UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BOBBY LEE HINES,

Petitioner,

VS.

RICK THALER, Director, Texas

Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

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) CIVIL ACTION NO.

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) 3:06-CV-0320-G

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MEMORANDUM OPINION AND ORDER

Before the court is the motion (docket entry 75) filed by the petitioner, Bobby

Lee Hines (“Hines”), to alter the court’s judgment, which denied and dismissed with

prejudice his habeas corpus petition. For the reasons stated below, the motion is

denied.

I. BACKGROUND

In 1992, Hines was convicted and sentenced to death in Texas. The Texas

Court of Criminal Appeals (the “TCCA”) affirmed his conviction and sentence on

direct appeal. Findings and Recommendation of the United States Magistrate Judge
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(“Magistrate Findings”) (docket entry 70) at 1(citing Hines v. State, No. 71,442 (Tex.

Crim. App. May 10, 1995)). Hines filed a state petition for writ of habeas corpus,

which the TCCA denied. Id. Hines’ first petition for a federal writ of habeas corpus

was denied on January 22, 2002. Hines v. Cockrell, No. 3:99-CV-0575-G, 2002 WL

108301, at *14 (N.D. Jan. 22, 2002) (Boyle, M.J.). The Fifth Circuit affirmed on

appeal. Hines v. Cockrell, No. 02-10252, 2002 WL 31956173, at *1 (5th Cir.

Dec. 31, 2002), cert. denied, Hines v. Dretke, 540 U.S. 827 (2003).

Hines was scheduled to be executed on December 11, 2003. However, on

December 3, 2003, he filed a subsequent application for writ of habeas corpus --

claiming that he is mentally retarded and this ineligible for execution under Atkins v.

Virginia, 536 U.S. 304 (2002) -- and the TCCA, finding that Hines met the

requirements for a subsequent writ application, stayed his execution pending

resolution of his petition. After reviewing all the evidence, but without conducting a

live evidentiary hearing, the state habeas court entered extensive findings of fact and

conclusions of law rejecting Hines’ mental retardation claim. The TCCA adopted

these findings and conclusions, and denied Hines relief on appeal. Ex parte Bobby Lee

Hines, WR-40,347-02, 2005 WL 3119030, at *1 (Tex. Crim. App. Nov. 23, 2005). 

On February 2, 2006, the Fifth Circuit authorized Hines to file a successive

habeas petition in this court. On February 24, 2006, the matter was referred to the

magistrate judge for a hearing and recommendation. Order of Reference (docket
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entry 4). On January 22, 2009, the magistrate judge conducted a full evidentiary

hearing to “enable petitioner to prove his factual allegations which, if true, would

entitle him to habeas relief.” Memorandum Order (docket entry 34) at 3. At that

hearing, both parties presented evidence, including testimony from both lay and

expert witnesses. Following the hearing, the magistrate judge issued findings and a

recommendation rejecting Hines’ Atkins claim. See generally Magistrate Findings. 

Hines objected to the findings and recommendation of the magistrate judge. See

generally Petitioner Hines’ Objections to the Findings & Recommendation of the U.S.

Magistrate Judge (docket entry 72). On August 18, 2010, this court overruled Hines’

objections, adopted the findings and recommendation of the magistrate judge, and

entered judgment to that effect. Order Accepting Findings and Recommendation of

the United States Magistrate Judge, and Denying a Certificate of Appealability

(“Order”) (docket entry 73). 

Hines now moves, under Rule 59(e) of the Federal Rules of Civil Procedure, to

alter the judgment and correct what he contends are “manifest errors of law and fact,”

mainly the court’s deference, under the Antiterrorism and Effective Death Penalty

Act (the “AEDPA”), to the Texas habeas court’s ruling on the merits of his Atkins

claim, notwithstanding the lack of a live evidentiary hearing in that court. Opposed

Motion to Alter or Amend the Judgment Under FED. R. CIV. PROC. 59(e) (“Motion to

Alter”) ¶18. 
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II. ANALYSIS

“A motion to alter or amend the judgment under Rule 59(e) must clearly

establish either a manifest error of law or fact or must present newly discovered

evidence and cannot be used to raise arguments which could, and should, have been

made before the judgment issued.” Schiller v. Physicians Resource Group Inc., 342 F.3d

563, 567 (5th Cir. 2003) (internal quotation marks omitted). Relief under Rule

59(e) is also appropriate when there has been an intervening change in the controlling

law. Brockie v. Ameripath, Inc., No. 3:06-CV-0185-G, 2007 WL 2120041, at *1 (N.D.

