*1 require from permits EPA will whether Wayne MORRIS, Kenneth immediacy to and there is no
Petitioners Petitioner-Appellant, into they go not requirements the as do a may promulgate EPA year. effect for a v. gas opera defines oil and regulation which Director, Depart Doug DRETKE, Texas cover, example, building of tions to for Justice, ment of Criminal Correction only drilling at site or drilling roads a Division, Respondent- al Institutions lack of gas pipelines. oil and Given Appellee. rule, present we would specificity in the by at No. 04-70004. only be to address the issue able possible situations tempting hypothesize to Appeals, United States Court and deter might apply in which the rule Fifth Circuit. gas not mine what is or is an oil therefore, conclude, that “operation”. We 2005. June ripe this case review.1 See Rich
ard J. Administrative Law Treatise Pierce, (4th 15.4, ed.2002)(discussing at Ab Ass’n
bott Laboratories Toilet Goods Gardner,
v. 387 U.S. 87 S.Ct. (1967)).
L.Ed.2d 697
III. above, we con-
For the reasons stated ripe
clude that case is not for review this
and, accordingly,
petition.
we dismiss the
years
dispute
recognize
We
this
time
nme
that was sub
is the second
resolve
deadline.);
statutory
deferred
rule and we can
ject
EPA has
Pa
five-month
Shalala,
Cir.1996)
that Petitioners would be frustrat
(2d
understand
F.3d 147
vano
inability
ed
review. How
their
obtain
(Court
to exclude exhaustion re
declined
ever,
closely
related
the exhaus
area of
that,
agency's
quirement
it found
while
where
remedies,
have
tion of administrative
courts
delay was
it was
a matter
“unfortunate”
"not
only
requirement
petitioners from the
excused
intransigence”.)
also
of administrative
See
they
process
exhaust
administrative
J.
Pierce,
Richard
Administrative
Law Treatise
agen
where
administrative
instances
15.10,
ed.2002).
(4th
Under the
1032-34
ruling
egre
cy’s delay
particularly
case, we
unable to
circumstances of this
are
gious.
Telephone Co. v.
See Southwestern Bell
similarly
say
un
that EPA's action has been
F.C.C.,
Cir.1998) (Court
reasonable so as to allow us to intervene
duty
excused
to allow an
complete
agency
the chance to
before
has
agency
statutory interpretation
consider
interpretation.
its
agency
already
argument
taken
where the
had
*2
(2002)]
2242,
S.Ct. it or is unexhausted because fundamen claim; tally his state Atkins altered if claim is [thus rendered] *3 unexhausted, whether he has met exception exhaustion. to excuse reasons, following Id. at 207. For the we presentation that Morris’s of determine At- merely supplemented new evidence already presented to the kins claim he had courts; his Atkins claim meets ex- 2254(b)(1)(A); per haustion 28 U.S.C. in dismissing and the court erred district of Morris’s Atkins claim for want exhaus- Therefore, tion. we VACATE order of prejudice dismissal and REMAND without Charlton, Law B. Office of Mi- Michael an evidentiary with instruction to conduct Alvin, Charlton, TX, B. Gerald chael hearing whether Morris is to determine Houston, TX, (argued), James Bierbaum mentally categorically thus retarded and for Morris. pursuant to ineligible penalty for the death Austin, TX, (argued), Deni S. Garcia Atkins. See 536 U.S. S.Ct. Dretke. Eighth 2242 (holding the Amendment a “places restriction on the substantive power mentally the life of a State’s to take (internal offender”) quotation retarded omitted). marks citation HIGGINBOTHAM, DeMOSS Before DENNIS, Judges. Circuit BACKGROUND In DeMOSS, 1993 Morris convicted Judge: December Circuit for the capital and sentenced to death Petitioner-Appellant Wayne Kenneth murdering Moody offense James (“Morris”) a sought COA on the Morris appeal, Adams. On direct Texas Court factu- presentation of a issue whether (“TCCA”) Appeals Criminal affirmed ally claim in stronger habeas federal court sentence; Morris’s conviction the Su- always than in the state courts mandates preme Court of the States denied United prejudice on the dismissal without based certiorari. The TCCA then denied Mor- Dretke, principle. exhaustion application of habeas corpus. ris’s for writ (5th Cir.2004). We F.3d April initiated federal ha- 2000 Morris granted Morris COA that exhaustion The district court de- proceedings. beas parties specifically issue and asked the nied habeas relief and denied him a following: address the denied COA. This Court also presentation of addi [WJhether not seek re- COA. Morris did certiorari of mental tional evidence retardation view in Court. Texas set an Supreme beyond pre federal court which April execution 2003. date of courts sented is exhausted 20, 2002, the only supplemented Supreme On June because it Eighth 122 Court held that Amendment Virginia, Atkins U.S. [v. protects against the execution of work. [3] Mental retardation manifests Atkins, retarded defendants. 536 U.S. at age before 18. 321, 122 S.Ct. Atkins claims are AAMR, Definition, Mental RetaRdatioN: applicable to defendants on collateral re- Systems Support Classification, Cockrell,
