Edward Lee BUSBY, Petitioner-Appellant, v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
No. 15-70008
United States Court of Appeals, Fifth Circuit.
Filed January 27, 2017
884
Tomee Morgan Heining, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent-Appellee
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Petitioner Edward Lee Busby requests a certificate of appealability (COA) autho-
I
Edward Busby was convicted of capital murder in Texas state court and sentenced to death for the kidnapping, robbery, and murder of an elderly woman.2 The district court‘s opinion recounts the factual and procedural history of Busby‘s case.3 We briefly set forth the matters relevant to the present motion.
The Texas trial court appointed Jack Strickland to represent Busby at trial. Busby contends that Strickland waited approximately nineteen months to assemble a mitigation investigation team and hired a mitigation specialist days before voir dire. He further contends that Strickland hired Dr. Timothy Proctor, a psychologist and mental health expert, a week after voir dire commenced.
Busby‘s trial began in early November 2005. Relevant to this appeal, Strickland attempted to introduce statements made by Busby‘s co-defendant, Kathleen Latimer, purportedly to introduce doubt as to
During the punishment phase, Strickland introduced testimony from five lay witnesses—Busby‘s two sisters, Busby‘s special education teacher, and two school administrators. An expert, Dr. Proctor, testified, and a video containing images of Texas maximum security prisons was shown to the jury. Dr. Proctor testified that Busby had a severe antisocial personality disorder, and that Busby posed a high risk of future dangerousness to society. The jury answered the issues submitted to them in a way that mandated the death penalty under Texas law, and Busby was sentenced to death.
Busby, still represented by Strickland, appealed. Strickland did not appeal the exclusion of Latimer‘s statements, and Busby‘s conviction and sentence were affirmed on direct appeal.
Represented by new counsel, David Richards, Busby sought state habeas relief. Richards initially asserted an ineffective-assistance-of-trial-counsel (IATC) claim regarding the adequacy of Strickland‘s mitigation investigation. Richards alleged that “disputed questions of material fact” existed as to the claim and sought (and received) funding to investigate. Richards later withdrew the IATC claim, stating that he was “convinced that adequate pretrial mitigation was conducted because no significant additional mitigating evidence would have been discovered.” The state habeas trial court entered supplemental findings that Richards‘s withdrawal of the claim was “in keeping with the highest standards of ethical conduct.” The Texas Court of Criminal Appeals (TCCA) adopted the findings and dismissed Busby‘s petition as to the remaining grounds.
Represented by new counsel, Busby then filed a federal habeas petition pursuant to
During the abeyance period, the Supreme Court issued Trevino v. Thaler, 569 U.S. 413 (2013).4 The Supreme Court had previously held in Martinez v. Ryan:5
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
In Trevino, the Court held that the rationale of Martinez applied to Texas convictions when ineffective-assistance-of-counsel claims may first be effectively raised in state habeas review.6 After supplemental briefing and an evidentiary hearing pertaining to the import of Martinez and Trevino, the district court denied relief and further denied Busby‘s request for a COA. Busby now seeks a COA from this court.
