* 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. 07-70010

REGINALD PERKINS

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, Fort Worth

USDC No. 4:06-CV-687-A 

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Petitioner Reginald Perkins, a Texas death row inmate, requests a

certificate of appealability to appeal the district court’s denial of his petition for

a writ of habeas corpus. For the following reasons, this request is DENIED.

I. BACKGROUND

United States Court of Appeals

Fifth Circuit

F I L E D

November 15, 2007

Charles R. Fulbruge III

Clerk
No. 07-70010

2

Reginald Perkins was convicted of capital murder and sentenced to death

for the December 4, 2000, strangulation death of his stepmother, GertiePerkins.

A full account of the underlying facts can be found in the district court’s opinion,

Perkins v. Quarterman, No. 4:06-CV-687-A (N.D. Tex. Mar. 1, 2007). We have

included the facts relevant to each of Perkins’s claims on appeal in our

discussion below. The Texas Court of Criminal Appeals affirmed Perkins’s

conviction and sentence on direct appeal, Perkins v.State, No. 74,318 (Tex. Crim.

App. June 30, 2004) (unpublished), and the Supreme Court denied certiorari,

Perkins v. Texas, 543 U.S. 1164 (2005). Perkins also filed a state petition for

habeas corpus. The state trial court held lengthy evidentiary hearings

(generating six volumes of transcript and one volume of exhibits), adopted

findings of fact and conclusions of law, and recommended that the petition be

denied. The Texas Court of Criminal Appeals adopted the trial court’s findings

and denied relief. Ex parte Perkins, No. WR-64,354-01 (Tex. Crim. App. Sept. 13,

2006). Perkins next filed a federal habeas petition in the Northern District of

Texas, alleging seven grounds for relief. The district court denied all relief, and

denied a certificate of appealability (COA) on all claims. Perkins now requests

a COA for an Atkins claim, two ineffective assistance of counsel claims, a

constitutional challenge to the Texas sentencing statute, and an actual

innocence claim.

II. STANDARD OF REVIEW

Perkins’s federal habeas petition was filed in 2006, so it is subject to the

requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA).

See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, a petitioner

must obtain a COA in order to appeal the denial of his petition in district court.

28 U.S.C. § 2253(c)(1). Because the district court denied Perkins’s application

for a COA, he now requests one from this court. See id.
No. 07-70010

3

We may issue a COA only if a petitioner makes “a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating thatjurists 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) (citing Slack v. McDaniel, 529

U.S. 473, 484 (2000)). The COA determination is a “threshold inquiry” that

consists of “an overview of the claims in the habeas petition and a general

assessment of their merits,” but “does not require full consideration of the

factual or legal bases adduced in support of the claims.” Id. at 336. “While the

nature of a capital case is not of itself sufficient to warrant the issuance of a

COA, in a death penalty case any doubts as to whether a COA should issue must

be resolved in the petitioner’s favor.” Johnson v. Quarterman, 483 F.3d 278, 285

(5th Cir. 2007) (citing Ramirez v. Dretke, 398 F.3d 691, 694 (5th Cir. 2005)).

We also recognize that the district court evaluated Perkins’s claims under

AEDPA’s deferential framework. Under AEDPA, habeas relief may not be

granted on any claim adjudicated on the merits in state court unless the state

court’s adjudication “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court,” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence.” 28 U.S.C.

§ 2254(d). In addition, “a determination of a factual issue made by [the] State

court shall be presumed to be correct” unless rebutted by clear and convincing

evidence. Id. § 2254(e)(1).

III. DISCUSSION

Perkins now requests a COA on five issues: (1) whether his death sentence

is barred by the Eighth Amendment because he is mentally retarded; (2)

whether trial counsel rendered ineffective assistance by failing to investigate
No. 07-70010

4

and present evidence that he is mentally retarded; (3) whether trial counsel

rendered ineffective assistance by failing to investigate and present mitigating

evidence at the punishment phase of his trial; (4) whether the Texas sentencing

scheme unconstitutionally places the burden of proof for mitigation on the

criminal defendant; and (5) whether his death sentence is unconstitutional

because he is actually innocent. We address each issue in turn. 

