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.

)

)

)

) CIVIL ACTION NO.

)

) 3:06-CV-0320-G

)

) ECF

)

)

)

ORDER ACCEPTING FINDINGS AND RECOMMENDATION 

OF THE UNITED STATES MAGISTRATE JUDGE, 

AND DENYING A CERTIFICATE OF APPEALABILITY

United States Magistrate Judge Jeff Kaplan made findings and a

recommendation in this case (docket entry 70). The petitioner Bobby Lee Hines

(“Hines” or “the petitioner”) filed objections (docket entry 72). I have made a de novo

review of those portions of the proposed findings and recommendation to which

objection was made. For the reasons discussed below, I adopt Judge Kaplan’s findings

and recommendation and overrule the petitioner’s objections.
1 The American Association of Intellectual and Developmental Disabilities

was formerly known as the American Association on Mental Retardation.

- 2 -

I. BACKGROUND

This is a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The

petitioner is a Texas inmate who has been convicted of capital murder and sentenced

to death. He claims that the state of Texas is barred from carrying out his death

sentence by the Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002). 

Aktins held that the Eight Amendment prohibits the execution of mentally regarded

criminals. Id. at 321. Atkins tasked the states with the responsibility of formulating

their own definitions of mental retardation. 536 U.S. at 317. The Texas Court of

Criminal Appeals responded by adopting the definition of mental retardation set out

by the American Association of Intellectual and Developmental Disabilities.1

 Under

Texas law, “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.” Ex parte Briseño, 135 S.W.3d 1, 7 (Tex. Crim.

App. 2004) (footnotes and internal quotation marks omitted). 

II. ANALYSIS

A. Legal Standard

My review of Hines’s petition is governed by 28 U.S.C. §§ 2254(d)(2) and

(e)(1). A Texas state court has considered the merits of Hines’s claim and
2 The state court adopted and incorporated the state’s proposed findings

of fact and conclusions of law as the findings of fact and conclusions of law of the

court. See State Court Order of July 21, 2005, located in State Habeas Record at 2-

483.

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determined that he is not mentally retarded. See State’s Proposed Findings of Fact

and Conclusions of Law ¶¶ 246-50, located in State Habeas Record at 2-481.2

Whether Hines is mentally retarded is a question of fact. See Eldridge v. Quarterman,

325 F. App’x 322, 325 n.15 (5th Cir.) (citing cases), cert. denied sub nom. Eldridge v.

Thaler, U.S. , 130 S. Ct. 536 (2009); Clark v. Quarterman, 457 F.3d 441, 444

(5th Cir. 2006), cert. denied, 549 U.S. 1254 (2007); see also Williams v. Quarterman,

293 F. App’x 298, 308 (5th Cir. 2008) (per curiam) (“The determination of whether

Briseño’s three prongs have been met is a factual finding . . . .”). Where, as here, a

petition for a writ of habeas corpus presents a “claim that was adjudicated on the

merits in State court proceedings,” the writ shall not be granted unless the State

court’s adjudication of the claim “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.” See 28 U.S.C. § 2254(d)(2). Section 2254(e)(1) further provides

that “a determination of a factual issue made by a State court shall be presumed to be

correct” in a subsequent federal habeas proceeding and that the petitioner “shall have
3 The precise nature of “the relationship between § 2254(d)(2) and

§ 2254(e)(1) has caused confusion and has not yet been definitely resolved.” Fields v.

Thaler, 588 F.3d 270, 280 (5th Cir. 2009) (citing Teti v. Bender, 507 F.3d 50, 57-58

(1st Cir. 2007), cert. denied sub nom Teti v. Clarke, 552 U.S. 1287 (2008)), cert. filed

