REVISED SEPTEMBER 10, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70024

RICKEY LYNN LEWIS

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 Eastern District of Texas

USDC No. 5:05-CV-70

Before BARKSDALE, GARZA, and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Rickey Lynn Lewis appeals the denial, pursuant to the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), of his successive-habeas claim,

under Atkins v. Virginia, 536 U.S. 304 (2002) (execution of mentally-retarded

defendant cruel and unusual punishment prohibited by Eighth Amendment).

The issue for which the district court granted a certificate of appealability (COA)

is whether, based on the evidence submitted in the state-court Atkins

proceeding, and pursuantto our deferential review under AEDPA, the following

decision by theTexas Court of Criminal Appeals (TCCA) was unreasonable: that

United States Court of Appeals

Fifth Circuit

F I L E D

August 12, 2008

Charles R. Fulbruge III

Clerk
No. 07-70024

2

Lewis failed to establish, by a preponderance of the evidence, that he had

significantly subaverage general intellectual functioning. In April 2008, this

panel denied Lewis’ request to certify other issues for appeal. Lewis v.

Quarterman, No. 07-70024, 2008 WL 886123 (5th Cir. 1 Apr. 2008)

(unpublished). 

Primarily at issue is the district court’s refusal to consider an affidavit,

first offered in that court, challenging the administration of an IQ test to Lewis.

The affidavit was offered in reply to the State’s response to Lewis’ federal habeas

application. VACATED and REMANDED.

I.

In September 1990, during the burglary of a residence, Lewis murdered

one person and sexually assaulted that person’s fiancée. A state-court jury

convicted Lewis in April 1994 of capital murder; he was sentenced to death.

Holding the trial court had not applied the recently revised special issues, the

Texas Court of Criminal Appeals (TCCA) upheld the conviction but remanded

for a new punishment-phase hearing. Lewis v. State, No. 71,887 (Tex. Crim.

App. 19 Jun. 1996) (unpublished). 

On remand, Lewis was again sentenced to death; the TCCA affirmed.

Lewis v. State, No. 71,887 (Tex. Crim. App. 23 Jun. 1999) (unpublished). Lewis

did not petition for review by the Supreme Court of the United States.

While his direct appeal was pending, Lewis requested state post-conviction

relief. It was denied. Ex parte Lewis, No. 44,725-01 (Tex. Crim. App. 19 Apr.

2000) (unpublished). 

Lewis then requested federal habeas relief, which was denied in 2002. Our

court affirmed that denial. Lewis v. Cockrell, 58 F. App’x 596 (5th Cir. 2003)

(unpublished). The Supreme Court denied review in October 2003. Lewis v.

Dretke, 540 U.S. 841 (2003).
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3

Following the 2002 Atkins decision, Lewis filed a successive-habeas

application in state court, contending: he is mentally retarded; and thus, in the

light of Atkins, he is ineligible for execution. The TCCA, in July 2003, stayed

Lewis’ scheduled execution and remanded the matter to a state-habeas trial

court to consider the Atkins claim. Ex parte Lewis, No. 44,725-02 (Tex. Crim.

App. 24 Jul. 2003) (unpublished).

The state-habeas trial court conducted an evidentiary hearing in

December 2004. In February 2005, it rendered proposed findings of fact and

conclusions of law, and recommended denying relief. The TCCA agreed, based

on the state-habeas trial court’s findings and conclusions, and on the TCCA’s

independent review. Ex parte Lewis, No. 44,725-02 (Tex. Crim. App. 29 Jun.

2005) (unpublished). 

Between the state-habeas trial court’s February 2005 recommendation and

the TCCA’s denial of relief that June, and concerned about AEDPA’s limitations

period, our court permitted Lewis to file a successive federal habeas application

for his Atkins claim, conditioned on the denial of relief by the TCCA. In re Lewis,

No. 05-40484 (5th Cir. 15 Apr. 2005) (unpublished). Lewis filed that application

in district court on 20 April 2005. Therefore, when the TCCA denied relief that

June, which prompted Lewis’ execution being set, the federal district court

granted Lewis’ unopposed motion to stay execution.

