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.

 536 U.S. 304 (2002). 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-70012

GERALD CORNELIUS ELDRIDGE,

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 Southern District of Texas

USDC No. 4:05-CV-1847

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:*

Petitioner Gerald Eldridge seeks a certificate of appealability (COA) on the

issue of whether Eldridge is mentally retarded and thus ineligible for the death

penalty under Atkins v. Virginia. We deny his request for a COA. 

1

United States Court of Appeals

Fifth Circuit

F I L E D

April 28, 2009

Charles R. Fulbruge III

Clerk
No. 08-70012

Id.

2

2

I

In April 1994, Eldridge was convicted of capital murder and sentenced to

death for killing Cynthia Bogany and her nine-year-old daughter, Chirissa.

Cynthia Bogany was Eldridge’s former girlfriend and the mother of his sevenyear-old son, Terrell. 

The evidence established that Eldridge went to Cynthia Bogany’s

apartment, kicked in the door, and shot Chirissa between the eyes at point-blank

range, killing her instantly. Eldridge then shot at close range his son Terrell

and another individual, Wayne Dotson, both of whom were wounded but

survived. Cynthia fled the apartment but Eldridge chased and caught her when

she tripped and fell on the stairs outside a neighbor’s apartment. Despite

Cynthia’s pleas for her life, Eldridge shot her twice in the head, killing her

instantly. Eldridge was twenty-eight years old at the time of the murders.

The Texas Court of Criminal Appeals (TCCA) affirmed Eldridge’s

conviction and sentence. Eldridge’s initial state habeas corpus application was

pending when the Supreme Court of the United States decided Atkins.

2

Thereafter, while his first habeas application was still pending, Eldridge filed

a second state habeas petition raising an Atkins claim. 

The TCCA denied Eldridge’s initial habeas application and, on the same

day, dismissed Eldridge’s second application as an abuse of the writ, stating,

“We have reviewed the facts applicant presents in his ‘Atkins claim’ and find

that, even if they were true, he has not established a prima facie claim as set

forth by this Court in [Ex parte] Briseno [135 S.W.3d 1 (Tex. Crim. App. 2004)].”

Eldridge filed a skeletal petition for a writ of habeas corpus in federal

district court. Eldridge later filed an amended petition raising only one claim
No. 08-70012

28 U.S.C. § 2253(c). 3

Id. § 2253(c)(2). 4

3

for relief: that the Eighth Amendment prohibits Eldridge’s execution because he

is mentally retarded. 

The respondent, Nathaniel Quarterman, Director of the Texas Department

of Criminal Justice (TDCJ) Correctional Institutions Division, moved for

summary judgment, asserting that the evidence failed to support Eldridge’s

claim. Both sides filed extensive briefs and exhibits, including grades and

standardized-test records from Eldridge’s school years, testing performed by the

prison system, and testing performed by experts retained for this litigation. The

district court conducted a four-day evidentiary hearing at which Eldridge and

the TDCJ presented testimony from mental-health experts and from family

members, friends, and others who knew or had observed Eldridge. 

After carefully considering the petition, summary judgment motion,

state-court record, party submissions, evidence presented, and applicable law,

the district court granted respondent’s motion for summary judgment and

denied Eldridge’s petition for a writ of habeas corpus. The district court also

denied Eldridge’s request for a COA. Eldridge now petitions this court for the

grant of a COA. 

II

Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), a petitioner must secure a COA to appeal a federal district court’s

denial of habeas relief. A COA will be granted only if the petitioner makes “a 3

substantial showing of the denial of a constitutional right.” This court conducts 4

a “threshold inquiry” and must issue a COA if “reasonable jurists would find the
No. 08-70012

 Miller-El v. Cockrell, 537 U.S. 322, 336, 338 (2003) (quoting Slack v. McDaniel, 529

5

U.S. 473, 482, 484 (2000)). 

 Gomez v. Quarterman, 529 F.3d 322, 326 (5th Cir. 2008). 