No. 10-5060 (Jan. 25, 2010). The clear-and-convincing-evidence standard of

§ 2254(e)(1) is “arguably more deferential” to the state court than is the

unreasonable-determination standard of § 2254(d)(2). Wood v. Allen, U.S. ,

130 S. Ct. 841, 849 (2010). The Supreme Court has held that the

clear-and-convincing evidence standard of § 2254(e)(1) pertains only to a state

court’s determinations of particular factual issues, not a state court’s decision as a

whole. See Miller-El v. Cockrell, 537 U.S. 322, 341-42 (2003). However, the federal

courts of appeals have divided over whether “§ 2254(e)(1)’s presumption of

correctness and clear-and-convincing standard of proof” govern every challenge to a

state-court factual determination or only those challenges that are based on evidence

that was not presented to the state court. See Fields, 588 F.3d at 280 (cataloguing

the circuit split). The Supreme Court granted certiorari on this question in a case

decided last term, but the Court was able to resolve the case without deciding that

question. See Wood, 130 S. Ct. at 849. It appears that the Fifth Circuit has not yet

weighed in on this question. See Fields, 588 F.3d at 280 (declining to reach “[t]he

issue on which the circuits are split” on the ground that it was “not outcomedeterminative” on the facts presented). 

In this case, I conclude that I need not reach the issue that has divided

the circuits. Even if I were to proceed on the twin assumptions that review under

§ 2254(d)(2) is less deferential to the state court’s findings of fact than is review

under § 2254(e)(1) and that “the factual determination at issue should be reviewed

. . . only under § 2254(d)(2) and not under § 2254(e)(1),” see Wood, 130 S. Ct. at

849, I would still conclude that Hines’s petition should be denied. Based on my

independent review of the record of the state-court proceedings, I conclude that

neither the state court’s finding that Hines’s general intellectual functioning was not

significantly subaverage during the developmental period nor the state court’s finding

that Hines does not manifest any related limitations in adaptative functioning was

“an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding” within the meaning of § 2254(d)(2).

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the burden of rebutting the presumption of correctness by clear and convincing

evidence.”3
4

 The AEDPA framework for review of state-court factual determinations

appears to be roughly equivalent to the familiar “clear error” standard of review. The

Fifth Circuit has equated “an unreasonable determination of the facts” under

(continued...)

- 5 -

Section 2254 commands substantial deference to the findings of fact and

factual determinations made by state courts. See Brown v. Dretke, 419 F.3d 365, 371

(5th Cir. 2005) (“With respect to the review of factual findings, AEDPA significantly

restricts the scope of federal habeas review.”), cert. denied, 546 U.S. 1217 (2006); see

also Hogues v. Quarterman, 312 F. App’x 684, 686 (5th Cir.) (per curiam) (describing

28 U.S.C. §§ 2254(d)(2) and (e)(1) as “highly deferential to the state court”), cert.

denied sub nom. Hogues v. Thaler, U.S. , 130 S. Ct. 373 (2009). Section

2254(d)(2) requires the petitioner to demonstrate that “a reasonable factfinder must

conclude” that the state court’s determination of the facts was unreasonable. Rice v.

Collins, 546 U.S. 333, 341 (2006) (emphasis added). In other words, “a state-court

factual determination is not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first instance.” Wood, 130 S. Ct. at

849; see also Collins, 546 U.S. at 342 (repudiating the idea that AEDPA allows a

federal court to use “a set of debatable inferences” to set aside a state court’s factual

determination); Miller-El v. Dretke, 545 U.S. 231, 275 (2005) (Thomas, J., dissenting)

(stressing that a petitioner who seeks to obtain habeas relief on a claim governed by

§ 2254(d)(2) “must show that, based on the evidence before the Texas state courts,

the only reasonable conclusion” is that the facts entitle the petitioner to relief).4
(...continued)

§ 2254(d)(2) with a “clearly erroneous factual conclusion.” See Hebert v. Cain, 121 F.

App’x 43, 46-57 (5th Cir. 2005). The Eleventh Circuit has gone one step further and

held that the combined effect of §§ 2254(d)(2) and (e)(1) is to make a federal habeas

court’s “review of findings of fact by the state court . . . even more deferential than

under a clearly erroneous standard of review.” Wood v. Allen, 542 F.3d 1281, 1285

(11th Cir. 2008) (citation and internal quotation marks omitted), quoted without

approval or disapproval in and affirmed by Wood v. Allen, U.S. , 130 S. Ct. 841

(2010).

