ultimate determination which is its determinations make not the trial courts so that is the relevant decision  it is different but even that situation would not necessarily be a due process  that's correct and because he had the text of that he complains about there being some gap between the testimony in the source he had the ability as he did to object to the proposed f designer stand their argument their complaint is that they didn't get the transcript and because they didn't get the transcript they weren't able to prepare their own proposed findings of fact and conclusions of law for the trial court to consider to submit proposed findings of fact or even to cross examine witnesses in fact in an eddy the supreme court expressly reserved any opinion on whether due process under four would require the right the ability to cross examine witnesses he got everything to process required and so there is no basis for his argument that the district sorry the state court unreasonably applied clearly established law its decision the process it gave so i want to move on damning and they and there's no i guess the argument is that they could have changed this reports mind if they had had a transcript of what they were they were requests for in the trial well that there were there were objections in the state hideous trial court to all of dr deal house know no there's no indication in the record that that happened what we well did no one did it change the trial court made a factual finding it was number twenty one and this was about this was about a pre conviction full scale i q test that had been administered under the supervision of a doctor hickman and there was testimony that the individual who administered that test didn't have a license at the time the answer is no and i was unclear the objections were submitted to the court ri not as far as the record shows no one who could you go through the factors on the death and behavior to tell us what you say the evidence establishing the maybe opposing counsel can encounter with her view that force of course to begin on the adaptive behavior deficit's mr henderson's position for this court is essentially that there are certain facts in the records in the record that are not inconsistent with mental retardation but to overcome the litigation bar he must show that the facts aren't consistent with any other conclusion and that no reasonable person could fail to reach that conclusion that he is retarded now as for the factors the the bulk of the evidence on adaptive deficit's that appears in the transcript of the state havey escort is from people who knew  mr henderson when he was a child now only one of those individuals mr milton glass suggested that he thought when henderson was a child that he was mentally retarded he then testified however that relies on such as dressing in an age appropriate manner mr glasson self said well i thought that was more from neglect and there is extensive testimony that mr henderson grew up in an impoverished household they lived in a two room house his mother didn't have a job and had a lot of kids and so the the fact that mr henderson now points to to say will be easier indications of mental retardation are just as indicative of neglect and poverty it's also important however that the other witnesses who knew mr henderson as a child so that they didn't think he was mentally retarded when they were children all to rather furred said nobody referred to in that way when he was a child and ms credit ensign his probation officer who knew him when he was a teenager she said that as far as she knew by the time he was a teenager these problems about smelling bad and dressing appropriately had gone away she said whenever i saw him he was clean neatly dressed he was a nice young man same goes for the texas ranger who interviewed him he said based on my interview no indication that he had a severe mental deficit there's also testimony in the punishment phase of his trial that's consistent with this f more people who knew mr henderson when he was a child and his barber and griffin said she knew him for most of his life he even lived with her for a year when he was about nineteen or twenty and she said her son was like a big brother to henderson he helped out around the house he brought money in when he could and she agreed he's not stupid and there was nothing that would have prevented him from continuing in school and graduating from high school but he just didn't do it that's seventeen of the state reporters record at thirty three fifty miss clara murphy knew him all his life she testified about his mother wasn't always able to provide food and clothing and his own mother confirmed that confirmed that mr henderson left school in tenth grade confirm that he had trouble in school so to the extent that he has demonstrated some inability to perform academic there is substantial evidence in the record that would support to try to state courts conclusion that this was not the result of an inherent intellectual disability and there's certainly there's certainly nothing in the record that sufficient to establish by clear and convincing evidence that the district court i'm sorry that the state courts conclusion was incorrect i would also point out that to the extent that there was some indication of inadequate academic performance there was also contrary evidence when he was in jail he had betting slips that showed that he was tracking college and professional football games  ding bets saying who won and who lost he had upwards of forty books i think in his cell the indication is that he's able to read you know what we might think of as you know airport to perform calculations of when you order five something that costs forty cents and it's two dollars things like that so yes and so because that is in the record that is sufficient to defeat mr anderson's argument that the evidence is so clear and convincing that the district court again i'm sorry that the state court just got it wrong beyond question on the the the final prong the