677 F. App'x 884
5th Cir.2017Background
- Edward Busby was convicted in Texas of capital murder and sentenced to death; trial counsel was Jack Strickland.
- At trial Strickland presented limited mitigation (five lay witnesses and one expert, Dr. Proctor, who testified to severe antisocial personality disorder and high dangerousness); jury imposed death.
- Postconviction proceedings included successive state habeas filings; Texas Court of Criminal Appeals (TCCA) dismissed later applications as abuse of the writ but Texas procedure for Atkins claims can require merits review under § 5(a)(3).
- Busby later filed federal habeas claims raising (1) Atkins intellectual-disability, (2) ineffective assistance of direct-appeal counsel (failure to challenge exclusion of co-defendant statements), and (3) ineffective assistance of trial counsel for an inadequate mitigation investigation and presentation.
- District court denied relief and denied a certificate of appealability (COA); on appeal the Fifth Circuit granted a COA as to all three claims, finding reasonable jurists could debate the district court’s procedural and merits rulings.
Issues
| Issue | Busby’s Argument | State’s Argument | Held |
|---|---|---|---|
| Atkins (intellectual disability) — whether Busby is ineligible for death | Busby: recent WAIS‑IV IQ 74 (with prior scores 77–81) plus adaptive‑functioning evidence and Flynn‑effect adjustments show subaverage intellect and meet Briseno/AAMR criteria | State: score of 74 unreliable vs. prior higher scores; Flynn‑effect adjustments not accepted; adaptive evidence is anecdotal; TCCA dismissed as abuse of writ | COA granted — reasonable jurists could debate procedural bar/merits of Atkins claim |
| Ineffective assistance of appellate counsel (IAAC) — failure to challenge exclusion of co‑defendant’s statements on appeal | Busby: Strickland failed to appeal exclusion of Latimer’s statements; state habeas counsel Richards had a conflict of interest with Strickland, invoking Martinez/Trevino exception to procedural default | State: claim procedurally defaulted and Martinez/Trevino should not extend to IAAC; alternatively meritless | COA granted — reasonable jurists could debate whether Martinez/Trevino apply and whether claim is substantial |
| Ineffective assistance of trial counsel (IATC) — inadequate mitigation investigation/presentation | Busby: Strickland delayed/limited mitigation investigation; additional readily discoverable mitigation evidence would have altered sentencing; state habeas counsel ineffectively withdrew the claim (Martinez/Trevino) | State: claim procedurally defaulted; new mitigation evidence largely cumulative, declaratory evidence unreliable, and no prejudice given aggravating evidence | COA granted — reasonable jurists could debate whether state habeas counsel was ineffective and whether the underlying IATC claim is substantial |
Key Cases Cited
- Atkins v. Virginia, 536 U.S. 304 (2002) (death penalty unconstitutional for intellectually disabled defendants)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective‑assistance‑of‑counsel standard)
- Miller‑El v. Cockrell, 537 U.S. 322 (2003) (standards for certificates of appealability)
- Hall v. Florida, 572 U.S. 701 (2014) (limits on strict IQ cutoffs in Atkins analyses)