In re: ERIC DEWAYNE CATHEY, Movant, CONSOLIDATED WITH 16-70015 ERIC DEWAYNE CATHEY, Petitioner - Appellant v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee
No. 16-20312
United States Court of Appeals for the Fifth Circuit
May 11, 2017
Before HIGGINBOTHAM, DENNIS, and ELROD, Circuit Judges.
Appeals from the United States District Court for the Southern District of Texas
Eric Dewayne Cathey filed a habeas petition raising an Atkins claim in the Southern District of Texas.1 The district court concluded that Cathey’s
I.
Eric Dewayne Cathey was convicted of capital murder and sentenced to death in Texas state court. On direct appeal, the Texas Court of Criminal Appeals (“CCA”) affirmed Cathey’s conviction and sentence,2 and the United States Supreme Court denied his petition for a writ of certiorari.3 Cathey then filed a state habeas petition, which the CCA also denied. On April 2, 2004, Cathey filed a federal habeas petition in the Southern District of Texas. Relevant here, this petition did not include an Atkins claim. The district court denied Cathey’s petition, and this Court dеclined to grant a Certificate of Appealability (“COA”).4
In November 2008, on the eve of his scheduled execution, Cathey filed a second state habeas petition raising an Atkins claim. The CCA granted a stay and remanded to the state trial court for a hearing on the petition.5 Following a five-day hearing, the state trial court signed Cathey’s proposed findings of fact and conclusions of law and recommended that the CCA grant relief. On November 5, 2014, the CCA rejected this recommendation and denied Cathey’s second state habeas petition.6 Thereafter, Cathey filed in this Court a motion for authorization to file a successive habeas petition raising an Atkins claim. Less than two months later, Cathey asked for permission to withdraw this
Soon after, Cathey filed a petition for habeas corpus raising an Atkins claim in the Southern District of Texas. The State moved to dismiss Cathey’s petition, urging that it was successive. The district court agreed and transferred Cathey’s petition to this Court.7 Cathey now appeals the district court’s transfer order. Alternatively, he again moves this Court for authorization to file a successive habeas petition. Consistent with our recent guidance,8 the clerk’s office consolidated Cathey’s two appeals.
II.
Cathey first challenges the district court’s conclusion that his habeas petition is “second or successive.” Under
In Magwood v. Patterson, the Supreme Court applied this rule to a second-in-time habeas petition challenging a death sentence. The petitioner, Magwood, had been sentenced to death in Alabama state court. Following an unsuccessful direct appeal, Magwood filed a federal habeas petition. The district court upheld Magwood’s conviction, but vacated his death sentence and remanded for a new sentencing hearing. After the hearing was conducted in state court, Magwood was again sentenced to death. Magwood then filed a second federal habeas petition challenging his death sentence.14 Although this petition was filed second in time, the Court held that it was not “second or successive” because it was the “first application” to challenge the “intervening judgment” entered after the second sentencing hearing.15 That is, it was the first petition to challenge Magwood’s new death sentence.16
Cathey argues that the same analysis applies here. As he recounts the facts, the state trial court found that Cathey was intellectually disabled “and that his sentence should be commuted to life.” In rejecting these findings and conclusions, so the argument goes, the CCA effectively resentenced him to death and entered a new judgment. Consequently, Cathey claims that his current petition challenges this new judgment entered by the CCA—not the judgment entered when he was originally convicted. And just as in Magwood, he urges that this second-in-time habeas petition is the “first application” to challenge the “intervening judgment” and death sentence entered by the CCA.
The State disagrees, arguing that “Cathey’s 1997 death sentence has never been disturbed.” It asserts that in Texas, only the CCA has the authority to grant habeas relief, and it did not do so here. Because Cathey was denied relief, the State contends, he was never resentenced. The State thus concludes that “no new or intervening judgment has been entered in Cathey’s case since the time he filed his first federal habeas petition in 2004.”
