     Case: 15-70008       Document: 00514963180      Page: 1   Date Filed: 05/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                      No. 15-70008                     FILED
                                                                   May 20, 2019

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


                    ON PETITION FOR REHEARING EN BANC


Before OWEN, GRAVES, ∗ and HIGGINSON, Circuit Judges.
PRISCILLA OWEN, Circuit Judge.
      We treat Edward Lee Busby’s petition for rehearing en banc as a petition
for panel rehearing pursuant to Fifth Circuit Internal Operating Procedures
under Federal Rule of Appellate Procedure 35. Busby’s petition for rehearing
is DENIED. The opinion in No. 15-70008, issued June 13, 2018, and reported
at 892 F.3d 735, is hereby WITHDRAWN, and the following opinion is ISSUED
in its place.



      ∗
          Concurring in the judgment only.
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                                       No. 15-70008
       Edward Lee Busby seeks federal habeas corpus relief, asserting three
claims: that (1) he is intellectually disabled and therefore ineligible for
execution under Atkins v. Virginia, 1 (2) he received ineffective assistance of
counsel on direct appeal, and (3) his trial counsel was ineffective by failing to
conduct an adequate sentencing investigation or by failing to present an
adequate mitigation case during the penalty phase of trial. The district court
denied relief. We affirm the district court’s judgment.
                                              I
       Edward Lee Busby was arrested and charged for the January 2004
kidnapping, robbery, and murder of a seventy-eight-year-old woman, Laura
Crane. 2   Evidence at trial reflected that Busby and a female accomplice,
Kathleen “Kitty” Latimer, abducted Crane from a grocery store parking lot in
Texas, placed her in the trunk of her vehicle, and drove to Oklahoma. 3 Busby
admitted to authorities that he wrapped twenty-three feet of duct tape around
Crane’s face. Crane’s death was caused by asphyxiation. 4 According to a
medical examiner, Crane was bound with such force that her nose deviated
from its normal position. 5 Though Busby admitted his involvement in the
crime, he denied that he intended to kill Crane. 6 At trial, Busby’s counsel twice
attempted to introduce statements attributed to Latimer that potentially




       1 536 U.S. 304, 321 (2002) (“Construing and applying the Eighth Amendment in the
light of our ‘evolving standards of decency,’ we . . . conclude that [the death penalty] is
excessive and that the Constitution ‘places a substantive restriction on the State's power to
take the life’ of a mentally retarded offender.”).
       2 Busby v. State, 253 S.W.3d 661, 663-64 (Tex. Crim. App. 2008), cert. denied, 555 U.S.

1050 (2008).
       3 Id. at 664-65.
       4 Id. at 663-64
       5 Id. at 664.
       6 Id.



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                                      No. 15-70008
supported Busby’s contention that he did not intend to kill his victim, but these
statements were excluded by the trial court. 7 The jury found Busby guilty. 8
      During the penalty phase of the trial, the jury determined that Busby
posed a future risk of dangerousness to society and that no mitigating factors
warranted a life sentence. 9 These findings required the trial court to sentence
Busby to death. 10 Busby appealed, but his appellate counsel did not challenge
the exclusion of Latimer’s potentially exculpatory statements. 11 The Texas
Court of Criminal Appeals (TCCA) affirmed, 12 and the Supreme Court denied
Busby’s petition for certiorari. 13
      In Busby’s first state habeas petition, 14 his appointed state habeas
counsel initially asserted an ineffective-assistance-of-trial-counsel (IATC)
claim regarding the adequacy of trial counsel’s mitigation investigation. 15 The
TCCA granted state habeas counsel funding to perform an independent
mitigation investigation. 16      Invoices indicate that state habeas counsel’s
mitigation investigator conducted interviews of several people, including
Busby’s two sisters and mother. 17
      Six months after the filing of Busby’s petition, his state habeas counsel
withdrew the IATC claim, informing the TCCA that he was “convinced that


      7  Busby v. Stephens, No. 4:09-CV-160-O, 2015 WL 1037460, at *11-13 (N.D. Tex. Mar.
10, 2015).
       8 Busby, 253 S.W.3d at 663.
       9 Id.; ROA.867-68.
       10 Busby, 253 S.W.3d at 663.
       11 See generally id.
       12 Id. at 673.
       13 Busby v. Texas, 555 U.S. 1050 (2008).
       14 See Ex parte Busby, No. WR-70,747-01, 2009 WL 483096 (Tex. Crim. App. Feb. 25,

2009) (per curiam) (unpublished).
       15 ROA.2165.
       16 Busby v. Stephens, No. 4:09-CV-160-O, 2015 WL 1037460, at *14 (N.D. Tex. Mar.

10, 2015).
       17 See ROA.3232-33.



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adequate pretrial mitigation was conducted because no significant additional
mitigating evidence would have been discovered.” 18 The TCCA dismissed the
petition. 19
       Busby then filed a federal habeas corpus petition pursuant to 28
U.S.C. § 2254. 20 This petition alleged seven claims, including for the first time
claims that: (1) Busby’s death sentence violates the Eighth Amendment
because he suffers from an intellectual disability (the term more recently used
by the Supreme Court in describing the condition that Atkins denominated
“mental retardation”), 21 (2) Busby received ineffective assistance from direct
appeal counsel due to the failure to challenge the trial court’s exclusion of
Latimer’s statements, and (3) Busby received ineffective assistance of trial
counsel because of counsel’s alleged failure to conduct a reasonable mitigation
investigation. 22
       The district court stayed Busby’s federal habeas petition to permit
exhaustion of claims that had not previously been presented in state court. 23
Busby filed a subsequent state habeas petition, which the TCCA dismissed as
an abuse-of-the-writ. 24 Busby then returned to federal court. 25
       The district court afforded Busby the opportunity to present mitigation
and other evidence at a hearing, but Busby did not identify any witnesses and



       18  ROA.1551.
       19  Ex parte Busby, 2009 WL 483096, at *1.
        20 ROA.696-1369, 2343-3092.
        21 See, e.g., Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (“Previous opinions of this

Court have employed the term ‘mental retardation.’ This opinion uses the term ‘intellectual
disability’ to describe the identical phenomenon.”).
        22 ROA.696-858; 2343-2524.
        23 Busby v. Stephens, No. 4:09-CV-160-O, 2015 WL 1037460, at *2 (N.D. Tex. Mar. 10,

2015); ROA.1877.
        24 Ex Parte Busby, No. WR-70,747-02, 2013 WL 831550, at *1 (Tex. Crim. App. Mar.