Tex. July 23, 2007) (Fish, C.J.), aff’d, 273 Fed. Appx. 375 (5th Cir. April 11, 2008). 

A motion to alter or amend may also be granted if necessary to prevent manifest

injustice. Amir-Sharif v. Commissioners of Dallas, No. 3:07-CV-0175-G, 2007 WL

1308314, at *1 (N.D. Tex. May 4, 2007) (Fish, C.J.) (citing Fresh America Corporation

v. Wal-Mart Stores, Inc., No. 3:03-CV-1299-M, 2005 WL 1253775, at *1 (N.D. Tex.

May 25, 2005) (Lynn, J.)). 

The decision whether to reopen a case under Rule 59(e) is within the district

court’s discretion. Stroman v. Thaler, No. 3:05-CV-1616-D, 2009 WL 3295128, at *1

(N.D. Tex. Oct. 9, 2009) (Fitzwater, C.J.) (citations omitted). “[W]hile a district

court has considerable discretion in deciding whether to reopen a case in response to

a motion for reconsideration, such discretion is not limitless.” Templet v. HydroChem

Inc., 367 F.3d 473, 479 (5th Cir.), cert. denied, 543 U.S. 976 (2004). Reconsideration
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of a judgment is an extraordinary remedy that should be used sparingly. Stroman,

2009 WL 3295128, at *1. “Indeed, the remedy is so extraordinary that the standard

under Rule 59(e) favors denial of motions to alter or amend a judgment.” Berry v.

Indianapolis Life Insurance Company, No. 3:08-CV-0248-B, 2009 WL 1979262, at *1

(N.D. Tex. July 8, 2009) (Boyle, J.) (citations and internal quotation marks omitted). 

Even so, there are two important judicial imperatives that must be considered on a

Rule 59(e) motion to amend: “1) the need to bring litigation to an end; and 2) the

need to render just decisions on the basis of all the facts.” Templet, 367 F.3d at 479

(citations omitted). “The task for the district court is to strike the proper balance

between these competing interests.” Id.

Hines argues that this court’s reference to the statutory language of 28 U.S.C.

§§ 2254(d)(2) and (e)(1) in its order denying his Atkins claim constituted “deference

to prosecutor-drafted, rubber-stamped findings and conclusions by the state-court,”

which was “not the de novo review required by Supreme Court law and the federal

constitution.” Motion to Alter ¶ 5. The court disagrees with Hines’ characterization,

and finds that his habeas petition would have been denied even under the standard

that he proposes because he has not shown by a preponderance of evidence that he is

mentally retarded, as that condition has been defined by Texas law. Accordingly, the

court’s judgment does not suffer from a manifest error. 
* This point is subject to reasonable debate because the Fifth Circuit

based its decision in Wiley on the procedure required in Mississippi after a petitioner

has made a prima facie howing of mental retardation. See Wiley, 625 F.3d at 211

(“We conclude . . . that the state court’s departure from its own Chase tandards in the

face of Wiley’s evidence of retardation failed to provide Wiley with the minimum

constitutional protections.”). This case is plainly distinguishable on its facts. Texas,

unlike Mississippi, has never explicitly required a court to conduct a live evidentiary

hearing on a petitioner’s Atkins claim -- even after a petitioner makes a prima facie

howing. See generally Ex parte Briseño, 135 S.W.3d 1, 7-9 (Tex. Crim. App. 2004)

(defining mental retardation under Texas law, but referring to the state habeas

statute’s procedures for making such a determination); but see Rivera v. Quarterman,

505 F.3d 349, 358 (5th Cir. 2007) (finding that even in Texas, “where a petitioner

has made a prima facie showing of retardation as Rivera did, the state court’s failure

to provide him with the opportunity to develop his claim deprives the state court’s

decision of the deference normally due.”), cert. denied, __ U.S. __, 129 S.Ct. 176

(2008). Indeed, in this case, the TCCA specifically found no error in the state habeas

court’s findings of fact, notwithstanding the habeas court’s failure to conduct a live

evidentiary hearing. Ex parte Hines, 2005 WL 3119030, at *1 (“While we have said

that the better practice is to conduct a live hearing in cases such as this, the evidence

before the trial court was extensive and we did not specify that a live hearing was

necessary when we remanded the case.” (internal citation omitted)).