The determinative question is whether the 2014 CCA decision constitutes a new judgment under Magwood such that Cathey’s present habeas petition is not “second or successive” under
There was no formal resentencing here. “Texas trial courts only make recommendations to the Court of Criminal Appeals but do not rule on habeas petitions.”19 Indeed, they lack the authority to grant relief on an Atkins claim or vacate a death sentence.20 Cathey acknowledges there was nо formal resentencing, but asks this Court to take a functional approach in determining whether there was a new sentence. In this vein, Cathey argues that the Texas
However, Magwood instructs that “[a]
III.
In the alternative, Cathey seeks permission to file a successive habeas petition. We find that he hаs made the requisite prima facie showing and therefore grant his motion for authorization to file a successive petition. Paramount to this decision is the standard of review at this stage and the process that follows.22 Our grant of a motion to file a successive petition is “tentative in the following sense: the district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion. The district court then is the second gate through which the petitioner must pass before the merits of his or her motion are heard.”23 “The district court must conduct a thorough review to determine if
Under
A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Cathey argues that his Atkins claim satisfies subsection (A). To satisfy this subsection, Cathey must make a “prima facie showing” that: (1) “his Atkins claim was not presented” in a prior application; (2) his Atkins claim “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable”; and (3) his Atkins claim has merit.25 “Our court has adopted the following definition of prima facie showing: We understand it to be simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.”26 “If we determine that it appears ‘reasonably likely’ that the motion and supporting documents
The State does not dispute the first element, that Cathey’s Atkins claim was “not presented” in his prior federal habeas petition.29 It does, however, dispute that Cathey’s claim relies on a previously unavailable new rule of constitutional law and that Cathey’s claim has merit.
A.
Disputes over the second element with respect to Atkins claims are infrequent because “[t]here is no question that Atkins created a new rule of constitutional law . . . made retroactive to cases on collateral review by the Supreme Court.”30 And in the typical case, the petitioner has filed his habeas petition before Atkins was decided, making an Atkins claim “previously unavailable.”31 Here, however, Atkins was decided on June 20, 2002, yet Cathey filed his original federal habeas petition (without raising an Atkins claim) on April 2, 2004.
Cathey acknowledges that Atkins had been decided by the time he filed his first federаl petition, but argues that the rule was “previously unavailable to [him] under the circumstances.” He identifies two circumstances that rendered Atkins practically unavailable in April 2004:
Courts did not consider the Flynn Effect until at least 2005. Between February and April 2004, as Mr. Cathey was filing his
first federal habeas petition, Texas first articulated its standards for Atkins claims. At the time, a 77 IQ test score was not perceived to be within the range for Atkins-level intellectual functioning. Indeed, a review of published cases reveals that only one applicant in the country with an unadjusted IQ score above 75 brought an Atkins claim before Mr. Cathey filed his first federal habeas petition in 2004—a claim that was unsuccessful. What is more, it was not until after Mr. Cathey filed his second state habeas petition in 2008 that the State disclosed other evidence in its possession suggesting that Mr. Cathey’s true IQ was at most 73 and, in fact, well within Atkins range.32
The Flynn Effect “is a phenomenon positing that, over time, standardized IQ test scores tend to increase with the age of the test without a corresponding increase in actual intelligence in the general population. Those who follow the Flynn effect adjust for it by deducting from the IQ score a specified amount for each year since the test was normalized.”33 Cathey avers that, in 2004, he did not know about the “problem of aging norms” nor “the State’s evidence of a lower IQ score,” and thus “had no reason to pursue an Atkins claim that nobody else had won and only one person had even tried.”
The State responds that this Court’s decision in Mathis v. Thaler34 forecloses Cathey’s claim. The State argues that, like Cathey, “Mathis filed his first federal habeas petition in April 2003, after Atkins was decided in June 2002, yet the petition did not include an Atkins claim.”35 Several years later, Mathis sought authorization to file a successive petition raising an Atkins claim. Although Mathis did not file his first petition until after the issuance of Atkins, he argued that the Atkins rule was “previously unavailable” to him. This Court disagreed and concluded that Mathis “offer[ed] no cogent argument to excuse his failure to include his Atkins claim in his first federal petition when that claim was available to him for nine months after Atkins was decided.”36 The State presses us to do the same here. Cathey responds that Mathis was a case of “intentional withholding of a viable and available ground” for relief, whereas Cathey “had little basis under the law as it existed at the time he filed his first federal habeas petition to conclude that he had a claim that arose under the Supreme Court’s Atkins doctrine.”
