In Re: Eric Cathey
2017 U.S. App. LEXIS 8430
| 5th Cir. | 2017Background
- Eric Cathey was convicted and sentenced to death in Texas; his direct appeals and initial state habeas were denied. He filed a federal habeas petition in 2004 that did not raise an Atkins (intellectual disability) claim.
- In 2008 Cathey filed a second state habeas asserting Atkins; the trial court recommended relief but the Texas Court of Criminal Appeals (CCA) denied relief in 2014.
- Cathey then filed a habeas petition in federal district court raising Atkins; the State moved to dismiss as "second or successive" and the district court transferred the petition to the Fifth Circuit.
- Cathey appealed the transfer and alternatively sought this Court's authorization to file a successive §2254 petition under 28 U.S.C. §2244(b)(2).
- The Fifth Circuit affirmed the transfer (finding no intervening new judgment under Magwood) but granted authorization to file a successive petition, finding Cathey made a prima facie showing under §2244(b)(2)(A) that Atkins was a new rule previously unavailable and that his Atkins claim has possible merit.
Issues
| Issue | Plaintiff's Argument (Cathey) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Cathey’s federal Atkins petition is “second or successive” under §2244 | CCA’s 2014 denial functionally created a new judgment (intervening judgment), so the petition challenges a new judgment and is not successive (Magwood analysis) | No new or intervening judgment was entered because only the CCA can grant habeas relief in Texas and it denied relief; Cathey’s original 1997 death sentence was never disturbed | Affirmed district court: petition is second or successive — there was no intervening new judgment after the 2004 petition |
| Whether Cathey may obtain authorization to file a successive petition under §2244(b)(2)(A) (new rule previously unavailable) | Atkins and subsequent developments (Flynn Effect, later-disclosed records suggesting IQ <73) made an Atkins claim previously unavailable in 2004; thus Cathey made a prima facie showing | Mathis and related precedents: Atkins was issued before Cathey’s 2004 filing so Atkins was available and he should have raised it then | Granted authorization: Cathey made a prima facie showing that Atkins was previously unavailable to him and warrants district-court exploration |
| Whether Cathey’s Atkins claim has prima facie merit (subaverage IQ, adaptive deficits, onset before 18) | Presents evidence: adjusted IQ arguments (Flynn Effect), prison worksheets noting IQ “below 73,” achievement/school records, expert Vineland testing and family affidavits showing adaptive deficits and childhood risk factors | State’s experts challenge testing, argue records are ambiguous and prior courts did not find disability; dispute Flynn Effect applicability | Held: Cathey made a prima facie showing on all three prongs (IQ within possible range, adaptive deficits, onset before 18) sufficient to pursue the successive petition |
| Timeliness / statute-of-limitations and equitable tolling | Asserts delay excused or tolled because key evidence ("below 73" worksheets) was disclosed later and other circumstances made Atkins practically unavailable | Argues delay undermines timeliness; prior cases counsel against late assertions when rule existed | Court: Raises concerns about delay but leaves timeliness and tolling issues for the district court’s thorough review |
Key Cases Cited
- Magwood v. Patterson, 561 U.S. 320 (2010) (distinguishes when a later petition challenges an intervening new judgment and thus is not “second or successive”)
- Atkins v. Virginia, 536 U.S. 304 (2002) (Eighth Amendment bars execution of intellectually disabled offenders)
- Moore v. Texas, 137 S. Ct. 1039 (2017) (Texas’s Briseno factors improper; intellectual-disability determinations must be informed by current medical standards)
- Hall v. Florida, 134 S. Ct. 1986 (2014) (courts must account for standard error of measurement; rigid IQ cutoffs unconstitutional)
- Panetti v. Quarterman, 551 U.S. 930 (2007) (clarifies AEDPA’s second-or-successive framework and term-of-art nature)