925 F.3d 699
5th Cir.2019Background
- Edward Lee Busby was convicted (2005) of kidnapping, robbing, and murdering Laura Crane; evidence showed he wrapped 23 feet of duct tape around her face causing asphyxiation. Jury returned death sentence after penalty-phase findings of future dangerousness and no mitigating factors.
- At trial defense expert Timothy Proctor administered IQ tests (scores 77 and 81) and testified Busby was not intellectually disabled; Busby did not assert Atkins-related intellectual-disability claims at trial, on direct appeal, or in his initial state habeas petition.
- Busby raised an Atkins claim (intellectual disability) for the first time in federal habeas; federal court stayed to allow state exhaustion, leading to a second state habeas application dismissed by the Texas Court of Criminal Appeals (TCCA) under article 11.071 §5 as not meeting the threshold for relief.
- The district court denied federal habeas relief, finding Busby procedurally defaulted on Atkins and appellate-ineffective-assistance claims, and that alleged trial-counsel mitigation failures did not prejudice Busby under Strickland/Wiggins reweighing standards.
- On appeal the Fifth Circuit affirmed: it held the TCCA’s denial of the Atkins claim was a merits adjudication entitled to AEDPA deference, and concluded the state-court decision was neither an unreasonable application of clearly established federal law nor an unreasonable determination of the facts; the ineffective-assistance claims also failed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Atkins (intellectual disability) raised in successive state habeas | Busby: evidence (IQs, records, testimony) proves mild intellectual disability; TCCA erred | State/TCCA: claim first raised in successive petition and failed the §5(a)(3) threshold; evidence insufficient | TCCA decision was on the merits and, under AEDPA, not an unreasonable application of federal law nor an unreasonable factual determination; no relief granted |
| Standard of review / AEDPA deference | Busby: TCCA denial should be reviewed de novo (or under preponderance) | State/Fifth Cir.: TCCA's use of §5(a)(3) requires clear-and-convincing threshold for successive claims; AEDPA deference applies | AEDPA deference applies; Texas’ clear-and-convincing threshold for successive Atkins claims is not contrary to Supreme Court precedent |
| Ineffective assistance of appellate counsel (failure to raise exclusion of Latimer’s statements) | Busby: appellate counsel ineffective for not challenging exclusion of Latimer’s polygraph-related statement | State: claim procedurally defaulted; even on merits exclusion was harmless given overwhelming inculpatory evidence | Claim is procedurally defaulted and, in any event, fails Strickland prejudice prong — no reasonable probability of different outcome |
| Ineffective assistance of trial counsel — inadequate mitigation investigation | Busby: trial counsel failed to investigate/present substantial mitigating evidence (abuse, poverty, learning problems, substance use, possible ID) | State: much mitigation was presented at trial; additional evidence is largely cumulative and does not overcome aggravation or dangerousness findings | Even assuming deficient performance, no prejudice shown under Strickland/Wiggins; mitigation would not likely have led at least one juror to vote for life |
Key Cases Cited
- Atkins v. Virginia, 536 U.S. 304 (2002) (death penalty unconstitutional for intellectually disabled offenders)
- Hall v. Florida, 572 U.S. 701 (2014) (SEM and consideration of adaptive functioning in Atkins analysis)
- Moore v. Texas, 137 S. Ct. 1039 (2017) (endorsing clinical standards for diagnosing intellectual disability and rejecting use of nonclinical myth-based factors)
- Brumfield v. Cain, 135 S. Ct. 2269 (2015) (AEDPA deference applies to state-court Atkins adjudications)
- 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 death-eligible)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: performance and prejudice)
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (AEDPA and miscarriage-of-justice standard; clear-and-convincing requirement for successive petitions)
- Davila v. Davis, 137 S. Ct. 2058 (2017) (ineffective assistance of state habeas counsel does not excuse procedural default for ineffective-assistance-of-appellate-counsel claims)
- Ex parte Blue, 230 S.W.3d 151 (Tex. Crim. App. 2007) (TCCA’s framework for evaluating successive Atkins claims under article 11.071 §5)
- Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010) (discussing limits of §5(a)(1) dismissals and Atkins prima-facie review)