IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

YOKAMON LANEAL HEARN, §

 §

Petitioner, §

 § 

VS. § Civil Action No. 3:04-CV-0450-D

 §

RICK THALER, Director, § 

Texas Department of Criminal §

Justice, Correctional §

Institutions Division, §

 §

Respondent. §

MEMORANDUM OPINION

 AND ORDER 

This capital case in which petitioner Yokamon Laneal Hearn

(“Hearn”) maintains that his execution is unconstitutional under

Atkins v. Virginia1 returns to this court following a decision of

the Texas Court of Criminal Appeals (“CCA”) determining that Hearn

is not mentally retarded. Concluding that the decision of the CCA

is not an unreasonable application of Atkins, and that its denial

of his claim was not contrary to or an unreasonable application of

clearly established federal law, the court denies the petition on

the merits and dismisses this action with prejudice.

I

The court has recited the extensive procedural history of this

case in prior opinions and need not do so again at length. Briefly

summarized, on the eve of his scheduled execution, Hearn received

permission from the Fifth Circuit to file a successive habeas

1

536 U.S. 304 (2002). 

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petition raising an Atkins claim. See In re Hearn, 418 F.3d 444,

448 (5th Cir. 2005). This court then initially found that Hearn

had failed to make the prima facie showing of mental retardation

and dismissed his petition with prejudice without reaching the

merits. Hearn v. Quarterman, 2007 WL 2809908 (N.D. Tex. Sep. 27,

2007) (Fitzwater, J.) (“Hearn II”) (applying 28 U.S.C. § 2244(b)). 

The court later allowed additional briefing, Hearn v. Quarterman,

2008 WL 679030 (N.D. Tex. Mar. 13, 2008) (Fitzwater, C.J.) (“Hearn

III”), and granted Hearn’s Fed. R. Civ. P. 59(e) motion to alter or

amend the judgment due to the intervening opinion in Hall v.

Quarterman, 534 F.3d 365 (5th Cir. 2008) (per curiam). The court

also granted a stay and abatement to allow the exhaustion of this

claim pursuant to Rhines v. Weber, 544 U.S. 269 (2005). See Hearn

v. Quarterman, 2008 WL 3362041 (N.D. Tex. Aug. 12, 2008)

(Fitzwater, C.J.). 

While these federal proceedings were stayed, Hearn returned to

state court and presented his Atkins claim. The CCA denied this

claim on the merits. Ex parte Hearn, 310 S.W.3d 424 (Tex. Crim.

App.), cert. denied, 543 U.S. 960 (2010). In pertinent part, it

rejected Hearn’s “attempts to use neuropsychological measures to

wholly replace full-scale IQ scores in measuring intellectual

functioning.” Id. at 431. While it recognized that habeas

applicants should be given the opportunity to present clinical

assessment evidence to demonstrate why their full-scale IQ scores

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were within the margin of error for standardized IQ testing, it

held that applicants could not use clinical assessment evidence as

a replacement for full-scale IQ scores in measuring intellectual

functioning. Because Hearn’s evidence did not demonstrate

significantly subaverage intellectual functioning, the CCA denied

his application. Id. Hearn now returns to this court seeking

habeas relief for this exhausted claim under 28 U.S.C. § 2254. 

II

Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), 28 U.S.C. § 2254, consideration of the merits of

exhausted claims is controlled by § 2254(d).

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings

unless the adjudication of the claim——

(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.

Id. AEDPA limits rather than expands the availability of habeas

relief. See Fry v. Pliler, 551 U.S. 112, 119 (2007); Williams v.

Taylor, 529 U.S. 362, 412 (2000). “By its terms § 2254(d) bars

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relitigation of any claim ‘adjudicated on the merits’ in state

court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”

Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784 (2011). 

Federal habeas review under AEDPA is highly deferential. Id., 131

S.Ct. at 788; Renico v. Lett, 559 U.S. ___, 130 S.Ct. 1855, 1862

(2010) (“AEDPA thus imposes a highly deferential standard for

evaluating state-court rulings, and demands that state-court

decisions be given the benefit of the doubt.”); Avila v.