- 6 -

In short, when a petitioner’s claim turns on factual questions that have already

been adjudicated by a state court, AEDPA leaves but a narrowly circumscribed role

for the federal habeas court. See Miller-El v. Cockrell, 537 U.S. at 341 (“A federal

court’s collateral review of a state-court decision must be consistent with the respect

due state courts in our federal system.”). “The question under AEDPA is not whether

a federal court believes the state court’s determination was incorrect but whether that

determination was unreasonable--a substantially higher threshold.” Schriro v.

Landrigan, 550 U.S. 465, 473 (2007). Cf. Cotton v. Cockrell, 343 F.3d 746, 750 (5th

Cir. 2003) (“We have no authority to grant habeas corpus relief simply because we

conclude, in our independent judgment, that a state supreme court’s application of

federal law is erroneous or incorrect. The federal habeas scheme leaves primary

responsibility with the state courts for these judgments, and authorizes federal-court

intervention only when a state court decision is objectively unreasonable.”) (internal

citations, quotation marks, and brackets omitted), cert. denied sub nom. Cotton v. Dretke,

540 U.S. 1186 (2004). 
5 The Fifth Circuit has, on two occasions, affirmed a district court’s

decision to grant habeas relief on an Atkins claim. See Moore v. Quarterman, 342 F.

App’x 65, 66 (5th Cir. 2009) (per curiam), cert. denied sub nom. Thaler v. Moore, 

 U.S. , 130 S. Ct. 1736 (2010); Rivera v. Quarterman, 505 F.3d 349, 363 (5th

Cir. 2007), cert. denied, U.S. , 129 S. Ct. 176 (2008). However, in neither case

had the district court applied the deferential standard of review embodied in

§§ 2254(d)(2) and (e)(1). See Moore v. Dretke, 2005 WL 1606437, at *3 (E.D. Tex.

July 1, 2005) (concluding that the state court had dismissed the petitioner’s Atkins

claim on procedural grounds and therefore had not adjudicated it on the merits as

required by § 2254(d)), aff’d in relevant part, 342 F. App’x 65 (5th Cir. 2009); Rivera,

505 F.3d at 356-57 (concluding that the state court’s decision to deny the

petitioner’s Atkins claim was the result of an unreasonable application of clearly

established federal law). Rather, in both cases the district courts made de novo

determinations of whether the petitioners could prove by a preponderance of the

evidence that they were mentally retarded, and the circuit reviewed those factual

determinations under the deferential clear-error standard. See Moore, 342 F. App’x at

67; Rivera, 505 F.3d at 361. 

In Lewis v. Quarterman, 541 F.3d 280 (5th Cir. 2008), the Fifth Circuit

vacated and remanded the district court’s decision rejecting an Atkins claim on the

ground that the district court erred by refusing to consider new evidence that an IQ

test relied on by the state court had been improperly administered. Id. at 285-86. 

No decision has issued on remand.

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The deference that is due to a state court’s factual determinations is

substantial, but it is not unbounded. See Miller-El v. Cockrell, 537 U.S. at 340 (“Even

in the context of federal habeas, deference does not imply abandonment or abdication

of judicial review.”). In the Atkins context, however, it is not yet clear where the outer

bounds of that deference lie. The Fifth Circuit has never granted habeas relief on an

Atkins claim on the ground that a state court’s denial of the Atkins claim was based on

an unreasonable determination of the facts in lights of the evidenced presented in the

state-court proceeding.5

 See Pierce v. Thaler, 604 F.3d 197, 212-16 (5th Cir. 2010)

(affirming the district court’s decision that the state habeas court was not
- 8 -

unreasonable in determining that the petitioner was not mentally retarded); Thomas v.

Quarterman, 335 F. App’x 386, 390 (5th Cir. 2009) (per curiam) (denying a

certificate of appealability (“COA”) from the district court’s decision that the state

court’s denial of habeas relief was not unreasonable where the evidence presented to

the state court “supported the arguments of both parties, and the state court . . .

concluded that [the petitioner] was not mentally retarded”), cert. denied sub nom.