The standards of review in a federal habeas proceeding are governed by the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. A COA should issue only when the petitioner makes “a substantial showing of the denial of a constitutional right.”7 “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy
III
Busby first contends that he is entitled to a COA on his claim under Atkins v. Virginia that he is ineligible for the death penalty by reason of intellectual disability. The district court rejected Busby‘s Atkins claim, holding that it was procedurally barred because the TCCA rejected the claim on an “independent and adequate state procedural ground”13—as an abuse of the writ pursuant to
In denying Busby‘s application, the TCCA stated:
We have reviewed this subsequent application and find that the allegations fail to satisfy the requirements of Article 11.071, § 5(a). Accordingly, we dismiss the application as an abuse of the writ without considering the merits of the claims.14
The State argues, and the district court agreed, that the plain language of the TCCA‘s dismissal—“without considering
Busby responds that the TCCA‘s dismissal was merely boilerplate and that the TCCA actually reviews Atkins claims raised in successive petitions on the merits pursuant to
by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state‘s favor one or more of the special issues that were submitted to the jury in the applicant‘s trial under Article 37.071, 37.0711, or 37.072.17
We have previously explained that Texas‘s abuse-of-the-writ doctrine does not preclude federal jurisdiction in the Atkins context because, in denying an Atkins claim as an abuse of the writ under
Busby must still, however, show that reasonable jurists could debate whether he has presented a “valid claim of the denial of a constitutional right”19—here, imposition of the death penalty on an intellectually disabled prisoner in violation of Atkins. In Atkins, the Supreme Court left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”20 Texas developed its Atkins framework in Ex parte Briseno.21 There, the TCCA explained that Texas adopts the American Association of Mental Retardation (AAMR) definition of intellectual disability, which requires “(1) significantly subaverage general intellectual functioning, defined as an IQ of about 70 or below; (2) accompanied by related limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.”22 “A failure of proof on any one of these three elements will defeat an Atkins claim.”23 With respect to prong one, the TCCA recognizes that IQ testing instruments have a measurement error of approximately five points and acknowledges that “any score could
Busby argues that his most recent IQ score of 74 on the Weschler Adult Intelligence Scales—Fourth Edition (WAIS-IV) satisfies the first Briseno prong. He argues that this score is the most reliable because it was administered close to the test‘s development date, and because the defense expert detected no malingering, i.e., intentional efforts to misrepresent his intellectual ability. Busby claims that his prior IQ scores—77, 79, and 8125—bolster his claim of intellectual disability once adjusted downward to account for various structural testing flaws, including the practice effect and non-verbal nature of the tests. Primarily, Busby argues for downward adjustment to account for a phenomenon known as the “Flynn effect,” in which IQ scores for a given test rise over time as the testing instrument becomes outdated. Busby contends that in denying relief, the TCCA and district court essentially applied the type of “bright-line IQ cutoff” condemned by the Supreme Court in Hall v. Florida.26 As to the second and third Briseno factors, Busby provided evidence of his adaptive functioning, including grade school records and affidavits from teachers, family, and friends, each intended to indicate that Busby lacked the adaptive functioning skills contemplated in Briseno.
The State counters that the Flynn Effect has not been accepted as scientifically valid in this circuit or by the TCCA and thus provides no basis for downward adjustment. The State further argues that Busby‘s recent score of 74 is not reliable, given its deviation from his previous higher IQ scores and Busby‘s potential incentive to perform poorly. The State notes that the Texas scheme is distinguishable from the Florida scheme at issue in Hall, which required a petitioner to demonstrate an unadjusted score of 70 before additional evidence of intellectual disability could be considered.27 Finally, the State produces conflicting evidence of Busby‘s adaptive functioning skills, and argues that Busby‘s evidence is “self-serving” and “anecdotal” and not indicative of Busby‘s abilities prior to the age of 18.
We conclude that reasonable jurists could debate whether Busby has subaverage intellectual functioning. We therefore conclude that reasonable jurists could debate whether Busby has presented a viable Atkins claim, and grant Busby a COA on this issue.
IV
Busby next contends that he is entitled to a COA on his claim that his direct appeal counsel, Jack Strickland, the same attorney who represented him at trial, was ineffective for failing to challenge the trial court‘s exclusion of Kathleen Latimer‘s statements. He argues that his initial state habeas counsel, David Richards, had a conflict of interest based on his personal and professional relationship with Strickland.
The district court relied on this court‘s decision in Reed v. Stephens,30 in which we denied a COA on an IAAC claim that was procedurally defaulted, stating that “[t]o the extent Reed suggests that his ineffective-assistance-of-appellate-counsel claims also should be considered under Martinez, we decline to do so.”31 Busby essentially argues that our decision in Reed was dicta and not binding.
