* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70019

MICHAEL ROSALES,

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 Northern District of Texas

USDC No. 5:04-CV-00084

Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Michael Rosales moves this court for a certificate of

appealability (‘COA”) on four issues. First, he contends that a COA should be

granted on whether the district court improperly applied the standards that

govern the determination of mental retardation. Second, he argues that a COA

should be granted on whether the district court erred in denying his claim of

mental retardation. Third, he argues that a COA should be granted on whether

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2008

Charles R. Fulbruge III

Clerk
No. 07-70019

2

the district court erroneously relied on the testimony presented by RespondentAppellee Nathaniel Quarterman’s (“Respondent”) expert witness. Finally, he

contends that a COA should be granted on whether the district court improperly

applied the standards that govern the compensation of counsel. For the

following reasons, we DENY Rosales’ motion for COA with regard to all but his

mental retardation claim, with regard to which we GRANT his motion for COA

but AFFIRM the district court’s dismissal on the merits.

I.

In May 1998, Rosales was convicted and sentenced to death for the murder

of Mary Felder, which occurred during the course of a burglary or robbery. On

direct appeal, Rosales’ conviction and sentence was affirmed by the Texas Court

of Criminal Appeals (“TCCA”); the United States Supreme Court denied

certiorari review. Rosales also sought state and federal habeas relief, both of

which were denied. On April 7, 2004, less than one week before his scheduled

execution, Rosales filed a successive state habeas application arguing that he is

mentally retarded and thus his execution is barred by Atkins v. Virginia, 536

U.S. 304 (2002). He attached affidavits from James R. Patton, Ed.D.; Dr. Ruth

Luckasson, a professor at the University of New Mexico; Leo Mills, an

investigator employed with the Colorado State Public Defenders Office; and

Meghan Fruska, an investigator. 

On April 12, 2004, one day before his scheduled execution, the TCCA held

that Rosales’ application failed to “set out sufficient facts to raise a bona fide

claim under Atkins” and therefore dismissed his application as an abuse of the

writ and denied his motion for a stay of execution. Ex parte Rosales, No. 55, 761-

02 (Tex. Crim App. 2004). That same day, Rosales filed a petition for writ of

certiorari at the United States Supreme Court as well as a motion requesting a

stay of execution and authorization to file a successive petition for writ of habeas

corpus in this court. While the Supreme Court denied his petition on May 17,
No. 07-70019

3

2004, this court had already granted his request for a stay of execution as well

as his motion for leave to file a successive petition on April 13, 2004 . On April

15, 2004, Rosales filed a motion in federal district court requesting the

appointment of counsel, permission to proceed in forma pauperis, permission to

file a skeletal petition, and expenses to retain an investigator and a mental

health expert. The motion was granted on April 22, 2004. On May 21, 2004,

Rosales filed his amended petition and attached affidavits or declarations from

eleven different witnesses, including: an affidavit from Dr. Susana A. Rosin, an

amended affidavit of Dr. Patton, and declarations from Rosales’ siblings and

former teachers.

The district court conducted an evidentiary hearing on October 28-29 and

November 3, 2004; both Rosales and Respondent appeared and presented

witnesses. Rosales presented the testimony of Dr. Susana A. Rosin, a Houstonbased psychologist, who had administered a number of tests to assess Rosales’

intelligence, including the Wechsler Adult Intelligence Scale III (“WAIS-III”), the

most up-to-date intelligence assessment available. She explained that according

to that test his I.Q. is 61. She also administered the Wise Range Achievement

Test in order to determine the consistency of Rosales’ effort, and testified that

she did not believe that his I.Q. score was the result of malingering on his part.

Rosales’ sister and older brother testified to their brother’s inability to effectively

take care of himself when he was growing up; for example,they highlighted that

he would have to be constantly reminded to take showers and change his clothes.

They also explained that he did very poorly in school, that he was often very

irresponsible with money, and that he was easily pressured by his friends.