Further, with respect to the Flynn Effect, the State argues that the legal availability of a claim “does not depend on its prior success in lower courts.” The State, citing psychology articles, asserts that, in any event, the Flynn Effect was recognized for at least twenty years before Cathey’s first federal petition, so Cathey could have learned of it and premised his Atkins claim on
This Court has had few occasions to analyze whether a rule of constitutional law was “previously unavailable” for purposes of a successive habeas petition when the pertinent Supreme Court decision was published at the time of the petitioner’s initial habeas petition. In the recent unpublished case of In re Wood, Wood filed his initial federal habeas petition on May 6, 2002, before Atkins, but amended his petition on October 2, 2002, after Atkins.38 However, “Wood did not raise an Atkins claim in the amended petition, nor did he seek to amend the petition a second time to include an Atkins claim.”39 Only later when Wood attеmpted to file a successive writ did he raise an Atkins claim, asserting it was previously unavailable to him.40 This Court considered “whether a rule was ‘available’ if, as in Wood’s case, it was announced while a defendant’s first federal habeas petition was pending.”41 After noting that courts faced with this issue had not adopted categorical rules, this Court “adopt[ed] the [Eleventh Circuit’s] feasibility standard,” which “takes into account the particular circumstances of the previous habeas proceeding: ‘[i]f the new rule was announced while the original
Mathis v. Thaler supports this understanding. In Mathis, this Court rejected Petitioner Mathis’s arguments that Atkins was “previously unavailable” when Atkins was published before Mathis filed his initial habeas petition.45 Mathis argued “that had he attempted to exhaust his Atkins claim in state court prior to filing his first federal habeas application, he risked forfeiting federal review of his previously exhausted claims . . . [and that] if he had pursued his Atkins claim in a successive state habeas petition, he also risked forfeiting federal review of his exhausted claims” because of uncertainty in the law as it applied to AEDPA’s statute of limitations.46 The Court rejected both arguments. In doing so, it stated that “Mathis offer[ed] no cogent argument to excuse his failure to include his Atkins claim in his first federal petition[.]”47 Similar to Wood, the Mathis Court was guided by the dates of the Supreme Court decision and initial habeas filing, but did not endorse a strict
This case falls into that gray area. At this preliminary stage, we find that Cathey has presented sufficiently “cogent argument[s]”48 that Atkins was previously unavailable at the time of his first petition and its disposition. At that time, Cathey believed his IQ score to be 77—outside of the range that was then understood to satisfy the subaverage intellectual functioning prong of an Atkins claim. In Atkins, the Supreme Court held that the
The Texas courts “follow[ed] an American Association on Mental Retardation (AAMR) definition of mental retardation, adopted by [the Texas Court of Criminal Appeals] in Ex parte Briseno,” which required “‘significantly subaverage’ general intellectual functioning . . . usually evidenced by an IQ ‘of about 70’ or below[.]”52 This Court has observed this baseline score of 70 when analyzing Atkins claims by Texas petitioners.53 Indeed, the Briseno court
The State nevertheless suggests that Cathey could have raised an Atkins claim based on a Flynn Effect-argument. Cathey in turn argues that the Flynn Effect was not recognized as viable in the courts at that time. By our review, the first mention of “Flynn Effect” in the case law—and the only mention before Cathey filed his initial habeas petition—was in a 2003 Western District of Virginia district court case.58 In Walton v. Johnson, the petitioner argued the Flynn Effect inflated his IQ scores.59 The district court explained the Flynn Effеct, but ultimately noted that, even if it applied it, the petitioner’s IQ score would still be too high.60 We are not persuaded that this single case out of the
We find the first mention of “Flynn Effect” out of a Texas court, or federal court applying Texas law, in In re Salazar.62 In Salazar, the petitioner’s expert opined that the petitioner’s IQ score may have been inflated by the Flynn Effect.63 This Court noted that the expert did “not indicate what effect it would have had on [the petitioner’s] score in particular or even whether it is appropriate to adjust an individual’s score based on this theory.”64 It then found that the petitioner’s IQ score was still too high even applying the Flynn Effect.65 The State argues that Salazar “did not render Atkins newly available, and . . . does not represent a new rule of constitutional law recognized by the Supreme Court.” The State is correct. But Cathey does not argue that Salazar contains a new rule of constitutional law for
The State argues that Cathey “provides no support for excusing the failure to properly raise an available claim simply because the claim is meritless.” This argument assumes the conclusion: that claims are “available” despite being meritless. We think a claim must have some possibility of merit to be considered available. In the same way we would not expect someone who, based on evidence, believed he was nineteen-years-old at the time of his crime to bring a Roper claim,69 we cannot expect someone who, based on evidence, believed his IQ was 77 to bring an Atkins claim two years after Atkins was decided in a state that had declared 70 as the benchmark IQ score,70 even accounting for a five-point margin of error.71 For similar reasons, the State’s contention that a claim’s legal availаbility “does not depend on its prior success in lower courts” is not sound in the context of this particular Atkins claim.
