* 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. 07-70006

JEFFREY DEMOND WILLIAMS

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC No. H-04-2945

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Jeffrey Demond Williams (“Williams”) appeals the

district court’s denial of his petition for a writ of habeas corpus. For the

following reasons, we affirm the district court’s denial of Williams’s habeas

petition and remand for the district court to consider whether to grant a

certificate of appealability (“COA”) on Williams’s post-judgment motions.

United States Court of Appeals

Fifth Circuit

F I L E D

September 19, 2008

Charles R. Fulbruge III

Clerk
No. 07-70006

2

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual Background

The district court set forth the relevant facts in this case:

On the night of May 19, 1999, Officer Tony Blando drove

around the parking lot of the Roadrunner Inn [in Houston, Texas]

looking for stolen vehicles. Blando was in plainclothes and drove an

unmarked car. Blando saw Williams driving a Lexus. He inquired

about the car [via a computer search in his car], and learned that

the car was stolen in an aggravated robbery. As Williams stepped

out of the car, Blando approached him with his weapon drawn.

Trial testimony explained that it was departmental practice for

officers to draw their weapons when approaching a suspect in a

stolen vehicle. Blando and Williams tussled, and Williams pulled

out a gun and fatally shot Blando. 

Two witnesses also testified that they saw the shooting. One

was staying at the Roadrunner Inn, and the other at a hotel next

door. One of the witnesses testified that she heard two men arguing

in the parking lot. When she looked out the window, she saw a

white man and a black man arguing, and heard the black man

telling the white man not to handcuff him. After the white man got

one handcuff on the black man,the black man spun around and shot

the white man. Williams was arrested near the scene a short while

later. He was wearing one handcuff at the time. 

After his arrest, Houston Police Officer Allen Brown read

Williams his Miranda warnings and interviewed him. Williams

acknowledged that he understood his rights and gave two

statements in which he admitted shooting Blando. At trial the

medical examiner testified that the cause of Blando’s death was a

perforating gunshot wound to the chest.

Police recovered shell casings fired from .380 caliber, .40

caliber, and 9 millimeter weapons. Blando fired a .380. At least

some of the other bullets were fired by Williams’ gun. Williams’

fingerprints were on the Lexus and on Blando’s Jeep Cherokee.

The defense presented no witnesses during the

guilt-innocence phase. In his statement to the police, however,

Williams contended that he did not know Blando was a police

officer, but thought that Blando was trying to rob him, and shot in

self-defense. One of the officers who responded to Blando’s call for

help, however, testified that Blando was wearing his badge around
No. 07-70006

1 Williams’s argument that the district court erred in not requiring the state to prove

a lack of mental retardation beyond a reasonable doubt is foreclosed by our prior precedent.

See In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003) (“[N]either Ring and Apprendi nor Atkins

3

his neck. The jury found Williams guilty of capital murder for the

murder of Officer Blando. 

During the penalty phase the State presented the testimony

of Jennifer Null, the owner of the stolen Lexus. On May 10, 1999,

nine days before the shooting, the car was stolen from Null at

gunpoint. The thief attempted to force Null into the car, but she

refused. Officer Allen Brown testified that Williams admitted to

committing several robberies and expressed no remorse over the

Blando shooting. Two witnesses also identified Williams as the

gunman in a robbery-shooting in January of 1999. The victim of

that shooting was Ezzard McCowan. The same gun was used in the

McCowan and Blando shootings. Blando’s wife offered victim

impact testimony and testified that Blando was a Boy Scout leader.

(citations omitted). 

B. State Court Proceedings

A Houston jury found Williams guilty of capital murder and concluded

that he posed a future danger to commit criminal acts of violence that would

constitute a continuing threat to society. The jury also found insufficient

mitigating evidence to warrant a life sentence. The trial court therefore

sentenced Williams to death. The Texas Court of Criminal Appeals (“TCCA”)

affirmed the conviction and sentence, Williams v. State, No. 73,796 (Tex. Crim.

App. 2002), and denied Williams’s application for postconviction relief, Ex Parte

Williams, No. 50,662-01 (Tex. Crim. App. 2003).

On June 17, 2003, Williams filed a successive state habeas petition,

claiming that he is mentally retarded and therefore that the Eighth Amendment,

as interpreted by the Supreme Court in Atkins v. Virginia, 536 U.S. 304 (2002),

bars his execution. Williams also argued that the Sixth Amendment bars his

execution because the jury did not make a determination on his mental

retardation claim.1 Finding that Williams failed to make a prima facie case of
No. 07-70006

render the absence of mental retardation the functional equivalent of an element of capital

murder which the state must prove beyond a reasonable doubt.”); see also Ex parte Briseno, 135

S.W.3d 1, 9 (Tex. Crim. App. 2004 ) (“Ring and Atkins do not require a post-conviction jury

determination of applicant’s claim of mental retardation.”).

2 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) bars federal

habeas relief on issues that were adjudicated on the merits in state court unless the state

court’s decision was (1) “contrary to, or involved an unreasonable application of, clearly

established federal law, as determined by the Supreme Court of the United States” or (2) “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). 

4

mental retardation, the TCCA dismissed the petition as an abuse ofthe writ. Ex

Parte Williams, No. 50,662-02 (Tex. Crim. App. 2003). 

C. Federal Court Proceedings

On July 20, 2004, Williams filed the present federal habeas petition. In

it, Williams raises the same issues as in his state petition.2 The district court

found thatthe state court’s conclusion that Williams failed to plead a prima facie

case of mental retardation “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)(1), and accordingly found Williams’s petition was not barred by this

threshold inquiry under AEDPA. The district court therefore ordered an

evidentiary hearing on the question of Williams’s mental retardation.

The district court dismissed Williams’s petition with respectto his various

other claims. On Williams’s ineffective assistance of counsel (“IAC”) claim, the

court concluded that Williams had failed to raise this argument in state court,

rendering that claim unexhausted and procedurally barred. The court found

Williams’s various other claims either procedurally defaulted or unexhausted.