6, 2013) (per curiam) (unpublished); ROA.2323-24.
        25 See Busby, 2015 WL 1037460, at *2.



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                                     No. 15-70008
offered only arguments of counsel. 26 The district court denied relief. 27 The
court concluded that Busby’s Atkins claim was procedurally defaulted and did
not satisfy the federal miscarriage-of-justice or actual-innocence exceptions to
procedural default. 28 The district court further declined to excuse Busby’s
procedural default of the claim that he received ineffective assistance of
counsel in his direct appeal. 29 The federal district court also concluded that
some of the mitigation evidence presented in Busby’s habeas petition was
duplicative of evidence presented to the jury during his trial, and that, on
balance, had the jury heard all of the mitigation evidence and weighed it
against the aggravating evidence, there was no reasonable probability that at
least one juror would have struck a different balance and would have answered
the special issues submitted in the sentencing phase differently. 30 We granted
a certificate of appealability on all three claims. 31
                                            II
      We first consider Busby’s Atkins claim and begin with an overarching
summary of our conclusions regarding that claim. Busby was convicted in
November 2005, three years after the Supreme Court’s seminal decision in
Atkins. 32 He had retained a psychologist and mental health expert, Timothy
Proctor, Ph.D., who was a defense witness at his state-court trial. Proctor
administered two IQ tests, on which Busby scored 77 and 81, respectively.
Proctor testified that the score of 77 placed Busby in approximately the bottom
sixth percentile, meaning that 94% of the population had a higher IQ than


      26 See ROA.3366-3400.
      27 Busby, 2015 WL 1037460, at *28; ROA.3358.
      28 Busby, 2015 WL 1037460, at *18-21.
      29 Id. at *16-18.
      30 Id. at *12-14.
      31 Busby v. Davis, 677 F. App’x 884, 893 (5th Cir. 2017) (per curiam) (unpublished).
      32 Atkins v. Virginia, 536 U.S. 304 (2002).



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                                    No. 15-70008
Busby, 33 but that Busby was not intellectually disabled. 34 Busby made no
claim before or during that trial, on direct appeal, or in his first state habeas
corpus application that he is intellectually disabled or that any of his counsel
had been ineffective in failing to investigate or pursue such a claim.
      The Atkins claim was first presented in Busby’s federal habeas petition.
Busby argued that the evidence presented in that petition “proves by a
preponderance of the evidence that he has mild mental retardation.” 35 The
federal district court stayed proceedings to permit Busby to present the claim
to a state court. 36 Because the Atkins claim was raised in state court in a
second habeas petition and could have been presented in the first state habeas
proceeding, Texas law required the TCCA to treat the claim as a successive
habeas petition. 37 Busby asserted that he was actually innocent of the death
penalty under article 11.071, section 5(a)(3) of the Texas Code of Criminal
Procedure, 38 which essentially embodies the elements of the federal actual-
innocence standard as set forth in Sawyer v. Whitley. 39 The TCCA denied the
Atkins claim without an evidentiary hearing, 40 and Busby has not challenged
the lack of a hearing.
      After the TCCA rejected his Atkins claim, Busby relied on the evidence
attached to his federal habeas petition. It largely, but not entirely, mirrored
the evidence presented to the TCCA. In his second amended petition for



      33  36 RR 55-56.
      34  36 RR 64; Busby, 2015 WL 1037460, at *10.
       35 ROA.820.
       36 ROA.1877.
       37 See Ex parte Blue, 230 S.W.3d 151, 156 (Tex. Crim. App. 2007); TEX. CODE CRIM.

PRO. ANN. Art. 11.071, § 5(a) (West Supp. 2018).
       38 TEX. CODE CRIM. PRO. ANN. Art. 11.071, § 5(a)(3) (West Supp. 2018).
       39 505 U.S. 333, 336 (1992).
       40 See Ex parte Busby, No. WR-70,747-02, 2013 WL 831550, at *1 (Tex. Crim. App.

Mar. 6, 2013) (per curiam) (unpublished).

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                                    No. 15-70008
habeas relief in federal district court following the TCCA’s denial of relief,
Busby addressed only the factual underpinnings of his Atkins claim. 41 He
affirmatively relied upon the TCCA’s decision in Ex parte Briseño, 42 citing it as
authoritative throughout his briefing on the Atkins claim. 43          Though he
asserted that the TCCA had ruled on the merits in denying the Atkins claim, 44
Busby did not argue in his briefing in the federal district court that the TCCA’s
decision was based on an “unreasonable application of clearly established
Federal law.” 45 Although he has forfeited such a claim by failing to raise it in
the federal district court, we review the TCCA’s decision under § 2254(d)(1),
out of an abundance of caution.
      Busby has retained at least four mental health experts during the course
of his trial and post-conviction proceedings. None of them has diagnosed Busby
as intellectually disabled or opined that he is intellectually disabled. Only
counsel has offered that opinion. His expert witness at the trial resulting in
his conviction and sentencing testified that Busby is not intellectually disabled.
Busby’s second state habeas petition and his federal habeas petition attach
reports from three other experts, mental health literature, and affidavits or
declarations containing information about Busby’s childhood and life. The
record reflects several IQ scores, one of which resulted in a full-scale IQ score
of 81. 46 The TCCA’s decision was not “based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.” 47
      Clearly established federal law is not violated or misapplied when a state


      41 ROA.2462-2493.
      42 135 S.W.3d 1 (Tex. Crim. App. 2004).
      43 ROA.2462-2477.
      44 ROA.2492.
      45 28 U.S.C. § 2254(d)(1).
      46 ROA.2453.
      47 28 U.S.C. § 2254(d)(2).



