Full opinion text
MEMORANDUM AND ORDER NANCY F. ATLAS, District Judge. Virgilio Maldonado (“Maldonado”), a Texas inmate incarcerated under a sentence of death, petitions for habeas corpus relief. (Doc. # 1). A jury convicted Maldonado for committing the capital murder of Cruz C. Saucedo during a robbery. After a separate punishment hearing, the same jury answered Texas’ special issue questions in a manner requiring the imposition of a death sentence. After availing himself of Texas’ appellate and post-conviction remedies, Maldonado now seeks federal habeas relief from his conviction and sentence pursuant to 28 U.S.C. § 2254. This action comes before the Court on Respondent Rick Thaler’s Motion for Summary Judgment. (Doc. # 17). The parties have extensively briefed the issues raised by Maldonado’s habeas petition. The Court has thoroughly reviewed the record in this case, including the state court pretrial, trial, appellate, and habeas proceedings. Based on this review of the record and the application of governing legal authorities, with special consideration given to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court grants Respondent’s summary judgment motion. FACTUAL BACKGROUND AND PROCEDURAL HISTORY On direct appeal, the Texas Court of Criminal Appeals summarized the trial evidence relating to the victim’s murder: On Friday, November 11, 1995, after an evening playing volleyball, Augustin Saucedo dropped his father, Cruz Sauce-do, off at his apartment. Augustin tried to contact his father that weekend, but received no response when he paged him (his father did not have a phone, only a pager). On the following Tuesday, when Augustin still had not heard from his father, he contacted his sisters, Paula and Hericelda, who lived in the same apartment complex as their father. Paula provided Augustin with a key to their father’s apartment and accompanied him to the apartment. Augustin then discovered the decomposing body of his father lying on the kitchen floor. Cruz Saucedo’s hands had been bound with the electric cord of a Black & Decker iron and he had been shot twice in the head with a .45-caliber semi-automatic weapon. The police discovered four bricks of marijuana hidden in the apartment and recovered a pillow with two bullet holes soaked with “body fluids.” Augustin noticed his father was not wearing a necklace he normally wore. Also, investigators found several cans of air freshener in the apartment, which Augustin had not noticed before his father’s death. Investigators deduced the air freshener indicated someone stayed in the apartment for a period of time after the victim’s death and sought to mask the stench of decay. Maldonado v. State, 998 S.W.2d 239, 242-43 (Tex.Crim.App.1999) (footnotes omitted). The police had no leads in Mr. Saucedo’s murder for some time. Several months later, the police arrested Maldonado for an unrelated bank robbery. While Maldonado was in custody, the police received information that he had been involved in the Saucedo murder. The police informed Maldonado of his constitutional rights and interrogated him. Maldonado confessed to the killing. The Court of Criminal Appeals described the circumstances surrounding Maldonado’s interrogation and his subsequent confession: On April 24th ... the police “received information” implicating [Maldonado] in this homicide. Officer Jaime Escalante went to the Harris County Jail to interview [Maldonado] who was incarcerated on unrelated charges. Escalante read [Maldonado] his Miranda rights in Spanish. [Maldonado] was talkative, but refused to discuss the instant offense. He asked Escalante to come back the next day and he would think about giving him a statement. Escalante returned the following day and, after he read [Maldonado] his constitutional rights again, [Maldonado] gave a tape recorded statement admitting his participation in this offense and others. In the recorded statement, [Maldonado] admitted entering the victim’s apartment with another man named Felix or Benito, while a third man, Adan, waited in the car. [Maldonado] was carrying a .45-caliber pistol. They went to the apartment because Felix wanted to borrow a “cuerno” (AK-47). [Maldonado] also asked the victim to loan them a pistol. When the victim refused to give them a “cuerno” or a pistol, Felix bound the victim with the cord of the iron in the kitchen. [Maldonado] and Felix then demanded to know where the pistol was and also demanded to know the location of some marijuana they believed the victim had in his possession. The victim told them the marijuana was under the bed and the pistol was in the vacuum cleaner. Felix retrieved these items, then told [Maldonado] to kill the victim. [Maldonado] remembered shooting the victim three times in the head, using a pillow to muffle the sound. [Maldonado] noted that Felix was giving the orders and Felix took the marijuana out to the car. Maldonado, 998 S.W.2d at 242-43. The State of Texas charged Maldonado with capital murder committed during the course of a robbery. Cruz Cervantes and John Derringer (collectively “trial counsel”) represented Maldonado at trial. A jury convicted Maldonado of capital murder. A separate punishment hearing resulted in a death sentence. Maldonado filed an automatic direct appeal with the Texas Court of Criminal Appeals. Maldonado’s trial counsel, Cruz Cervantes, represented him on appeal. On direct appeal, Maldonado raised several points of error. The Court of Criminal Appeals found that Maldonado preserved error with regard to each appellate claim, considered their merits, and affirmed his conviction and sentence. See Maldonado, 998 S.W.2d at 242-43. Maldonado did not file a petition for a writ of certiorari in the United States Supreme Court. Maldonado filed his first application for a writ of habeas corpus during the pendency of his direct appeal. Of particular importance to the instant proceedings, the state habeas court procedurally barred Maldonado’s claims based on the Sixth Amendment right to counsel and international law. The state habeas court, however, alternatively denied relief on all claims. Ex parte Maldonado, No. 51,612-01 (Tex. Crim. App 2002). Maldonado then initiated federal habeas proceedings. Maldonado v. Cockrell, No. H-03-CV-811 (S.D.Tex.). Through appointed counsel, Maldonado filed a federal habeas petition that contained several claims which he had not presented to the state courts. As this Court will discuss at length later, the Court dismissed Maldonado’s initial federal petition without prejudice to allow for the exhaustion of state remedies. Maldonado in turn filed a second state habeas application in the Court of Criminal Appeals. Ex parte Maldonado, No. 51,612-02 (Tex.Crim.App.). Maldonado’s second habeas application raised three main claims: (1) mental retardation precludes his execution under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); (2) the