     Case: 15-70008      Document: 00513853600         Page: 1    Date Filed: 01/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals

                                      No. 15-70008
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                            January 27, 2017

EDWARD LEE BUSBY,                                                             Lyle W. Cayce
                                                                                   Clerk
              Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent–Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CV-160


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioner Edward Lee Busby requests a certificate of appealability
(COA) authorizing him to appeal the district court’s denial of federal habeas
relief on three separate claims: (1) that he is intellectually disabled and
therefore ineligible for execution under Atkins v. Virginia, 1 (2) that he received
ineffective assistance of direct appeal counsel, and (3) that his trial counsel was



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 536 U.S. 304 (2002).
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                                       No. 15-70008
ineffective by failing to conduct an adequate sentencing investigation or to
present an adequate mitigation case during the penalty phase of trial. We
grant Busby’s request for a COA on all three claims.
                                              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 Busby’s intent or
culpability. The trial court excluded the statements as inadmissible hearsay.
The jury found Busby guilty.
       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.



       2 Busby v. State, 253 S.W.3d 661, 663-64 (Tex. Crim. App. 2008), cert. denied, 555 U.S.
1050 (2008).
       3 See generally Busby v. Stephens, No. 4:09-CV-160-O, 2015 WL 1037460 (N.D. Tex.

Mar. 10, 2015).
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                                    No. 15-70008
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 28 U.S.C. § 2254. This petition alleged seven claims, including the
three relevant here.        Determining that several of Busby’s claims were
unexhausted, the district court stayed proceedings to permit Busby to exhaust
the claims in state court. The TCCA dismissed Busby’s subsequent application
as an abuse of the writ, and Busby returned to federal court.




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                                      No. 15-70008
      During the abeyance period, the Supreme Court issued Trevino v.
Thaler. 4 The Supreme Court had previously held in Martinez v. Ryan:
              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. 5

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.
                                             II
      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 § 2253(c)
is straightforward: The petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” 8        When a district court denies a habeas claim as
procedurally defaulted, a prisoner must show that “jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a



      4 133 S. Ct. 1911 (2013).
      5 132 S. Ct. 1309, 1320 (2012).
      6 Trevino, 133 S. Ct. at 1919-21.
      7 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
      8 Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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                                      No. 15-70008
constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” 9 In either case, “[a]
prisoner seeking a COA must prove something more than the absence of
frivolity,” though he need not prove that he will ultimately prevail on appeal. 10
The Supreme Court has explained that a petitioner must “sho[w] that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” 11 In
death penalty cases, “any doubt as to whether a COA should issue . . . must be
resolved in favor of the petitioner.” 12
                                            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 Texas Code of Criminal Procedure Article 11.071 § 5(c)—and
that Busby failed to show “by clear and convincing evidence that he is mentally
retarded” so as to meet the “actual innocence” exception to procedural default.
       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,




       9 Id.
       10 Miller-El, 537 U.S. at 338 (internal quotation marks omitted).
       11 Slack, 529 U.S. at 484 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
       12 Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005).
       13 Maples v. Thomas, 132 S. Ct. 912, 922 (2012); see also Coleman v. Thompson, 501

U.S. 722, 750 (1991); Rocha v. Thaler, 626 F.3d 815, 820-21 (5th Cir. 2010).
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         § 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 the merits of the claims”—indicates
that the TCCA did not reach the merits of Busby’s Atkins claim. The State
further notes that we have “consistently held that Texas’ abuse-of-writ rule is
ordinarily an adequate and independent procedural ground on which to base a
procedural default ruling.” 15
         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 Article 11.071 § 5(a)(3), 16 which requires an applicant
to demonstrate
                  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 § 5(a)(3), the TCCA necessarily