A. Mental Retardation

The state court found that Perkins is not mentally retarded. The district

court concluded that this decision was not unreasonable, and that Perkins had

failed to controvert the state court’s finding with clear and convincing evidence.

We must now determine if reasonable jurists would disagree with this

conclusion.

The Supreme Court’s decision in Atkins v. Virginia barred the execution

of mentally retarded persons, but left “to the State[s] the task of developing

appropriate ways to enforce the constitutional restriction.” 536 U.S. 304, 317

(2002). Texas courts have responded to Atkins by requiring a person claiming

to be mentally retarded to “show that he suffers from a disability characterized

by (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.” In re

Salazar, 443 F.3d 430, 432 (5th Cir. 2006) (citing Ex parte Briseno, 135 S.W.3d

1, 7 (Tex. Crim. App. 2004)) (internal quotation marks omitted).

With regard to the first element, three IQ tests were administered in

connection with the state court proceedings, with Perkins’s scores ranging from

66 to 80. In September 2003, Perkins scored a 68 on the Wechsler Adult

Intelligence Scale, Third Edition (WAIS-III). The state habeas court found this

result unreliable, though, because Perkins took the test immediately after

undergoing an upsetting psychological evaluation. At the state evidentiary
No. 07-70010

5

hearings, the doctor who administered the evaluation and IQ test stated that,

in hindsight, it would have been preferable to administer the IQ test first, when

Perkins was “fresher” and not burdened with “emotionally loaded information.”

This doctor had initially believed Perkins to be mentally retarded, but testified

that he was “uncertain” and “no longer willing to state with a reasonable degree

of psychological certainty” that Perkins is mentally retarded. In June 2004,

Perkins took the WAIS-III again, without being interviewed beforehand, and

scored an 80. The doctor who administered this test believed it represented

Perkins’s true ability, and that the earlier score of 68 was probably due to

“emotional interference.”

Nonetheless, in the face of the two conflicting scores on the WAIS-III, the

state court suggested that a third evaluation be performed, and in May 2005

Perkins scored a 66 on a different IQ test,the Stanford-Binet V. However, in the

second part of the state evidentiary hearing (which was postponed for fifteen

months to allow for the third test), the doctor who administered this test stated

“with a high degree of certainty” that the result was not valid because Perkins

did not give full effort. He compared Perkins’s results to the results of a group

“who were asked to deliberately feign cognitive problems,” and concluded that

Perkins satisfied the criteria for “probable malingering.” The state court

discounted the result from the Stanford-Binet test because of the lack of full

effort and incentive to malinger on Perkins’s part. It found that the second test,

in which Perkins scored an 80, was a reliable and accurate measure of Perkins’s

IQ.

On the second element, Perkins’s doctor testified that it is difficult to

measure adaptive functioning in a person, like Perkins, who has been

institutionalized for a substantial period of time. However, anecdotal reports of

Perkins’s family, an academic skills test, and Perkins’s self-reporting were said

to show evidence of adaptive behavior deficits. The record from the state habeas
No. 07-70010

6

proceedings shows thatPerkins had obtained a commercial driver’s licence, been

employed as a truck driver, completed numerous prison classes while previously

incarcerated, and scored well in prison job and school evaluations. He had the

ability to read maps and follow directions, write checks, drive a nine-speed

manual transmission truck, calculate his pay based on a percentage of his

employer’s receipts, and play chess. The state also called attention to the

circumstances of the crime, which Perkins took steps to conceal by creating an

alibi and attempting to castthe blame on another. From this evidence, the state

court concluded that Perkins did not have adaptive behavior deficits linked to

deficits in intellectual functioning.

Finally, there was little evidence in support of the third element, onset

before the age of 18. Perkins contends that it would be unrealistic to expect him

to produce detailed records on this element because he was raised by a family of

minimal education in rural Arkansas and attended segregated schools, but the

state court found no onset before the age of 18.