In April 2005, Lewis filed the successive-habeas application at issue. It

did not mention Dr. Roid or an affidavit by him (discussed below and primarily

at issue here). In February 2006, the State responded, advising there was no

exhaustion issue and asking the district court, inter alia, to deny relief. In

September 2006, Lewis filed his reply to the State’s response. In it, Lewis

supplemented his Atkins claim with the affidavit of Dr. Roid, which provides:

Dr. Rosin committed nine procedural errors in administering an IQ test to

Lewis; and the test Dr. Rosin administered was “invalid”. On 8 December 2006,
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4

the State moved to strike that reply, asserting that Dr. Roid’s affidavitis a “new,

and unexhausted, exhibit[]”. 

The district court did not rule on the motion to strike. Instead, in June

2007, it ruled, under AEDPA,thatthe state-court decision was not unreasonable

(that Lewis failed to establish he is mentally retarded); all relief was denied.

Lewis v. Quarterman, No. 5:05-CV-70 (E.D. Tex. 22 Jun. 2007) (unpublished).

In a footnote, citing 28 U.S.C. § 2254(d)(2), the district court ruled it would not

consider Dr. Roid’s affidavit because it was not presented in the State court

proceeding. That cited section provides that habeas relief “shall not be granted

with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication . . . 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)(2) (emphasis added). 

That August,the district court granted a COA for whether, based upon the

evidence submitted in the state-court proceeding, the following TCCA decision

was unreasonable: Lewis failed to establish by a preponderance of the evidence

that he had significantly subaverage general intellectual functioning.

Lewis requested a COA from this court on three more issues. Those

requests were denied in April 2008. One of those issues was whether the district

court should have considered the affidavit of Dr. Roid (new evidence offered in

district court), challenging Dr. Rosin’s administration of an IQ test. We ruled:

the admissibility, vel non, of Dr. Roid’s affidavit was an evidentiary issue that

did not concern the denial of a constitutional right; and, as such, it was possible

evidence to be considered when the merits were addressed for the issue on which

the district court granted a COA. Lewis, 2008 WL 886123, at *3.

II.

Pursuant to AEDPA, where a state court has rejected a habeas claim, a

federal court may grant relief only where the state-court decision: (1) was
No. 07-70024

5

“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). The state-habeas court’s fact findings are presumed correct; Lewis

can rebut the presumption only by clear and convincing evidence. 28 U.S.C. §

2254(e)(1).

We apply the same § 2254(d) standard of review to the state-court decision

as did the district court. Along that line, we review the district court’s findings

of fact for clear error; its conclusions of law, de novo. E.g., Martinez v. Johnson,

255 F.3d 229, 237 (5th Cir. 2001).

In Atkins, 536 U.S. at 321, the Supreme Court held that the execution of

mentally-retarded defendants violates the Eighth Amendment. The Court

acknowledged disagreement will often arise “in determining which offenders are

in fact retarded” and, therefore, left to the States the task of defining mental

retardation and “developing appropriate ways to enforce th[is] constitutional

restriction”. Id. at 317. 

Accordingly, the TCCA has held that petitioners must prove by a

preponderance ofthe evidence thatthey are mentally retarded, as defined by the

American Association of Mental Retardation (AAMR) and Texas Health and

Safety Code § 591.003(13). Ex parte Briseno, 135 S.W.3d 1, 7-8, 12 (Tex. Crim.

App. 2004). The definition of mental retardation referenced in Atkins and

Briseno has three elements: significantly subaverage general intellectual

functioning, generally defined as an IQ of about 70 or below; accompanied by

related limitations in adaptive functioning; and onset prior to the age of 18.

Atkins, 536 U.S. at 308 n.3, 318; Briseno, 135 S.W.3d at 7.

The state-habeas trial court recommended that Lewis failed to prove he

is mentally retarded. That court’s proposed findings of fact and conclusions of
No. 07-70024

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law, adopted by the TCCA, stated that Lewis failed to prove each of the three

elements required for finding mental retardation. With regard to the one

element for which COA has been granted (significantly subaverage general

intellectual functioning), the state-habeas trial court received evidence placing

Lewis’ IQ at 59, 70, 75, or 79. The state-habeas trial court sided with the State’s

experts’ higher estimates on the basis that Drs. Rosin and Gripon were more

credible, reliable, and unbiased than Drs. Martin and Garnett, Lewis’ experts.