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court requires an inmate, convicted after Atkins, who presents an Atkins claim
in a second, successive state habeas petition to show by clear and convincing
evidence that “no reasonable juror [or factfinder] would have found him eligible
for the death penalty.” 48 Stated another way, when a reasonable factfinder
could conclude from the evidence Busby presented that he is not intellectually
disabled, a state court has not violated clearly established federal law. Under
federal law, if an actual-innocence claim were presented in a successive federal
habeas petition, a clear-and-convincing-evidence standard would be applied. 49
Federal law does not require states to apply a less demanding standard in a
successive state habeas proceeding. Alternatively, applying a preponderance-
of-the-evidence standard, the TCCA’s decision was not based on an
unreasonable determination of the facts in light of the evidence presented to
it. No expert has ever opined that Busby is intellectually disabled.
       The TCCA’s disposition of the Atkins claim withstands scrutiny under
AEDPA. 50
                                              A
       The only state court to have considered Busby’s Atkins claim was the
TCCA. The claim was presented to that court in a second application for
habeas relief, and the Texas court denied relief in a brief written order. The
Supreme Court has held that “[a] federal habeas court will not review a claim
rejected by a state court ‘if the decision of [the state] court rests on a state law
ground that is independent of the federal question and adequate to support the



       48 See Sawyer v. Whitley, 505 U.S. 333, 349 (1992) (holding that to establish actual
innocence, a petitioner must show “by clear and convincing evidence that but for
constitutional error, no reasonable juror would find him eligible for the death penalty”); TEX.
CODE CRIM. PRO. ANN. Art. 11.071, § 5.03(a)(3) (West Supp. 2018).
       49 See 28 U.S.C. § 2244(b)(2)(B)(ii); McQuiggin v. Perkins, 569 U.S. 383, 395-96 (2013).
       50 28 U.S.C. § 2254(d)(1), (2).



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judgment.” 51 The federal district court concluded that Busby’s Atkins claim
was procedurally defaulted.            Busby takes issue with this conclusion,
contending that the TCCA’s ruling was a merits decision. We agree. The state
court’s decision regarding the Atkins claim was not independent of the federal
question, and it necessarily entailed an assessment of the facts presented in
support of the Atkins claim. It was a decision on the merits within the meaning
of AEDPA.
       The TCCA’s order denying relief on the claims set forth in Busby’s second
state habeas application said, “we dismiss the application as an abuse of the
writ without considering the merits of the claims.” 52 Generally, “when a state
court issues an order that summarily rejects without discussion all the claims
raised by a defendant, including a federal claim that the defendant
subsequently presses in a federal habeas proceeding, the federal habeas court
must presume (subject to rebuttal) that the federal claim was adjudicated on
the merits.” 53 “The presumption may be overcome when there is reason to
think some other explanation for the state court's decision is more likely.” 54
       On its face, the TCCA’s order states that is has denied the application as
an abuse of the writ without considering the merits of the claims. This would
appear to be sufficient to rebut the presumption that Busby’s federal claims
were adjudicated on the merits, with at least one exception—his Atkins claim.
His Atkins claim in the TCCA was just one of his claims. His lead contentions
in the TCCA were arguments concerning mitigation evidence that his trial




       51 Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53,
55 (2009)).
       52 Ex Parte Busby, No. WR-70,747-02, 2013 WL 831550, at *1 (Tex. Crim. App. Mar.

6, 2013) (per curiam) (unpublished).
       53 Johnson v. Williams, 568 U.S. 289, 293 (2013) (citing Harrington v. Richter, 562

U.S. 86, 99 (2011)).
       54 Harrington, 562 U.S. at 99-100.

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                                       No. 15-70008
counsel failed to discover. Busby submitted three broad claims to the TCCA in
his second habeas application: (1) ineffective assistance of trial counsel during
the sentencing phase in failing to conduct a reasonable sentencing
investigation and failing to seek admittance of Latimer’s hearsay statements,
(2) Busby’s sentence violates the Eighth Amendment because he is
intellectually disabled, and (3) his sentence violates the Eighth and Fourteenth
Amendments because he is severely mentally ill. His ineffective-assistance-of-
trial-counsel claim regarding mitigation evidence (unrelated to intellectual
disability) subsumed large portions (the first 76 pages) of his second state
habeas application. It is highly probable that the TCCA denied relief on the
ineffective-assistance-of-trial-counsel claims on the ground that they were
procedurally barred since they were not raised in the initial state habeas
petition. But the same cannot be said of the Atkins claim.
      The TCCA’s seminal decision in Ex parte Blue makes clear that when a
defendant who was convicted post-Atkins raises an Atkins claim for the first
time in a successive habeas application, the Texas court must determine
whether the defendant has asserted facts, which if true, would sufficiently
state an Atkins claim to permit consideration of the successive petition. 55 That
determination is necessarily dependent on a substantive analysis of the Eighth
and Fourteenth Amendments as applied to the factual allegations.
      As noted, Busby first raised his Atkins claim in his federal habeas
petition, and the district court stayed that proceeding to permit exhaustion of
the claim by the state courts. His Atkins claim was accordingly presented in a
second state habeas petition to the TCCA. Under section 5 of Texas’s abuse-




      55   230 S.W.3d 151, 162-63 (Tex. Crim. App. 2007).