A magistrate judge held a seven-day evidentiary hearing on the issue of

mental retardation. After responsive briefing, the magistrate judge issued a 78-

page memorandum and recommendation summarizing the evidence adduced

from the evidentiary hearing and recommending that the district court deny

Williams’s petition. However, the magistrate judge also recommended that the
No. 07-70006

5

district court grant a COA. The district court adopted the magistrate judge’s

memorandum and recommendation and dismissed Williams’s habeas petition

with prejudice, granting a COA on the mental retardation claim and denying a

COA on Williams’s other claims (although Williams had not sought a COA on

any of his claims). 

Subsequently, the district court denied two motions made by Williams.

First, the court considered Williams’s Motion to Alter or Amend Judgment

Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. In this motion,

Williams made (1) an actual innocence claim based on newly discovered evidence

and (2) an IAC claim. On the actual innocence claim, the court reasoned that

even if the claim were substantiated, it would not entitle Williams to relief. See

Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of actual innocence based

on newly discovered evidence have never been held to state a ground for federal

habeas relief absent an independent constitutional violation occurring in the

underlying state criminal proceeding.”). 

Although the district court previously held Williams’s IAC claim to be

unexhausted and procedurally defaulted, Williams argued that new evidence of

actual innocence provided a basis to excuse that default. He also claimed the

evidence of his mental retardation adduced at the evidentiary hearing was

further proof of ineffective assistance for his trial counsel’s failure to present

that information as mitigating evidence. The district court concluded that even

if Williams could overcome the procedural default bar, the evidence adduced at

the evidentiary hearing did not support an IAC claim because “the substance of

this evidence was already before the jury [and]there is no reasonable probability

that this evidence would have led to a different result.”

Second, the district court considered Williams’s motion for relief from

judgment under Rule 60(b). In his Rule 60(b) motion, Williams alleged that the

government failed to comply with Federal Rule of Criminal Procedure 45(b)(1)’s
No. 07-70006

6

requirement that opposing counsel be served with copies of subpoenas duces

tecum. At the evidentiary hearing, the magistrate judge had recognized that

Rule 45(b) violations occurred but nevertheless allowed the subject documents

into evidence. Concluding that Williams failed to show how these violations

prejudiced his ability to present his case, the district court denied the Rule 60(b)

motion. 

D. Evidentiary Hearing

The evidentiary hearing produced significant evidence supporting and

refuting Williams’s claims of mental retardation. 

i. IQ tests and achievement tests

Williams scored a 70 or 71 in three different IQ test administrations.

Williams’s first IQ score was recorded at age 16. On July 7, 1992, the Houston

Independent School District (HISD) administered to Williams the Wechsler

Intelligence Scale for Children—III (“WISC-III”). Williams scored a verbal IQ

of 79, a performance IQ of 65, and a full scale IQ of 70. Dr. Joyce Hood, who

administrated these tests, interpreted the results: 

Jeffrey’s Full Scale score is in the Borderline range, two standard

deviations below the mean, and places him in the 2nd percentile

relative to children his age in the normal population.

Jeffrey’s verbal score is in the Borderline range, more than one

standard deviation below the mean, and in the 8th percentile

relative to children his age in the normal population.

Jeffrey’s performance score is in the Mentally Retarded range, more

than two standard deviations below the mean, and in the 1st

percentile relative to children his age in the normal population.

Williams was not considered mentally retarded at the time because HISD’s

cutoff for that determination was a full scale IQ score of 69. 

At the same testing session, Williams took several achievement tests.

These tests indicated that his academic achievement in reading, math, and
No. 07-70006

3 Williams completedtheWechslerAdult IntelligenceScale,ThirdEdition (“WAIS-III”).

4 The magistrate judge’s memorandum lists the bottom of this range as 68, but the

transcript of Dr. Kessner’s testimony reveals a range of 66 to 76.

5 The magistrate judge’s memorandum lists the full scale score as 70, but the transcript

of Dr. Kessner’s testimony reveals a score of 71.

6 Again, the magistrate judge mixed up these numbers. The magistrate judge lists the

range as 66 to 76, but Dr. Kessner’s testimony was that the 95 percent confidence interval was

68 to 76.

7 She administered the Wide Range Achievement Test-Revision 3 (“WRAT-3”) and the

Kaufman Functional Academic Skills Test (“K-FAST”). On the K-FAST, Williams scored a 78

in arithmetic and an 82 in reading with a composite score of 79. Dr. Kessner noted that the

confidence intervals of Williams’s K-FAST and WISC-3 scores overlapped. The 95 percent

confidence interval for Williams’s WISC-3 IQ test was 68 to 76, and the 95 percent confidence

interval for his F-KAST scores was 69 to 89. Of course, these are only 95 percent confidence

intervals, meaning that, according to Dr. Kessner, “[f]ive times out of a hundred, you might

test him and he might get outside of this [confidence interval] range.” 

7

written language was above his assessed IQ level. As the district court noted,

“while [Williams’s] IQ showed that he was in the second percentile intellectually,

he functioned academically in between the twenty-first and fifty-eighth

percentiles.” Dr. Hood offered no explanation for this discrepancy. She did,

however, state her opinion that “Jeffrey Williams is mentally retarded.”

Williams next took an IQ test after his murder conviction, in a test3

administered by the defense expert, Dr. Gilda Kessner. His verbal IQ score was

70, with a 95 percent confidence interval of 664to 76. His performance IQ score

was 77, with a 95 percent confidence interval of 72 to 85. The full scale score

was 71,5 with a full scale confidence interval between 68 and 76.6 Dr. Kessner

also administered the Mini Mental State Examination, a test for functionality

and concentration, and the REY 15, a memory test. Dr. Kessner concluded that

Williams made an adequate effort on those tests and was not malingering. 

Dr. Kessner also administered two achievement tests.7 Williams scored

in the non-mentally-retarded range on both. Dr. Kessner testified that in her

opinion, Williams’s scores on various academic achievement tests were not
No. 07-70006

8

inconsistent with his IQ scores because the confidence intervals for the

achievement tests overlapped with confidence intervals on the IQ tests.

However, the district court concluded that Dr. Kessner presented “no credible

explanation” for this discrepancy. Another expert testifying for Williams, Dr.

Richard Garnett, stated that IQ testing is the best measure of intelligence

because it is the broadest measure of the diffuse elements of intelligence, unlike

achievement tests, which measure a narrower portion of intelligence. 