Quarterman, 560 F.3d 299, 304 (5th Cir.), cert. denied, Avila v.

Thaler, ___ U.S. ___, 130 S.Ct. 536 (2009). 

III

Hearn contends that the state court decision was contrary to

and an unreasonable application of clearly established federal law

and that habeas relief is therefore authorized by § 2254(d)(1).2

Normally, the question whether a death-row inmate suffers from

significantly subaverage intellectual functioning is a question of

fact rather than a question of law or a mixed question of law and

fact. See Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006). 

In this case, however, the issue is determined by the CCA’s

rejection of Hearn’s attempt “to significantly alter the current

2Respondent (the “state”) contends that Hearn has expressly

abandoned any argument that the state court decision was an

unreasonable application of federal law. This misreads Hearn’s

contention, however, that the CCA’s “decision in Mr. Hearn’s case

is ‘contrary to,’ not simply an ‘unreasonable application of,’

Atkins.” P. Br. 14.

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[Texas] definition of mental retardation.” Ex parte Hearn, 310

S.W.3d at 430. 

As noted in Hearn II, the Supreme Court in Atkins did not

define mental retardation, but left the decision to the states. 

Hearn II, 2007 WL 2809908, at *7 (citing Atkins, 536 U.S. at 317,

and Hall v. State, 160 S.W.3d 24, 36 (Tex. Crim. App. 2004)); see

also Bobby v. Bies, ___ U.S. ___, 129 S.Ct. 2145, 2150 (2009) (“Our

opinion did not provide definitive procedural or substantive guides

for determining when a person who claims mental retardation ‘will

be so impaired as to fall [within Atkins’ compass].’ We ‘le[ft] to

the States the task of developing appropriate ways to enforce the

constitutional restriction.’” (brackets in original) (quoting

Atkins, 536 U.S. at 317)). At the time of this court’s prior

orders, the Texas courts had not yet decided whether the

“significantly subaverage intellectual functioning” element could

be established by evidence other than IQ. See, e.g., Hearn II,

2007 WL 2809908, at *9 n.6 (“Neither this court nor the case law

suggests that IQ test scores provide the exclusive evidentiary

basis on which to make this showing”); Hearn III, 2008 WL 679030,

at *4 (“Although it is not clear on what [non-IQ] basis the

intellectual functioning prong can be established, or whether there

is an IQ threshold above which a diagnosis of mental retardation is

precluded, [Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App.

2004) (en banc),] appears to suggest that clinical judgment, beyond

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strict adherence to IQ test results, can support a diagnosis of

mental retardation.”). 

Hearn now objects to how the CCA has defined this element of

mental retardation. Respondent (the “state”) argues that the CCA

reasonably rejected Hearn’s claim. It also renews its prior motion

for summary judgment. That motion was filed, however, before the

controlling decision of the CCA, and it is now inapposite. 

Therefore, the state’s motion for summary judgment is denied as

moot, and this claim is analyzed under § 2254(d)(1). 

The standard under § 2254(d)(1) is high. 

Under the “contrary to” clause [of

§ 2254(d)(1)], a federal habeas court may

grant [a writ of habeas corpus] if the state

court arrives at a conclusion opposite to that

reached by [the Supreme Court of the United

States] on a question of law or if the state

court decides a case differently than [the

Supreme Court] has on a set of materially

indistinguishable facts.

Williams, 529 U.S. at 412-13. “A ‘run-of-the-mill state-court

decision applying the correct legal rule’ would not fit within this

exception as ‘diametrically different’ or ‘opposite in character or

nature’ from Supreme Court precedent.” Beazley v. Johnson, 242

F.3d 248, 256 (5th Cir. 2001) (quoting Williams, 529 U.S. at 406).