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of-the-writ statute, the TCCA is required to dismiss subsequent habeas
petitions 56 unless sufficient specific facts are set forth:
      Sec. 5. (a) If a subsequent application for a writ of habeas corpus
      is filed after filing an initial application, a court may not consider
      the merits of or grant relief based on the subsequent application
      unless the application contains sufficient specific facts
      establishing that:
      (1) the current claims and issues have not been and could not have
          been presented previously . . . because the factual or legal basis
          for the claim was unavailable on the date the applicant filed the
          previous application;

      (2) by a preponderance of the evidence, but for a violation of the
          United States Constitution no rational juror could have found
          the applicant guilty beyond a reasonable doubt; or

      (3) 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 . . . . 57

      The State contends that because intellectual disability, by definition,
must exist during childhood, and because the Supreme Court’s decision in
Atkins had issued well before Busby filed his first state habeas application,
Busby’s second application was resolved under section 5(a)(1). The State cites
this court’s decision in Rocha v. Thaler 58 for the proposition that the TCCA’s
dismissal did not involve the merits of Busby’s Atkins claim, arguing that
Busby’s claim was dismissed under section 5(a)(1), rather than section 5(a)(3).
The State’s argument is not well-taken. It badly misreads this court’s decision
in Rocha as well as the TCCA’s decision in Ex parte Blue. 59


      56 See TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(c) (West Supp. 2018).
      57 Id. § 5(a).
      58 626 F.3d 815, 838 (5th Cir. 2010).
      59 230 S.W.3d 151.



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      The Rocha opinion discussed cases that predated the TCCA’s decision in
Blue, and Rocha recognized that, though the TCCA addressed Atkins claims
under section 5(a)(1) for a period of time, by the time Rocha was decided, the
TCCA had begun resolving Atkins claims like Busby’s under section 5(a)(3). 60
Moreover, the opinion in Rocha expressly recognized that, during the bygone
era in which the TCCA considered Atkins claims under section 5(a)(1), the
TCCA “step[ped] beyond a procedural determination to examine the merits of
an Atkins claim.” 61 The Rocha opinion said,
     This prima-facie review meant that CCA decisions dismissing
     Atkins claims for failure to satisfy § 5(a)(1) rested on the merits of
     those claims.      Consequently, the federal courts were not
     procedurally barred from considering federal habeas petitions
     advancing Atkins claims that had been dismissed as abuses of the
     writ for failure to satisfy § 5(a)(1). We first recognized that this
     new, Atkins-specific screening function had robbed § 5(a)(1)
     dismissals of their independent, state-law character in our 2005
     decision in Morris v. Dretke. 62
      The Rocha opinion concluded that “[t]he new prima-facie-showing
requirement the [T]CCA had engrafted onto § 5(a)(1) was specific to Atkins
claims,” and that “even as we were reaching the merits of Atkins claims that
had been dismissed under § 5(a)(1), we continued to treat other kinds of
petitions that had been dismissed under § 5(a)(1) as having been dismissed on
an independent and adequate state-law ground.” 63 Accordingly, even had the
TCCA resolved Busby’s Atkins claim under section 5(a)(1), our court has
concluded that the denial of an Atkins claim under section 5(a)(1) meant that




      60 Rocha, 626 F.3d at 822, 829-841.
      61 Id. at 832 (quoting Rivera v. Quarterman, 505 F.3d 349, 359-60 (5th Cir. 2007)).
      62 Id. at 831.
      63 Id. at 832-33.



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the merits of the claim were considered by the TCCA, and the claim was not
procedurally defaulted.
      In Blue, the TCCA held that section 5(a)(1) does not govern when a
petitioner files “his initial writ application after Atkins and nevertheless failed
to invoke the absolute constitutional prohibition against executing the
mentally retarded in that initial writ.” 64 Instead, “the decision whether to
permit him to proceed will be purely a function of whether he can meet one of
the other criteria of Article 11.071, Section 5.” 65 The TCCA expressly held that
such Atkins claims are reviewed under section 5(a)(3). 66 Unquestionably then,
Busby’s Atkins claim was resolved under section 5(a)(3).
      The TCCA’s decision in Blue also compels the conclusion that when the
TCCA dismissed Busby’s Atkins claim in his second habeas proceeding, the
TCCA considered the merits of his claim. The TCCA’s decision in Blue explains
that “through Article 11.071, Section 5(a)(3), the [Texas] Legislature has
provided a mechanism whereby a subsequent habeas applicant may proceed
with an Atkins claim,” even if the petitioner’s conviction was post-Atkins, and
therefore his first state habeas petition could have raised an Atkins claim but
did not do so. 67 The Atkins claim may be pursued “if [the defendant] is able to
demonstrate to [the TCCA] that there is evidence that could reasonably show,
to a level of confidence by clear and convincing evidence, that no rational finder
of fact would fail to find he is mentally retarded.” 68               In Blue, the TCCA
“construe[d] . . . Section 5(a)(3) to require a threshold showing of evidence that
would be at least sufficient to support an ultimate conclusion, by clear and



      64 Ex parte Blue, 230 S.W.3d 151, 156 (Tex. Crim. App. 2007).
      65 Id.
      66 Id. at 162.
      67 Id. at 154, 162.
      68 Id. at 154.