The government’s expert, Dr. Thomas Allen, administered the StanfordBinet V (“SB-5”) Test of Intelligence. Williams scored a non-verbal IQ of 70, a

verbal IQ of 75, and a full scale IQ of 71. Dr. Allen also used Green’s Word

Memory Test (“GWMT”) to assess Williams’s level of effort on the IQ test. Dr.

Allen testified that he believed Williams’s low IQ score was the result of his

failure to put forth a good effort on the test. Williams’s score on a portion of the

GWMT was lower than if he had been randomly guessing. On another section,

Williams scored so low that in Dr. Allen’s opinion, Williams was deliberately

giving the wrong answers. 

Williams most recently took an intelligence test when he arrived on death

row. A licensed professional counselor working for the Texas Department of

Criminal Justice administered the TONI-3, a test of nonverbal intelligence. 

Williams scored a nonverbal IQ of 83, a score in the thirteenth percentile and too

high to qualify Williams for a place in the counselor’s mental health case load.

The district court also considered Williams’s scores in routine standardized

tests administered while he was in school. In his sixth, seventh, and eighthgrade years, Williams took the Metropolitan Achievement Test (“MAT”), a

national standardized achievementtest. In three sittings of the exam, he scored

below grade level in some subjects and above grade level in others. In a different

achievement test administered in the seventh grade, the Texas Educational

Assessment of Minimum Skills (“TEAMS”), Williams’s scores reflected subject
No. 07-70006

9

mastery in mathematics, reading, and writing. In the ninth grade, Williams

passed the Texas Assessment of Academic Skills (“TAAS”) test in reading and

writing, but he failed the mathematics portion.

ii. Other expert testimony

Dr. Garnett testified about Williams’s adaptive deficits. He opined that

Williams showed significant adaptive limitations in the areas of self care, home

living, social and personal skills, work, and leisure. With respect to self care, Dr.

Garnett cited Williams’s failure to dress appropriately for the weather. In the

area of home care, Dr. Garnett noted that during the only time Williams lived

alone for a brief period, he ended up losing his apartment, becoming homeless,

and his car broke down because he failed to maintain it. In the area of social

skills, Dr. Garnett noted that Williams was beaten up as child and that he had

difficulty interacting with people. In the area of work, Dr. Garnett noted that

Williams had held five or six jobs in his life and was fired from all of them. In

the area of leisure, Dr. Garnett noted testimony that Williams could not play

video games or basketball, and that he had no independent hobbies or other

leisure activities. 

As further evidence of adaptive limitations, Dr. Garnett cited Williams’s

reluctance to bathe as an adolescent, inability to play sports and games,

becoming homeless after losing his job, and failure to maintain his cars. Dr.

Garnett also testified that mentally retarded people often adopt strategies to

function in everyday life, such as relying on “ambassadors”—caretakers or

enablers to help them. According to Dr. Garnett, Williams adopted such

strategies.

Dr. Garnett admitted that these deficits could be explained by other

diagnoses, such as a conduct disorder, oppositional defiance, or learning

disabilities. He testified that Williams did not suffer from antisocial personality

disorder based on testimony that Williams was empathetic and joked with
No. 07-70006

10

friends. Dr. Garnett also testified that Williams did not have ADHD because

Williams could focus at times. 

iii. Williams’s school records

During middle school and at the beginning of high school, Williams was

in a regular classroom. In April 1992, in Williams’s tenth grade year, he was

expelled from high school after he was blamed for a series of locker thefts,

setting a trash can on fire, and truancy. He then was admitted to West Oaks

psychiatric hospital, where he received counseling and attended group therapy

sessions. Doctors at West Oaks diagnosed Williams with a conduct disorder and

hyperactivity and prescribed medication for short attention span and

impulsivity. Williams completed the second semester of his tenth-grade

coursework at a community service campus of West Oaks. He passed all of his

classes except Algebra.

He returned to his high school in the fall. In November 1992, a committee

at Williams’s high school decided that he qualified for special education

accommodations because of emotional disturbance. He took some classes in the

regular classroom and others in a special education environment. All classes

were taught at the tenth-grade level. Required modifications included frequent

breaks, defined physical space, cooling-off periods, positive reinforcers, and a

discipline management plan. The following April, the school modified Williams’s

education plan to mainstream him into some regular education classes at the

eleventh-grade level in the fall. In the 1992-1993 academic year, Williams

passed all his classes and earned several A’s. The following year, Williams took

coursework at the twelfth-grade level, earning passing scores but with a

deterioration in his behavior in the spring term. He earned grades in the 70 to

71 range for his regular English and government classes and scores in the 80s

for his special education classes. Williams’s high-school grades were generally

low but passing. At the times he received his lowest grades, he also had a large
No. 07-70006

11

number of recorded absences. Williams graduated from high school with a grade

point average of 2.19 and a class rank of 326 out of 480.

James Claypool, the principal at one of Williams’s high schools, recounted

Williams’s self-destructive behavior (as summarized by the magistrate judge):

Claypool described Williams as soft-spoken and respectful, but

prone to getting into trouble when not supervised by an authority

figure. Claypool described Williams as being fascinated by crime

and criminals and gravitated toward those peers who engaged in

criminal activities. Claypool stated that Williams often informed

school officials of his friends’ illegal activities and then returned to

his friends and told them what he had just done. As a result,

Williams was frequently beaten up by his friends. Claypool often

counseled Williams about this attention-getting/self-destructive

behavior, but Williams was unable to stop the cycle of informing on

his friends and then informing on himself. This behavior continued

until Williams was moved to a different classroom. 

(footnotes omitted).

iv. Character testimony

The evidentiary hearing included testimony of people who knew Williams

at various stages of his life. The court considered, for example, an assessment

of Williams at age 16 by his own parents: 

Jeffrey is not very talkative and is oppositional at times. He has

been a problem since kindergarten. He is a habitual liar, has cut

teachers’ tires, and has stolen from stores in the mall. He runs with

a bad crowd and is easily influenced by them. He shows no remorse

for things he does. 

Williams’s high school principal, Claypool, spoke further of Williams’s abilities:

Claypool testified that he did not interact with Williams as if he

were mentally retarded. Rather, Claypool considered him to be

“bright,” “socially skilled with adults,” and “manipulative.”

Williams was not considered to be mentally retarded academically

and was not placed in classes for the mentally retarded. Claypool

considered Williams “above average” in his dress and hygiene.