The district court determined that the state court’s finding that Perkins

is not mentally retarded was not unreasonable and had not been controverted

by clear and convincing evidence. Particularly in light of the state trial court’s

lengthy habeas hearings and detailed findings of fact and conclusions of law, we

do not believe that reasonable jurists would find this decision debatable. The

crux of the matter is that not one of the three psychologists who evaluated

Perkins was willing to definitively label him mentally retarded. We deny a COA

on this issue.

B. Ineffective Assistance of Counsel — Mental Retardation

Perkins also claims that his trial counsel rendered ineffective assistance

by failing to investigate or present evidence of his alleged mental retardation.

This claim is governed by the familiar standard of Strickland v. Washington, 466

U.S. 668 (1984). To prevail, Perkins must show that his counsel rendered
No. 07-70010

7

deficient performance, and that his defense was prejudiced by the deficiency. Id.

at 687. The district court reasoned that even if trial counsel had been deficient,

Perkins could not satisfy Strickland’s prejudice prong because he is not in fact

mentally retarded. In light of the above discussion of Perkins’s Atkins claim, we

do not believe this conclusion is debatable. To the extent Perkins also argues

that evidence of limited intelligence, though not amounting to mental

retardation, might still have been presented as a mitigating factor at sentencing,

we likewise believe debate on the district court’s decision to be foreclosed, for the

reasons we discuss in our consideration of Perkins’s next claim.

C. Ineffective Assistance of Counsel — Mitigating Evidence

Perkins next seeks a COA to appeal the district court’s denial of his claim

that trial counsel rendered ineffective assistance by failing to investigate or

present mitigating evidence at sentencing. The district court agreed with the

state court’s conclusion that counsel’s performance was reasonable. The district

court also concluded that Perkins could not show prejudice as required by

Strickland.

At Perkins’s sentencing hearing, the prosecution first established that in

1980, Perkins pled guilty to rape, attempted rape, and gross sexual imposition,

charges that arose out of sexual assaults on two twelve-year-old girls in Ohio.

The state also introduced evidence linking Perkins to the strangulation murders

of two other women in Ohio. One of these women was the mother of one of the

twelve-year-old girls Perkins had raped. Perkins allegedly had warned this girl

that if she told anybody what had happened, he would kill whoever she told; her

mother found out about the rape and was murdered shortly thereafter. The

second woman was the pregnant twin sister of Perkins’s girlfriend. The state

also contrasted the kindness and affection shown to Perkins by his

stepmother—she wrote him letters in prison, loaned him money, arranged for a

job after he was paroled, and generally treated him like a son—with the
No. 07-70010

1 Under Texas law, a defendant is eligible for the death penalty only if the jury

unanimously finds that “there is a probability that the defendant would commit criminal acts

of violence that would constitute a continuing threat to society.” TEX. CODE CRIM. PROC. art.

37.071, § 2(b). 

8

circumstances of the crime—he clubbed and strangled her in her own house,

stashed her body in the trunk of her car, and then pawned her wedding ring.

The defense’s strategy at sentencing was to convince the jury that Perkins

would not be a future danger in prison.1 Through an expert witness, the defense

showed a videotape detailing the structured, ordered nature of Texas prisons,

and argued that Perkins was a low risk for violence in such an environment.

Perkins’s then-current jailor testified that he was not a disciplinary problem

while in custody. A forensic psychologist, who had examined Perkins’s prior

prison records as well as general statistical studies of prison violence, used

actuarial methods to conclude that there was an 85 to 90 percent likelihood that

Perkins would not commit an act of serious violence in prison. He also

emphasized that Perkins’s age at the time of the trial (47) and relatively nonviolent prior prison record were factors that reduced the risk that he would

engage in violent behavior. The defense also called fact witnesses in an attempt

to cast doubt on the state’s evidence of Perkins’s extraneous offenses.