view. Bell v. 332 (9th ed.1992).1 Morris also referenced the (5th Cir.2002). Those defendants whose nearly identical definition of mental retar already convictions were final on direct dation in Diagnostic and Statistical review, Morris, year like had one to file Manual of Mental Disorders: their Atkins claims under 28 U.S.C. The essential feature of Mental Retar- 2244(d)(1)(C). 10, 2003, April On within dation significantly subaverage gener- decided, ten months after Atkins was Mor- *4 (Criterion A) al intellectual functioning application ris filed successive for writ of accompanied that is by significant limi- corpus habeas in state district court. The tations in adaptive functioning in at legal sole for basis Morris’s successive least two of the following skill areas: application state writ was Atkins’s to him communication, self-care, living, home person as a facing retarded exe- social/interpersonal skills, use of com- cution. argued application Morris that his munity resources, self-direction, func- met subsequent application require- skills, work, tional leisure, academic 11.071, ments of Article Section of the health, (Criterion B). safety and Texas Code of Criminal Procedure because onset must occur age before years legal claim, the constitutional basis for his (Criterion C). Atkins, was unavailable at the time he Psychiatric Diag- previous filed his Association, corpus ap- AmeRican plication. and nostic Statistical Manual of Mental (text rev., 2000) 4th ed. DisordeRS In application, his successive state Mor- (“DSM-IV”). ris referenced the American Association on recognized (“AAMR”) the lack of Intelli Mental Retardation standard gence Quotient (“IQ”) for evidence in his determining mental rec retardation: ord but noted various school records ob Mental retardation refers to substantial counsel, by tained including his a letter in present limitations functioning. It is characterized [1] significantly subav- concerning Morris’s official withdrawal Cypress-Fairbanks from the Public erage intellectual functioning, existing concurrently with [2] related limitations Schools special assignment campus.2 Mor supported ris also in two or his claim of retardation following more of the applica- with adaptive communication, regarding adaptive ble skill areas: his defi self-care, skills, living, family home social com- cits: affidavits from members and use, self-direction, munity noting health friends he and cannot read or write with safety, academics, leisure, functional and any proficiency and always very had been 1. The current AAMRdefinition of AAMR, fication, tardation behavior as intellectual Mental retardation is a ized and ability originates practical adaptive by significant Mental Retardation: and provides: functioning expressed Systems before limitations skills. disability age and conceptual, Support Definition, [2] [3] This dis- both mental re- character- adaptive Classi- social, [1] 2. below in ALC. Morris was ter in his state habeas ed.2002). Morris entered the alternative ("ALC”) every Morris also subsequently expelled after class at his petition. receiving grades provided regular campus. this definition learning from the of 50 or cen- influenced; argued together evi- easily: *5 expert mental that counsel might appointed meet the criteria for be so Morris by psycho- perform to intellectual retardation as defined current could obtained be and to a the theory.” testing request Dr. Garnett offered his modification of logical informed, opinion there that the that execution date. Morris contended professional if sug- request to court consider such were “indeed sufficient indicators trial would did it the gest oppose that Morris has mental retarda- the state and that Mr. attorneys given oppor- signed tion” and should be the who Morris’s successive “[h]e tunity County and the Harris professional for a assessment writ conferred with Dis review, office, op a of and trict which part Attorney’s [ ] evaluation as was so go evidentiary that an posed. argued then before the for a determina- Morris hearing necessary fully Dr. Brown was to develop tion.” Morris indicated that and supporting had made that he was not áll present a determination available evidence However, of At mentally Dr. Garnett his claim mental retardation under retarded. Morris the expressly requested noted that Dr. Brown “for some reason kins. then a test his apparently following: did not administer of leave to file successive writ, counsel, appointment the of nec intellectual level.” Morris contended that the claims, testing methodology essary Dr. ren- to establish Brown’s resources his evidentiary hearing. dered his assessment and an The TCCA mental retardation unreliable, scientifically light in of his not dismissed Morris’s successive state habeas as the having any intelligence testing application April instru- an abuse of writ on used ment. 2003.3 (the Doug new does Respondent-Appellee 3. The Dretke this Court determines such evidence unexhausted, "Director”) response appeal on not render the in his brief Morris's any perceived suggests argue will the has reliance of Director he then "abandon[ed] adjudication, procedural of the as a on the based on abuse TCCA's decision default” merits, "[tjo any we subject courts extent is to AEDPAdeference. As writ the prior pleading by the in this case can