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A. Wiley v. Epps

After Hines filed the present motion to alter, the Fifth Circuit held, in Wiley v.

Epps, 625 F.3d 199 (5th Cir. 2010), that a state court’s denial of a petitioner’s Atkins

claim without an evidentiary hearing constitutes an unreasonable application of

clearly established federal law such that no deference is due to the state court

decision. Id. at 213. Admittedly, Wiley may be read to mean that this court should

not have afforded AEDPA deference to the state habeas court’s findings and

conclusions when reviewing Hines’ Atkins claim.* Reviewing Hines’ claim de novo

would produce the same result, however, because the totality of the record, including
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the transcript of the evidentiary hearing conducted by the magistrate judge,

demonstrates that Hines failed to prove, by a preponderance of the evidence, that he

is mentally retarded. Moreover, as the Supreme Court recently made clear, “Courts

cannot grant writs of habeas corpus under § 2254 by engaging only in de novo review

when it is unclear whether AEDPA deference applies . . . . Courts can, however, deny

writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear

whether AEDPA deference applies, because a habeas petitioner will not be entitled to

a writ of habeas corpus if his or her claim is rejected on de novo review, see § 2254(a).” 

See Berghuis v. Thompkins, U.S. , 130 S.Ct. 2250, 2265 (2010). Given the lack

of clarity in Fifth Circuit precedent before Wiley -- and Supreme Court precedent

more generally -- regarding whether AEDPA deference applies when a state court fails

to conduct a live evidentiary hearing on a habeas petitioner’s Atkins claim, the court

would have been in error to have undertaken only de novo review of Hines’ habeas

petition. Id. Nonetheless, because uncertainty remains regarding the applicable

standard of review, and the court has already reviewed Hines’ petition with AEDPA

deference to the state court’s findings, see generally Order, the court will review Hines’

Atkins claim de novo.

B. De Novo Review

In light of Wiley, and in an abundance of caution, this court has conducted a de

novo review of the record without any AEDPA deference. Under this standard, for the
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reasons detailed below, Hines has not proven any of the three elements necessary to

demonstrate mental retardation. Accordingly, the court did not commit manifest

error by denying Hines’ habeas petition, and Hines’ present motion to alter is denied.

1. Mental Retardation under Texas Law

In Atkins, the Supreme Court held that the Eighth Amendment prohibits the

execution of criminal defendants who are mentally retarded. 536 US. at 321. 

Recognizing disagreement among the states with respect to “determining which

offenders are in fact retarded,” the Court tasked each with the responsibility of

“‘developing appropriate ways to enforce the constitutional restriction upon [their]

execution of sentences.’” Id. at 317 (quoting Ford v. Wainwright, 477 U.S. 399

(1986)). 

Responding to the Supreme Court’s mandate in Atkins, the TCCA adopted the

definition of mental retardation set out by the American Association of Mental

Retardation, n/k/a The American Association of Intellectual and Developmental

Disabilities. Briseño, 135 S.W.3d at 7. By that definition, “mental retardation is a

disability characterized by: (1) significantly subaverage general intellectual

functioning,” defined as an IQ 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.” Id. at 7 (internal quotation marks omitted). Under Texas law, a criminal
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defendant must prove all three elements by a preponderance of the evidence to

prevail on an Atkins claim. Id. at 12.