The state court found trial counsel’s decision to focus on the future

dangerousness issue at sentencing to be a reasonable trial strategy. In

evaluating decisions such as this one,the Supreme Court distinguishes between

“strategic choices made after thorough investigation of law and facts relevant to

the plausible options” and “strategic choices made after less than complete

investigation”: the former “are virtually unchallengeable,” while the latter “are

reasonable precisely to the extent that reasonable professional judgments

support the limitations on investigation.” Strickland, 466 U.S. at 690–91. The

primary focus,then, is “not whether counsel should have presented a mitigation

case,” but “whether the investigation supporting counsel’s decision not to
No. 07-70010

9

introduce mitigation evidence . . . was itself reasonable.” Wiggins v. Smith, 539

U.S. 510, 522–23 (2003) (emphasis in original).

The reasonableness of an investigation into a capital defendant’s

background has been at issue in three recent Supreme Court cases. In Williams

v. Taylor, the Court determined that trial counsel’s failure to present mitigating

evidence could not be justified as a strategic choice, because counsel “did not

fulfill their obligation to conduct a thorough investigation of the defendant’s

background.” 529 U.S. 362, 396 (2000). Counsel in that case failed to obtain

records chronicling Williams’s “nightmarish childhood” because counsel

incorrectly believed that state law barred access to the records. Id. at 395.

Counsel also failed to seek prison records or obtain the testimony of prison

officials who described Williams as “least likely to act in a violent, dangerous or

provocative way.” Id. at 396.

In Wiggins v.Smith,the Court determined thattrial counsel conducted an

unreasonably limited investigation before deciding not to present a mitigation

case. 539 U.S. at 523–24. There, counsel consulted only two sources revealing

anything about the defendant’s “life history”: a one-page pre-sentence

investigation report prepared by the parole and probation office, and city social

services records. Id. Because of this limited investigation, counsel failed to

uncover “evidence of severe physical and sexual abuse.” Id. at 516.

Finally, in Rompilla v. Beard, the Court held that even when the

defendant and his family members suggest no mitigating evidence is available,

his lawyer is bound to obtain and review material that counsel knows the

prosecution plans to rely on at sentencing. 545 U.S. 374, 377 (2005). The Court

found prejudice in Rompilla’s case because a review of that material, a prior

conviction file, “would have destroyed the benign conception of Rompilla’s

upbringing and mental capacity . . . formed from talking with Rompilla himself
No. 07-70010

10

and some of his family members” and alerted counsel that further investigation

was necessary. Id. at 391.

With these precedents in mind, we make a “threshold inquiry” into

Perkins’s claim that counsel’s investigation was inadequate. The record of the

state habeas proceedings (including the hearings, which thoroughly explored this

claim) shows that trial counsel began by asking Perkins to give an account of his

life, including information regarding his childhood and any abuse or other

traumatic experiences he suffered. In a written statement, Perkins recounted

that his mother whipped her children with extension cords, mop handles, broom

sticks, a belt, or “whatever she got her hands on.” At age thirteen, Perkins

moved to Texas with his father, who also whipped him with a belt or extension

cord in a similar manner. However, Perkins characterized these whippings as

a form of discipline, stating that, “I was young, and they only wanted me to

make something out of my life.”

In addition, the defense obtained copies of Perkins’s Ohio prison records,

which, since Perkins had been incarcerated in Ohio for a large portion of his

adult life, were extensive. These records included psychological and medical

reports, prison education records, prison job evaluations, and Perkins’s own

writings. Where these records touched on Perkins’s background and family

history, they largely confirmed what he had revealed in his written statement.

Trial counsel also employed a private investigator who traveled to

Cleveland and met with five members of Perkins’s family. The investigator

learned that Perkins’s mother was in the habit of using switches and extension

cords to whip her children. However, the family members indicated that they

did not consider the mother abusive, but merely “very strict.” They called her

the “best of the best,” who “was always there for each of the kids.” The

investigator did not interview the mother, who by that time was in a nursing

home suffering from dementia. After the Cleveland meeting, the investigator
No. 07-70010

2 This evidence provided a much darker account of Perkins’s childhood; for example,

Perkins’s sister stated that (1) Perkins’s mother tried to abort him with a coat hanger and by

drinking castor oil and bleach; (2) Perkins witnessed weekly, violentfights between his mother

and her common-law husband, who both drank heavily; (3) Perkins’s mother prostituted

herself to a neighbor so that Perkins and his brother could steal firewood from the neighbor;

and (4) Perkins and his siblings were neglected and emotionally abused by their mother.