do not find the Director's waiver here [state] Johnson, conceding arguing proce- way "questionable,” be as see Graham v. construed or (5th Cir.1996) (rejecting ex- F.3d dural default.” The Director here thus argument appeal; simply pressly this on state’s waiver on exhaustion where it waives if 15, 2003, request petition filed a This sole issue April On raised the whether for authorization to file a with this Court against Atkins’s constitutional bar execu- petition. Morris successive federal habeas tion of applied retarded the same information request based his Morris. In addition previ- state courts. This presented in the ously presented in the state courts and the stayed execution and tenta- Court Morris’s Circuit, Fifth presented new evi- to file a tively granted his motion succes- dence supporting retardation claim sive that Morris had petition. We held court, including the district an affidavit (1) showing that: prima made a facie from clinical Dr. psychologist Susana A. proposed claim to in the suc- recently IQ Rosin who tested Morris’s had not been application cessive habeas level of adaptive conceptual function- previously any prior applica- ing. two affidavits from (2) Court; tion to such claim relied on James R. Patton a who holds doctorate previously new rule of consti- unavailable disabilities; special education and Dr. Pat- law, tutional been made retroac- which had ton IQ reviewed along results tive to cases on collateral review with all the materials to the (3) Court; Supreme he should be cate- state courts. gorized mentally as retarded. In re Mor- IQ Morris scored a per verbal (5th Cir.2003). ris, 740-41 IQ formance full-scale Our authorization for Morris file his 53 on the Adult Intelligence Wechsler was petition successive habeas tentative (“WAIS-III”) tests administered Scale-Ill that it on the district court dependent by Dr. prong Rosin. The first of the finding under requirements AAMR definition of retardation Penalty Effective Death mental Antiterrorism and *6 (“AEDPA”) Act for such filing performance appropriate of 1996 had on an intellectual (citing been met. Id. at 741 28 U.S.C. that assessment instrument is two stan 2244(b)(4)). § mean, dard deviations below the which is approximately 70 on the WAIS-III.4 On 28, 2003, April
On Morris moved the Range Wide Achievement Test-3 appointment district court for of counsel (“WRAT-3”) Rosin, by Dr. administered approval expert and of of the retention and concep Morris scored than 45 on each less assistance; investigative granted the court arithmetic, (reading, tual skill subtest 20, May this motion on 2003. Morris then spelling). Adaptive On the Vineland Be filed a for petition skeletal writ of habeas (“VABS”) 30, havior Scales tests Dr. Rosin corpus May in federal court on district administered, July which he on 2003. achieved standard amended Morris case, politicization sought wanted to avoid further of Gra- movant’s where he leave to file a case), express ham’s and because waivers are petition successive federal habeas based on honored, ordinarily Atkins, to be see id. at we why there reason federal was "no accept exercise our discretion the Di- procedural courts are not bound bar argument rector's waiver of the that abuse of deny rule to habeas relief” based him federal procedural the writ acts an a state bar to writ). on abuse of the Thus, federal review case. this in Morris’s engage analysis " Court does not in an of ‘Significantly subaverage 4. intellectual func whether treatment of the TCCA’s Morris's tioning is of about 70 or defined as an application successive state habeas based on (approximately below 2 deviations standard independent Atkins resulted in and ade- an " Briseno, mean).' below the Parte Ex See, quate state habeas review. bar to federal (Tex.Crim.App.2004)(quot 7 n. 24 S.W.3d Johnson, e.g., In F.3d re 39). ing DSM-IV at Cir.2003) J., (Jones, concurring) (noting in social, communication, 44 the Director’s motion of 34 in district denied scores living. second-prong accepted of daily and 40 to dismiss and submission petition of retarda under of the AAMR definition mental Morris’s successive federal performance appropriate 2244(b); tion is denied the Director’s 28 U.S.C. that, is two adaptive instrument summary judgment; behavior for and dis- motion mean, below the which petition standard deviations missed Morris’s amended without on the and the approximately VABS In that order the district court prejudice. WRAT-3,. according to Patton. Dr. Dr. that had not determined because Morris diagnosed Morris with Atkins unequivocally Rosin to the state mental retardation. Morris with supported courts its current state — from Dr. which re second affidavit Rosin courts “substantive evidence”—the state Respondent’s futed claim that Morris apply have opportunity did not a fair Dr. Pat during testing. Atkins to the substance Morris’s now malingering of opined ton Morris intellectu that functions habeas claim. There- better documented mentally ally adaptively within the his Atkins fore, Morris had not exhausted pre 2254(b)(1)(A) range retarded this condition claim. See 28 U.S.C.A birthday. (West dated his 18th Supp.2004). The district court indi- cated, however, it would toll equitably Morris a new affidavit also spent the time Morris will have in federal stating Dr. from that his review Garnett having court should he return after ex- findings strengthened his.opin- Dr. Rosin’s state court hausted available remedies. ion that Morris is retarded January 7, 2003, the district court en- On a court hold a full recommending that denying tered an order Morris’s motion to hearing on retardation Morris issue. 