Claypool testified that, while a teacher noted that Williams often

wore a long coat to school, he did not observe that type of clothing
No. 07-70006

12

when he saw Williams. The teacher’s note dated from a time when

Williams was breaking into lockers. Claypool believed that the long

coat was worn to hide stolen items.

(footnotes omitted).

Williams’s childhood friends testified about odd behavior. For example,

Williams refused to play by the normal rules of childhood games: in a game of

kickball, he threw the ball over the fence; in a game of basketball, he would kick

the ball. Several witnesses testified that Williams often wore inappropriate

clothing, such as an overcoat with a hood during the summer (in Houston) or tshirts and shorts in the winter. Several witnesses testified about what appeared

to be attention-getting behavior. Williams would often yell out inappropriate

remarks when he was unable to keep up with conversation. 

Other witnesses spoke of Williams’s self-destructive behavior, poor

hygiene, and inability to cook. Several witnesses testified that they treated

Williams differently because they believed he was “slow.” 

v. Williams’s job history

Williams enlisted in the Naval Reserve during his senior year in high

school. He reported for active duty in July 1994. Several witnesses testified that

Williams was slower in academics than other soldiers. Williams also was

reluctant to do menial chores or meet the Navy’s standards for neatness. On an

assignment as helmsman of a ship, Williams caused the ship to “roll” by turning

the wheel too quickly. Williams’s supervisor testified that he lacked “military

bearing” and was frequently late. His supervisor ranked Williams “‘towards the

bottom’ in terms of understanding and carrying out his other responsibilities

among the hundreds of seamen” he had supervised. Others testified that

Williams was capable of hard work, but that he had a bad attitude toward

authority.
No. 07-70006

13

Williams’s Navy disciplinary record recounts episodes of insubordination,

failure to maintain a neat bunk area, and excessive alcohol consumption. He

was counseled and punished for such behavior on numerous occasions. In March

1996, a disciplinary board recommended that Williams be separated from

military service. Williams received a general discharge from the Navy in

October 1996. 

After leaving the Navy, Williams worked briefly as a deck hand on a casino

boat. Williams also worked as a stocker at a grocery store and a delivery truck

driver for an auto parts store. 

vi. Williams’s writing skills

While in the Navy, Williams wrote a letter—with a few suggestions and

corrections from another sailor—to the Administrative Separation Board to

discourage it from discharging him from the Navy. The letter explained that in

the Navy, Williams was able to escape the atmosphere of drugs and death that

he had lived in while growing up. He expressed his wish to take a Navy exam

to allow him to move to another division. Williams explained that if he stayed

in the Navy, he would have a better chance of finding a job in the civilian world

later. He also wrote of hoping to buy a car and a house in Houston. Dr. Garnett

assessed this letter as written at the seventh-grade level. Other death row

inmates housed near Williams testified that they helped Williams in writing

letters and commissary orders, although a prison official testified that security

procedures would have made it very difficult for inmates to exchange written

notes.

The district court rejected Williams’s Atkins claim. However,

acknowledging that it was a “close case,” the court, sua sponte, granted a

certificate of appealability for this court to review the district court’s finding of

no mental retardation. Because the district court granted a COA on the issue
No. 07-70006

14

of mental retardation, we have jurisdiction to review the district court’s denial

of habeas relief on Williams’s Atkins claim. 28 U.S.C § 2253.

II. DISCUSSION

A. Mental Retardation Claim

The primary claim in this appeal is that Williams is mentally retarded and

therefore ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002).

In Atkins, the Supreme Court held that under the Eighth Amendment’s

“evolving standards of decency” review, “death is not a suitable punishment for

a mentally retarded criminal.” Id. at 321. The Atkins Court did not adopt

specific criteria for determining mental retardation. Rather, the Court left to the

states “the task of developing appropriate ways to enforce the constitutional

restriction . . . .” Id. at 317. 

Since then, the TCCA has developed standards by which it evaluates an

inmate’s claim of mental retardation. See Ex parte Briseno, 135 S.W.3d 1, 8

(Tex. Crim. App. 2004). The TCCA adopted the framework established by the

American Association on Mental Retardation (“AAMR”) in conjunction with

standards contained in the Texas Persons with Mental Retardation Act

(“PMRA”), TEX. HEALTH & SAFETY CODE ANN. § 591.003(13). According to the

AAMR definition,

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.

Atkins, 536 U.S. at 309 n.3 (quoting MENTAL RETARDATION: DEFINITION,

CLASSIFICATION, AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992)). Under the PMRA,

“‘mental retardation’ means significantly subaverage general intellectual
No. 07-70006

15

functioning that is concurrent with deficits in adaptive behavior and originates

during the developmental period.” TEX. HEALTH & SAFETY CODE ANN.

§ 591.003(13). Combining and summarizing these definitions, Texas courts

define mental retardation as characterized by “(1) ‘significantly subaverage’

general intellectual functioning; (2) accompanied by ‘related’ limitations in

adaptive functioning; (3) the onset of which occurs prior to the age of 18.”

Briseno, 135 S.W.3d at 7 (footnotes omitted). To obtain habeas relief, Williams

must show that he meets all three elements. See Clark v. Quarterman, 457 F.3d

441, 444 (5th Cir. 2006). We consider each of these elements in turn.

i. Standard of review

In a habeas corpus appeal, this court reviews the district court’s findings

of fact for clear error and its conclusions of law de novo. Ramirez v. Dretke, 396

F.3d 646, 649 (5th Cir. 2005). This court reviews mixed questions of law and fact

under a de novo standard by independently applying the law to the facts found

by the district court, as long as those facts are not clearly erroneous. Id. The

determination of whether Briseno’s three prongs have been met is a factual

finding that we review for clear error. See Rivera v. Quarterman, 505 F.3d 349,

361-63 (5th Cir. 2007). “‘A finding is clearly erroneous only if it is implausible

in the light of the record considered as a whole.’” Id. (quoting St. Aubin v.

Quarterman, 470F.3d 1096, 1101 (5th Cir. 2006)). “If the district court’s account

of the evidence is plausible in light of the record viewed in its entirety, the court

of appeals may not reverse it even though convinced that had it been sitting as

the trier of fact, it would have weighed the evidence differently.” Anderson v.