         14   Ex parte Busby, No. WR-70,747-02, 2013 WL 831550, *1 (Tex. Crim. App. Mar. 6,
2013).
         15   Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir. 2005) (internal quotation marks
omitted).
          See Ex parte Blue, 230 S.W.3d 151, 162 (Tex. Crim. App. 2007) (“We hold that a
         16

state habeas applicant alleging mental retardation for the first time in a subsequent writ
application will be allowed to proceed to the merits of his application under the terms of
Section 5(a)(3)—at least so long as he alleges and presents, as a part of his subsequent
pleading, evidence of a sufficiently clear and convincing character that we could ultimately
conclude, to that level of confidence, that no rational factfinder would fail to find he is in fact
mentally retarded.”).
       17 TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a)(3) (West) (emphasis added).

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                                     No. 15-70008
conducts a merits review. 18 Accordingly, reasonable jurists could disagree with
the district court’s conclusion that Busby’s claim was procedurally barred.
      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 actually represent a score that
is five points higher or five points lower than the actual IQ.” 24
       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



       18 Garcia v. Stephens, 757 F.3d 220, 225 (5th Cir. 2014); Ladd v. Stephens, 748 F.3d
637, 641 n.10 (5th Cir. 2014); Rivera v. Quarterman, 505 F.3d 349, 359-60 (5th Cir. 2007).
       19 Slack v. McDaniel, 529 U.S. 473, 484 (2000).
       20 Atkins v. Virginia, 536 U.S. 304, 317 (2002) (alteration in original).
       21 135 S.W.3d 1 (Tex. Crim. App. 2004).
       22 Blue v. Thaler, 665 F.3d 647, 657-58 (5th Cir. 2011) (internal quotation marks

omitted) (citing Briseno, 135 S.W.3d at 7).
       23 Id. at 658.
       24 Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim. App. 2010).

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                                       No. 15-70008
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 81 25—
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




       25  Busby’s prison records show that he was administered an “unknown” IQ test in
2001, on which he scored a 96. However, while cross-examining Dr. Proctor, the State offered
to “forget about the 96 IQ” and stated that there was “probably . . . something wrong with the
results.”
        26 134 S. Ct. 1986, 2001 (2014).

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                                        No. 15-70008
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. Finding the claim unexhausted, the
district court stayed the case so that Busby could present his claims to the state
court. Busby’s federal habeas counsel filed a subsequent application with the
TCCA, which was dismissed as an abuse of the writ without consideration on
the merits. The district court subsequently concluded that this claim was
procedurally defaulted, rejecting Busby’s argument that the limited exception
to procedural default set forth in Martinez v. Ryan 28 and Trevino v. Thaler 29
extends      to    ineffective-assistance-of-appellate-counsel             (IAAC)       claims.
Alternatively, the district court concluded the claim lacked merit.



       27 Id. at 1994. After the conclusion of briefing in this case, we held that Briseno
remains a constitutionally permissible interpretation and application of Atkins. Henderson
v. Stephens, 791 F.3d 567, 585-86 (5th Cir. 2015), petition for cert. filed, (U.S. Jan. 28, 2016)
(No. 15-7974).
       28 132 S. Ct. 1309 (2012).
       29 133 S. Ct. 1911 (2013).

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                                       No. 15-70008
       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



       30 739 F.3d 753 (5th Cir. 2014).
       31 Id. at 778 n.16.
       32 Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013) (emphasis added).
       33 Dansby v. Hobbs, 766 F.3d 809, 827-28 (8th Cir. 2014). Though the court considered

the conflict issue primarily under Maples v. Thomas, 132 S. Ct. 912 (2012), it also expressly
declined to extend Martinez/Trevino to claims of IAAC, noting that “[m]ost circuits to address
the point have declined to extend Martinez to claims alleging ineffective appellate counsel,
and we agree.” Id. at 833.
       34 See Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012) (noting that the court