Thomas v. Thaler, U.S. , 130 S. Ct. 1054 (2010); Eldridge, 325 F. App’x at 325-

29 (denying a COA); Williams, 293 F. App’x at 301-04, 307-14 (affirming, under a

clear-error standard of review, the district court’s de novo determination that the

petitioner was not mentally retarded even though he presented evidence of IQ scores

of 70, 71, and 71); Moore v. Quarterman, 517 F.3d 781, 784 (5th Cir.) (denying a

COA), cert. denied, U.S. , 129 S. Ct. 81 (2008); Perkins v. Quarterman, 254 F.

App’x 366, 369-70 (5th Cir. 2007) (per curiam) (denying a COA), cert. denied, 

U.S. , 128 S. Ct. 2503 (2008); Taylor v. Quarterman, 498 F.3d 306, 307-08 (5th

Cir. 2007) (denying a COA), cert. denied, 552 U.S. 1298 (2008); Woods v. Quarterman,

493 F.3d 580, 586-87 (5th Cir. 2007) (affirming the district court’s decision that the

state habeas court was not unreasonable in determining that the petitioner was not

mentally retarded); Clark, 457 F.3d at 445-46 (same); Moreno v. Dretke, 450 F.3d 158,

165 (5th Cir. 2006) (denying a COA on an Atkins claim that had been dismissed by a

state court as an abuse of the writ), cert. denied, 549 U.S. 1120 (2007). 
- 9 -

B. Application

In this case, I conclude -- for the reasons stated in Judge Kaplan’s findings and

recommendation -- that Hines has not carried his burden of proving that the state

court’s resolution of his Atkins claim resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence Hines presented to

the state court. Hines advances four objections to Judge Kaplan’s findings and

recommendation. I am of the opinion, for the reasons that follow, that these

objections are without merit.

1. Significantly Subaverage General Intellectual Functioning

First, Hines argues that Judge Kaplan’s determination that Hines does not

exhibit significantly subaverage general intellectual functioning “hinge[s] on a single

test result from [an IQ test] administered when Mr. Hines was 13 years old . . . and a

distorted reading of the testimony Ms. Asay, petitioner’s resource room teacher.” 

Petitioner Hines’ Objections to the Findings and Recommendation of U.S. Magistrate

Judge (“Objections”) at 4. However, the state court offered an extensive list of

reasons supporting its determination that the results of the IQ test administered to

Hines when he was 13 is the most reliable indicator of his general intellectual

functioning. See State’s Proposed Findings of Fact and Conclusions of Law ¶¶ 59-89,

located in State Habeas Record at 2-442-2-449. A “state habeas court’s decision to

give more weight to the petitioner’s childhood IQ test scores” than to scores obtained
- 10 -

on tests conducted during the pendency of post-conviction litigation is typically a

reasonable one under AEDPA. See, e.g., Eldridge, 325 F. App’x at 326 (citing Woods,

493 F.3d at 587); see also Thomas, 335 F. App’x at 389-90 (denying a COA where the

state court had chosen to credit an IQ score of 75 and disregard scores of 77 and 67);

Moore, 517 F.3d at 784 (denying a COA even though the petitioner had obtained IQ

scores of 68, 72, 72, 76, 63, and 76); Perkins, 254 F. App’x at 369-70 (denying a

COA where the state court had chosen to credit an IQ score of 80 and disregard

scores of 68 and 66); Taylor, 498 F.3d at 307-08 (denying a COA even though the

petitioner had obtained IQ scores of 75, 63, 69, 65, and 71); Clark, 457 F.3d at 445

(affirming the district court’s decision to defer to the state court’s finding that the

petitioner was not mentally retarded even though the petitioner had obtained IQ

scores of 74, 65, and 68).