59(e), judgment alter or Rule amend under original presented affidavits alternatively or for the issuance of COA. asked stating they trial counsel never appeal then filed a noticed his expert their mental health to test Morris July request COA with Court. On retardation, deter- for mental but rather to 21, 2004, we on the granted a COA posed a mine whether Morris threat Morris, F.3d at issue exhaustion. Finally, future danger. Dr. signed, by purportedly document *7 Brown, no for- stating performed that he DISCUSSION testing
mal of in con- intellectual evaluation; nection and another with his 2254(b)(1)(A) 28 re U.S.C. Dr. signed by document Gar- purportedly petitioners fully habeas quires federal diagnosis reconfirming nett his of Morris court exhaust available state remedies be as retarded. in federal The proceeding fore court.5 longstanding to and for is requirement Director moved dismiss exhaustion summary jurisdictional, policy to not but reflects the of judgment. responded requested comity, designed district federal-state which to both motions -and is hearing. state the initial to evidentiary give opportunity conduct an courts 5, 2003, alleged an order entered December consider correct violations (A) 2254(b)(1)(A)provides: applicant 5. Section has the reme- exhausted dies in the courts State.... available of the application corpus a writ An for of habeas 2254(b)(1)(A) (West Supp. person custody pursuant U.S.C.A. of a 28 behalf 2004). judgment a State not be court shall granted appears it unless that—
491 prisoners’ rights. presented their federal Anderson detailed assertions of para (5th Johnson, 382, v. 338 F.3d 386 Cir. courts, noid schizophrenia to the state even 2003). This Court reviews de novo the though he later offered additional affida legal question of whether a federal habeas vits mental health experts opining on petitioner has exhausted state court reme diagnosis that same to the federal court (citing, part, dies. Id. v. Wilder Cock that were not previously presented to the (5th Cir.2001)).6 rell, 255, 274 F.3d 259 courts). requirement “The exhaustion However, places “evidence that satisfied when the substance of the federal claims a significantly legal different pos fairly presented
habeas
has been
ture must first
presented
to the highest
state court.” Mercadel v.
Anderson,
(inter
courts.”
ed. at courts was A 338 F.3d see also Dowthitt Johnson, (5th 733, may procedural v. 230 F.3d 746 tioner also overcome a Cir. 2000) (finding that if Dowthitt had exhausted default he can show that “failure to his mental IAC illness claim where he had consider the claims will result in a funda argues proper 6. The Director opposed prejudice that the stan- to with was an abuse of discretion, dard for this Court to review the district legal not the issue of whether new prejudice court's dismissal without here is petitioner’s, evidence rendered the claim Johnson, Horsley abuse of discretion. In v. unexhausted. We instead review that discrete (5th Cir.1999), by 197 134 F.3d cited the Anderson, question of law de novo. 338 F.3d Director, this Court decided whether the dis- (citations omitted). at 386 prejudice trict court’s dismissal without as 492 and rejected argument the state’s held miscarriage justice.” Barrientes
mental
(5th
Johnson,
741,
supplemental
221
Cir.
“the
evidence
F.3d
758
that
v.
2000)
legal
the
Thompson,
fundamentally
501
... did not
alter
Coleman v.
(quoting
750,
2546,
already
by the
722,
111
115 L.Ed.2d
considered
U.S.
S.Ct.
(1991)).
courts, and, therefore,
Also,
require
not
is not re
did
640
“exhaustion
[Hillery] be
to state court for
plainly
if it
futile.” Gra
remitted
quired
would
260,
Id. at
ham,
of that evidence.”
F.3d at 969.
consideration
94
added).
(emphasis
106
617
S.Ct.
district court’s dismissal without
The
federal ha-
of Morris’s successive
prejudice
Dowthitt,
petitioner
In
ar
habeas
premised entirely on that
petition was
beas
deprived
that he had
gued
been
the new evi-
legal conclusion that
court’s
effective assistance of counsel because his
for the first time to
dence'
mitiga
had
present
trial counsel
failed to
Atkins
court rendered Morris’s
federál
tion
based on his mental illness.
defense
unexhausted.
proceed
at 743.
court
230
In state
F.3d
ings,
Dowthitt
his Strickland v.
finding
the district court erred
Whether
466
104
Washington,
U.S.
S.Ct.
pre-
that Morris’s additional
(1984),
on
L.Ed.2d 674
claim based
evi
80
;
his
court rendered
sented
federal
located,
his
habeas
in
dence
on
counsel
Atkins claim unexhausted.
cluding hospital
form and Air Force rec
consistently
argued
Morris contends he
indicating
suffered from
ords
Dowthitt
court
identically
state and federal
Dowthitt,
illness.