police violated his Fifth Amendment rights by interviewing him while he had counsel appointed on a separate criminal charge; and (3) trial counsel provided ineffective assistance at both the guilt/innocence and penalty phases, particularly by not investigating his mental retardation and not presenting additional mitigating evidence. The Court of Criminal Appeals found that Maldonado only met the state law requirements for filing a successive application with respect to his Atkins claim. The Court of Criminal Appeals dismissed Maldonado’s other claims under its abuse-of-the-writ doctrine because he should have raised them earlier. The Court of Criminal Appeals remanded Maldonado’s Atkins claim to the trial court. The lower court allowed briefing, heard oral argument, and held an evidentiary hearing. The lower court issued comprehensive proposed findings and conclusions recommending that the Court of Criminal Appeals deny habeas relief. The Court of Criminal Appeals adopted the lower court findings and denied Maldonado’s Atkins claim. During the pendency of Maldonado’s second habeas action, he filed a third habeas application in state court that again alleged that his conviction and sentence violated international law. Ex parte Maldonado, No. 51,612-03 (Tex.Crim.App.). The Court of Criminal Appeals dismissed Maldonado’s third application as an abuse of the writ. Maldonado returned to federal court. The Court summarizes the grounds for relief he raises in his amended federal habeas petition as follows: 1. Mental retardation precludes Maldonado’s execution. 2. Maldonado’s conviction and sentence are infirm because the State did not give adequate notice of his right to consular assistance under the Vienna Convention on Consular Relations. 3. The State violated the Fifth Amendment by interrogating Maldonado after he invoked his right to counsel. 4. Repeated interrogations by police officers outside the presence of counsel violated Maldonado’s Sixth Amendment rights. 5. Trial counsel provided ineffective representation by failing to present additional mitigating evidence, discover his mental retardation, and act on his consular rights. 6. The State withheld evidence, including that of complaints made against the officer who interrogated Maldonado. 7. The Court of Criminal Appeals violated Maldonado’s federal constitutional rights by relying on unreliable and unscientific testimony when denying his Atkins claim. Respondent has moved for summary judgment. (Doc. # 17). Respondent argues that procedural law forecloses federal review of Maldonado’s entire petition because he did not file in a timely manner. Also, Respondent argues that the operation of state procedural law prevents federal consideration of several claims. Alternatively, Respondent asserts that all Maldonado’s federal habeas claims lack merit. Maldonado has responded to the summary judgment motion. (Doc. # 18). Maldonado’s federal habeas petition is ripe for adjudication. LEGAL STANDARDS The Constitution honors the writ of habeas corpus as “a vital instrument for the protection of individual liberty[.]” Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2246, 171 L.Ed.2d 41 (2008). Federal courts and Congress, however, “adjust the scope of the writ in accordance with equitable and prudential considerations.” Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 1040, 169 L.Ed.2d 859 (2008). Congress has limited the contours of federal habeas jurisdiction to “violation[s] of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Habeas law, however, balances an inmate’s constitutional rights against the State’s interest in preserving the integrity of a jury verdict. See Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (“The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.”); Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923) (“[W]hat we have to deal with [on habeas review] is not the petitioners’ innocence or guilt but solely the question whether their constitutional rights have been preserved.”). Through statutory law and jurisprudential limitations, federal habeas proceedings honor the “presumption of finality and legality [that] attaches to [a petitioner’s] conviction and sentence.” Barefoot, 463 U.S. at 887, 103 S.Ct. 3383. The AEDPA The AEDPA gives effect to many traditional limits on federal habeas review. Most notably, a deferential review of state court judgments exists “to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); see also Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) (“Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases and to further the principles of comity, finality, and federalismo]”). To that end, the AEDPA forbids habeas relief on issues “adjudicated on the merits” in state court unless the state decision “was contrary to, or an unreasonable application of, clearly established Federal law” or “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). In practice, these standards generously defer to state adjudication. The Supreme Court has held that a state court decision is only “contrary to” federal precedent if: (1) the state court’s conclusion is “opposite to that reached by [the Supreme Court] on a question of law” or (2) “the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Cone, 535 U.S. at 698, 122 S.Ct. 1843; Early v. Packer, 537 U.S. 3, 7-8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). A state court may unreasonably apply federal law if it “identifies the correct governing legal rule from [the Supreme Court] cases but unreasonably applies it to the particular facts of the particular state prisoner’s ease” or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407, 120 S.Ct. 1495. The AEDPA also affords significant deference to a state court’s resolution of factual issues. Under 28 U.S.C. § 2254(d)(2) “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding^]” Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). A federal habeas court must presume the underlying factual determinations of the state court to be correct unless the petitioner “rebutfs] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El, 537 U.S. at 341, 123 S.Ct. 1029. Habeas law does not guarantee that a petitioner’s compliance with 28 U.S.C. § 2254 entitles him to habeas relief. See Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (noting that no Supreme Court case “ha[s] suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard[.]”); Robertson v. Cain, 324 F.3d 297, 306 (5th Cir.2003) (finding that 28 U.S.C. § 2254(d) “does not require federal habeas courts to grant relief reflexively”). Other judicial doctrines, such as the harmless-error doctrine and the non-retroactivity principle, bridle federal habeas relief. See Thacker v. Dretke, 396 F.3d 607, 612 n. 2 (5th Cir.2005). The harmless-error doctrine allows relief predicated on trial errors only when