City of Bessemer City, 470 U.S. 564, 573-74 (1985). “Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot

be clearly erroneous.” Id.

ii. Significantly subaverage intellectual functioning
No. 07-70006

8 AMERICAN PSYCHIATRIC ASSOCIATION DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS (4th ed. 2000) (“DSM-IV”).

16

a. Applicable law

In determining intellectual functioning, the Briseno court focused on IQ:

“Significantly subaverage intellectual functioning is defined as an IQ of about

70 or below (approximately 2 standard deviations below the mean).” Briseno,

135 S.W.3d at 7 n.24 (quoting DSM-IV8 at 39). Mental health professionals

apply this standard flexibly, and “sometimes a person whose IQ has tested above

70 may be diagnosed as mentally retarded while a person whose IQ tests below

70 may not be mentally retarded.” Id. In Briseno, for example, the petitioner’s

IQ test results ranged from a low of 67 to a high of 88. Id. at 14 n.53. In that

case, the court nevertheless concluded that recent IQ scores of 72 and 74 were

a more accurate reflection of the petitioner’s intelligence. Id. at 14. Therefore,

the petitioner was not mentally retarded. Id. at 18.

b. Magistrate judge’s memorandum and recommendation

The evidence adduced at the evidentiary hearing amounts to a battle of the

experts. The experts agree that Williams achieved a full scale IQ of 70 or 71 on

three separate tests. The experts disagree on whether those scores are a valid

measure of Williams’s intellectual functioning. The government claims these

low scores are the result of malingering—deliberately achieving low scores.

Williams disagrees, arguing that it would have been impossible to achieve such

consistent results over time by malingering. 

The district court credited expert testimony that Williams’s low IQ scores

were lower than if he had been randomly guessing. In other words, he must

have intentionally given wrong answers. The court also contrasted Williams’s

low IQ scores with his academic competence: scores on academic achievement

tests in middle school and high school; grades earned in high school; and

Williams’s writing ability, as evidence by the letter he wrote to the
No. 07-70006

17

Administrative Separation Board while serving in the Navy. The court

concluded that “Williams’[s] strengths are simply too strong to support the

conclusion that he has an IQ of 70 or below, or is otherwise significantly

subaverage in intellectual functioning.”

The court found that the root of Williams’s problems in school was

behavioral, not intellectual, and his academic problems also could have been

related to alcohol and drug abuse. The court also considered testimony of

multiple witnesses who did not believe that Williams was mentally retarded. 

The district court concluded that Williams has an IQ substantially higher

than the threshold of 70. The magistrate judge noted that while Williams’s full

scale IQ scores were consistent over time, the two components of the IQ

test—verbal and performance—fluctuated markedly. 

The district court ultimately sided with the government’s expert in

concluding that“Williams’ performance on academic achievementtests taken in

middle-school, high-school, and as an adult are uniformly inconsistent with his

purported IQ.” The court also cited Williams’s high school grades (“Williams

took classes at the twelfth-grade level, earned an 80 and 89 in two semesters of

Chemistry, graduated with a C average and had a class rank of 326 out of 480”)

and his writing ability (as evidenced by several letters in the hearing record) as

inconsistent with a finding of mental retardation. 

c. Analysis

In this appeal, Williams challenges the district court’s conclusion that his

IQ scores are not an accurate indication of his intellectual functioning. Williams

argues that (1) his IQ scores were too consistent over time to be inaccurate or

intentionally low, (2) there is no direct evidence of malingering in two of his

three IQ tests, and (3) other factors relied on by the district court should not

override his IQ scores. 
No. 07-70006

18

In applying Briseno, the Fifth Circuit counsels a flexible approach to

reading IQ scores, warning that “courts should not rigidly consider an IQ score

to be determinative ofthe defendant’s intellectual functioning.” Clark, 457 F.3d

at 444-45; see also Briseno, 135 S.W.3d at 7 n.24 (“Psychologists and other

mental health professionals are flexible in their assessment of mental

retardation.”).

Superficially, Williams’s IQ scores are remarkably consistent. Dr.

Kessner, Williams’s expert, testified about the unlikelihood that a test-taker

could intentionally achieve such consistent scores:

Q How would you estimate the difficulty of being able to attain

intentionally a target score on three tests over a course of 14

or 15 years with three different administrators?

A I think the probability of that is as low or lower than any

probability of anything I could think of. I mean . . .

Q Like winning the Powerball?

A Extremely limited. I hesitate to say a number, but will say I

think it’s almost impossible. 

Dr. Kessner added, “I cannot for the life of me figure out how someone could

malinger so elegantly as to get the same scores on these tests over time.”

Nevertheless, the components underlying these scores undermine the

consistency argument. In 1992, Williams’s full scale score of 70 was derived

from a verbal IQ of 79 and a performance IQ of 65. In Dr. Kessner’s

administration of the IQ test, Williams’s full scale score was 71, but his verbal

score dropped to 70 while his performance score rose to 77. In Dr. Allen’s

administration, the full scale score remained 71 but the component scores flipflopped again, with a non-verbal score of 70 and a verbal IQ of 75. Thus, in

different administrations, Williams was capable of scoring as high as a 77 on the

performance section and a 79 on the verbal—both outside the mental retardation

range. Thus, the district court did not commit clear error in concluding that
No. 07-70006

9

In Williams’s first IQ test, Dr. Hood did not administer a standardized test for effort.

In her notes, Dr. Hood wrote that Williams appeared to put forth a good effort, but he did not

19

these IQ scores do not support a finding of mental retardation because the

district court’s finding is plausible in light of the record. 

Williams also challenges the district court’s reliance on Dr. Allen’s finding

of malingering. The district court credited Dr. Allen’s testimony on the results

of the GWMT, which revealed that Williams was not putting forth a good effort

during that test administration. According to Dr. Allen, Williams’s score on one

portion of the GWMT—“immediate recall”—was worse than chance; in other

words, Williams must have intentionally missed questions. In another portion

of that test—“delayed recall”—Williams’s score was lower than a score expected

from a person hospitalized with advanced dementia. Dr. Allen testified that the

GWMT is “the most widely researched test of effort in literature and on the

market.” Williams failed this test while groups of mentally retarded children

and adults have passed it. Adjusting Williams’s IQ score for poor effort, Dr.