F.3d at
mental
743-
and thus his
that he is
retarded
However,
habeas,
on
44.
federal
Dowthitt
Eighth
is barred
Amend-
execution
additionally produced
affidavits
two
argués
pursuant
ment
Atkins. Morris
experts
health
clinical im
mental
whose
although the
able to
evidence was
paranoid
pressions were that Dowthitt had
greater
in the district court was
introduce
schizophrenic
mental
features —severe
courts,
than that
introduced in the state
*9
courts,
paranoid
claim was
that he suffered from
such that the
tions
habeas
this
determined the
schizophrenia,
for federal
Court
rendered “unsuitable
by the
little to those
prior
expert
without
consideration
affidavits added
review
and did not run afoul of the exhaus
Supreme
courts.” Id. The
Court
claims
state
requirement.
(finding
tion
Id.
consider
and law.”
Id.
The brief explained
precluded).
not
ation of the affidavits
Anderson’s
lack
counsel’s
of investigation
eyewitness
into the
Arthur Gray and what
argues
this
in
Court
he could have testified to at trial.
Id.
employed
Anderson
different framework
Second,
diligent
Anderson was
and consis-
analyzing
presented
evidence not
new
tent in arguing his claim: “The ‘new’ evi-
to
the state courts
habeas.
affidavit)
(Gray’s
dence
does not ‘funda-
proceedings,
court habeas
Anderson ar
claim;
alter’ Anderson’s state
it
gued
attorney
under Strickland
merely confirms what he has been assert-
failing
investigate
was ineffective for
to
ing
along.”
such,
all
Id. As
the additional
present
testimony
eyewit
of an
“supplement”
evidence was a
to the state
Gray,
ness named Arthur
testimony
whose
place
record but did not
his claim in
would have excluded Anderson as the
Anderson,
a “significantly
perpetrator.
legal posture.”
Morris contends has Vasquez. mention was “contending it does not that there abundant miti- because gating including ... a evidence troubled sum, partic- In likens his Morris case to family history home life a of mental in Anderson ularly petitioner that of the his IAC claim. Id. at support illness” to the factors Morris applies therein. However, court, 987. federal Kunkle first, asserts, petition re- his evidentiary in- support, actual in fact markably detailed and law—not cluding an affidavit from his mother and a conclusory allegation general, of mental Id. The psychological report. detailed Second, argues retardation. Morris he dil- Director that this Court emphasized *11 J., Meyers, concurring quested in dis joined by develop resources to further evi- missal) addition, dence; he (unpublished opinion). argues possess he did not the contends, Vasquez, evidence deliberately bypass the Director unlike state Moreover, Kunkle IQ court. missing argues Morris’s data could never have record; has little import here because the existing been educed from the decision Anderson, relied not on Gra- but rather on alleged diagnosis of mental retar ham, which did not Vasquez. mention depends IQ dation on the five tests admin any Morris also discounts reliance on the on successive federal istered habeas re Williams as to unpublished supposed interpretation view and those results. threshold evidentiary requirement for At- Also, IQ the Director notes that Morris’s kins claims because Williams has no prec- Vasquez, requested, evidence was not as in edential value. interpretive meaningful as an aid for re view. The Director maintains Morris’s The district court here found that Mor- sheds new claim light new evidence supported ris applica- his successive state that state courts should given tion “with little more than speculation.” opportunity to review. Joyner, The court cited primarily proposition comity that, suggests
The Director also al- require federalism “new factual allega- though intentionally, Morris is at- tions in support previously of a asserted state tempting bypass to achieve a legal theory” first be to the more favorable forum and cannot demon- state courts. The court then concluded diligently strate he acted in state court. nature of Morris’s At- expanded Finally, argues light the Director that in kins petition rendered his successive ongoing development proce- of state court disagree. unexhausted. We Atkins, implementing justice dures would by insisting be better served on exhaus- thorough fact-spe After case- and is, prema- tion. That the federal court’s situation, cific review of Morris’s At- adjudication ture stronger of Morris’s IQ Court concludes the new kins claim would deprive court of for the first time federal potential opportunity impor- make court, although factually it indeed bol successively tant law on claim, stered his sole Atkins did not ren facially stronger Atkins claims in the con- der Morris’s Atkins claim—which same le 11.071, text Article Section 5. gal Eighth claim Amendment he to the state supported courts and with In reply, distinguishes his case conclusive, pertinent, if not evidence of low from that of Kunkle. Morris notes the functioning adaptive intellectual defi there concluded Court “Kunkle had not cits, fundamentally from childhood on—as exhausted this ineffective assistance claim altered thus unexhausted. We find possessed because Kunkle this additional Morris’s case falls much closer on the information at the time he filed his second spectrum to the cases where this Court petition, yet present failed to these merely has supple found new evidence significant additional facts.” 