they “ha[d] a ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Robertson, 324 F.3d at 304 (quoting Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); see also Aleman v. Sternes, 320 F.3d 687, 690-91 (7th Cir.2003) (“Nothing in the AEDPA suggests that it is appropriate to issue writs of habeas corpus even though any error of federal law that may have occurred did not affect the outcome.”). The non-retroactivity doctrine flowing from Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), disallows relief if it would require the creation of new constitutional law. See Horn, 536 U.S. at 272, 122 S.Ct. 2147. Summary Judgment Respondent has moved for summary judgment. Summary judgment is proper where the record shows “no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. In ordinary civil cases, a district court considering a motion for summary judgment must construe disputed facts in a light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“The evidence of the nonnaovant is to be believed, and all justifiable inferences are to be drawn in his favor”). “As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). However, a court must view a summary judgment motion through “the prism of the substantive evidentiary burden.” Anderson, 477 U.S. at 254, 106 S.Ct. 2505. Congress intended the AED-PA to constrict both the nature and availability of habeas review. The Rules Governing Section 2254 Cases in the United States District Courts, along with traditional habeas practice, also allow for the summary dismissal of habeas claims. This Court, therefore, applies general summary judgment standards only insofar as they do not conflict with the language and intent of the AEDPA or other habeas law. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.2002) (“[Rule 56] applies only to the extent that it does not conflict with the habeas rules.”), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”). Where the state courts have already resolved a prisoner’s factual allegations by express or implicit findings, and the prisoner does not prove by clear and convineing evidence that 28 U.S.C. § 2254(e)(i )’s presumption of correctness should not apply, construing facts in his favor is inappropriate and unauthorized. Maldonado presented many of his claims in state court. The state courts issued detailed findings of fact and explicit conclusions of law with respect to each exhausted claim. Accordingly, the AEDPA largely guides this Court’s summary judgment review. As noted above, facts that the Texas state courts have decided adversely to Maldonado bind this Court unless he sufficiently refutes them. Federal law plainly allows for summary dismissal of unexhausted claims even when no state fact findings guide federal review. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”). Procedural Impediments to Federal Habeas Review As a precursor to federal review of his conviction and sentence, Maldonado must show that he presents his claims in a procedurally adequate manner. Respondent argues that several claims are unexhausted or procedurally barred. The exhaustion and procedural default doctrines, both of which embody federal acquiescence to principles of comity and federalism, restrict consideration of habeas claims. Federal courts have long required inmates to give state courts the first chance to rectify constitutional violations. See Ex parte Royall, 117 U.S. 241, 251-52, 6 S.Ct. 734, 29 L.Ed. 868 (1886). To avoid the “ ‘unseemliness]’ of a federal district court’s overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance,” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), the AEDPA requires an inmate to raise his federal habeas claims in the highest state court before habeas relief becomes available. See 28 U.S.C. 2254(b)(2); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir.1999); Burns v. Estelle, 695 F.2d 847, 849 (5th Cir.1983). Absent compliance with the exhaustion doctrine, the AEDPA only gives a federal court authority to deny a habeas claim. See 28 U.S.C. § 2254(b)(2). Respondent argues that Maldonado has not exhausted several claims. The procedural default doctrine similarly constricts the scope of federal habeas review for claims that an inmate has not exhausted properly. As “[a] corollary to the habeas statute’s exhaustion requirement, ... federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 541 U.S. 386, 392-93, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004); see also Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (stating that federal courts “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment”). Under the procedural bar doctrine, “a habeas petitioner who has failed to meet the State’s procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance.” Coleman, 501 U.S. at 732, 111 S.Ct. 2546. In such cases, consideration of a federal issue gives way to state procedural law. See Lambrix v. Singletary, 520 U.S. 518, 523, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997); Coleman, 501 U.S. at 731, 111 S.Ct. 2546. Respondent argues that Maldonado presented several issues in a way that did not fully comply with state procedure. A petitioner’s failure to exhaust his claims may also result in a federal procedural bar. A federal procedural bar results when a petitioner raises an unexhausted claim and “ ‘the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.’ ” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir.1997) (quoting Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. 2546). In general, an inmate who files a petition containing unexhausted claims usually cannot return to state court because Texas’ abuse-of-the-writ doctrine (codified at Tex.Code Crim. Pro. art. 11.071 § 5) rigorously limits the filing of successive state habeas applications. The Fifth Circuit considers article 11.071 § 5 to be an adequate state procedural bar because the Texas courts strictly and regularly enforce its standards. See Barrientes v. Johnson, 221 F.3d 741, 759 (5th Cir.2000); Muniz v. Johnson, 132 F.3d 214, 221 (5th Cir.1998). Accordingly, the exhaustion and procedural bar doctrines prevent federal consideration of an inmate’s claims. Judicial accommodation prevents a state procedural default from becoming an insurmountable barrier to federal review. The Supreme Court has held that [i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, 111 S.Ct. 2546. If the respondent shows that a state procedural bar precludes federal review, a petitioner shoulders the burden of overcoming the procedural hurdles. See McCleskey v. Zant, 499 U.S. 467, 494-95, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The Court will consider the procedural adequacy of each challenged claim before addressing its merits. THE AEDPA’S LIMITATIONS PERIOD Before considering the merits of Maldonado’s petition, the Court must determine whether he filed the instant action in a