2. Hines has not carried his burden

As discussed in the court’s previous order, the most reliable I.Q. scores for

determining Hines’ intellectual functioning are from the tests administered while he

was in his teen years -- particularly the WISC-R, administered when Hines was 13

years old and resulting in a full-scale I.Q. score of 96, which is well above the range

for mental retardation. Order at 10-11. Hines has produced post-petition I.Q. scores

within the range of mental retardation, but these have little bearing on his intellectual

ability during his developmental stage and the evidence submitted by the state’s

experts suggests that Hines did not put forth sufficient effort to ensure that his scores

would be valid. Hines’ expert, Dr. Kessner, attempted to counter this evidence by

testifying that the consistency of Hines’ recent scores contradicts any suggestion of

malingering; she analogized the likelihood of obtaining such consistently low scores

through malingering to the likelihood of winning the lottery. 1 Transcript of

Evidentiary Hearing Before the Honorable Jeff Kaplan United States District

Magistrate Judge (“1 Hearing Transcript”) at 81:7-84:5. However, the Fifth Circuit

has flatly rejected that argument where “the components underlying the[] scores

undermine the consistency argument.” See Williams v. Quarterman, No. 07-70006,

2008 WL 4280315, at *10 (5th Cir. Sept. 19, 2008). In this case, the consistency of
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Hines’ most recent I.Q. test scores, all of which are in the general range of 70, is not

enough to establish by a preponderance of the evidence that Hines has subaverage

intellectual functioning because the component scores range from below 70 to as high

as 81. 2 Transcript of Evidentiary Hearing Before the Honorable Jeff Kaplan United

States District Magistrate Judge (“2 Hearing Transcript”) at 69:8-70:6 (describing,

among other things, Hines’ “perceptual reasoning” component score on a test

administered by Dr. Price in 2009). Moreover, even if it is assumed arguendo that

Hines’ made such a showing, his Atkins claim would still fail as a matter of law

because he does not suffer from significant limitations or deficits in adaptive behavior

or functioning. A petitioner who does not prove any of the three elements of mental

retardation cannot prevail on an Atkins claim. See Clark v. Quarterman, 457 F.3d 441,

444 (5th Cir. 2006), cert. denied, 549 U.S. 1254 (2007).

Hines fails to demonstrate by a preponderance of the evidence that he suffers

from adaptive deficits. The evidence that he presented on this point was

contradictory and lacked credibility. Hines’ mother testified that he was “slow” and

his abusive father often hit his head during childhood. 1 Hearing Transcript at

14:11-21:22. Her testimony was impeached, however, by statements that she made

to Hines’ expert, 2 Hearing Transcript at 15:13-17:7, and Child Protective Services

when discussing her abusive husband: in particular she stated that her husband

physically abused her but not the children -- including Hines, 1 Hearing Transcript at
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22:21-25:21. Hines’ brother, Glenn, also attested to Hines’ slow development as a

child. 1 Hearing Transcript at 26:23-44:15. Glenn’s testimony, however, was

undermined by his admission that after he turned 12 years old, he had only “off and

on” personal interactions with Hines, who is approximately four years younger than

he. See id. at 28:1-14, 48:22-52:6. Similarly, the testimony given by Hines’ expert

was inconsistent and unpersuasive, and it was refuted by testimony from the state’s

experts. Most notably, Dr. Kessner admitted that she was not aware of any pre-18

diagnosis of Hines’ alleged mental retardation, id. at 114:1-3; her report did not

include any information about Hines’ adaptive functioning, id. at 116:24-118:6; and

she overlooked or did not have an opportunity to review a number of samples of

Hines’ writing, id. at 122:12-124:10. Hines’ evidence does not show that he suffers

from adaptive deficits. 

After reviewing Hines’ claim de novo, including all of the evidence presented at

the evidentiary hearing conducted by the magistrate judge, the court is of the opinion

that Hines has not proven by a preponderance of the evidence that he is mentally

retarded, as that term has been defined by Atkins and its Texas progeny. Therefore,

even if this court improperly gave AEDPA deference to the state court judgment, the

error was harmless because reviewing Hines’ Atkins claim de novo leads to the same

result. Consequently, Hines has no basis for Rule 59(e) relief. 
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III. CONCLUSION

For the above-stated reasons, the petitioner’s Rule 59(e) motion is DENIED. 

SO ORDERED.

April 4, 2011.

___________________________________

A. JOE FISH

Senior United States District Judge