352 F.3d at Therefore, petitioner’s mented the claims. Kunkle, pos- 988. Unlike Morris did not in finding the district court erred that the sess the scores and affidavits concern- new evidence rendered Morris’s Atkins ing scores those when filed his second in the state courts. unexhausted petition. pre- state habeas Morris instead Dowthitt, sented all the concrete evidence he did Similar his Atkins claim and support have to produced re- Morris has on federal habeas academics,” “inability obey indicating, functional evidentiary support additional *12 rules,” “inability to law and follow produced evidence he beyond what the indicated, victimization,” “inability develop that he habeas courts avoid crucial The same occu- mentally daily living retarded. [and] is instrumentalities al deficiencies adaptive and skills,” “inability intellectual to maintain a and pational courts— in the state leged by environment,” Morris were at- all of which safe to conclude Morris Dr. Garnett which led and by the sworn affidavits tested to required sufficiently possessed indeed to the state presented records school to merit mental retardation indicators for courts. and professional assessment further an Moreover, present saw fit to by such addi affirmed been review—have affidavit, which, preliminarily, albeit expert assessment evidence professional tional acknowledgment psychologist’s provided Dow court. See to the federal presented mental retar- support for Morris’s of and thitt, crucial (noting F.3d at consistently has as- claim. Morris dation of the mental illness of Dowthitt’s facts that he is retarded serted already type had schizophrenic paranoid, resources, that, given opportunity state courts to the been that. As tests would confirm intellectual further expert affidavits finding thus Anderson, the district the new evidence exhausted). that mental illness supporting develop here does court allowed Morris claims in petitioner’s As were the claim; it fundamentally alter his state
Anderson,
unques-
Morris’s “claim[] [is]
to the record
“supplement
as a
functions
stronger
comparatively
in a
evi-
tionably
court,
does not
to the state
but
in state
than
dentiary posture
[it was]
differ-
significantly
place
claim[]
(internal quotation
court,”
at 388
(inter-
at
legal posture.” 338 F.3d
ent
omitted). But, similar-
marks and citation
omitted).
citation
nal
marks and
quotation
militate in favor of ex-
ly,
facts
“several
admittedly close case.”
in this
haustion
in Anderson
reach-
As we also noted
First,
of Morris’s
thorough review
Id.
conclusion, despite what the Di-
ing our
reveals that
state habeas brief
successive
here,
in this
nothing
we see
argues
rector
“remarkably detailed
claim was
his Atkins
“attempted to
that shows Morris
record
Anderson, 338 F.3d
fact and law.”
in both
deliberately
expedite federal
review
his
brought
unquestionably
at 388.
facts from the state
withholding essential
to At-
pursuant
Eighth Amendment
(citing Vasquez,
courts.” Id. at 389
outlined the
properly
He also
kins.
617).
no
at
There is
U.S.
S.Ct.
retardation,
definition for mental
AAMR’s
intentionally
that Morris
withheld
as one of
by the TCCA
adopted
since
or chose to
IQ testing results
previous
determining
standards for
Texas’s current
for the
any provided opportunity
forego
Briseno,
retardation,
at
135 S.W.3d
mental
IQ testing.
proper
7-8,
necessity to meet all
noted the
from the
distinguishable
Morris’s case is
definition.
prongs of the
three essential
it was ascer
in Graham because
clearly acknowledged
also
See id. Morris
evidence Morris
tainable what
further
lacking
partic-
in his
evidence was
if
federal court
providing
to the
would
good
“[t]here
ular case but still insisted
IQ scores indicative of
develop
he could
is retarded]
that [Morris
reason
believe
it —
and evaluation of those
intelligence
low
history of
documented
...
of the
because
contrast,
Graham
“ina-
results.
deficits,” including Morris’s
adaptive
the federal
of new evidence to
failure in abundance
and write and his
bility to read
presented,
court that had not been
even contained exhausted and unexhausted
abstractly,
including
to the state
claims.
Id. at 987-88. This Court noted
courts—
eyewitnesses
several affidavits from
and that
provided
explanation
Kunkle
no
witnesses,
not previously
alibi
who had
“why
present
he did not
to the state court
been mentioned Graham’s
the same
prepared
materials he had
report
re
proceedings;
psychologist’s
submitted to the federal court.”
Id.
garding
unreliability of the identifica
Here,
single
*13
witness;
testimony by
tion
the state’s main
Atkins claim to both the federal and state
police
report showing
and a
ballistics
courts; he
explicitly acknowledged
also
weapons discrepancy.