11

kept in touch with the family by phone, and several family members traveled

from Cleveland to Fort Worth for Perkins’s trial, where they periodically met

with trial counsel and the investigator.

After obtaining trial counsel’s file, receiving affidavits from counsel and

Perkins’s family, and hearing testimony from counsel, the investigator, a

mitigation specialist, and Perkins’s family at the evidentiary hearing, the state

habeas court concluded that counsel’s investigation was not deficient. Perkins

argues that the investigation was nonetheless inadequate because it failed to

uncover a large quantity of potentially mitigating evidence about his

background, which was presented by the family for the first time in the state

habeas proceeding.2 However, the state court found that the affidavits and

testimony relating this evidence were not credible and were inconsistent with

the information originally given to the investigator.

In light ofthe investigation conducted,the state courtfound that counsel’s

decision to argue and present evidence on the lack of future dangerousness (as

distinguished from evidence aboutPerkins’s difficult childhood) was reasonable.

Counsel knew that Perkins’s childhood was less than ideal, but did not believe

this fact would be particularly effective as a mitigating factor in light of

Perkins’s prior criminal history and age at the time of the murder (45). The

district court essentially agreed with the state court’s conclusion that counsel’s

performance was reasonable, and we do not believe this decision is debatable.

Accordingly, we need not consider the district court’s determination that Perkins

failed to demonstrate prejudice under Strickland’s second prong. We deny a

COA on this issue.
No. 07-70010

12

D. The Texas Sentencing Statute

Perkins next relies on Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Ring v. Arizona, 536 U.S. 584 (2002), to argue that the Texas sentencing statute

is unconstitutional because it does not place the burden on the State of proving

beyond a reasonable doubtthatthere are no mitigating circumstances sufficient

to warrant the imposition of a life sentence rather than a death sentence. But

as Perkins recognizes, this circuit has rejected the argument that Apprendi and

Ring require the state to prove beyond a reasonable doubt the absence of

mitigating circumstances. See Granados v. Quarterman, 455 F.3d 529, 536–37

(5th Cir. 2006); Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005). The district

court’s denial of this claim is therefore not debatable, and we deny a COA on this

issue.

E. Actual Innocence

Finally, Perkins argues that he is actually innocent of the capital murder

for which he was convicted, and offers his own affidavit in support. He also

speculates that a jailhouse snitch who testified against him might have had his

charges reduced in exchange for testimony. The district court denied relief on

this claim.

Since Perkins has not asserted actual innocence as a “gateway” to obtain

review of an otherwise barred claim, see Dowthitt v. Johnson, 230 F.3d 733, 741

(5th Cir. 2000), the only question is whether a stand-alone claim of actual

innocence is cognizable in a federal habeas petition. In Herrera v. Collins, the

Supreme Court assumed, for the sake of argument,that“in a capital case a truly

persuasive demonstration of ‘actual innocence’ made after trial would render the

execution of a defendant unconstitutional, and warrant federal habeas relief if

there were no state avenue open to process such a claim.” 506 U.S. 390, 417

(1993). Whether such stand-alone claims of actual innocence claims are in fact

possible is a question the Supreme Court has “decline[d] to resolve,” House v.
No. 07-70010

13

Bell, 126 S. Ct. 2064, 2087 (2006), but this circuit has not read Herrera as

allowing such claims. See Foster v. Quarterman, 466 F.3d 359, 367–68 (5th Cir.

2006); Dowthitt, 230 F.3d at 741–42. The district court’s denial of this claim is

therefore not debatable, and we deny a COA on this issue.

IV. CONCLUSION

Perkins’s request for a COA is DENIED.