6

 Id. (quoting Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998)). 

7

 See TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5 (Vernon Supp. 2008) (providing that

8

a successive state habeas corpus petition may not be considered unless the petitioner alleges

specific facts establishing a constitutional violation); Ex parte Staley, 160 S.W.3d 56, 63 (Tex.

Crim. App. 2005).

 See Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007) (“[T]o decide whether 9

an Atkins claim is an abuse of the writ, the CCA examines the substance of the claim to see

if it establishes a prima facie case of retardation, and only upon deciding that question can the

state court decide whether remand is appropriate.”).

 Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005). 10

 536 U.S. 304, 321 (2002). 11

4

district court’s assessment of the constitutional claims debatable or wrong.” “In 5

death penalty cases, any doubts as to whether the COA should issue are resolved

in favor of the petitioner.” We do “not grant relief on any claim adjudicated on 6

the merits by a state court unless the state decision was contrary to, or an

unreasonable application of, clearly established federal law as determined by the

Supreme Court, or if the state court’s determination of facts was unreasonable

in light of the evidence.” 

7

The state court dismissed Eldridge’s Atkins claim as an abuse of the writ

because Eldridge had not alleged sufficient facts to establish a prima facie case.8

This court has previously noted that such a dismissal in Texas is a decision on

the merits. Therefore, AEDPA’s deferential standard of review applies. 

9 10

III

The Supreme Court in Atkins v. Virginia held that the Eighth Amendment

forbids the execution of the mentally retarded. The Court left “to the States 11

the task of developing appropriate ways to enforce the constitutional restriction
No. 08-70012

 Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-17 (1986)). 

12

 In re Hearn, 418 F.3d 444, 446 (5th Cir. 2005). 13

 Ex parte Briseno, 135 S.W.3d 1, 7 & nn.24-25 (Tex. Crim. App. 2004) (citing 14

American Association of Mental Retardation, MENTAL RETARDATION: DEFINITION,

CLASSIFICATION, AND SYSTEMS OF SUPPORT 5 (9th ed. 1992)). 

 See Rivera v. Quarterman, 505 F.3d 349, 361-63 (5th Cir. 2007) (holding that the

15

district court did not clearly err in finding that defendant suffered from significantly

subaverage intellectual functioning and related limitations in adaptive functioning); see also

Briseno, 135 S.W.3d at 9 (“[T]he ultimate issue of whether [a] person is, in fact, mentally

retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the

finder of fact, based upon all of the evidence and determinations of credibility.”).

 Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998). 16

 St. Aubin v. Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006). 17

5

upon its execution of sentences.” Because the Supreme Court declined to 12

explicitly define “mental retardation” for purposes of the Eighth Amendment,

Texas courts have employed the definition promulgated by the American

Association of Mental Retardation. This definition imposes three 13

requirements: (1) significantly subaverage general intellectual functioning,

generally defined as an IQ below 70; (2) related “limitations in adaptive

functioning,” 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”; and

(3) onset prior to the age of 18. Determination of whether Eldridge satisfies 14

any of these elements is a question of fact.15

In a habeas proceeding, we review the district court’s findings of fact for

clear error and conclusions of law de novo, applying the same standard of review

to the state court’s decision as the district court. “A finding is clearly erroneous 16

only if it is implausible in the light of the record considered as a whole.” 

17
No. 08-70012

 See AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF 18

MENTAL DISORDERS 41-42 (Text Revision, 4th ed. 2000) (DSM-IV) (“Thus, it is possible to

diagnose Mental Retardation in individuals with IQs between 70 and 75 who exhibit

significant deficits in adaptive behavior. Conversely, Mental Retardation would not be

diagnosed in an individual with an IQ lower than 70 if there are no significant deficits or

impairments in adaptive functioning.”). 

 493 F.3d 580, 586-87 (5th Cir. 2007). 

19

6

IV

The district court found that Eldridge did not have substandard

intelligence. Eldridge’s IQ test results are consistent with such a finding. 