Atkins claim was court, to the federal ed for the first time significantly federal court different requirement has met the exhaustion courts and legal posture than in.the 2254(b)(1)(A), § see id. We do not did not the new evidence question petition- case ask the whether the fundamentally alter claim. Be- his Atkins develop er has “failed to the factual basis new evidence cause we find that Morris’s proceedings.” of a claim in State court requirement of has met the exhaustion 2254(e)(2). Here, Morris, § having U.S.C. 2254(b)(1)(A) § to con- for his Atkins claim 2254(b)(1)(A) § met exhaustion re- court, need not tinue in federal this Court IQ quirement on the evidence concerning any excep- argument reach habeas, need for the first time on federal tion to exhaustion. additionally overcome the obstacles of 2254(e)(2). Dowthitt, relief, In Morris re See 230 F.3d prayer is, Thus, nn.11-12. there quests that remand his case to the 745 & because we be, evidentiary hearing. lingering can no concern about district court for an case, un- development” note the fol “factual Morris’s agree We to so remand and 8(a) legal question Governing In der Rule of the Rules Sec- lowing. cases where the Dis- factual tion 2254 Cases the United States basis his Atkins claim before the Courts, Court of Appeals. trict the federal court here retains Criminal grant full discretion to Morris an eviden- If a applicant has “failed to de See, tiary hearing. e.g., Murphy v. John- velop the factual basis of a claim in State (5th son, Cir.2000); 205 F.3d proceedings,” court a federal habeas court Johnson, Clark may evidentiary not hold an hearing on the Cir.2000). certain unless conditions are met.1
It
undisputed
did not pres
during
CONCLUSION
ent
his state habeas
proceedings for the simple reason that it
Having carefully reviewed the record of
yet
did not
presentation,
exist. Lack of
parties’ respective
this case and the
brief-
however, is not the same as “failure to
ing
arguments,
for the reasons set
develop.”
Taylor,2
Williams v.
the Su
above,
forth
we conclude the district court
preme
meaning
Court addressed the
of the
finding
presentment
erred
2254(e)(2).
§in
word “failed”
The Court
of new evidence to
federal
ren-
rejected
statute,
reading
a “no-fault”
of the
per
dered his Atkins claim unexhausted
“[ujnder
and found that
opening
clause
2254(b)(1)(A). Therefore,
U.S.C.
on this
2254(e)(2),
§of
develop
failure to
in light
holding,
record and
of our
we
factual
of a claim
basis
is not established
VACATE the district court’s order dis-
lack
diligence,
unless there is
or some
*15
missing
prejudice
Morris’s claim without
fault,
greater
prisoner
attributable to the
and REMAND with instruction to conduct
or
prisoner’s
the
counsel.”3
evidentiary hearing
an
on the merits of
argues
The State
that Morris failed to
Morris’s Atkins claim.
diligence
exercise
in developing his Atkins
in-
VACATED
REMANDED with
claim, and therefore should be barred from
struction.
an
receiving
evidentiary hearing. The
although
State observes that
Atkins had
HIGGINBOTHAM,
E.
PATRICK
been decided ten months before Morris’
Judge, concurring:
Circuit
date,
days
execution
he
until five
waited
join
judgment
I
vacating
While
before his execution date to file affidavits
addition,
dismissing
support
district court’s order
Mor-
of his claim.
petition, I
separately
explain
ris’
write
State contends that
failed to make
Morris
my rejection
argument
of the
request
State’s
an “on-the-record”
for funds to
evidence,
evidentiary
Morris is not entitled to an
develop his
and that his con-
hearing
develop
because he failed to
dition was
previously discoverable
2254(e)(2).
applicant may
vincing
1. 28 U.S.C.
An
evidence that but
constitution-
evidentiary hearing despite
error,
receive an
failure
al
no reasonable fact-finder would
develop
the factual basis of a claim when:
applicant guilty
have found the
of the
(A) the claim relies on—
underlying offense.
law,
(i) a new rule of constitutional
made
argue
Id.
does not
that he meets
Morris
these
retroactive to cases on collateral review
conditions.
Court,
by
Supreme
previous-
that was
unavailable;
ly
or
120 S.Ct.
146 L.Ed.2d
2. 529 U.S.
(ii)
predicate
a factual
that could not
(2000).
previously
through
have been
discovered
diligence;
the exercise of due
Id. at
7. The
Court reached a similar con
state level
for the
purpose
clusion in Williams:
developing
testimony
con
Mitchell,
affidavit);
tained in the
Greer v.
264
suggest
We do not
the State has an obli-
663,
681 (6thCir.2001) (evidentiary
F.3d
gation
pay
investigation
yet
for
of as
hearing
claims;
petitioner diligently
allowed when
undeveloped
prisoner
but if the
has
pursued his ineffective assistance .claim in
discovery
made a reasonable effort to
proceedings,
requested
state habeas
had twice
pro-
claims to commence or continue state
evidence,
hearings
develop
2254(e)(2)
and both re
ceedings, §
will not bar him
courts).
quests
were refused
developing
them in federal court.
443,
1479;
I
Moreover, heartily Judge endorse I analysis of the fail-
Higginbotham’s state’s applaud develop argument
ure to ar- eloquence with which he
passion and Further, Judge I
gues. believe reasoning, that of the
Higginbotham’s Taylor, in Williams v.
Supreme Court L.Ed.2d
U.S. S.Ct.
(2000), applica- court’s inform should rubric.
tion of the exhaustion America,
UNITED STATES
Plaintiff-Appellee, CORTEZ, Domingo known also
Juan Cortez,
as Defendant- J.D.
Appellant.