timely manner. The AEDPA places strict limits on a petitioner’s ability to file for habeas corpus relief. Under 28 U.S.C. § 2244(d)(1)(A), an inmate generally has one year to file a federal habeas petition after his criminal judgment becomes final on direct appeal. The Court of Criminal Appeals denied Maldonado’s appeal on June 30, 1999, and denied rehearing on September 15, 1999. Although Maldonado did not seek review in the United States Supreme Court, the time in which he could have filed a petition for certiorari tolls the limitations period. See 28 U.S.C. § 2244(d)(1)(A); Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir.2004) (“If a criminal defendant has pursued his direct appeal through the highest state court, then this period includes the 90 days for filing a petition for certiorari to the Supreme Court.”). Because the United States Supreme Court rules consider the time to file for certiorari review to begin after the disposition of a timely filed motion for rehearing, Wilson v. Cain, 564 F.3d 702, 705-06 (5th Cir.2009), the AEDPA limitations period began running 90 days after the Court of Criminal Appeals denied rehearing. See Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir.2003). The AEDPA, however, allows a “properly filed application for State post-conviction or other collateral review” to toll the limitations period. 28 U.S.C. § 2244(d)(2). Maldonado’s initial state habeas action ran concurrent to his direct appeal. Accordingly, Maldonado had one full year from when the Court of Criminal Appeals denied habeas relief on March 6, 2002, to file a federal petition. Ex parte Maldonado, No. 51,612-01 (Mar. 6, 2002). On June 20, 2002, the Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), found a national consensus against the execution of mentally retarded defendants and held that the Eighth Amendment barred such punishment. At that point, two potential deadlines existed for Maldonado’s future federal litigation. Maldonado needed to file a federal habeas petition by March 6, 2003, unless additional state action tolled the AEDPA limitations period. However, because the AEDPA allows petitioners to seek federal review within a year from “the date on which the constitutional right asserted was initially recognized by the Supreme Court,” 28 U.S.C. § 2244(d)(1)(C), Maldonado had until June 20, 2003, to advance any Atkins claim in federal court. See Rivera v. Quarterman, 505 F.3d 349, 352 (5th Cir.2007) (“June 20, 2003 ... was the last day to bring an Atkins claim under AEDPA’s one-year statute of limitations period.”); In re Salazar, 443 F.3d 430, 434 n. 2 (5th Cir.2006) (“The Supreme Court issued its decision in Atkins on June 20, 2002; therefore, the AEDPA limitations period expired on June 20, 2003[.]”). On March 6, 2003, Maldonado filed his initial federal habeas petition. Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. # 9). Maldonado’s first petition was timely, even though he filed it on the last day of the limitations period (when counting from the end of his first state habeas action). In his first federal petition, Maldonado conceded that he raised unexhausted claims, including an Atkins claim. Maldonado, however, argued that the Court should forgive the lack of exhaustion of his claims for several reasons: he previously received inadequate legal representation; his mental retardation made him unable to champion his own case without competent counsel; and the newness of the Atkins decision made him previously unable to present the claim in state court. Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. #9 at 94-97). In his initial petition, Maldonado asked the Court to set in place the following procedure: If this Court chooses to dismiss this petition for failure to exhaust state remedies, protect the Petitioner’s right to meaningful federal habeas review either by entering an order specifically holding this case in abeyance pending exhaustion pursuant to Brewer v. Johnson, 139 F.3d 491 (5th Cir.1998) and/or entering an order specifically finding that the federal statute of limitations contained in the Antiterrorism and Effective Death Penalty Act will be equitably tolled for the entire duration of the time it takes Petitioner to prepare and file a petition for a writ of habeas corpus in state court. Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. # 9 at 98-99). Respondent moved to dismiss the case without prejudice. Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. #17). Respondent, however, would “not waive any argument regarding the application of the AEDPA’s one year statute of limitations for the filing of a federal habeas petition.” Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doe. # 17 at 5). Maldonado filed an objection which expressed his fear that in any successive state habeas action Texas would provide insufficient habeas resources and give inadequate consideration to his mental retardation claim. Also, Maldonado worried about the effect a dismissal would have on the limitations period. Maldonado sought to ameliorate the effects of the limitations period by asking the Court to make two rulings. First, he asked “should this Court decide to dismiss Mr. Maldonado’s Petition without prejudice, this Court clearly must provide equitable tolling for the entire petition from the date of the order to dismiss, while Maldonado proceeds in state court, to the date of refiling in this Court.” Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. #22 at 19). Second, because he filed his first petition before a full year had elapsed from the Atkins decision, Maldonado asked that all his claims “be held to the same limitations period as his Atkins claim.” Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. # 22 at 21). Maldonado requested an expedited ruling from the district court so that he could file his new state habeas application before one year had passed since the Supreme Court issued the Atkins decision. Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. #23). In response, Respondent filed a pleading stating that, after any dismissal without prejudice, the State would not “assert the AEDPA one-year statute of limitations as to his other unexhausted claims, provided that he raise his subsequent federal petition within the time allowed for his Atkins claims.” Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. # 27 at 14). Respondent, however, cautioned: “The Director agrees only to waive the statute of limitations, provided that his federal petition is re-filed within the agreed upon time.” Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. # 27 at 14 n. 13). On June 11, 2003, the Court dismissed the initial petition without prejudice. The Court however, promised that “the statute of limitations for Maldonado to file a federal habeas corpus petition following resolution of his Atkins claim in State court is tolled from March 6, 2003, through the date of this Order.” Maldonado v. Cockrell, No. H:03-cv-811 (S.D.Tex.) (Doc. # 29). Under that Order, two time periods existed: (1) Maldonado was left without any time left on the one-year period from his initial state habeas action and (2) Maldonado had ten days left to raise an Atkins claim. Maldonado filed the instant federal habeas petition on September 14, 2007. (Doc. # 1). Maldonado’s petition is only timely if he qualifies for either statutory or equitable tolling. I. Statutory Tolling Under 28 U.S.C. § 2244(d)(2) “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation!)]” Maldonado filed his successive state habeas application on June 17, 2003. The Texas Court of Criminal Appeals only let Maldonado proceed on his Atkins claim and remanded the case for an evidentiary hearing. During the pendency of that action, Maldonado filed a third state habeas application. On September 12, 2007, 2007 WL 2660292, the Court of Criminal Appeals denied relief on his second habeas application and dismissed his third habeas action. Maldonado filed the instant federal petition two days later, leaving one day remaining on the limitations period for his Atkins claim. While the Respondent does not specifically address the timeliness of Maldonado’s Atkins claim, it is clear that Maldonado filed that claim in a timely manner. Respondent argues that the AEDPA bars all the other claims in the instant federal petition because of gaps— amounting to only a few days — where Maldonado did not have any case pending. Maldonado argues that proper application of the AEDPA makes his entire application timely. Maldonado asserts that § 2244(d)(1)(C), which sets the clock running for some claims on “the date on which the constitutional right was initially recognized by the Supreme Court if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review,” should apply to all the claims he raises in his federal habeas petition. Maldonado’s arguments rest on the assumption that the AEDPA’s limitation period applies to the filing of an entire petition, rather than on a claim-by-claim basis. In other words, Maldonado argues that since his Atkins claim is timely, all his claims should be timely. The Supreme Court and the Fifth Circuit have not yet directly confronted the question of how to count the limitations period for a petition containing both new claims that would be timely under 28 U.S.C. § 2244(d)(1)(C), and also stale ones that would otherwise run afoul of § 2244(d)(1)(A). In essence, the question is whether the limitations analysis requires a claim-by-claim review or whether one timely claim salvages the entire petition. Circuit courts have come to differing conclusions as to whether § 2244(d) requires a claim-by-claim analysis. Compare Fielder v. Varner, 379 F.3d 113, 117-21 (3d Cir.2004) (analyzing the one-year limitations period on a claim-by-claim basis), and Bachman v. Bagley, 487 F.3d 979, 984 (6th Cir.2007) (same), with Walker v. Crosby, 341 F.3d 1240, 1245 (11th Cir.2003) (finding that the entire petition is timely as long as any claim is timely). The Supreme Court has, however, hinted that a claim-by-claim analysis is appropriate. As an aside in considering a related question, the Supreme Court described § 2244(d)(1)(C) as follows: Similarly, § 2244(d)(1) provides that a “1-year period of limitation shall apply to an application for a writ of habeas corpus.” (Emphasis added.) The subsection then provides one means of calculating the limitation with regard to the “application” as a whole, § 2244(d)(1)(A) (date of final judgment), but three others that require claim-by-claim consideration, § 2244(d)(1)(B) (governmental interference); § 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual predicate). Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Under the interpretation suggested by Pace, only those claims expressly covered by 28 U.S.C. § 2244(b)(2) are available for consideration in a successive federal habeas petition. The policies that drive federal habeas review support such a reading of the statute. Congress wanted the limitations period to “speed up the habeas process considerably,” Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999), and “advance the finality of criminal convictions.” Mayle v. Felix, 545 U.S. 644, 662, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). While the delay in the instant case seems minimal, Maldonado’s reading of the statute would allow a petitioner to link claims which he should have raised years before to a claim that is newly developed. This Court does not find support in the AEDPA’s statutory tolling provisions to permit the marriage of stale and fresh claims. Cf. Felix, 545 U.S. at 662, 125 S.Ct. 2562 (barring claims raised in an amended petition filed after the expiration of the limitations period because, otherwise, “AEDPA’s limitation period would have slim significance”). “An interpretation that resurrects otherwise dead claims merely because they are among the living ... hardly seems consistent with the purposes that Congress intended § 2244(d) (1), and the AEDPA generally, to serve.” Ellis v. Quarterman, 2008 WL 2963467, at *6 (S.D.Tex.2008); see also Duncan v. Walker, 533 U.S. 167, 179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (finding that the AEDPA “reduces the potential for delay on the road to finality by restricting the time that a prospective federal habeas petitioner has in which to seek federal habeas review.”). Because a few days passed between the denial of state habeas relief and refiling in federal court, and Maldonado had no time left on the limitations period, the Court finds under a statutory tolling analysis that Maldonado filed only his Atkins claim in a timely manner. From a statutory perspective, Maldonado cannot salvage his time-barred claims by including them in a petition with his Atkins claim. This Court may only consider their merits if equitable principles toll the limitations period. II. Equitable Tolling Federal courts “must be cautious not to apply the statute of limitations too harshly[.]” United States v. Patterson, 211 F.3d 927, 931 (5th Cir.2000); see also Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999). As a judicial accommodation in the interest of justice, federal courts have applied “[t]he doctrine of equitable tolling [to] preserve[ ] a plaintiffs claims when strict application of the statute of limitations would be inequitable.” Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.1998). The Supreme Court has “not decided whether § 2244(d) allows for equitable tolling,” but to this point has assumed that equitable tolling will, in exceptional circumstances, allow federal review of time-barred claims. Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). “[T]he habeas petitioner bears the burden of establishing that equitable tolling is warranted.” Howland v. Quarterman, 507 F.3d 840, 845 (5th Cir.2007); see also Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.2000). “[A] litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace, 544 U.S. at 418, 125 S.Ct. 1807; see also Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.1999). To warrant equitable tolling, a petitioner must present more than a “garden variety claim of excusable neglect.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); Coleman, 184 F.3d at 402. “Equitable tolling is a rare remedy to be applied in unusual circumstances, not a cure-all for an entirely common state of affairs.” Wallace v. Kato, 549 U.S. 384, 396, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Some circumstances in the instant case discourage equitable forgiveness for the late filing. Maldonado asserts that he has been diligent in pursuing relief, especially within the time constraints after the first federal dismissal. When the Supreme Court issued the Atkins decision, Maldonado faced a choice: he could raise an Atkins claim in a successive state habeas application that would toll his limitations period or he could file a federal habeas petition that raised unquestionably unexhausted claims. The limitations period would have been tolled had Maldonado filed his successive state application raising the Atkins claim before March 6, 2003, when he came to federal court. However, Maldonado left himself no time on the AEDPA clock when he sought federal relief first. Maldonado could have avoided the limitations period problems by litigating his Atkins claim in state court before invoking federal jurisdiction. Nonetheless, the circumstances of this case merit equitable tolling. This Court promised to leave Maldonado in the same place as he was before he filed his first petition; it made no other guarantee about equitable tolling. The State of Texas, however, promised more. Whether or not 28 U.S.C. § 2244(d)(1)(C) allows a petitioner to file timely and stale claims together, Respondent assured Maldonado that when he returned to federal court the limitations period for his Atkins claim would apply to all his claims. (Doc. # 27 at 14). Maldonado’s actions strictly complied with a reliance on that guarantee. Respondent now backs off the earlier agreement. The Court will not condone this conduct. Respondent’s reneged promise is a unique circumstance sufficient to allow equitable tolling of the limitations period for Maldonado’s claims. The Court, therefore, holds that the AEDPA’s limitations period does not foreclose federal review of the claims in Maldonado’s petition. The Court now turns to the claims Maldonado raises on federal review. DISCUSSION OF MALDONADO’S HABEAS CLAIMS I. Mental Retardation Maldonado claims that mental retardation precludes his execution. The state habeas court liberally allowed for the presentation of Maldonado’s Atkins claim. The state habeas court considered extensive argument, comprehensive pleadings, and voluminous exhibits on this issue, culminating in a lengthy evidentiary hearing in which each party called both lay and expert witnesses who gave detailed testimony. After providing a fair opportunity to develop legal and factual issues, the state habeas court entered explicit findings and conclusions denying Maldonado’s Atkins claim. In essence, the state court found that Maldonado “failed to show by a preponderance of evidence that he meets the three-prong definition of mental retardation and fails by a preponderance of the evidence to prove mental retardation.” S.H. at 2524. Maldonado argues that the state habeas court wrongly found him eligible for execution. Additionally, Maldonado faults the state process which addressed his Atkins claim, arguing that the Constitution only authorizes a jury to decide whether an inmate falls within Atkins’ exemption from execution. Against the backdrop of the comprehensive state court proceedings, this Court must decide whether Maldonado has shown that his sentence should be reformed to life imprisonment. A. Background The Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), found a national consensus against the execution of mentally retarded defendants. Under the Eighth Amendment’s “evolving standards of decency” review, the Atkins Court stated that “death is not a suitable punishment for a mentally retarded criminal.” Id. at 321, 122 S.Ct. 2242. The Atkins Court, however, approached the birth of this new constitutional rule with caution. While acknowledging that prevalent societal norms protect the mentally retarded, the Supreme Court declined to decide categorically which murderers would be exempt from execution. In fact, the Court foresaw that the most serious difficulty in implementing its ruling would be “determining which offenders are in fact retarded.” Id. at 317, 122 S.Ct. 2242. Instead of creating a bright-line test to determine ineligibility for death, the Supreme Court left “ ‘to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.’ ” Id. (quoting Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)); see also Bobby v. Bies, — U.S. —, 129 S.Ct. 2145, 2150, 173 L.Ed.2d 1173 (2009) (“Our opinion [in Atkins ] did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation ‘will be so impaired as to fall [within Atkins’ compass].’ ”) (quoting Atkins, 536 U.S. at 317, 122 S.Ct. 2242); Moore v. Quarterman, 454 F.3d 484, 493 (5th Cir.2006) (“[T]he Atkins Court did not adopt a particular criteria for determining whether a defendant is mentally retarded[.]”). The Texas State Legislature has not enacted any statute that gives effect to the Atkins decision, leaving its interpretation to the courts. As a stop-gasp measure, the Texas Court of Criminal Appeals has developed standards by which it evaluates a capital inmate’s claim of retardation. In Ex parte Briseno, 135 S.W.3d 1, 5 (Tex.Crim.App.2004), the Court of Criminal Appeals decided that “[u]ntil the Texas legislature provides an alternative definition of ‘mental retardation’ for use in capital sen-fencing,” Texas courts will adjudicate Atkins claims under the framework established by the American Association on Mental Retardation (“AAMR”), in conjunction with those standards contained in Texas’ Persons with Mental Retardation Act (“PMRA”), Tex. Heath & Safety Code § 591.003(13). Briseno, 135 S.W.3d at 8. Specifically, Briseno acknowledged the AAMR’s definition of mental retardation, as quoted in Atkins: “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, 122 S.Ct. 2242 (quoting American Association of Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports 5 (9th ed.1992)). The PMRA, which differs only slightly from the AAMR statement, defines mental retardation as “significantly subaverage general intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.” Tex. Heath & Safety Code § 591.003(13). Taken together, the AAMR and the PMRA definitions contain