Rosales also submitted declarations prepared by other family members, former

teachers, and former employers. Additionally, Rosales submitted a sworn

affidavit from Dr. Patton. In his affidavit, Dr. Patton explained that after

reviewing Dr. Rosin’s test reports and the affidavits from Rosales’ family
No. 07-70019

4

members and former teachers, he concluded, in his professional opinion, that

“sufficient data exist[ed] to support a claim that Mr. Rosales is mentally

retarded.”

Respondent presented the expert testimony of Dr. Roger Saunders, a

clinical psychologist licensed in the State of Texas, who had interviewed and

tested Rosales over a ten-hour period. Dr. Saunders challenged Rosales’ I.Q.

score of 61—he attributed the low score to malingering—and noted that Rosales’

I.Q. score from a test administered pre-Atkins was 82. Dr. Saunders also

determined that much of Rosales’ abnormal behavior as a child was likely

attributable to conduct disorder and not mental retardation. Additionally,

Respondent presented the testimony of a number of police officers and prison

guards, who spoke to Rosales’ ability to function at a fairly high level (e.g.,

checking books out from the library). Respondent also presented the testimony

of former employers of Rosales who presented similar testimony.

The district court denied Rosales’ claim for habeas relief. First, the court

concluded that the TCCA dismissal of Rosales’ state application for “failure to

set out sufficient facts to raise a bona fide claim under Atkins” was an

adjudication on the merits, and accordingly AEDPA’s deferential standard of

review applied. The district court concluded that since the only evidence Rosales

presented to the state court in support of his Atkins claim was a statement that

he had scored 73 on an I.Q. test that was administered in January 2004 as well

as conclusory declarations that Rosales was possibly mentally retarded, the

TCCA’s decision was “neither contrary to nor an unreasonable application of

Supreme Court law and certainly did not result in a decision that was based on

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

the State court proceeding.” Second, the district court wrote that even assuming

arguendo that Rosales is entitled to de novo review under AEDPA, his claim

would still fail because the evidence he presented did not satisfy the three
No. 07-70019

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American Association on Mental Retardation (AAMR) standards: (1)

“significantly subaverage” general intellectual functioning, usually defined as an

I.Q. 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. 

II.

A petitioner seeking a COA only needs to demonstrate “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The Supreme

Court has explained that courts of appeals are forbidden from conducting fullfledged reviews of petitioner’s claims during COA determinations; the issue for

the court of appeals to decide is whether the district court’s resolution of the

petitioner’s constitutional claims is “debatable amongst jurists of reason.”

Miller-El, 537 U.S. at 336-37 (“When a court of appeals side steps this process

by first deciding the merits of an appeal, and then justifying its denial of a COA

based on its adjudication of the actual merits, it is in essence deciding an appeal

without jurisdiction.”). Accordingly, while a “COA does not require a showing

that the appeal will succeed. . . . A prisoner seeking a COA must prove

‘something more than the absence of frivolity’ or the existence of mere ‘good

faith’ on his or her part.” Id. at 337-38. 

III.

First, Rosales argues that a COA should be granted on whether the

district court erred by not properly analyzing his claim under the standards for

mental retardation laid out by the American Association of Intellectual and

Developmental Disabilities (AAIDD), formerly known as the AAMR. According
No. 07-70019

1 The standards for determination mental retardation under that Texas statutory

provision is nearly identical to the AAMR standard.

6

to Rosales, the district court focused on issues that have little relevance under

the AAIDD standards. For example, Rosales asserts that the district court relied

heavily on evidence relating to Rosales’ performance while he was incarcerated

even though the AAIDD standards admit that people with mental retardation

can improve their functioning. 