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convincing evidence, that no rational factfinder would fail to find mental
retardation.” 69
      The TCCA’s decision in Blue examined at length the evidence supporting
the claim that Blue came within Atkins’s prohibition. 70              The Texas court
concluded that the evidence did not meet section 5(a)(3)’s threshold, 71 and the
court dismissed the “subsequent writ application as an abuse of the writ.” 72
This was not a denial of relief on purely state-law procedural grounds,
independent of federal law, because in addressing the Atkins claim, the TCCA
necessarily considered federal law in assessing the sufficiency of the facts
supporting the claim. When Blue subsequently sought habeas relief in the
federal courts, our court noted that “the state accepts that the [T]CCA decided
the merits of Blue’s Atkins claim.” 73
      The TCCA has described section 5(a)(3) as “represent[ing] the [Texas]
Legislature’s attempt to codify something very much like [the] doctrine of
‘actual innocence of the death penalty’ for purposes of subsequent state
writs.” 74 The TCCA deduced that “the Legislature apparently intended to
codify, more or less, the doctrine found in Sawyer v. Whitley.” 75 In Sawyer, a
pre-AEDPA decision, the United States Supreme Court resolved the “standard
for determining whether a petitioner bringing a successive, abusive, or
defaulted federal habeas claim has shown he is ‘actually innocent’ of the death
penalty to which he has been sentenced so that the court may reach the merits




      69 Id. at 163.
      70 Id. at 164-66.
      71 Id. at 166.
      72 Id. at 168.
      73 Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011).
      74 Ex parte Blue, 230 S.W.3d 151, 160 (Tex. Crim. App. 2007).
      75 Id. (citing Sawyer v. Whitley, 505 U.S. 333 (1992)).



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                                      No. 15-70008
of the claim” in a successive federal habeas petition. 76 The Supreme Court held
that “to show ‘actual innocence’ one must show by clear and convincing
evidence that, but for a constitutional error, no reasonable juror would have
found the petitioner eligible for the death penalty under the applicable state
law.” 77 In Blue, the TCCA reasoned that because a person who is intellectually
disabled is constitutionally ineligible for the death penalty, “no rational juror
would answer any of the special issues in the State’s favor, if only for the simple
reason that the statutory special issues would not be submitted to the jurors
in the first place.” 78
       Texas Code of Criminal Procedure article 11.071, section 5(a)(3) provides
a state-law actual innocence gateway through which a defendant may present
an Atkins claim that would otherwise be procedurally defaulted under state
law. The TCCA’s denial of Busby’s Atkins claim under section 5(a)(3) is best
understood, therefore, as a determination that Busby did not make a threshold
showing of evidence that would be sufficient to support, by clear and convincing
evidence, an ultimate conclusion that no rational factfinder would fail to find
him intellectually disabled. 79          Because that determination necessarily
considers the merits of a federal constitutional claim based on Atkins, it is not
procedurally defaulted, as that concept has been expressed in federal decisions
such as Walker v. Martin. 80




       76 505 U.S. at 335.
       77 Id. at 336.
       78 Ex parte Blue, 230 S.W.3d at 161.
       79 Id. at 163.
       80 562 U.S. 307, 315-16 (2011).



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                                       No. 15-70008
                                              B
       Our review of the state court’s disposition of Busby’s Atkins claim is
governed by AEDPA. 81 The Supreme Court applied AEDPA in Brumfield v.
Cain to an Atkins claim that was first raised in a state habeas proceeding and
then pursued in a federal habeas petition. 82 More recently, the Supreme Court
emphasized that AEDPA demands deference to state court dispositions of
Atkins claims. 83      We reject Busby’s contention that the TCCA’s decision
denying his Atkins claim is not entitled to deference under AEDPA and his
assertion that we must review his Atkins claim de novo. 84
       Busby argues in his petition for rehearing that this court’s decision in
Rocha held that the TCCA’s denial of an Atkins claim under section 5(a)(3)
would not be subject to review under AEDPA but must be reviewed de novo.
This is erroneous. The decision in Rocha involved a Wiggins 85 claim, which is
an assertion that trial counsel failed to investigate adequately for mitigating
evidence. 86 The Rocha decision expressly drew a distinction between Atkins
and Wiggins claims. 87 In any event, had Rocha implied that we do not review


       81 See, e.g., Brumfield v. Cain, 135 S. Ct. 2269, 2275 (2015).
       82  Id. (quoting 28 U.S.C. §§ 2254(d)(1)) (“After the Louisiana Supreme Court
summarily denied his application for a supervisory writ to review the trial court's ruling,
Brumfield filed a petition for habeas corpus in federal court, again pressing his Atkins claim.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Brumfield
could secure relief only if the state court's rejection of his claim was either ‘contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,’ or was ‘based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.’”).
       83 See Shoop v. Hill, 139 S. Ct. 504, 506-07 (2019).
       84 Petition for Rehearing at iv, 10-11, 12, 15.
       85 Wiggins v. Smith, 539 U.S. 510 (2003).
       86 See Rocha v. Thaler, 626 F.3d 815, 820 (5th Cir. 2010).
       87 Id. at 826-27 (“There may well be some exceptions to the rule that a decision on the

gateway innocence claim does not constitute a decision on the underlying constitutional
claim. As Judge Dennis has previously recognized, an Atkins claim is a claim that the
petitioner is ineligible for the death penalty. So too is a claim that the petitioner was under
eighteen at the time of his crime, is insane, or has some other characteristic that the Supreme