Hines advances the same arguments here that he advanced in state court about

why the results of the IQ test he took when he was 13 are unreliable. Compare

Objections at 9-10 with The Defense’s Proposed Findings of Fact and Conclusions of

Law ¶ 24, located in State Habeas Record at 2-413, and Successive Application for a

Post-Conviction Writ of Habeas Corpus at 11-12, located in State Habeas Record at 1-

013-1-014. The state court made a factual determination that those arguments were

without merit. See State’s Proposed Findings of Fact and Conclusions of Law ¶¶ 64-

80, located in State Habeas Record at 2-443-2-448. Even if I were to disagree with
- 11 -

that determination (which I do not), on habeas review a mere disagreement “‘does

not suffice to supersede the trial court’s [factual] determination.’” Wood, 130 S. Ct.

at 849 (quoting Collins, 546 U.S. at 341-42) (ellipsis omitted). 

Similarly, the testimony of Karol Asay, Hines’s resource-room teacher, is not

enough to overcome the voluminous findings made by the state court, see State’s

Proposed Findings of Fact and Conclusions of Law ¶¶ 106-162, located in State

Habeas Record at 2-453-2-464, in support of its determination that “the evidence

overwhelmingly shows that, until now, no one believed [Hines] was mentally retarded

or treated him as such,” id. ¶ 105, located in State Habeas Record at 2-453. At most,

Hines has made a showing that Asay’s testimony constitutes grounds on which the

state court might have made a different factual determination regarding Hines’s

general intellectual functioning. But such a showing does not entitle Hines to habeas

relief. See Moore, 517 F.3d at 784 (denying a COA from the district court’s denial of

an Aktins claim where “there was conflicting expert evidence” and a set of IQ scores

that “could support a finding of subaverage intellectual functioning” but also could

“sustain a finding that [the petitioner] is not retarded”). 

Hines has taken two additional IQ tests since the state court determined that

Hines is not mentally retarded. See Objections at 9. Both tests were administered by

the state’s expert, Dr. Price. Hines scored a 70 on a WAIS-IV test and a 71 on a

Reynolds test, both of which were administered in April 2009. These results are
- 12 -

consistent with the 69 he scored on the WAIS-III test administered to him by his

expert, Dr. Kessner, in April 2004. Id. at 9-10. During the evidentiary hearing

conducted by Judge Kaplan, Dr. Price conceded that Hines’s scores on those three

tests were consistent with a diagnosis of mental retardation and that the only reason

the scores might not be an accurate measure of Hines’s IQ is that Hines might have

malingered, or not put forth his full or best effort, while taking the tests. See Volume

2, Transcript of Evidentiary Hearing Before the Honorable Jeff Kaplan United States

Magistrate Judge (docket entry 65) at 90-92. Dr. Price also stated that of the ten

diagnostics that were administered to Hines to measure whether Hines was putting

forth a full effort on the three IQ tests, eight showed that he was. Id. at 94-95. In

addition, Dr. Kessner testified that the probability that a person who was malingering

could achieve three IQ scores as consistent as the scores Hines obtained was “zero[,]

. . . equivalent to winning the Lotto.” See Volume 1, Transcript of Evidentiary

Hearing Before the Honorable Jeff Kaplan United States Magistrate Judge (docket

entry 64) at 82. Dr. Price also was unable to offer any explanation of how Hines’s

scores were as consistent as they were. See Volume 2, Transcript of Evidentiary

Hearing Before the Honorable Jeff Kaplan United States Magistrate Judge at 88 (“I

don’t know how this happened. . . . I really don’t know how to explain that they

came out so close.”).
- 13 -

I conclude that the evidence that Hines has obtained two additional IQ scores

consistent with a diagnosis of mental retardation does not establish that it was

unreasonable for the state court to determine that Hines does not suffer from

significantly subaverage general intellectual functioning. The state court determined

that the WAIS-III test administered by Dr. Kessner in 2004 was “not a measure of

[Hines’s] intellect during his developmental period, i.e., before the age of eighteen.” 

State’s Proposed Findings of Fact and Conclusions of Law ¶ 43, located in State

Habeas Record at 2-439. In addition, the state court determined that Hines had a

strong motivation to underperform on the WAIS-III and that he may not have given

his best effort (the fact that he passed several tests of simple effort notwithstanding). 