In Atkins, the Supreme Court left “to the State[s] the task of developing

appropriate ways to enforce the constitutional restriction upon its execution of

sentences.” 537 U.S. at 317. The Court did cite with approval the definitions of

mental retardation supplied by the American Psychiatric Association and the

AAMR. Id. at 309 n.3 & 317 n.22. As far as the latter is concerned, the Supreme

Court explained:

The American Association of Mental Retardation (AAMR) defines

mental retardation as follows: “Mental retardation refers to

substantial limitations in present functioning. It is characterized

by significantly subaverage intellectual functioning, existing

concurrently with related limitations in two or more of the following

applicable adaptive skill areas: communication, self-care, home

living, social skills, community use, self-direction, health and safety,

functional academics, leisure, and work. Mental retardation

manifests before age 18.”

Id. at 309 n.3 (internal citations omitted). In Ex parte Briseno, 135 S.W.3d 1

(Tex. Crim. App. 2004), the TCCA explained that “[u]ntil the Texas legislature

provides an alternate statutory definition of ‘mental retardation’ for use in

capital sentencing, we will follow the AAMR or [the Tex. Health & Safety Code]

§ 591.003(13) criteria in addressing Atkins mental-retardation claims.” 135

S.W.3d 1, 8 (Tex. Crim. App. 2008).1In Briseno, the TCCA also laid out a

number of guidelines that courts can consider when making mental retardation

determinations. Id. at 8-9. This court has repeatedly approved the use of the
No. 07-70019

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framework laid out in Briseno. See, e.g., Moreno v. Dretke, 450 F.3d 158, 163

(5th Cir. 2006); In re Hearn, 418 F.3d 444, 446-47 (5th Cir. 2005). Here, the

district court followed the case law and carefully and thoughtfully applied the

three AAMR factors as well as the applicable Briseno guidelines. Rosales’

contention that the district court improperly applied the standards is without

merit as he has failed to cite to any applicable case law, much less offer any

credible arguments to support his position. Accordingly, Rosales has failed to

demonstrate that he is entitled to a COA on this issue.

Next, Rosales argues that a COA should be granted on whether the district

court erred by denying his claim of mental retardation. Proceeding with an

abundance of caution, we grant Rosales’ motion for COA as to this issue,

acknowledging that it is “debatable amongst jurists of reason” whether the

district court properly resolved this constitutional claim. We now turn to a

review of the merits of this claim. As an initial matter we conclude that

AEDPA’s deferential standard of review applies in this case. This court has

previously held that when the TCCA dismisses a case for failure to “set out

sufficient facts to raise a bona fide claim under Atkins” such a decision qualifies

as a dismissal on the merits. See Rivera v. Quarterman, 505 F.3d 349, 355-56

(5th Cir. 2007). Under 28 U.S.C. § 2254(d), as amended by AEDPA, a state

prisoner may not obtain relief on any of his claims that were adjudicated on the

merits in the 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.” 28 U.S.C. § 2254(d).

Here, Rosales’ evidence of mental retardation before the TCCA was sparse:

he did not present an I.Q. score near or below 70, nor did he present any concrete
No. 07-70019

8

evidence of adaptive behavioral deficits that had onset before the age of 18. He

has failed to raise the possibility thattheTCCA’s dismissal of his claim “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 “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). Further, even assuming arguendo that

Rosales had satisfied the stringent requirements of § 2254(d), his claim would

still fail as we conclude, having reviewed the evidence presented before the

district court, that he has not demonstrated that he is mentally retarded.

Accordingly, we affirm the district court’s dismissal of this claim.

Finally, we deny Rosales’ request for COA on his two remaining

claims—whether the district court erroneously relied on the testimony presented

by Respondent’s expert witness and whether that court improperly applied the

standards that govern the compensation of counsel—because he has failed to

demonstrate how these claims sufficiently implicate constitutional concerns. See

28 U.S.C. § 2253(c)(2) (explaining that a petitioner seeking a COA needs to

demonstrate “a substantial showing of the denial of a constitutional right.”).

IV.

For the foregoing reasons, we DENY Rosales’ motion for COA with regard

to all but his mental retardation claim, with regard to which we GRANT his

motion for COA but AFFIRM the district court’s dismissal on the merits.