understood Martinez to apply only to claims of ineffective assistance of trial counsel, and not
of appellate counsel, though noting that the exception would not apply in any event because
Oklahoma law permitted the assertion of an ineffectiveness claim on direct appeal); see also
Fairchild v. Trammell, 784 F.3d 702, 722-23 (10th Cir. 2015) (declining to apply Trevino to
Oklahoma’s procedural framework, which allows ineffective-assistance-of-trial-counsel
claims to be fully developed); Decker v. Roberts, 530 F. App'x 844, 845 (10th Cir. 2013)
(unpublished) (noting that Martinez and Trevino “hold that the ineffectiveness of post-
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                                       No. 15-70008
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 of the language in Martinez may support Busby’s
contention that the case’s logic should be extended because the same sort of
double ineffectiveness would “deprive the defendant of any opportunity at all
for review” of certain issues. 36 Further, the Supreme Court recently granted
certiorari on the issue of whether the rule established in Martinez and Trevino
also applies to procedurally defaulted, but substantial, ineffective-assistance-
of-appellate-counsel claims. 37
       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


conviction counsel may not be used to excuse a procedural default when the underlying claim
is for something other than the ineffective assistance of trial counsel”).
        35 See Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013) (holding that

Martinez extends to Sixth Amendment ineffective-assistance-of-appellate-counsel claims).
        36 See Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013); Martinez v. Ryan, 132 S. Ct.

1309, 1317 (2012) (likening the initial-review collateral proceeding to a direct appeal and
noting that “an attorney’s errors during an appeal on direct review may provide cause to
excuse a procedural default; for if the attorney appointed by the State to pursue the direct
appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply
with the State's procedures and obtain an adjudication on the merits of his claims”).
        37 Davila v. Davis, 650 F. App’x. 860 (5th Cir. 2016) (per curiam) (unpublished), cert.

granted, 2017 WL 125677 (U.S. Jan. 13, 2017) (No. 16-6219).
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                                      No. 15-70008
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.
Ryan 38 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
additional evidence was largely cumulative of that presented to the jury. The
district court observed that the declarations from multiple individuals
regarding Busby’s mental state were “weakened” because the declarations
were “untested, unsworn, and in some cases, undated.”




       38  132 S. Ct. 1309 (2012).
       39  133 S. Ct. 1911 (2013).
        40 132 S. Ct. at 1318 (citing Strickland v. Washington, 466 U.S. 668 (1984)).
        41 Id. (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)) (describing standards for

certificates of appealability to issue).
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                                       No. 15-70008
       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


       42 Id. While we recognize that the district court did not decide whether trial counsel
was ineffective, instead concluding that Busby’s IATC claim was not substantial due to lack
of prejudice, as it was entitled to do, we discuss the ineffectiveness issue because Busby still
bears the burden to “state a valid claim of the denial of a constitutional right” should we
conclude that reasonable jurists could debate the district court’s procedural ruling.
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                                        No. 15-70008
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, coupled with the instant offense, would indisputably lead
reasonable jurists to find this new mitigation evidence irrelevant as it pertains
to the imposition of the death penalty. 47
       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.
                                    *        *         *


       43 See Strickland v. Washington, 466 U.S. 668, 688 (1984).
       44 Newbury v. Stephens, 756 F.3d 850, 872 (5th Cir. 2014) (per curiam) (citing
Strickland, 466 U.S. at 687).
       45 Escamilla v. Stephens, 749 F.3d 380, 388 (5th Cir. 2014) (quoting Strickland, 466

U.S. at 694).
       46 Sears v. Upton, 561 U.S. 945, 955-56 (2010).
       47 Compare Escamilla, 749 F.3d at 393 (granting a COA on the defendant’s IATC claim

premised on an inadequate mitigation investigation notwithstanding the “disturbing facts of
the crime alone”), with Newbury, 756 F.3d at 874 (denying a COA on the defendant’s claim
that trial counsel conducted an inadequate mitigation investigation where the “State’s
evidence of [the defendant’s] future dangerousness and moral culpability was
overwhelming”).
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                                 No. 15-70008
      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.




                                       15