Allen estimated that Williams’s true IQ score is “in the 90 range.”

Dr. Kessner administered a different test for effort, the REY 15. Based in

part on Williams’s performance on that test, Dr. Kessner believed that he put

forth adequate effort. However, the district court found this testimony less

persuasive than Dr. Allen’s testimony on effort. Further, Drs. Kessner and

Garnett conceded that the REY 15 is not an effective test of effort—they both

testified there is no instrument that can be used to reliably test effort in

institutionalized individuals that has been published, researched, and supported

in scientific literature. Dr. Allen testified at length about the research

underlying the GWMT and various cutoff scores for effort. By contrast, Dr.

Kessner’s testimony about Williams’s effort was highly subjective. It therefore

was not clear error for the district court—given this contradictory testimony—to

credit Dr. Allen’s opinion.9
No. 07-70006

persist when questions became more difficult.

20

Finally, Williams argues thatthe district court erred in using achievement

test scores to override IQ scores that suggested borderline mental retardation.

To the extent that this argument urges us to credit IQ scores to the exclusion of

all other measures of intelligence, we decline to do so. Dr. Allen testified that

achievement tests and IQ scores are highly correlated, and he discredited at

least one of Williams’s IQ scores on the basis of malingering. Dr. Kessner could

provide no rationale for the discrepancy between Williams’s IQ scores and his

academic achievement. Ultimately, the district court found Dr. Allen’s

explanation to be “more credible.” Such a credibility determination is a finding

of fact that this court reviews for clear error. See Lewis v. Dretke, 355 F.3d 364,

368 (5th Cir. 2003); see also Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375

(5th Cir. 2000) (“‘The burden of showing thatthe findings ofthe district court are

clearly erroneous is heavier if the credibility of witnesses is a factor in the trial

court’s decision.’”(quoting Dunbar Med. Sys., Inc. v. Gammex Inc., 216 F.3d 441,

453 (5th Cir.2000))). In light of the record before us, we cannot conclude that the

district court clearly erred.

The district court was persuaded that the evidence as a whole—including

Williams’s performance in the classroom and on standardized achievement tests,

his writing ability, and the opinions of numerous witnesses who did not believe

that Williams was retarded—was inconsistent with a finding of mental

retardation. Nothing in the Briseno standard compels a blind adherence to IQ.

In fact, Briseno itself recognizes that IQ alone is not determinative of mental

retardation. Briseno, 135 S.W.3d at 7 n.24 (quoting DSM-IV at 39). The mental

retardation standard is designed to be flexible: “sometimes a person whose IQ

has tested above 70 may be diagnosed as mentally retarded while a person

whose IQ tests below 70 may not be mentally retarded.” Id. Furthermore, we
No. 07-70006

10We donot address the thirdprong—onset before age eighteen—becauseWilliams took

an IQ test at age 16. If we were to find that test determinative, the third Briseno prong would

be satisfied. However, because we conclude that the district court did not err in discrediting

that and other IQ tests, Williams’s intelligence is not subaverage and we need not address the

issue of onset. 

21

have previously observed thatthere is “no binding authority that requires an IQ

test specifically, that is, entirely alone, at the core, or as any singular threshold,

to provide the basis for a finding of mental retardation.” Morris v. Dretke, 413

F.3d 484, 497 (5th Cir. 2005). 

Because Williams carries the burden of proving mental retardation, failure

to prove the first Briseno prong should end our inquiry. However, because the

district court considered this issue to be a “close call,” we continue to the second

prong to illustrate that, even if Williams has significantly subaverage

intellectual functioning, he did not exhibit the type of adaptive deficits required

under Briseno.

10

iii. Related adaptive limitations

a. Applicable law

The AAMR definition of mental retardation requires a showing of“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.”

Atkins, 536 U.S. at 309 n.3. The Texas PMRA similarly requires deficits in

“adaptive behavior,” meaning “the effectiveness with or degree to which a person

meets the standards of personal independence and social responsibility expected

of the person’s age and cultural group.” TEX. HEALTH & SAFETY CODE ANN.

§ 591.003(1). 

Briseno noted that “[t]he adaptive behavior criteria are exceedingly

subjective, and undoubtedly experts will be found to offer opinions on both sides

of the issue in most cases.” 135 S.W.3d at 8. Therefore, the TCCA offered a list
No. 07-70006

22

of other “evidentiary factors” to consider in deciding whether evidence suggests

mental retardation or a personality disorder:

• Did those who knew the person best during the developmental

stage—his family, friends, teachers, employers,

authorities—think he was mentally retarded at that time,

and, if so, act in accordance with that determination?

• Has the person formulated plans and carried them through or

is his conduct impulsive?

• Does his conduct show leadership or does it show that he is

led around by others?

• Is his conduct in response to external stimuli rational and

appropriate, regardless of whether it is socially acceptable?

• Does he respond coherently, rationally, and on pointto oral or

written questions or do his responses wander from subject to

subject?

• Can the person hide facts or lie effectively in his own or

others’ interests?

• Putting aside any heinousness or gruesomeness surrounding

the capital offense, did the commission of that offense require

forethought, planning, and complex execution of purpose?

Id. at 8-9. 

b. Magistrate judge’s memorandum and recommendations

The district court considered evidence of Williams’s bizarre and antisocial

conduct. The court also noted Dr. Garnett’s testimony that Williams showed

adaptive limitations in the areas of self care, home living, social and personal

skills, work, and leisure. However, the court was not persuaded that these

limitations were caused by mental retardation. Dr. Garnett conceded, in cross

examination, that those deficits could all be explained by other diagnoses such

as conduct disorder, oppositional defiance, or learning disabilities. The district

courtfound more credible Dr. Allen’s testimony that Williams’s strange behavior

was due to anti-social personality rather than mental retardation. 

In contrast to Dr. Garnett’s subjective evaluation, the state’s expert, Dr.