The score of 79, the highest of the four scores, was recorded by Dr. Rosin

following administration of the Stanford-Binet V IQ test to Lewis on 25 October

2004, fairly close to the evidentiary hearing that December. The score of 75

resulted from Dr. Garnett’s (one of Lewis’ experts) re-scoring the test

administered to Lewis by Dr. Rosin. The score of 70 is a result of Dr. Gripon’s

assessment, having reviewed all the available evidence and test results but not

having administered a test to Lewis. The score of 59 was recorded by Dr.

Martin, following administration of the WAIS III IQ test to Lewis on 30

September 2004. 

Dr. Rosin’s recorded score of 79 resulted from the most recent IQ test

administered to Lewis. Obviously, this fact, along with an IQ of about 70

generally being the break point for finding significantly subaverage general

intellectualfunctioning and with the state-habeas court’s finding Dr. Rosin more

credible than Drs. Martin and Garnett (who recorded scores of 59 and 75,

respectively), makes Dr. Rosin’s testing particularly important.

The district court found that, because two IQ test scores showed belowaverage intellectual ability (IQ scores of about 70 or below) and two scores were

above that line, the evidence on this point is in balance. The district court

concluded: because evidence was even, the state court’s adjudication of the

subaverage-general-intellectual-functioning element of Lewis’ mentalretardation claim was not, pursuant to AEDPA, based upon an unreasonable
No. 07-70024

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determination of the facts in the light of the evidence presented. Because all

three elements for mental retardation must be satisfied,the district court ceased

its analysis after this first element. In other words, it did not review the statehabeas court’s adjudication of the other two elements for a mental-retardation

claim.

In district court, as noted supra, Lewis offered new evidence to support his

mental-retardation claim. That proposed evidence is the above-referenced

affidavit of Dr. Roid, author of the Stanford-Binet IQ test administered to Lewis

by Dr. Rosin. Dr. Roid reviewed Dr. Rosin’s testimony, notes from, and video

recordings of, Dr. Rosin’s administration of the IQ test to Lewis, and the test

results. The conclusions detailed in Dr. Roid’s affidavit were: administration of

the testto Lewis was invalid because standardized procedures were not followed,

making the use ofthe published norms questionable; and,the effect of assistance

given by Dr. Rosin to Lewis during the IQ test administration would resultin an

inflated IQ estimate. 

As discussed, citing 28 U.S.C. § 2254(d)(2),the district court ruled it would

not consider Dr. Roid’s affidavit because it was not presented in the State court

proceeding. Again, that cited section states habeas relief “shall not be granted

with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication . . . 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)(2) (emphasis added). Our court,

however, has held that problems presented by evidence introduced for the first

time in federal court in support of a federal habeas application are “more

accurately analyzed under the ‘exhaustion’ rubric of § 2254(b)”, not as issues of

“‘factual development’ under § 2254(d)”. Dowthitt v. Johnson, 230 F.3d 733, 745

(5th Cir. 2000); see also Morris v. Dretke, 413 F.3d 484, 498 (5th Cir. 2005). 
No. 07-70024

8

Under § 2254(b), “[a]n 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 unless it appears that the applicant has exhausted the remedies

available in the courts of the State”. This exhaustion requirement is satisfied

if the substance of petitioner’s claims have been fairly presented to the state

court. Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003). The exhaustion

requirement is not satisfied if the petitioner “presents material additional

evidentiary support to the federal court that was not presented to the state

court”. Dowthitt, 230 F.3d at 745 (emphasis in original). Evidence is material

if it fundamentally alters, not merely supplements, the claim presented in state

court. Anderson, 338 F.3d at 386-87.

“The exhaustion-of-state-remedies doctrine, . . . codified in the [preAEDPA] federal habeas statute . . . reflects a policy of federal-state comity, an

accommodation of our federal system designed to give the State an initial

opportunity to pass upon and correct alleged violations of its prisoners’ federal

rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) (citations, internal quotation

marks, and footnote omitted). The exhaustion rubric, discussed supra, ensures

the habeas petitioner has fairly presented the substance of his federal claim to

the state courts. This comports with “AEDPA’s purpose to further the principles

of comity, finality, and federalism”. Williams v. Taylor, 529 U.S. 420, 436 (2000).

Once the federal claim has been fairly presented to the state courts, and the

exhaustion requirement has been satisfied, a federal court reviewing a habeas

application may be confident adequate measures have been taken to “prevent

‘unnecessary conflict between courts equally bound to guard and protect rights

secured by the Constitution’”. Picard, 404 U.S. at 275-76 (quoting Ex parte

Royall, 117 U.S. 241, 251 (1886)).