Id. at ¶¶ 44-50, located in State Habeas Record at 2-439-2-440. Finally, the state

court also determined that “[e]ven assuming [Hines] put forth his best effort on the

WAIS-III, . . . the WAIS-III results do not definitively indicate a ‘significantly

subaverage’ intellect” because a score of 69 was consistent with an IQ as high as 74. 

Id. at ¶¶ 51-52, located in State Habeas Record at 2-440. Each of these reasons the

state court gave for discounting the results of the WAIS-III administered by Dr.

Kessner in April 2004 applies with equal force to the results of the Reynolds and

WAIS-IV tests administered by Dr. Price in April 2009. Therefore, I conclude that it
6 Even if I assume for the sake of argument that the results of the WAISIV and Reynolds tests establish that it was unreasonable for the state court to

conclude that Hines does not display significantly subaverage general intellectual

functioning the onset of which occurred prior to the age of 18, Hines’s Atkins claim

would still fail. As discussed below, it was not unreasonable for the state court to

conclude that Hines does not suffer from significant limitations or deficits in adaptive

behavior or functioning. See infra section II(B)(3). A petitioner who fails to meet

any of the three elements of Briseño’s definition of mental retardation cannot prevail

on an Atkins claim. See Clark, 457 F.3d at 444. 

- 14 -

was not unreasonable for the state court to determine that Hines does not display

significantly subaverage general intellectual functioning.6

2. Onset Before the Age of 18

Second, Hines argues that the testimony of Dr. Price, the state’s expert, shows

that Hines manifested impaired intellectual functioning before he turned 18. See

Objections at 7-8. But the state court found that Hines’s intellectual functioning was

impaired because he was learning disabled and emotionally disturbed, and not

because he was mentally retarded. See State’s Proposed Findings of Fact and

Conclusions of Law ¶¶ 31, 36, 76, 126, located in State Habeas Record at 2-437, 2-

438. 2-446, 2-457. That factual determination moots Hines’s objection. Hines does

not exhibit significantly subaverage general intellectual functioning within the

meaning of Briseño, so the fact that any impairments to his intellectual functioning

may have manifested themselves before he turned 18 is irrelevant to his Atkins claim. 
- 15 -

3. Related Limitations in Adaptive Functioning

Third, Hines argues that the evidence presented at the hearing before Judge

Kaplan refutes the state court’s findings that Hines does not suffer from significant

limitations or deficits in adaptive behavior or functioning. See Objections at 11-16. 

But where, as here,“[t]he evidence as to deficits in adaptive functioning cuts both

ways, and the evidence in support of a finding of adaptive limitations is not without

problems,” a petitioner “cannot overcome the state court’s findings.” See Moore, 517

F.3d at 784. Specifically, as to the second, fourth, and sixth Briseño factors, the

testimony of Hines’s former probation officer is insufficient to overcome the twentyeight separate findings of fact made by the state court pertaining to those three

factors. See State’s Proposed Findings of Fact and Conclusions of Law ¶¶ 163-67,

191-200, 218-230, located in State Habeas Record at 2-464-2-465, 2-470-2-471, 2-

475-2477.

As to the ten diagnostic criteria noted in Atkins, see 536 U.S. at 308 n.3, Hines

contends that the state has conceded that he has a significant limitation in adaptive

behavior in the area of functional academics. This contention is based on a

misreading of the record. Dr. Price, the state’s expert, admitted that there was “some

evidence” of limitations in the area of functional academics, but his ultimate

conclusion was that he “did not find any significant limitations in [Hines’s] adaptive

behavior.” See Volume 2, Transcript of Evidentiary Hearing Before the Honorable
- 16 -

Jeff Kaplan United States Magistrate Judge at 84. Hines also contends that portions

of the testimony offered at the evidentiary hearing by two prison guards, John Horton

and Steven White, and a prison employee, Steven Hillman, demonstrate that he has a

significant limitation in the area of functional academics. Objections at 14-15. 