In 1994, Eldridge scored a full-scale IQ of 112 on a version of the Wechsler

Adult Intelligence Scale (WAIS) administered by a supervisor of psychiatric

services at the TDCJ unit. Later, the TDCJ’s expert, Dr. Thomas Allen,

administered a different form of the WAIS test and reported that Eldridge scored

a full-scale IQ of 84. Only Eldridge’s full-scale IQ score of 72, on a test

administered by his expert witness, Dr. Patricia Averill, placed him in the mildly

mentally retarded range—and then only if Eldridge showed significant deficits

in adaptive behavior. Although Dr. Averill concluded that Eldridge was 18

mentally retarded, the district court found Dr. Averill’s analysis and conclusions

to be unreliable because she failed to consider or test for the possibility of

malingering or lack of effort, failed to consider explanations or possibilities other

than mental retardation for the test results she obtained, and relied only on

limited information about Eldridge’s background. Further, before testing

Eldridge, Dr. Averill reviewed no school or work records, prior IQ scores, or

psychological evaluations and did not interview Eldridge’s family and friends.

In Woods v. Quarterman, we held that a state court’s conclusion that the

petitioner failed to demonstrate that he suffered from subaverage general

intellectual functioning was not unreasonable. In Woods, the petitioner’s 19

expert was the “only person to test Woods’ IQ below seventy” and did so on a test
No. 08-70012

 Id. at 586. 20

 Id.

21

 Id. at 587. 

22

 517 F.3d 781, 784 (5th Cir. 2008). 

23

 Id.

24

 See id.

25

7

when the petitioner “had an incentive to perform poorly.” Petitioner’s four 20

other IQ test scores were above seventy points. We concluded that the state 21

habeas court’s decision to give more weight to the petitioner’s childhood IQ test

scores than the score obtained by the petitioner’s expert was reasonable because

the latest result could have been caused by a motivation to score poorly. 

22

Further, in Moore v. Quarterman, we held that a state court’s decision that

a defendant was not mentally disabled “was not contrary to or otherwise

involved an unreasonable application of clearly established federal law” even

though the defendant presented evidence of full-scale IQ scores of 68, 72, 72, 76,

63, and 76. There, “some expert opinion supported a finding of subaverage 23

intellectual functioning, [but] 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.” 

24

Similar to Briseno, in this case, Eldridge did not record an IQ score lower

than 72, and all other scores were higher than 75. Additionally, as in Woods, the

district court did not find Eldridge’s full-scale IQ score of 72 to be reliable, partly

because Eldridge had a motivation to score poorly. Finally, similar to Moore, Dr.

Allen concluded that Eldridge was not mentally retarded and deliberately

exerted no effort on the most recent IQ tests. 

25
No. 08-70012

8

The district court found that Eldridge did not possess substantially

subaverage intelligence. Based on the evidence, reasonable jurists would not

disagree that this finding was not clearly erroneous. 

V

The district court also examined Eldridge’s claimed deficits in adaptive

functioning and determined that the evidence did not show a significant deficit

consistent with mental retardation. 

A

The district court’s finding that Eldridge was not deficient in academic

functioning is not clearly erroneous. Eldridge’s grades in high school, seventieth

percentile graduation ranking, and the fact that he passed the pipe-fitters exam

all support the district court’s finding that Eldridge was not deficient in

academic functioning. Further, Eldridge’s conduct in prison, letters, and oral

comments made during trial lend support to the district court’s finding. 

Eldridge argues that the district court failed to weigh properly Dr. Averill’s

testimony and that reasonable jurists could disagree as to whether Dr. Averill

considered evidence showing that Eldridge was capable of more academic work

than her testimony indicated. But the district court found Dr. Averill to be not

credible because she dismissed evidence without an adequate basis for doing so.