Therefore, if new evidence is determined to be exhausted (because it

merely supplements the claim first presented in state court), it may be
No. 07-70024

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considered by the federal court. Morris, 413 F.3d at 498; Dowthitt, 230 F.3d at

745-46. Lewis offers Dr. Roid’s affidavit to support his claim that Dr. Rosin did

not follow the IQ test protocols when administering the testto Lewis. As further

discussed below, this is not material additional evidence, because it

supplements, rather than fundamentally alters, the claim presented in state

court. 

For example, Dowthitt held that petitioner exhausted his ineffectiveassistance-of-counsel mental-illness claim when he had presented detailed

assertions of his paranoid schizophrenia to the state courts, and offered

additional affidavits by mental-health experts on that same diagnosis in federal

court that were not previously presented to the state courts. Dowthitt, 230 F.3d

at 745-46. The same is true here.

In state court, Lewis presented claims of mental retardation, relying upon

affidavits and testimony by health professionals. His claim is exhausted,

notwithstanding his presenting in federal court for the first time an affidavit by

a mental-health expert (the creator of the IQ test administered by Dr. Rosin)

opining on that same diagnosis.

The claim that Dr. Rosin improperly administered the IQ test was fully

addressed in state court. The state-habeas trial court noted in its proposed

findings of fact that Dr. Rosin testified at the state-habeas Atkins evidentiary

hearing that she did not follow all the instructions for application of the IQ test.

Dr. Garnett, one of Lewis’ experts, testified at that hearing that the IQ score of

79 on the test given by Dr. Rosin has low validity because of the overt mistakes

made in scoring the test. 

Dr. Roid’s affidavit supplements that testimony by Dr. Garnett.

Accordingly, as stated, the exhaustion requirement, with regard to Dr. Roid’s
No. 07-70024

* The State seems to suggest another basis for not considering Dr. Roid’s affidavit: its

not being attached to Lewis’ federal habeas application. As noted, Dr. Roid’s affidavit was first

proffered in Lewis’ reply to the Director’s response to Lewis’ habeas application. (The

Director’s response discussed an IQ score of 79 reported by Dr. Rosin following her testing of

Lewis, the validity of which Dr. Roid’s affidavit directly challenged.) The State responded to

that affidavit by filing a motion to strike, claiming, inter alia, that Lewis improperly provided

“newly created, andunexhausted, affidavittestimony from Dr. Gale Roid”. As discussed supra,

the district court did not rule on the State’s motion to strike, instead holding in its 22 June

2007 opinion denying habeas relief that such new evidence could not be considered.

In our court, the State does not urge this as a basis to exclude Dr. Roid’s affidavit,

presenting only this footnote on the point: “The Director notes that Lewis did not even submit

this affidavit with his original federal petition; rather, it was attached to his reply to the

Director’s response”. The timing in district court of Dr. Roid’s affidavit does not alone preclude

its being considered by the district court, especially in the absence of any argument here to the

contrary. Moreover, this was not the reason given by the district court for not considering it.

Instead, as discussed, the court ruled it would not consider it because it had not been presented

in state court. 

10

affidavit, has been met. See Morris, 413 F.3d at 498; Dowthitt, 230 F.3d at 745-

46.*

Because the district court was not prohibited from considering Dr. Roid’s

affidavit, we vacate and remand for further proceedings, as may be appropriate,

so that, inter alia: the State may respond to Dr. Roid’s affidavit; the district

court will have an opportunity to consider the affidavit and the State’s response;

and, the state court’s adjudication of the subaverage-general-intellectualfunctioning element of Lewis’ mental-retardation claim may be re-evaluated,

under AEDPA, in the light of this new evidence. Obviously, if the district court

concludes, in the light of this new evidence, that the state court’s adjudication

of that element of Lewis’ mental-retardation claim was based upon an

unreasonable determination of the facts in the light of all the evidence, the

district court should then consider one or both of the other two elements, as

required, of Lewis’ mental-retardation claim. Atkins, 536 U.S. at 308 n.3, 318;

Briseno, 135 S.W.3d at 7.

III.
No. 07-70024

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For the foregoing reasons,the denial of habeas relief is VACATED and this

matter is REMANDED to district court for further proceedings consistent with

this opinion.

VACATED and REMANDED.