“Under the ‘unreasonable application’ clause [of

§ 2254(d)(1)], a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from

[the Supreme] Court’s decisions but unreasonably applies that

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principle to the facts of the prisoner’s case.” Williams, 529 U.S.

at 413. “[A] federal habeas court making the ‘unreasonable

application’ inquiry should ask whether the state court’s

application of clearly established federal law was objectively

unreasonable.” Id. at 409. “A state court’s decision will be based

on an unreasonable application of clearly established federal law

when it is objectively unreasonable.” Kutzner v. Johnson, 242 F.3d

605, 608 (5th Cir. 2001). “[A]n unreasonable application of

federal law is different from an incorrect application of federal

law.” Williams, 529 U.S. at 410. “Under § 2254(d)(1)’s

‘unreasonable application’ clause, then, 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 must also be unreasonable.” Id. at 411. “[A]

federal court is not to substitute its judgment for that of the

state court. Rather under AEDPA, federal habeas relief is proper

only if the state habeas court applied federal law in an

‘objectively unreasonable’ manner.” Schaetzle v. Cockrell, 343 F.3d

440, 447 (5th Cir. 2003).

IV

While these federal proceedings were stayed, Hearn returned to

state court and presented his Atkins claim. This required the CCA

to address the question “whether alternative-assessment measures

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can be substituted for full-scale IQ scores in supporting a finding

of subaverage intellectual functioning.” Ex parte Hearn, 310

S.W.3d at 427. The CCA resolved this question against Hearn,

explaining that while non-IQ evidence may help the determination of

intellectual deficiency when the IQ evidence is within the range

for mental retardation, it may not be used as a substitute for

contrary IQ evidence. 

In the present case, applicant attempts

to use neuropsychological measures to wholly

replace full-scale IQ scores in measuring

intellectual functioning. However, this court

has regarded non-IQ evidence as relevant to an

assessment of intellectual functioning only

where a full-scale IQ score was within the

margin of error for standardized IQ testing. 

Thus, we hold that, while applicants should be

given the opportunity to present clinical

assessment to demonstrate why his or her

full-scale IQ score is within that margin of

error, applicants may not use clinical

assessment as a replacement for full-scale IQ

scores in measuring intellectual functioning.

The evidence before us in this

application does not demonstrate significantly

subaverage intellectual functioning by

applicant. Accordingly, we dismiss the

application.

Id. at 431 (footnotes omitted). This finding is entitled to

deference under the AEDPA. See 28 U.S.C. § 2254(d) & (e). 

Hearn does not dispute that his IQ evidence places him above

the range for mental retardation. Instead, he complains that the

CCA’s decision precluding the use of non-IQ evidence to establish

the mental deficiency prong in contravention to the available IQ

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evidence constitutes an unreasonable application of Atkins because

it deprives him of the ability to prove mental retardation when, as

here, his IQ scores disqualify him from such a finding. This

argument lacks force. The CCA has done nothing more than perform

the task left open to it by Atkins. And even if the Supreme Court

later limits the authority of the states to prescribe what evidence

can be considered when determining mental retardation, the Court

has not yet clearly established the precise boundaries of any such

limits. Accordingly, the CCA’s decision in Hearn’s case could not

have been an unreasonable application of Atkins, and its denial of

his Atkins claim was neither contrary to nor an unreasonable

application of clearly established federal law.

Although Hearn has previously made the minimum prima facie

showing of mental retardation to warrant merits consideration of

the claim, the CCA’s subsequent resolution of his Atkins claim was

not an unreasonable adjudication of the merits of the claim. 

Therefore, this successive petition is denied on the merits. 

V

In accordance with Fed. R. App. P. 22(b) and 28 U.S.C.

§ 2253(c), and after considering the record in this case, the court

denies Hearn a certificate of appealability. Hearn has failed to

show (1) that reasonable jurists would find this court’s

“assessment of the constitutional claims debatable or wrong,” or

(2) that reasonable jurists would find “it debatable whether the

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petition states a valid claim of the denial of a constitutional

right” and “debatable whether [this court] was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). Hearn has previously been allowed to proceed in forma

pauperis, and this status is continued for purposes of appeal.

* * *

 Hearn’s habeas petition is denied, and this action is

dismissed with prejudice by judgment filed today. 

SO ORDERED.

March 3, 2011.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE

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