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                                        No. 15-70008
an Atkins claim like Busby’s under AEDPA, that would have been dicta and
would be contrary to the Supreme Court’s subsequent decisions in Brumfield
and Shoop. The Rocha decision would therefore not be binding precedent on
this issue.
                                               C
       Under 28 U.S.C. § 2254(d)(1), we must ascertain the clearly established
federal law, as determined by the Supreme Court of the United States, with
regard to an Atkins claim that was first raised in state court in a second habeas
petition. 88 Under state law, this case is in a different procedural posture than
one in which a defendant first raises a claim that he is intellectually disabled
at his murder trial or in his first state habeas application. At trial or in an
initial habeas proceeding, a defendant in Texas state court has the burden of
establishing an Atkins claim by a preponderance of the evidence. 89 Since
Busby first raised an Atkins claim in state court in a subsequent habeas
petition, Texas Code of Criminal Procedure article 11.071, section 5(a)(3)
requires that Busby must prove by “clear and convincing evidence, that no
rational factfinder would fail to find mental retardation.” 90 In ruling upon



Court has held categorically justifies exemption from the death penalty. In such cases, the
inquiry into the gateway innocence claim will substantially overlap with the inquiry into the
merits of the underlying constitutional claim. Our panel opinion's holding does not implicate
this limited class of cases, as Rocha's Wiggins claim is not a claim of categorical ineligibility
for the death penalty.”).
        88 28 U.S.C. § 2254(d)(1).
        89 See Gallo v. State, 239 S.W.3d 757, 770 (Tex. Crim. App. 2007) (“[I]n a habeas action,

a defendant has the burden to prove mental retardation by a preponderance of the evidence.
Similarly, we now hold that when the issue is presented at trial, a defendant bears the burden
of proof, by a preponderance of the evidence, to establish that he is mentally retarded.”).
        90 Ex parte Blue, 230 S.W.3d 151, 163 (Tex. Crim. App. 2007); see also id. at 154 (“We

conclude that through Article 11.071, Section 5(a)(3), the Legislature has provided a
mechanism whereby a subsequent habeas applicant may proceed with an Atkins claim if he
is able to demonstrate to this Court that there is evidence that could reasonably show, to a
level of confidence by clear and convincing evidence, that no rational finder of fact would fail

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                                      No. 15-70008
Busby’s Atkins claim, the TCCA necessarily held that Busby failed to present
“evidence that could reasonably show, to a level of confidence by clear and
convincing evidence, that no rational finder of fact would fail to find he is
mentally retarded.” 91 The TCCA foreclosed Busby from establishing his claim
under     the     less-demanding         preponderance-of-the-evidence           standard.
Accordingly, an initial question is whether the TCCA unreasonably applied
clearly established federal law in doing so.
        Supreme Court decisions construing AEDPA indicate that the federal
constitution permits federal courts to deny, as an abuse of the writ, a claim
that a defendant is innocent of the death penalty, if the actual-innocence claim
is brought in a successive application under 28 U.S.C. § 2244, and the factual
predicate for the claim could have been discovered previously through the
exercise of due diligence. 92 There is no basis for concluding that the federal
constitution prohibits the States from similarly denying, as an abuse of the
writ, claims of actual innocence of the death penalty first asserted in a second,
successive or, to use the language of the Texas statute, “subsequent” state
habeas petition.
        As discussed above, the Supreme Court’s pre-AEDPA decision in Sawyer
v. Whitley established that federal courts could employ the miscarriage of
justice exception even if claims were first raised in successive federal habeas
petitions. 93 However, in McQuiggin v. Perkins, the Supreme Court explained
that in enacting AEDPA, Congress “constrained the application of the




to find he is mentally retarded. However, because we find that the applicant in this case has
failed to satisfy this heightened-threshold burden, we deny him leave to proceed.”).
        91 Id. at 154.
        92 See 28 U.S.C. § 2244(b)(2)(B); see also McQuiggin v. Perkins, 569 U.S. 383, 395-96

(2013).
        93 See 505 U.S. 333, 335-36, 339 (1992).



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                                    No. 15-70008
[miscarriage-of-justice] exception” by the inclusion of § 2244(b)(2)(B). 94 That
section of AEDPA “limits the exception to cases in which ‘the factual predicate
for the claim could not have been discovered previously through the exercise of
due diligence,’ and the petitioner can establish that no reasonable factfinder
‘would have found [her] guilty of the underlying offense’ by ‘clear and
convincing evidence.’” 95 The Supreme Court reasoned that “Congress thus
required second-or-successive habeas petitioners attempting to benefit from
the miscarriage of justice exception to meet a higher level of proof (‘clear and
convincing evidence’) and to satisfy a diligence requirement that did not exist
prior to AEDPA’s passage.” 96
      Texas law is less demanding than federal law in this regard. A defendant
asserting an Atkins claim post-Atkins is not required to satisfy a diligence
requirement but only to establish “by clear and convincing evidence” that “no
rational juror would have answered in the state’s favor one or more of the
special issues that were submitted to the jury.” 97 The application of this Texas-
law standard to Atkins claims by persons convicted post-Atkins is not “contrary
to . . . clearly established Federal law, as determined by the Supreme Court of
the United States.” 98
      The Supreme Court’s holdings regarding Ford 99 incompetence-to-be-
executed claims cannot be imported, wholesale, into the law governing Atkins
claims. First and foremost, a Ford incompetency-to-be-executed claim is not
necessarily “successive” even if raised in a second or subsequent habeas



      94 569 U.S. at 395.
      95 Id. at 396.
      96 Id.
      97 TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a)(3) (West Supp. 2018).
      98 28 U.S.C. § 2254(d)(1).
      99 Ford v. Wainwright, 477 U.S. 399 (1986).