That Atkins was “previously unavailable” is bolstered by evidence that came to light in 2010 that suggests Cathey’s IQ is “below 73.” Citing to the Atkins trial transcript, Cathey explains that a “Service Investigation Worksheet” indicating an IQ score of “below 73” was brought to his counsel’s attention by the State. At the hearing, Captain Steven Bryant, of the Polunsky Unit of the Texas Department of Criminal Justice (“TDCJ”) Correctional Institution Division, testified that when a prisoner first arrives, an IQ test is
As per Wood, Cathey has made a prima facie showing that it was not feasible to amend his initial petition to include an Atkins claim,77 and has provided an “explanation that could excuse his failure to amend his petition to include an Atkins claim and seek a stay and abeyance thereof.”78 We further note that Mathis v. Thaler, to which the parties frequently cite, concerned whether Mathis satisfied
B.
We now turn to the third and final element—whether Cathey’s Atkins claim has merit.86 In Texas, intellectual disability was defined “as a disability charactеrized by: (1) ‘significantly subaverage’ general intellectual functioning; (2) accompanied by ‘related’ limitations in adaptive functioning; (3) the onset of which occurs prior to the age of 18.”87 This formulation originated in Ex parte Briseno, which “adopted the definition of, and standards for assessing,
In Moore v. Texas, the Supreme Court reviewed Texas’s method for determining intellectual disability, with a focus on the Briseno factors. In June of 2016, Cathey moved for a stay pending the outcome in Moore. We denied his motion, noting that “[i]f—during our review of the filings—we determine that Moore may prove controlling, we retain the right to hold our decision and wait for the Supreme Court’s guidance.” This is what we did.
In Moore, the CCA had rejected a Texas habeas court’s recommendation “that the CCA reduce Moore’s sentence to life in prison or grant him a new trial on intellectual disability.”90 “In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno.”91 However, the Supreme Court vacated the CCA’s judgment, finding that the Briseno factors—“[n]ot aligned with the medical community’s information, and drawing no strength from [the Court’s] precedent”—could not be used to restrict someone from being deemed intellectually disabled.92
The state habeas court used “the generally accepted, uncontroversial intellectual-disability diagnostic definition” of “(1) intellectual-functioning deficits . . . ; (2) adaptive deficits (‘the inability to learn basic skills and adjust behavior to changing circumstances[]’); and (3) the onset of these deficits while still a minor.”95 These same factors guide our determination of whether Cathey’s Atkins claim has merit.
Vacating the decision below, the majority in Moore: (1) held that the Briseno factors adopted by the Texas Court of Criminal Appeals for evaluating an Atkins claim are based on “superseded [medical] standards,”96 that “creat[e] an unacceptable risk that persons with intellectual disability will be executed,” in violation of the
“A prima facie showing of mental retardation is simply a sufficient showing of possible merit to warrant a fuller [exploration] by the district court.”103 Importantly, “the state court findings concerning the Atkins claim are wholly irrelevant to our inquiry as to whether [the petitioner] has made a prima facie showing of entitlement to proceed with his federal habeas
1.