For example, Dr. Averill claimed that Eldridge received help writing his letters

and a grievance with the State Bar of Texas but cited no evidence that this

actually occurred. The district court stated, “[i]n short, Dr. Averill was either

unaware of, or discounted, evidence that was inconsistent with the conclusions

she had reached.” 

Eldridge also claims that he did not pass the pipe-fitters exam by himself,

but that his brother, Barry Eldridge, took the test for him. However, the

training coordinator for the pipe-fitters union testified that the test was taken

in a locked room and that Barry did not have a key to get in. Additionally,
No. 08-70012

9

Barry’s scratch paper from his own attempt to join the union and that of

Eldridge’s tests showed stark differences in problem-solving techniques. Finally,

a handwriting analyst and certified fraud examiner testified that Eldridge’s and

Barry’s tests were not written by the same person, and that it was highly

probable that all of Eldridge’s pipe-fitters exams were written by Eldridge. 

Eldridge also argues that greater weight should have been given to the

testimony of his mother, Mattie Wade, Barry Eldridge, and one of Eldridge’s

teachers at Jack Yates High School, Judith Zinsser. 

According to Eldridge, Mattie Wade testified that she took librium before

giving birth to him and that he did poorly in elementary school. But the district

court noted these facts in its opinion and observed that the school did not require

Eldridge to repeat a grade. Additionally, the district court noted that Donna

Lawson, one of Eldridge’s elementary-school teachers, used Eldridge as a peer

tutor for kindergartners when he was in third grade and that Lawson’s testing

of Eldridge in second grade did not indicate mental retardation. 

Barry Eldridge testified that he helped Eldridge with his homework, even

when Eldridge was a year ahead of Barry in high school. This testimony was

refuted, however, by an interview with Wan-Ling Woodbury, Eldridge’s highschool algebra teacher. In that class, Woodbury required her students to work

out math problems on the blackboard, and “Eldridge was not assisted by his

brother Barry or a friend in working out such problems in the classroom.”

Woodbury stated that Eldridge could not be mentally retarded and perform as

well as he did in the algebra class. 

Finally, Eldridge claims that reasonable jurors could disagree on the

weight to give Zinsser’s testimony that Jack Yates High School was a low

performing school and that students’ grades were not necessarily valid. Zinsser

also testified that Eldridge tested in the bottom one percent in the twelfth grade

in reading. But the district court noted that, even taking into account the low
No. 08-70012

10

performance of Jack Yates High School, it would be difficult for a mentally

retarded person to graduate in the seventieth percentile of his high-school class.

The district court found that Eldridge did not suffer a deficit in academic

functioning. Reasonable jurists would not disagree that this finding was not

clearly erroneous. 

B

The district court’s finding that Eldridge was not deficient in the area of

work also was not clearly erroneous. Eldridge was regularly employed, received

good performance reviews, worked over forty hours per week at times, received

regular pay raises and, at one point, earned about four times the minimum

wage.

Eldridge’s primary argument is based on Dr. Averill’s testimony that

Barry Eldridge helped the petitioner take the pipe-fitters exam. However, the

district court properly found that the credible evidence showed that Eldridge

took the exam on his own and was successful in the pipe-fitters apprenticeship

program. Therefore, reasonable jurists would not disagree that the district

court’s finding was not clearly erroneous. 

C

The district court’s finding that Eldridge did not have an adaptive deficit

in social functioning was not clearly erroneous. Eldridge had friends during his

school years, although not many, and evidence showed that Eldridge was socially

confident in school until his knee injury. Eldridge had girlfriends in high school

and subsequently had relationships with other women, including a common-law

wife. Eldridge left socially appropriate messages on Cynthia Bogany’s

answering machine and, since being in prison, Eldridge has had “pen pals” from

around the world with whom he corresponds, interactions that Dr. Allen

concluded were inconsistent with mental retardation.
No. 08-70012

 See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives

26

federal habeas courts no license to redetermine credibility of witnesses whose demeanor has

been observed by the state trial court, but not by them.”); Pippin v. Dretke, 434 F.3d 782, 792

(5th Cir. 2005) (“A trial court’s credibility determinations made on the basis of conflicting

evidence are entitled to a strong presumption of correctness and are ‘virtually unreviewable’

by the federal courts.” (quoting Moore v. Johnson, 194 F.3d 586, 605 (5th Cir.1999))).