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                                       No. 15-70008
application. 100 A Ford claim can be raised in multiple proceedings and not be
“successive.” 101 That is because mental incompetence to be executed is not
categorically a permanent condition. 102 Incompetence may occur at various
points after conviction, and it may recede and later reoccur. A finding that an
inmate is incompetent to be executed does not foreclose the possibility that she
may become competent in the future and would no longer be constitutionally
ineligible for the death penalty. 103 By contrast, intellectual disability is by
definition a permanent condition that must have manifested before the age of




       100 See Panetti v. Quarterman, 551 U.S. 930, 947 (2007) (noting that in Ford the Court
“remand[ed] the case to the District Court to resolve Ford's incompetency claim, even though
Ford had brought that claim in a second federal habeas petition”); id. (“The statutory bar on
‘second or successive’ applications does not apply to a Ford claim brought in an application
filed when the claim is first ripe. Petitioner's habeas application was properly filed, and the
District Court had jurisdiction to adjudicate his claim.”); id. (citing Barnard v. Collins, 13
F.3d 871, 878 (5th Cir. 1994) for our court’s observation that “our research indicates no
reported decision in which a federal circuit court or the Supreme Court has denied relief of a
petitioner's competency-to-be-executed claim on grounds of abuse of the writ”).
       101 See id.; see also Green v. Thaler, 699 F.3d 404, 421 (5th Cir. 2012) (OWEN, J.,

concurring) (“[A] defendant subject to a sentence of death could initiate more than one
competency proceeding in a state court over time, and habeas petitions separately
challenging each state-court competency proceeding would not necessarily be considered
successive under AEDPA. Each proceeding might depend on the facts that obtained at the
time of the competency hearing, particularly when relatively long periods of time had passed
between adjudications of competency.”).
       102 See Ford, 477 U.S. at 429 (O’CONNOR, J., concurring in the result in part and

dissenting in part) (“Regardless of the number of prior adjudications of the issue, until the
very moment of execution the prisoner can claim that he has become insane sometime after
the previous determination to the contrary.”); id. at 435 (REHNQUIST, J., dissenting) (“A claim
of insanity may be made at any time before sentence and, once rejected, may be raised again;
a prisoner found sane two days before execution might claim to have lost his sanity the next
day, thus necessitating another judicial determination of his sanity and presumably another
stay of his execution” (citing Nobles v. Georgia, 168 U.S. 398, 405-06 (1897))); Nobles, 168
U.S. at 405 (observing that “a finding that insanity did not exist at one time would not be the
thing adjudged as to its nonexistence at another”).
       103 See Green, 699 F.3d at 421 (OWEN, J., concurring) (reasoning that “a determination

that a defendant was incompetent to be executed would not vacate the sentence of death.
The sentence would remain, but, as a constitutional matter, it could not be enforced unless
and until the defendant became competent to be executed”).

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                                       No. 15-70008
18.    A person who is found to be intellectually disabled is permanently
ineligible to be executed, and the sentence of death is vacated.
        Busby’s Atkins claim was presented in a successive state application. 104
A defendant convicted by a federal court who presents an Atkins claim in a
successive federal application would not be entitled under federal law to de
novo review of that claim in federal court, or to review under a preponderance-
of-the-evidence standard. 105 Busby does not contend that the gateway clear-
and-convincing-evidence standard in Texas Code of Criminal Procedure article
11.071, section 5(a)(3) is unconstitutional. The clear-and-convincing-evidence
component of that standard is congruent with federal law, as set forth in 28
U.S.C. § 2244(b)(2)(B)(ii) and in McQuiggin v. Perkins, 106 when an actual
innocence-of-the-death-penalty claim is first asserted in a successive habeas
application.     Accordingly, Texas’s application of the clear-and-convincing
standard was not an unreasonable application of clearly established federal
law.
        In his petition for rehearing, Busby asserts that the standard of review
was not briefed, suggesting that our court should not or could not consider the
proper standard of review absent briefing. Busby cannot avoid application of
the correct standard of review by failing to mention or brief it. By the same
token, even if an opposing party, in this case a state, does not address the
proper standard of review in its briefing, or failed to file a brief at all, it is
incumbent on courts to apply AEDPA. 107 We cannot grant habeas relief unless


        104Ex parte Busby, No. WR-70,747-02, 2013 WL 831550, at *1 (Tex. Crim. App. Mar.
6, 2013) (per curiam) (unpublished).
       105 See 28 U.S.C. § 2244(b)(2)(B)(ii).
       106 569 U.S. 383, 396 (2013).
       107 See, e.g., Winfield v. Dorethy, 871 F.3d 555, 560-63 (7th Cir. 2017) (citing Worth v.

Tyer, 276 F.3d 249, 262 n.4 (7th Cir. 2001)) (explaining “the general principle that waiver
does not apply to arguments regarding the applicable standard of review”); Gardner v.

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                                       No. 15-70008
AEDPA’s requirements have been met. 108 We are obliged to discern how
AEDPA applies when an Atkins claim is first presented to a state court in a
successive state habeas proceeding.
       In his petition for rehearing, Busby also argues that we misconstrued his
federal application as successive in our initial (now-withdrawn) opinion. 109
Busby misreads that opinion.             It is clear that all references to Busby’s
“successive petition” were to his second Texas state court habeas application,
which is subsequent or successive under state law. We did not refer to or treat
his federal habeas petition as “successive.”
                                              D
       Only Supreme Court holdings qualify as clearly established federal law
under AEDPA. 110 “‘[C]learly established Federal law’ . . . is the governing legal
principle or principles set forth by the Supreme Court at the time the state
court renders its decision.” 111 The TCCA issued its decision denying relief on
Busby’s Atkins claim on March 6, 2013. 112 The Supreme Court has recently
indicated that two of its decisions, Moore v. Texas, 113 decided in 2017, and Hall




Galetka, 568 F.3d 862, 879 (10th Cir. 2009) (“[T]he correct standard of review under AEDPA
is not waivable. It is, unlike exhaustion, an unavoidable legal question we must ask, and
answer, in every case.”); Worth, 276 F.3d at 262 n.4. (explaining in the context of a Title VII
challenge that “the court, not the parties, must determine the standard of review, and
therefore, it cannot be waived”).
        108 28 U.S.C. § 2254(b).
        109 See Busby v. Davis, 892 F.3d 735, 746-47 (5th Cir. 2018).
        110 See Carey v. Musladin, 549 U.S. 70, 74 (2006); Yarborough v. Alvarado, 541 U.S.