The first prong, intellectual-functioning deficits, is typically “indicated by an IQ score ‘approximately two standard deviations below the mean’—i.e., a score of roughly 70—adjusted for ‘the standard error of measurement[.]”105 Briseno and its progeny used the same numerical baseline.106 Adjusting for the five-point standard error of measurement, as we must,107 Cathey’s known IQ score of 77 results in a range of 72 to 82. However, the Hall108 Court reminded that “[i]ntellectual disability is a condition, not a number. Courts must recognize, as does the medical community, that the IQ test is imprecise.”109 Cathey has offered evidence that suggests such imprecision in his score of 77. First, Cathey has offered evidence of the consequences of the Flynn Effect, an accepted scientific phenomenon,110 regardless of its ultimate status in the courts and its application to specific IQ scores.111 Cathey urges that correcting for the Flynn Effect results in “a true IQ of 71.6,” which yields a range of 66.6 and 76.6 after accounting for the standard error of measurement. We need not
The State contends that in Blue v. Thaler, this Court rejected an argument to adjust IQ scores of 76 and 77 down based on the Flynn Effect. But Blue never mentions “Flynn Effect,” and further that case considered whether to issue a COA, not whether to allow a successive petition.113 Further still, whereas “Blue [did] not produce[] an IQ score within the parameters serving as a precursor to a diagnosis of mental retardation[,]”114 Cathey has produced evidence suggestive of an IQ score “below 73.”
The State also argues that “the only issue in this case is whether it was unreasonable for the state court to decline to adjust Cathey’s IQ score to account for the Flynn Effect.” But this is incorrect. As previously stated, “the state court findings concerning the Atkins claim are wholly irrelevant to our inquiry as to whether [the petitioner] has made a prima facie showing of entitlement to proceed with his federal habeas application, which is an inquiry
Finally, the State avers that “[t]his Court has consistently denied relief . . . ‘when an inmate has IQ scores both under and over 70.’” But none of the cases the State cites to were at the same successive writ procedural posture as here,116 and all of them predate the Supreme Court’s decision in Hall. In Hall, “the Florida Supreme Court ha[d] . . . held that a person whose test score is above 70, including a score within the margin for measurement error, does not have an intellectual disability and is barred from presenting other evidence that would show his faculties are limited.”117 But the Supreme Court found that this “strict IQ test score cutoff”118 was unconstitutional.119 The Court found it “disregard[ed] established medical practice . . . [by] tak[ing] an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence[,]” and by “rel[ying] on a purportedly scientific measurement of the defendant’s abilities . . . while refusing to recognize that the score is, on its own terms, imprecise.”120 The Supreme Court was focused on the standard error of measurement, not the Flynn Effect, but nevertheless indicated skepticism of IQ cut-offs. Given the procedural posture and evidence presented, we will not now resort to such a cut-off. Cathey has made “a sufficient showing of possible merit [of significant
2.
We also find Cathey has made a prima facie showing of adaptive deficits. As recently explained by the Supreme Court, “Briseno adopted the definition of, and standards for assessing, intellectual disability contained in the 1992 (ninth) edition of the American Association on Mental Retardation (AAMR) manual, predecessor to the current AAIDD–11 manual.”122 In Briseno, the CCA noted that “[i]mpairments in adaptive behavior” were defined as “significant limitations in an individual’s effectiveness in meeting the standards of maturation, learning, personal independence, and/or social responsibility that are expected for his or her age level and cultural group, as determined by clinical assessment and, usually, standardized scales.”123 However, the Briseno Court found “[t]he adaptive behavior criteria [to be] exceedingly subjective” and thus offered “some other evidentiary factors which factfinders in the criminal trial context might also focus upon in weighing evidence as indicative of mental retardation or of a personality disorder[.]”124 These evidentiary factors came to be known as the “Briseno factors.”125 Further, “Briseno incorporated the AAMR–9’s requirement that adaptive deficits be ‘related’ to intellectual-functioning deficits.”126
The CCA . . . fastened its intellectual-disability determination to “the AAMR’s 1992 definition of intellectual disability that [it] adopted in Briseno for Atkins claims presented in Texas death penalty cases.” By rejecting the habeas court’s application of medical guidance and clinging to the standard it laid out in Briseno, including the wholly nonclinical Briseno factors, the CCA failed adequately to inform itself of the “medical community‘s diagnostic framework[.]”127