We note that there is a split among the Circuits as to whether the rationale of Martinez/Trevino extends to ineffective assistance of direct appeal counsel. Post-Trevino, in a case that did not involve a potential conflict of interest between collateral review and direct appeal counsel, the Sixth Circuit held that “ineffective assistance of post-conviction counsel cannot supply cause for procedural default of a claim of ineffective assistance of appellate counsel.”32 The Eighth Circuit has also refused to extend the Martinez/Trevino rationale to excuse procedural default of a claim of ineffective assistance of direct appeal counsel where the only potential conflict of interest was a tenuous claim that state habeas counsel‘s “titular boss” had “helped” on the petitioner‘s case at trial.33 The Tenth Circuit has likewise read the exception narrowly.34 The Ninth Circuit has reached the opposite conclusion, extending Martinez and Trevino to claims of ineffective assistance of direct appeal counsel as well.35 We note also that some
Reasonable jurists could debate the district court‘s conclusion that Busby‘s ineffective-assistance-of-appellate-counsel claim was procedurally defaulted. The district court concluded, in the alternative, that Busby‘s ineffective-assistance-of-appellate-counsel claim was not substantial and that Busby‘s initial state habeas counsel, David Richards, was not ineffective in failing to raise an ineffective-assistance-of-counsel claim. Reasonable jurists would find the district court‘s alternative holdings debatable. We grant Busby‘s request for a COA on his IAAC claim.
V
Busby also seeks a COA on the district court‘s denial of his ineffective-assistance-of-trial-counsel (IATC) claim. Busby argues that his trial counsel, Jack Strickland, provided ineffective assistance in failing to conduct a timely sentencing investigation, which led to Strickland‘s alleged failure to present an adequate mitigation case at punishment. Busby concedes that his claim is procedurally barred as it was not presented in his initial state habeas petition, but argues that the default is excused under Martinez v. Ryan38 and Trevino v. Thaler.39
The Supreme Court held in Martinez that a habeas petitioner may establish cause for procedural default of an IATC claim “where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington.”40 To overcome the default, “a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.”41
The district court held both that Busby failed to establish that his initial state habeas counsel—David Richards—was deficient under Strickland and further, that Busby failed to show that his underlying IATC claim was substantial. Specifically, the district court determined that trial counsel‘s alleged ineffectiveness did not prejudice Busby, reasoning that Busby‘s
Busby contends that the district court improperly discredited the declarations, which he contends were submitted in their proper form for purposes of federal litigation, and that the new mitigation evidence is not merely cumulative, but “paints an entirely different picture of Busby from the one presented to the jury.” Busby argues that “substantial additional mitigation evidence” was easily discoverable, but “apparently unknown to both trial counsel and state habeas counsel,” and that “[a]fter a very limited investigation, state habeas counsel” filed a state habeas petition that failed to raise an IATC claim.
The State responds that Busby has failed to show, or rebut the district court‘s conclusion, that Busby was not prejudiced. The State further asserts that Busby‘s IATC claim is meritless, and thus, not “substantial” as required by Martinez.
Reasonable jurists could debate whether Busby‘s state habeas counsel, Richards, was ineffective in failing to present an IATC claim regarding Strickland‘s allegedly deficient mitigation investigation. As the district court noted, Richards initially acknowledged that fact disputes existed regarding the adequacy of Strickland‘s mitigation investigation. He filed affidavits with the state court, including one from Linda Sanders, the mitigation expert hired in Busby‘s case, which opined that Strickland‘s inquiry into mitigation was untimely and could not have allowed for an adequate investigation.
Reasonable jurists could further debate whether Busby‘s underlying IATC claim is substantial, “which is to say that ... the claim has some merit.”42 IATC claims are governed by the Strickland two-step, which requires Busby to show that his trial counsel‘s representation “fell below an objective standard of reasonableness,”43 and that “he was prejudiced by the deficient performance.”44 A showing of prejudice requires a petitioner to demonstrate “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”45 To make this determination, federal habeas courts must weigh the evidence adduced in the habeas proceeding and that adduced at trial against the aggravating evidence.46
The district court relied in part on the State‘s aggravating evidence and the circumstances of the instant offense to conclude that Busby was not prejudiced. Given the facts of this case, we cannot conclude that Busby‘s criminal history,
At this stage, we simply conclude that reasonable jurists could debate whether Busby has presented a substantial, or viable, IATC claim sufficient to excuse the procedural default and to merit a COA. Accordingly, we GRANT a COA on Busby‘s IATC claim.
* * *
For the reasons expressed herein, we GRANT a COA authorizing Busby to appeal the district court‘s denial of habeas relief on his Atkins claim, his claim for ineffective assistance of trial counsel, and his claim alleging ineffective assistance of appellate counsel.