However, both prison guards also offered testimony that suggests that Hines does not

have a limitation in the area of functional academics. See Volume 1, Transcript of

Evidentiary Hearing Before the Honorable Jeff Kaplan United States Magistrate

Judge at 231 (stating John Horton’s conclusion that Hines’s level of functioning was

“normal”); id. at 239 (stating Steven White’s conclusion that Hines’s level of “general

smarts” was “[a]bout average”). And while Hines might be correct that Steven

Hillman’s testimony offers only weak support for the conclusion that Hines lacks a

limitation in the area of functional academics, it is certainly the case that Hillman’s

testimony does nothing to affirmatively establish the contrary conclusion that Hines

suffers from a limitation in the area of functional academics. 

Hines further contends that testimony of his brother, Glenn Hines, establishes

that he has a significant limitation in the area of self-care. Objections at 15-16. 

However, Glenn Hines provided testimony on the same topic to the state court, see

Successive Application for a Post-Conviction Writ of Habeas Corpus at 13-15, located

in State Habeas Record at 1-015-1-017, and the state court made a determination

that Glenn Hines’s testimony was not credible, see State’s Proposed Findings of Fact
- 17 -

and Conclusions of Law ¶¶ 106-109, located in State Habeas Record at 2-453-2-454. 

Even if I were to disagree with that determination (which I do not), the fact that a

federal court sitting in habeas determines that “[r]easonable minds reviewing the

record might disagree” with a state court’s assessment of a witness’s credibility “does

not suffice to supersede the trial court’s credibility determination.” Collins, 546 U.S.

at 341-42. More fundamentally, Hines cannot demonstrate that the state court’s

credibility determination was unreasonable merely by providing additional testimony

from the very witness whose credibility is in question.

4. 2254(d)(1)

Finally, Hines argues that the conclusions of both the state court and Judge

Kaplan were contrary to and an unreasonable application of Atkins. Objections at 16. 

This objection is misplaced: whether the petitioner is mentally retarded is a pure

question of fact. See Clark, 457 F.3d at 444. Because the state court’s factual

determination that Hines is not mentally retarded was not unreasonable, it follows

that the state court’s denial of Hines’s habeas petition was neither contrary to nor an

unreasonable application of Atkins. Accord, e.g., Woods, 493 F.3d at 587. 

III. CONCLUSION

For the reasons discussed above, the petitioner’s objections are OVERRULED,

and I ADOPT the findings and recommendation of the United States Magistrate

Judge.
7 Rule 11 of the Rules Governing §§ 2254 and 2255 Cases, as amended

effective on December 1, 2009, reads as follows:

(a) Certificate of Appealability. The

district court must issue or deny a certificate

of appealability when it enters a final order

adverse to the applicant. Before entering the

final order, the court may direct the parties to

submit arguments on whether a certificate

should issue. If the court issues a certificate,

the court must state the specific issue or

issues that satisfy the showing required by 28

U.S.C. § 2253(c)(2). If the court denies a

certificate, the parties may not appeal the

denial but may seek a certificate from the

court of appeals under Federal Rule of

Appellate Procedure 22. A motion to

reconsider a denial does not extend the time

(continued...)

- 18 -

Considering the record in this case and pursuant to Federal Rule of Appellate

Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings,

and 28 U.S.C. § 2253(c), I DENY a certificate of appealability. I adopt and

incorporate by reference the magistrate judge’s findings, conclusions and

recommendation filed in this case in support of my finding that the petitioner 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 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, 484 (2000).7
(...continued)

to appeal.

(b) Time to Appeal. Federal Rule of

Appellate Procedure 4(a) governs the time to

appeal an order entered under these rules. A

timely notice of appeal must be filed even if

the district court issues a certificate of

appealability.

- 19 -

In the event that the petitioner files a notice of appeal, I note that

(X) the petitioner will proceed in forma pauperis on appeal.

(...) the petitioner will need to pay the $455.00 appellate filing

fee or submit a motion to proceed in forma pauperis.

SO ORDERED.

August 18, 2010.

___________________________________

A. JOE FISH

Senior United States District Judge