Allen, administered the Vineland Adaptive Behavior testto measure Williams’s
No. 07-70006

11 Indeed, as we have noted previously, the subjectiveness of evaluating the district

court’s analysis of the “adaptive deficits” prong counsels significant deference:

As the CCA has noted, the adaptive behavior criteria are “exceedingly

subjective.” The district courts each held extensive evidentiary hearings, which

included testimony on this issue from, among other witnesses, [the petitioner’s]

family members and teachers, and multiple experts. That this case presents, in

Judge Hanen’s words, “a close call” strengthens the need to be mindful of the

district court’s conclusions. Judge Hanen, having actually presided over the

second evidentiary hearing, is in a better position than this court to judge and

weigh the credibility of the witnesses who testified on the extent, duration, and

causes of [the petitioner’s] adaptive functioning limitations.

Rivera v. Quarterman, 505 F.3d 349, 363 (5th Cir. 2007) (footnotes omitted).

23

adaptive deficits. The only area where Williams showed an adaptive deficit was

in socialization, and that deficit could be explained by antisocial personality

disorder rather than mental retardation. 

Further,the district court noted Williams’s substantial adaptive strengths,

finding that Williams rented an apartment, bought atleasttwo vehicles, washed

his clothes, and could conform his conduct to social norms when he wanted.

Although some witnesses reported that Williams did not understand the rules

of sports and games, other testimony suggested that Williams did play sports

and understand the rules. Ultimately, the court concluded that “Williams’s

eccentric behaviors are just as easily seen as attention-getting behaviors as they

are evidence of mental retardation.” If Williams does suffer from some adaptive

deficits, the court concluded, they are not “significant.”

c. Analysis

As in our analysis of the first Briseno prong, we give great weight to the

district court’s credibility determinations.11 At the evidentiary hearing, the court

heard from many witnesses who testified about Williams’s abilities throughout

his life, including numerous examples of bad behavior and antisocial conduct.

Although Williams’s expert, Dr. Garnett, testified that this evidence supports a

finding of mental retardation, the state’s expert, Dr. Allen, gave compelling
No. 07-70006

24

testimony attributing Williams’s bizarre behavior to diagnoses other than

mental retardation. 

Before this court, Williams does little more than recount testimony

adduced at the evidentiary hearing, charging that the district court discounted

evidence of his “repeated failures to live a normal life,” including “his inability

to keep a job, maintain a car, live on his own, have a girlfriend, or maintain his

hygiene.” Williams argues that witnesses from each stage of his life testified

that he “could not live like a normal person for his age.” Williams’s brief

includes a two-and-a-half-page chart summarizing the testimony of various

witnesses about his adaptive deficits.

However, the only specific point of error Williams raises is an argument

that the district court should not have considered adaptive strengths in

evaluating Williams’s adaptive deficits. The experts spent some time battling

over this pointin the evidentiary hearing. Dr. Garnett testified that the AAMR’s

standard is a deficits-only model. In other words, a person’s strengths should be

ignored in making a diagnosis. Dr. Garnett cited the DSM manual’s

“exclusionary clause,” which dictates that once a subject meets minimum

thresholds for deficits, the diagnosis of mental retardation holds regardless of

other adaptive strengths. Dr. Garnett did concede, however, that strengths in

specific adaptive areas should be balanced against deficits in those areas to

determine if the deficits are “significant.”

Dr. Allen criticized the deficits-only model for its tendency to produce

confirmation bias. As he explained, if an expert evaluates a subject with a

borderline IQ, the deficits-only model encourages the expert to look for deficits

which tend to confirm a diagnosis of mental retardation while ignoring contrary

evidence. Thus, the deficits-only model is too likely to confirm a suspected

diagnosis of mental retardation if evidence of adaptive abilities is not
No. 07-70006

12 Dr. Allen explained that the best scientific method is to begin with the “null

hypothesis”—in this case, a diagnosis of no mental retardation—then assess the evidence to

determine whether it meets the burden of proving mental retardation.

25

considered.12 To be sure, the Briseno definition does reference adaptive

limitations without reference to strengths. However, the standard also requires

that these limitations in certain adaptive categories be “significant.” As

Williams’s expert testified, weighing strengths against weaknesses is a crucial

part of determining whether purported adaptive limitations are “significant.”

Furthermore, this court has previously held that courts are not barred

from considering adaptive strengths in evaluating mental retardation claims.

See Clark v. Quarterman, 457 F.3d 441, 447 (5th Cir. 2006). In Clark, the

petitioner argued that evidence of his adaptive skills did not support the state

court’s determination that he was not mentally retarded because this was

evidence of strengths and not limitations. Id. The court reasoned that

[t]his is incorrect—evidence of a strength in a particular area of

adaptive functioning necessarily shows that the defendant does not

have a weakness in that particular area. Even if, as [the petitioner]

argues, adaptive limitations rather than strengths often define

mental retardation, the evidence in this case shows primarily

adaptive strengths and does not show limitation in any significant

area. The evidence in this case showed that prior to being

incarcerated, [the petitioner] functioned normally across a broad

range of adaptive behaviors.

Id.

Similarly,the district courtin the instant case concluded that the evidence

showed significant adaptive strengths—especially in the area of functional

academics—and adaptive weaknesses that were either insignificant or could be

more credibly explained by other behavioral diagnoses. To find clear error, we

must do more than merely disagree with the district court’s conclusion.

Anderson, 470 U.S. at 573-74. We therefore find no clear error in the district

court’s crediting the state’s expert testimony over Williams’s expert on the issue
No. 07-70006

26

of adaptive deficits. Williams exhibited numerous adaptive strengths to support

a conclusion that he lacked significant adaptive weaknesses. Williams made

long-distance calls with calling cards, bought plane tickets unassisted, traveled

out of state, rented an apartment, applied for unemployment benefits on his

own, and washed his own clothes. Although the magistrate judge observed that

several witnesses noted Williams’s “various odd behaviors,” the court concluded

that Williams “could conform his conduct to expected social norms when he

wanted to” and that his “eccentric behaviors are just as easily seen as attentiongetting behaviors as they are evidence of mental retardation.” We find that the

district court did not clearly err in reaching that conclusion. 