The Moore Court noted that “current manuals offer ‘the best available description of how mental disorders are expressed and can be recognized by trained clinicians’”128 and also cited the latest AAIDD manual for its definition of intellectual disability. It found that “[i]n determining the significance of adaptive deficits, clinicians look to whether an individual’s adaptive performance falls two or more standard deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical).”129
Turning to those standards here, in the category of conceptual skills, Cathey points to evidence suggesting his difficulties with language, using money, and reading and writing. In the category of social skills, Cathey points to evidence of his gullibility, his lack of self-esteem, and his difficulties with relationships. And in the category of practical skills, Cathey points to his challenges completing chores, impairments in assessing risks, and difficulties keeping steady work. Furthermore, Cathey highlights evidence from Dr. Jack Fletcher, who administered the Vineland Adaptive Behavior Scales test to
The State responds that its expert, Dr. Tim Proctor, disagreed with aspects of Dr. Fletcher’s administration of the Vineland. For instance, Dr. Proctor noted concerns with applying the Vineland retrospectively, and noted concerns with the subjects’ credibility. These may be valid critiques, but at this stage they are insufficient for us to completely discount Dr. Fletcher’s conclusions. The State also argues that Dr. Proctor “reviewed Cathey’s prison correspondence and testified that Cathey’s correspondence demonstrated, inter alia, an awareness of his Atkins claim, an ability to plan, an understanding of current events, an ability to manage money, and an ability to think abstractly.” The State specifically notes Dr. Proctor’s testimony “that an inmate’s prison behaviors are relevant in assessing the inmate for intellectual disability.” However, Moore signaled restraint in using such evidence: “the CCA stressed Moore’s improved behavior in prison. Clinicians, however, caution against reliance on adaptive strengths developed ‘in a controlled setting,’ as a prison surely is.”131
Ultimately, we find that Dr. Fletcher’s testing and conclusions regarding Cathey’s adaptive deficits, in combination with the affidavits and school records, satisfy a prima facie case of adaptive deficits.
Finally, Cathey has presented sufficient evidence to show the onset of these deficits prior to age 18. Cathey argues he “suffered numerous serious head traumas during his childhood, a risk factor for intellectual disability.” Cathey also contends that “[i]mpaired care-giving and adult nonresponsiveness are also risk factors for mental retardation.”132 Cathey notes his “traumatic environment” growing up, including drug-dealing, gun battles, and prostitution taking place in the home. Cathey urges that these are risk factors identified by the American Association on Intellectual and Developmental Disabilities. Cathey concludes that there is “[n]o evidence of an intervening cause after age 18 . . . that could account for [his] limitations in intellectual and adaptive functioning.”
The State responds that Cathey was not in special education classes, and that his “poor school performance was attributable to factors other than his intelligence.” The State asserts that before Atkins, no one thought Cathey was intellectually disabled, pointing again to the CCA opinion denying Cathey’s Atkins claim. The State argues that much of Cathey’s evidence is “reаdily contradicted” by trial testimony. However, “[a]t his pre-Atkins trial, [Cathey] had little reason to investigate or present evidence relating to intellectual disability. In fact, had he done so at the penalty phase, he ran the risk that it would ‘enhance the likelihood . . . future dangerousness [would] be found by the jury.’”133
Given the evidence Cathey presented and that there is no identifiable intervening cause, Cathey has made a sufficient showing of onset before the
IV.
“[T]he Constitution ‘рlaces a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.”136 Cathey has offered sufficient evidence that he may be excluded from the death penalty for this reason. At this stage, he has made a prima facie showing that his successive petition satisfies
In addition to undertaking a thorough review on the question of successiveness, there are procedural questions concerning the timeliness of Cathey’s claim that the district court has not yet decided, and should decide in its review. Like the petitioner in Campbell, Cathey first raised an Atkins claim several years after Atkins was actually decided.138 Cathey argues that his
For the reasons stated above, we AFFIRM the district cоurt’s transfer order and GRANT the motion for authorization.