892 F.3d 735
5th Cir.2018Background
- Busby was convicted (2005) of kidnapping, robbing, and killing Laura Crane; jury found future dangerousness and imposed death sentence.
- At trial Busby admitted wrapping 23 feet of duct tape around victim’s face; defense argued lack of intent to kill; statements from accomplice Latimer were excluded.
- Busby raised (in successive state and federal habeas proceedings) three main claims: (1) he is intellectually disabled and therefore ineligible for execution under Atkins; (2) ineffective assistance of counsel on direct appeal for failing to challenge exclusion of Latimer’s statements; (3) ineffective assistance of trial counsel for an allegedly inadequate mitigation investigation/presentation.
- TCCA denied Busby’s successive state habeas as an abuse of the writ after applying Texas’s Article 11.071 §5(a)(3) gateway (clear-and-convincing actual-innocence-of-the-death-penalty standard); federal district court denied §2254 relief and Busby appealed.
- Multiple experts tested Busby (IQ scores ranging ~74–81); no clinician in the record diagnosed intellectual disability; habeas experts recommended further evaluation but did not definitively conclude Atkins-level intellectual disability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Atkins claim: Is Busby intellectually disabled and thus per Atkins ineligible for death? | Busby: IQ/mitigation evidence (school records, WAIS-IV score 74, history of adaptive deficits) establish by clear and convincing evidence no rational factfinder would find him eligible for death. | State/TCCA: Successive petition threshold not met under §11.071 §5(a)(3); record lacks clear-and-convincing proof of intellectual disability. | Court: TCCA’s merits denial reviewed under AEDPA; evidence insufficient—reasonable factfinder could conclude Busby is not intellectually disabled; affirm denial. |
| Procedural default / gateway standards for successive Atkins claims | Busby: Federal miscarriage-of-justice/Sawyer gateway allows federal review; TCCA’s dismissal was not purely procedural and should be reviewed on merits. | State: Dismissal was abuse-of-writ under Texas law; Texas §5(a)(3) appropriately imposed clear-and-convincing threshold for successive Atkins claims. | Court: TCCA’s §5(a)(3) decision was a merits determination subject to AEDPA review; Texas standard aligns with federal standards for successive claims. |
| Ineffective assistance on direct appeal (failure to raise exclusion of Latimer statements) | Busby: Appellate counsel was ineffective for not challenging exclusion of Latimer’s polygraph-related statements. | State: Claim is procedurally defaulted; Martinez/Trevino do not excuse failure to raise ineffective-assistance-of-appellate-counsel; exclusion was harmless given overwhelming evidence. | Court: Default not excused (Davila); claim also fails on prejudice—no reasonable probability of a different outcome; affirm. |
| Ineffective assistance of trial counsel for mitigation investigation/presentation | Busby: Counsel failed to uncover and present readily available mitigating evidence (abuse, poverty, adaptive deficits, intellectual impairment), prejudicing sentencing. | State: Much mitigation was presented at trial; additional evidence is cumulative and would not overcome overwhelming aggravation and future-dangerousness findings. | Court: Even assuming deficient investigation, no Strickland prejudice shown—the new mitigation would not likely produce a life sentence; affirm. |
Key Cases Cited
- Atkins v. Virginia, 536 U.S. 304 (2002) (Eighth Amendment bars execution of intellectually disabled offenders)
- Sawyer v. Whitley, 505 U.S. 333 (1992) (actual-innocence-of-death-penalty gateway requires clear-and-convincing proof that no reasonable juror would find petitioner eligible)
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (AEDPA constrains miscarriage-of-justice exception for successive petitions; higher proof and diligence requirements)
- Hall v. Florida, 572 U.S. 701 (2014) (consideration of standard error of measurement and adaptive deficits in Atkins IQ analysis)
- Brumfield v. Cain, 135 S. Ct. 2269 (2015) (§2254(d) review applies to state court Atkins determinations)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance-of-counsel test)
- Davila v. Davis, 137 S. Ct. 2058 (2017) (ineffective assistance of state postconviction counsel cannot be used to excuse procedural default of appellate ineffective-assistance claims)