Walter Sorto v. Lorie Davis, Director, 859 F.3d 356

Walter Sorto was convicted of capital murder in Texas (2003) and later pursued Atkins (intellectual disability) claims to avoid execution.
Sorto filed state habeas applications; his pro se 2006 filing was dismissed as an abuse of the writ and his 2010 subsequent application was dismissed for failing to make the TCCA’s high "threshold" showing (no full-scale IQ score presented).
Federal district court initially denied funding for neuropsychological testing (2010) and later denied additional funds in 2015, reasoning that new testing would be unexhausted and thus unreviewable; the district court dismissed all habeas claims.
With federal funding granted in 2013, Dr. Gilbert Martinez administered WAIS-III and produced a full-scale IQ score of 63 and reported adaptive deficits; he recommended a comprehensive adaptive-functioning assessment.
The Fifth Circuit held that Sorto’s WAIS-III results materially altered the evidentiary posture of his Atkins claim (rendering it unexhausted) and that Texas’s corrective process was ineffective under 28 U.S.C. § 2254(b)(1)(B)(ii) because subsequent applicants cannot obtain state-funded testing yet are required to meet a high threshold without it.
The court vacated the district court’s denial of funding and the dismissal of Sorto’s Atkins claim and remanded for further proceedings, instructing the district court to reassess funding necessity in light of excused exhaustion.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Sorto’s Atkins claim is exhausted	Sorto: new WAIS-III evidence materially alters and therefore renders the claim unexhausted	Director: claim was exhausted; new testing does not fundamentally change the claim	Held: New WAIS-III evidence materially altered the claim and rendered it unexhausted
Whether state corrective process is ineffective under § 2254(b)(1)(B)(ii)	Sorto: Texas won’t fund testing for subsequent applications, so process is inadequate to vindicate federal rights	Director: exception applies only in futility cases; state process is not clearly defective	Held: Process was ineffective in these circumstances—excusal of exhaustion required
Whether district court abused discretion by denying federal funding under 18 U.S.C. § 3599(f)	Sorto: funding was reasonably necessary to develop Atkins claim and federal court could then review it	Director: funding would only support evidence that was unexhausted and unreviewable	Held: District court erred because exhaustion should have been excused; denial of funding was an abuse of discretion
Remedy on remand	Sorto: requests funding and merits review with new evidence	Director: opposes excusal and expanded review	Held: Vacated denial of funding and dismissal; remanded for reconsideration of funding and merits review with exhaustion excused

Atkins v. Virginia, 536 U.S. 304 (2002) (holding that executing intellectually disabled persons violates the Eighth Amendment)
Cullen v. Pinholster, 563 U.S. 170 (2011) (§ 2254(d) review limited to state-court record)
Ex parte Blue, 230 S.W.3d 151 (Tex. Crim. App. 2007) (describing Texas standard and burdens for subsequent Atkins applications)
Moore v. Texas, 137 S. Ct. 1039 (2017) (rejecting use of strict IQ cutoffs inconsistent with clinical standards)
Hall v. Florida, 134 S. Ct. 1986 (2014) (invalidating Florida’s strict IQ cutoff for Atkins claims)
Lewis v. Quarterman, 541 F.3d 280 (5th Cir. 2008) (new evidence presented in federal court can render a claim unexhausted when it materially alters the claim)
Dowthitt v. Johnson, 230 F.3d 733 (5th Cir. 2000) (evidentiary posture inquiry for exhaustion and materiality of new evidence)
Blue v. Thaler, 665 F.3d 647 (5th Cir. 2011) (lack of satisfactory full-scale IQ score fatal to subsequent Atkins claim under Texas law)