No. 04-10152
Summary Calendar. Lubbock, TX, McRoberts, for Roger L. Appeals, States Court United Plaintiff-Appellee. Fifth Circuit. Worth, TX, Cortez, Domingo Fort Juan 16, 2005. June DefendanNAppellant. REHEARING ON District from the United States Appeal of Texas. for the District Court Northern GARZA, DeMOSS and Before *18 CLEMENT, Judges. Circuit PER CURIAM: rehearing light of granted panel We — Booker, v. holding United States U.S. — , 160 L.Ed.2d 125 S.Ct. (2005) Washington, Blakely notes all the suggestible and for he submitted demonstrated his defi- expert appointed health dence from mental trial, Brown, indicating following specific adaptive ciencies his Dr. Jerome (1) re- conceptual, had skill areas: intellectually limited and behavioral Morris was ferring inability to and learning problems; partial school rec Morris’s to read aca- learning dis and his failures functional classifying ords Morris as write (2) demics; social, referring age out at to Morris’s indicating abled dropped rules, arid eighth having inability obey to the law follow grade, after repeating fifth, victimization; third, to avoid eighth grades inability and his failed (3) referring inability to practical, special and most of his education/resource develop daily living instrumentalities classes. skills, inability occupational or addition, included an affidavit maintain a safe environment. Dr. Garnett psychologist Richard Furthermore, “in an Morris maintained that the above materials who reviewed Bierbaum, attorneys one of attempt determine whether there Gerald support signing application, a motion Morris’s successive sufficient evidence hearing approached request or not Mr. had the trial court to to determine whether
Notes
Id. at notes problems. 744. Morris singular claim was underlying, Atkins was made to the pursuant decision exhaus fundamentally thus was' not altered and Graham, tion standards laid out in exhausted in state courts. properly Joyner F.2d King, at re- proposition, primarily For this Cir.1986) the claim be — whether Anders'on, Vasquez, and Dowthitt. lies significantly federal “in a fore thé court is evidentiary posture Vasquez, stronger the district court different and pursuant di- it courts.” to Rulé 7 of the rules than was before the state This federal habeas Court, allege the" federal found “Dowthitt [did] rected provide statistical facts’ via the affidavits of two the state additional ‘new allega clarify” ‘all crucial factual experts data in order “supplement because at for re- tions were before the state courts record they ruled time on the merits’ Dow- view. U.S. S.Ct. Dowthitt, petition.” objected that the additional evidence thitt’s habeas pre had equal at 746. Dowthitt drastically petitioner’s altered the F.3d Because his asser challenge already presented sented to the state habeas court protection
notes igently forth all the he brought evidence significant the between difference assert- filing ap- had before or could obtain ing conclusory theory actually back- plied existing all of law and authorities. evidence; ing up theory concrete that with level, Moreover, at the state claim Court found Kunkle’s unex- requested appointed and funds counsel be Id. at 988. hausted. so he could establish his Atkins granted Last, claim. Morris contends he did Second, argues the Director that Morris any deliberately portion withhold of his does not the factor of meet whether expedite in order to federal review evidence ascertainable from that extant or to a more forum. obtain favorable record or from existing discoverable data. Therefore, insists the district court Vasquez, 259, See at 474 U.S. S.Ct. Atkins erred dismissing his claim. (finding computer-generated pre statistics in a more existing sented data reliable The responds Director the district Dowthitt, way); see also at 745- F.3d court was within its discretion in dismiss newly presented 46 (noting affidavits were ing petition Morris’s federal with records). based on medical discoverable prejudice8 out because Morris’s new evi fundamentally dence alters his claim under The maintains by ap Director next federal law. The Director in established case, plying factors to the above evidence, sists that Morris’s additional IQ his new fundamentally alters evidence, newly IQ generated funda is so Atkins his claim. The Director argues mental to his of mental retardation courts, the state that, alone, it standing have war would IQ all, IQ no data at much less an score review in ranted successive evidence, below the new With stresses courts. Morris’s Atkins claim turned Director, degrees around 180 because test points signifi- Director first scores a summary alone could withstand major cance of the new evidence aas dismissal, regardless determining factor the ad- additional data whether supporting prongs the other re vanced claim is exhausted. The Director mental Dretke, Williams, parte that Kunkle v. Ex See argues F.3d 980 tardation. No. (Tex. Cir.2003), court, 43,907-02, controls. at WL *2-3 Kunkle, 2003) only petitioner, Crim.App. (Cochran, J., Feb. court, ing petition only trial counsel's behavior rendered state and federal the federal unexhausted). Brady er's level did indicate what Strickland claim In Lan material had (3d. suppressed; Rafferty, been so his claim was unexhaust- dano v. 669-70 Cir.1990), ed. although made his Maryland, Brady v. 373 U.S. 83 S.Ct. (1963), supra 8. See 10 L.Ed.2d claims in both n. 6.