B. Rule 59(e) Motion and Rule 60(b) Motion

Williams challenges the district court’s denial of his post-judgment

motions under Federal Rules of Civil Procedure 59(e) and Rule 60(b), both filed

after the district court issued its order denying habeas corpus relief. In his 59(e)

motion, Williams sought (1) the opportunity to pursue a claim of actual

innocence based on newly discovered evidence; (2) the opportunity to pursue an

ineffective assistance of counsel claim based on the evidence of mental

retardation presented at the evidentiary hearing but not at his sentencing; and

(3) a stay and abeyance to allow him to exhaust state court remedies. The

district court denied this motion. In his Rule 60(b) motion, Williams alleged a

series of violations of Federal Rule of Civil Procedure 45(b)(1)—which imposes

a notice requirement on the issuance of subpoenas duces tecum—by the state’s

counsel. The district court also denied Williams’s Rule 60(b) motion. Williams

did not seek a COA to review the denial of these motions, either from this court

or from the district court. The district court did not grant or deny a COA on

these issues. 

As a threshold matter, we consider whether this court has jurisdiction to

hear an appeal on these motions. A COA is required to appeal “the final order
No. 07-70006

27

in a habeas corpus proceeding in which the detention complained of arises out

of process issued by a State court.” 28 U.S.C. § 2253(c)(1)(A). Although the

circuits are split on whether a COA is required to appeal a district court’s denial

of a Rule 60(b) motion, Gonzalez v. Crosby, 545 U.S. 524, 535 n.7 (2005), the

Fifth Circuit requires a COA only if a Rule 60(b) motion seeks “to amend or alter

the judgment of a first habeas proceeding, in which case the Rule 60(b) motion

should be treated as a successive habeas petition.” Dunn v. Cockrell, 302 F.3d

491, 492 n.1 (5th Cir. 2002). However, the court has read this exception to the

COA requirement narrowly, concluding that Dunn’s exception that “a COA is not

required to appeal the denial of a Rule 60(b) motion applies only when the

purpose of the motion is to reinstate appellate jurisdiction over the original

denial of habeas relief.” Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th

Cir. 2007) (per curiam). In Dunn, the court allowed a petitioner to appeal the

district court’s denial of his Rule 60(b) motion because the motion merely sought

to reinstate his final judgment so he could file a timely notice of appeal. Dunn,

302 F.3d at 493. The petitioner in that case did not seek to appeal the merits of

his habeas petition via the Rule 60(b) motion. Id. at 492.

In Ochoa Canales, by contrast, the petitioner sought relief from a district

court judgmentthat his earlier habeas petition was barred for failure to exhaust

state remedies. Ochoa Canales, 507 F.3d at 886. Citing a “narrow

interpretation” of Dunn,the court held thatthe petitioner was attempting to use

Rule 60(b) to alter the judgment in a habeas proceeding and therefore was

required to obtain a COA. Id. at 888. 

Williams seeks specific relief—an order compelling the government to

disclose documents and granting additional time for supplemental briefing—and

thus seeks relief other than the mere “reinstate[ment of] appellate jurisdiction

over the original denial of habeas relief” sought in Dunn. See Ochoa Canales,

507 F.3d at 888. If the exception to the COA requirement articulated in Dunn
No. 07-70006

28

is indeed limited to the facts of Dunn, a COA is required in this case. Compare

Hunt v. Quarterman, 270 F. App’x 357, 357 (5th Cir. 2008) (per curiam) (“[The

petitioner’s] Rule 60(b) motion did not merely seek authorization for out-of-time

appeal. Rather, he raised several claims related to the judgment dismissing his

§ 2254 petition. Consequently, the COA requirement applies to his appeal from

the judgment denying his Rule 60(b) motion.”) with Davis v. King, 270 F. App’x

355, 356 (5th Cir. 2008) (per curiam) (“As [the petitioner] was not attempting to

use his motion for reconsideration to alter the judgment in his underlying

habeas petition, but instead attempting to vacate the judgment and have it

reentered so that he could file a timely notice of appeal, a COA is not

necessary.”). 

Williams also must obtain a COA to appeal his Rule 59(e) motion.

Although we have not previously addressed this issue, we find the Second

Circuit’s reasoning persuasive:

[T]he evident Congressional intent of § 2253(c)(1) is to weed out

unmeritorious appeals taken from denials of habeas petitions; that

it would be rather anomalous for Congress to have intended that

appeals be allowed from the denial of Rule 60(b) motions without

the same scrutiny; and that the interest served by the COA

requirement—relieving the state and the court system of the

burdens resulting from the litigation of insubstantial appeals—is

served by the application ofthat requirementto appeals from orders

denying post-judgment relief. These rationales apply with equal

force to Rule 59(e) motions. We therefore conclude that the

§ 2253(c)(1) COA requirement applies to an appeal from an order

denying a Rule 59(e) motion when the underlying judgment is a

denial of a § 2254 petition.

Jackson v. Albany Appeal Bureau Unit, 442 F.3d 51, 54 (2d Cir. 2006) (internal

quotation marks, citations, and footnote omitted). 

Normally, we may construe a petitioner’s notice of appeal as a request for

a COA. See FED. R. APP.P. 22(b). However, Williams never sought a COA from

the district court on the denials of his Rule 60(b) and 59(e) motions. Even if we
No. 07-70006

29

were to construe his notice of appeal as a request for a COA from this court, a

petitioner must first request a COA from the district court before requesting it

from an appellate court. See Sonnier v. Johnson, 161 F.3d 941, 945-46 (5th Cir.

1998); Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998). “Compliance

with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the lack

of a ruling on a COA in the district court causes this court to be without

jurisdiction to consider the appeal.” Whitehead, 157 F.3d at 388 (citing Muniz

v. Johnson, 114 F.3d 43, 45 (5th Cir. 1997)). Therefore, we will not consider the

merits of Williams’s 60(b) and 59(e) motions. 

We have previously remanded a case to the district court where a

petitioner failed to seek a COA from the district court before appealing the

denial of Rule 59(e) and 60(b) motions. See, e.g., United States v. Arzola-Amaya,

247 F.3d 240, 2001 WL 43527, at *1 (5th Cir. 2001) (per curiam) (unpublished

table decision). Because our precedent requires a district court to first consider

whether to grant a COA, we remand these two issues to the district court to

make that determination. 

III. CONCLUSION

For the reasons stated above, we affirm the district court’s denial of

habeas corpus relief on Williams’s claim of mental retardation. However,

because we lack jurisdiction to consider Williams’s appeal of his post-judgment

motions, we remand to the district court to consider whether to grant or deny a

COA on those issues. 

AFFIRMED IN PART AND REMANDED.