11

Eldridge argues that reasonable jurists could disagree as to the accuracy

of some of Dr. Allen’s statements, such as the finding that the messages on the

answering machine were socially appropriate. Eldridge also argues that the

court should have given more weight to Barry Eldridge’s testimony and less to

that of Hubert Hardeman. Because this court defers to the district court’s

credibility determinations, reasonable jurists would not disagree that the 26

district court’s finding that Eldridge did not suffer a deficit in social functioning

was not clearly erroneous. 

D

The district court further found that Eldridge was not deficient in the area

of home life. Evidence showed that Eldridge cashed his paychecks, shared

expenses when he lived with girlfriends, shopped for groceries, and performed

some household chores. He had a job as a pipe-fitter’s helper and he had a bank

account. He drove and knew how to repair cars. 

Eldridge claims that reasonable jurists could disagree that he had a deficit

in home living because of the testimony of Dr. Averill. But the district court

found that Dr. Averill’s conclusions were based on assumptions not supported

by the evidence. 

Eldridge also argues that the district court improperly weighed much of

Barry Eldridge’s testimony. According to Eldridge, Barry indicated that

Eldridge could not live by himself or take care of routine chores at home.

Cynthia Bogany’s niece refuted this testimony when she stated that Eldridge

cooked for the family and made other contributions to home life. 
No. 08-70012

 Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004). 27

12

Eldridge further argues that the district court gave too much weight to

Barry Eldridge’s testimony that his brother was not mentally retarded. But one

of the evidentiary factors fact-finders might focus upon is whether “those who

knew the person best during the developmental stage—his family, friends,

teachers, employers, authorities—[thought] he was mentally retarded . . . .”27

Therefore, it was not improper for the district court to give Barry Eldridge’s

statement weight. 

Finally, Eldridge argues that the district court improperly weighed Mattie

Wade’s testimony that he could not buy groceries “with a long list” and that

Eldridge was forbidden from using the microwave after burning some bread. In

light of other evidence, however, reasonable jurists would not disagree that the

district court’s finding that Eldridge did not suffer a deficit in the area of home

living was not clearly erroneous. 

VI

The district court concluded that “[t]he evidence shows that Eldridge does

not have significantly subaverage intellectual functioning or significant deficits

in adaptive functioning. It necessarily follows that such symptoms did not

manifest before Eldridge turned 18 years old.” Eldridge’s standardized tests and

academic performance support such a conclusion. In the second grade, Eldridge

tested in the forty-sixth percentile on the Peabody Picture Vocabulary Test

(PPVT), which is within “normal” range. According to the PPVT, Eldridge’s

mental age was one month behind his chronological age. Additionally, as noted

earlier, Eldridge was a peer tutor for kindergartners when he was in the third

grade. Further, Eldridge was not in special-education classes, was not held back

to repeat a grade, and graduated from high school in the seventieth percentile

of his class. Finally, none of his friends or family, nor any medical professional,
No. 08-70012

 See id. at 17 (“It is highly significant that in none of these voluminous records is 28

there any indication from any source that any person thought applicant might be mentally

retarded.”).

13

gave any indication before Eldridge turned eighteen that they believed Eldridge

was mentally retarded. 

28

The evidence in the record does not support Eldridge’s contention that his

alleged mental retardation had an onset before age eighteen. Accordingly,

reasonable jurists would not disagree that the district court’s finding that

Eldridge’s alleged mental retardation did not manifest before age eighteen was

not clearly erroneous.

* * *

Because reasonable jurists would not find the district court’s assessment

of the constitutional claims debatable or wrong, Eldridge’s request for a COA is

DENIED.