three indispensable components for a finding of mental retardation: (1) substantial limitations in intellectual functioning; (2) significant limitations in adaptive skill areas; and (3) manifestation of those limitations before age 18. A petitioner must meet all three elements to show that his execution would violate the Constitution. See Clark v. Quarterman, 457 F.3d 441, 446 (5th Cir.2006). “Determination of whether [a petitioner] satisfies any of these elements is a question of fact.” Eldridge v. Quarterman, 325 Fed.Appx. 322, 325 (5th Cir.2009). Here, the state habeas court referenced the appropriate standards in adjudicating Maldonado’s Atkins claim. S.H. at 2495. Since Atkins, courts have struggled to guarantee that convicted capital murderers who claim to be mentally retarded are evaluated in a nonarbitrary manner. Because the Supreme Court did not establish a bright-line test to identify mental retardation, the Atkins inquiry has become a fact-intensive question that heavily relies on the opinions provided by mental-health experts. This case, like most involving Atkins claims, requires consideration of testimony from competing experts who disagree about the nature of mental retardation, the means by which it may be identified, the manner in which it manifests in a criminal defendant’s life, and the psychological profession’s role in making the legal decision of whether mental capacity precludes execution. Here, experts retained by both parties based their opinions on the same professional standards, but applied them in ways that resulted in widely different results. Maldonado retained two experts — Dr. Ricardo Weinstein and Dr. Antonio Puente— to perform neuropsychological testing. Both doctors concluded that Maldonado is mentally retarded. The State retained Dr. George Denkowski, a clinical psychologist, to test Maldonado for mental retardation. He came to the conclusion that Maldonado, while having low intelligence, does not meet the requirements for a diagnosis of mental retardation. In the evidentiary hearing, other mental health experts testified after reviewing the three prior examinations and commented on the administration and results of those tests. Given the highly divergent opinions by psychological experts when evaluating the same individual, this case confirms that “[p]sychiatry is not ... an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness, on the appropriate diagnosis to be attached to given behavior, [and] on cure and treatment^]” Ake v. Oklahoma, 470 U.S. 68, 81, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); see also Jones v. United States, 463 U.S. 354, 365, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (“We have recognized repeatedly the uncertainty of diagnosis in this field and the tentativeness of professional judgment. The only certain thing that can be said about the present state of knowledge and therapy regarding mental disease is that science has not reached finality of judgment.”). Against the backdrop of dueling expert opinions, it must be remembered that the habeas writ exists only for constitutional violations. See 28 U.S.C. § 2254(a). Federal habeas review does not make certain that a state court ruling complies perfectly with the standards created by professional organizations — though psychological standards certainly inform the Atkins inquiry. As recognized by the Court of Criminal Appeals opinion in Briseno: Although experts may offer insightful opinions on the question of whether a particular person meets the psychological diagnostic criteria for mental retardation, the ultimate issue of whether this person is, in fact, mentally retarded for purposes of the Eighth Amendment ban on excessive punishment is one for the finder of fact, based upon all of the evidence and determinations of credibility- Briseno, 135 S.W.3d at 9. A constitutional understanding of “mental retardation” may not be the same as the usage given that term by the psychological profession. Cf. Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (“[T]he science of psychiatry, which informs but does not control ultimate legal determinations, is an ever-advancing science, whose distinctions do not seek precisely to mirror those of the law.”). In fact, nothing in Atkins jurisprudence requires the constitutional protections for the mentally retarded to be interchangeable with psychological standards. Thus, this Court’s role on habeas review is not necessarily to evaluate whether psychologists have properly considered and invariably applied the standards that govern their profession. The Court’s limited, and well-defined, duty is to determine whether an inmate’s conviction and sentence comport with constitutional standards. This Court’s review, therefore, centers on whether the state courts reasonably applied the substance of the Atkins decision, with guidance from how the psychological profession (and psychologists themselves) diagnose mental retardation. B. Who Should Decide If Maldonado Is Mentally Retarded? Before turning to the substance of Maldonado’s Atkins claim, the Court pauses briefly to address Maldonado’s argument that Texas violated his constitutional rights by not requiring a jury to decide whether he is mentally retarded. Maldonado relies on Supreme Court cases which have repeatedly emphasized that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see also Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (extending Apprendi to Arizona’s capital sentencing scheme). Maldonado argues that, because Atkins placed a substantive limitation on the State’s ability to carry out a death sentence, the Supreme Court essentially made freedom from mental retardation an essential element of all capital crimes. Maldonado assumes that Atkins thus placed mental retardation within the purview of Apprendi jurisprudence, requiring a jury to decide whether his mental retardation excludes the death penalty as a sentencing option. Maldonado complains that a jury, not a judge, should have decided if he is mentally retarded. A “welter of uncertainty” followed the Atkins decision because “[t]he Supreme Court neither conclusively defined mental retardation nor provided guidance on how its ruling should be applied to prisoners already convicted of capital murder.” Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir.2002). Accordingly, federal courts have approached the implementation of Atkins with some trepidation. Because Atkins left the States to define the class of offenders ineligible for execution, see Atkins, 536 U.S. at 317, 122 S.Ct. 2242, the Fifth Circuit has previously cautioned that “it would be wholly inappropriate for [a federal court], by judicial fiat, to tell the States how to conduct an inquiry into a defendant’s mental retardation.” In re Johnson, 334 F.3d 403, 405 (5th Cir.2003); see also Schriro v. Smith, 546 U.S. 6, 8, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005) (refusing to adjudicate preemptively which approach would comply with Atkins and remanding the case so that the State would “ha[ve] a chance to apply its chosen procedures”). Even so, the Fifth Circuit has conclusively decided that the Constitution does not require that a jury make the Atkins determination. See Johnson, 334 F.3d at 405; see also In re Woods, 155 Fed.Appx. 132, 135-36 (5th Cir.2005) (“[T]he factfinder with respect to a determination of mental retardation need not be a jury[.]”); United States v. Webster, F.3d 308, 311-12 (5th Cir.2005) (refusing to certify an appeal from a 28 U.S.C. § 2255 action based on Apprendi’s application to Atkins claims); see also Walker v. True, 399 F.3d 315, 325-26 (4th Cir.2005) (finding no constitutional requirement that a jury determine mental retardation). Unquestionably, the federal constitution assumes that some vehicle will give effect to the Atkins ruling. Yet Maldonado has not shown that Supreme Court precedent requires a jury to determine if a capital inmate is mentally retarded. This Court, therefore, will turn to the question of whether the state habeas court reasonably found that Maldonado did not meet his burden for habeas relief. C. Is Maldonado Mentally Retarded? The Atkins issue comes before the Court with a well-developed record. The ample testimony and evidence provides a complex picture of Maldonado’s mental abilities. In state court, the parties differed sharply on the ultimate question of whether he is mentally retarded. Nevertheless, their arguments found some consensus in the fact that Maldonado is not intelligent and is functionally uneducated. A theme developed by both parties is that Maldonado’s lack of English proficiency has made his exact intellectual capacity difficult to gauge. Against that backdrop, the Court must review the evidence presented in state court and place it in the context of Atkins’ tripartite mental retardation inquiry. 1. Substantial Limitations in Intellectual Functioning To qualify for a diagnosis of mental retardation, an individual must first prove substantial limitations in intellectual functioning. The Texas Court of Criminal Appeals in Briseno recognized IQ as a distinguishing indicator of intellectual functioning: “Significantly subaverage general 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. Nevertheless, “[njothing in the Briseno standard compels a blind adherence to IQ. In fact, Briseno itself recognizes that IQ alone is not determinative of mental retardation.” Williams v. Quarterman, 293 Fed.Appx. 298, 311 (5th Cir.2008). The Fifth Circuit likewise “counsels a flexible approach to reading IQ scores, warning that ‘courts should not rigidly consider an IQ score to be determinative of the defendant’s intellectual functioning.’ ” Williams, 293 Fed.Appx. at 309 (quoting Clark, 457 F.3d at 444-45). Atkins itself did not establish a numerical IQ threshold for death-eligibility. In Briseno, the Court of Criminal Appeals recognized some variation in the ceiling for mental retardation because mental-health experts view intelligence as existing along a range. While recognizing that professional organizations diagnose retardation in individuals possessing an IQ of “approximately 70” or “between 70 and 75,” the Atkins Court expressly refused to usurp the States’ right to determine which inmates are “so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus” against their execution. Atkins, 536 U.S. at 309, 317, 122 S.Ct. 2242 (emphasis added). Accordingly, the Texas Court of Criminal Appeals has questioned where to place the upper threshold of the Atkins protection: Most Texas citizens might agree that Steinbeck’s Lennie should, by virtue of his lack of reasoning ability and adaptive skills, be exempt [from execution]. But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty? Put another way, is there a national or Texas consensus that all of those persons whom the mental health profession might diagnose as meeting the criteria for mental retardation are automatically less morally culpable than those who just barely miss meeting those criteria? Is there, and should there be, a “mental retardation” bright-line exemption from our state’s maximum statutory punishment? Briseno, 135 S.W.3d at 6 (footnote omitted). Ultimately, the Court of Criminal Appeals has refused to “answer that normative question without significantly greater assistance from the [Texas] citizenry acting through its Legislature.” Id. While Texas has not established 70 as a bright-line standard, it has not expressly adopted another score as the retardation threshold either. Other states have provided varying responses to Atkins: some have not yet enacted legislation that codifies the Atkins decision, some explicitly adopted the standards established by professional organizations, some view an IQ of 70 as a cutoff, and others accommodate professional standards through legal analysis. See Garcia Briseno v. Dretke, 2007 WL 998743, at *10 (S.D.Tex.2007) (reviewing the various States’ application of Atkins). Here, the state courts apparently assumed that an IQ of 70 would meet the intellectual limitations component. The state court gave no clear statement on whether measurement error can create a range in scores where an IQ above 70 qualifies for a diagnosis of mental retardation. The state habeas hearing amounted to a battle of experts with respect to Maldonado’s level of intelligence. The experts in this case used Maldonado’s performance on psychological testing to form their opinion of whether he possesses significant limitations in intellectual functioning. The experts tested Maldonado with various psychometric instruments, reaching various conclusions. The parties, however, primarily relied on the results of five tests to detect Maldonado’s level of cognitive functioning. Those tests yielded the following scores: The Wechsler Adult Intelligence Scale, Third Edition (“WAIS-III”) — 72 The Escala Inteligencia Wechsler para Adultos (“WAIS-Español” or “EIWA”) — 83 (on one completed portion) The Comprehensive Test of Nonverbal Intelligence (“CTONI”) — 61 The Beta-Ill — 70 The Woodcock-Muñoz Bateria-R (“Bateria-R”) — 61 To place the state court proceedings into context, the Court will briefly summarize the testing. The Court will later review the experts’ testing and interpretation at greater length. Three experts examined Maldonado before the evidentiary hearing. On February 5 and 6, 2003, Dr. Ricardo Weinstein administered several testing instruments, including the Bateria-R. Dr. Weinstein, a native Spanish speaker, tested Maldonado in Spanish. On March 1, 2003, Dr. Weinstein signed a “declaration” in which he stated that the Bateria-R testing showed that Maldonado’s deficits in intelligence were pronounced and pervasive. His opinion placed Maldonado in a category where his men