onset before age eighteen other than the equivocal evidence of how he performed in school and how he appeared there's just no evidence that he had an onset of an intellectual disability that would be recognized by actions before age eighteen the most that mr henderson has been able to put forward is that there's no reason to think he wasn't there's no reason to think that it didn't onset before age eighteen that assumes of course that he has an intellectual disability but but that is not affirmative evidence and it's certainly not enough to  well two responses to that one factual and one leave the factual response is the suggestion that mr henderson tried and was prevented by the state court from getting discovery of dr is not supported in the record of his discovery request it was in motion for continuance and for discovery and what he wanted to what he asked for were subpoenas for lay witnesses who were outside the state of texas and an a authorization funding for an m r i of mr henderson his that motion doesn't mention expert testimony or d no no and the portion of the of the record that he cites it contains exactly what i've just said doesn't talk about dr gill hausen and he hasn't pointed to any other portion of the record i haven't seen any where there was a good have the state court denied that request that would not establish a violation of due process because under ford pinetti they do not establish a constitutional right to pre hearing discovery at all much less of an expert and so even if so what so that to take it a step further back even if the court could conclude that well in these circumstances yes we think th i'm sorry i was told about the those walker case but not but not the other one i s three which is not the test that dr delousing testified about that test as as mr henderson's own post trial submission about the record on appeal nine forty as his expert concedes the the test that dr gilliland administered and dr gill housing discussed contains no such copyable no instruction that you shouldn't use this for  legal for legal proceedings but suggest it says that it's preferable to use full scale for a clinical placement but that focuses simply mr repton so if there are no further questions and analyzing an individual's adaptive function deficits and she reviewed some old tests some of which were and minister before mr henderson turned eighteen she made specific findings that he had adaptive function deficits in the specific areas of self direction academic scales work and safety   probation officer when he was fifteen their testimony was completely consistent with dr rose and professional conclusions after the testing that is that he had adaptive there isn't in it they described an individual who was delayed academically and socially in functioning as an individual in the society and in the community where he  completely consistent other than the testimony of the state's probation officer who met with him in a series of meetings one hour each but was unable to remember how many times she had met with  him and her testimony was she he was a good looking man and he was a neat man and he was capable of writing a letter none of which is inconsistent with the with the professional clinical findings  analysis of his deficits did not preclude him from doing the functions that he was capable of and the fact that he was capable of some functions does is not evidence that he laughed deficit's in other the other evidence in the record is the trial court record of the facts surrounding his life and this court probably recalls those but when the the off chance happened the individuals who were his co defendants and mr henderson left the victim's residence in the residence car stole her car got to dallas he had the bart murder weapon in his pocket they put him out because of a dispute he called the police and reported that those other individuals had stolen his call and asked the police to come and help him recover the to say one of the thing about the the nature of the record that where we find ourselves and that is that this is that the state has not had the opportunity to review that the transcribed record and had not had the opportunity to present to propose findings of fact and conclusions of law just to be clear the record is silent on that we do not know when the state got to transcription or objections because we received the court's findings of fact and conclusions of law that cite record type to the transcript and to this day we still do not have the transcript those those objections were filed in the absence of receiving the transcript yes because the poor the individual who was tasked with making that exceedingly subjective decision had to make credibility choices if he knew that dr phil thousand testimony regarding the liability and the liberty were incorrect if he had the opportunity to examine dr phil housings testimony within the appropriate framework and then compare it to the contrast in evidence both of the facts regarding the crime the evidence of the facts around the crime the professional testing the prior testing and all the of the clinical information the doctor rose and had somebody has to weigh that credibility and that credibility has to be way in the context of the seating where due process gave both thousand and four i q test which mr henderson scored a sixty six could you speak to the absence of any effort to string there just make sure i understand your question determine whether or not he was moving bring on that test and she determined that he was i think it's also very telling that dr rosen's conclusions regarding his abilities actually showed him to have better abilities than some of the previous tests so he wasn't just in the in a sense making up the wrong answers to avoid the death penalty because he understood that mental retardation would allow him to escape this he performed on clinical tests that allowed her to test for going green that's part of what she does in her testimony she sets out the idea that the lingering too there are tools to