652, 660-61 (2004).
        111 Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); see also Greene v. Fisher, 565 U.S.

34, 38 (2011) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)) (stating that federal
courts “measure state-court decisions ‘against [Supreme Court] precedents as of “the time the
state court renders its decision.”’”).
        112 Ex parte Busby, No. WR-70,747-02, 2013 WL 831550, at *1 (Tex. Crim. App. Mar.

6, 2013) (per curiam) (unpublished).
        113 137 S. Ct. 1039 (2017).



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                                      No. 15-70008
v. Florida, 114 decided in 2014, did not become clearly established federal law
regarding certain aspects of an Atkins claim until the respective dates of their
issuance. 115 To the extent that Moore and Hall expanded Atkins, they were
not clearly established federal law when the TCCA denied relief on Busby’s
Atkins claims.
       The TCCA’s decision was a succinct denial of relief. 116 It did not identify
the law that it applied. The Supreme Court has held that “[s]ection 2254(d)
applies even where there has been a summary denial” of habeas relief. 117
Busby “can satisfy the ‘unreasonable application’ prong of § 2254(d)(1) only by
showing that ‘there was no reasonable basis’ for the [TCCA’s] decision.” 118
Because application of the currently prevailing law regarding intellectual
disability to the facts of this case would not require the grant of habeas relief,
we will not parse the precise contours of clearly established federal law as of
March 6, 2013. For the same reason, the argument in Busby’s petition for
rehearing that Moore invalidated the Briseño factors, and that the TCCA must
have applied those factors, is unavailing.
       For purposes of our review, we use the definition that the Supreme Court
said in Moore is the “generally accepted, uncontroversial intellectual-disability
diagnostic definition” that the Texas state trial court in Moore had applied:
       (1) intellectual-functioning deficits (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,” AAIDD–11, at 27); (2) adaptive deficits (“the
       inability to learn basic skills and adjust behavior to changing


       114 572 U.S. 701 (2014).
       115 Shoop v. Hill, 139 S. Ct. 504, 507-508 (2019).
       116 Ex parte Busby, 2013 WL 831550, at *1.
       117 Cullen v. Pinholster, 563 U.S. 170, 187 (2011) (citing Harrington v. Richter, 562

U.S. 86, 101-02 (2011)).
       118 Id. at 188.



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                                        No. 15-70008
       circumstances,” Hall v. Florida, 572 U.S. ___, ___, 134 S.Ct. 1986,
       1994, 188 L.Ed.2d 1007 (2014)); and (3) the onset of these deficits
       while still a minor. See App. to Pet. for Cert. 150a (citing AAIDD–
       11, at 1). See also Hall, 572 U.S., at ___, 134 S.Ct., at 1993–1994. 119
We will also hew to the Supreme Court’s decisions regarding Atkins claims that
post-date the TCCA’s 2013 denial of Busby’s Atkins claim. 120
                                               E
       A federal court cannot grant habeas relief under 28 U.S.C. § 2254(d)(2)
“unless the adjudication of the claim . . . resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 121 In denying Busby’s Atkins claim,
the TCCA necessarily held that he failed to present “evidence that, if true,
would be sufficient to show by clear and convincing evidence that no rational
factfinder would fail to find him mentally retarded.” 122 The standard of review
that the TCCA applied is not contrary to federal law, for the reasons discussed
above. Accordingly, we assess whether the TCCA unreasonably determined
that the facts set forth in Busby’s petition, if true, would not establish by clear
and convincing evidence that no rational factfinder would fail to find Busby
intellectually disabled.       Alternatively, we also assess whether, applying a
preponderance-of-the-evidence burden of proof, the TCCA’s decision was based
on an unreasonable determination of the facts. We conclude that applying
either burden of proof, § 2254(d)(2)’s requirement has not been met, and
habeas relief is not warranted.




       119 Moore v. Texas, 137 S. Ct. 1039, 1045 (2017).
       120 See, e.g., id.; Brumfield v. Cain, 135 S. Ct. 2269 (2015); Hall v. Florida, 134 S. Ct.
1986 (2014).
       121 28 U.S.C. § 2254(d)(2).
       122 Ex parte Blue, 230 S.W.3d 151, 163 (Tex. Crim. App. 2007).



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                                       No. 15-70008
       We begin with Busby’s IQ scores. Busby was administered five separate
IQ tests between 2001 and 2010. 123 He scored 96 on an unknown IQ test in
2001, 124 and the State offered to “forget about” that test, acknowledging that it
was unreliable. 125 Because it does not impact our analysis, we do not consider
that test. Prior to his criminal trial, three more IQ tests were administered to
Busby. He received a full scale IQ of 77 on the WAIS-III, administered in 2005
by his expert witness at trial, Dr. Proctor. 126                 The standard error of
measurement (SEM) 127 for the WAIS-III is approximately “plus or minus five,”
according to Dr. Proctor’s trial testimony. 128 Busby’s IQ was therefore in a
range of 72-82, as measured by the WAIS-III. Busby asserted in his second
state habeas petition that due to the “Flynn Effect,” the score of 77 should be
adjusted to 73.7.           Weeks after Dr. Proctor’s assessment, the State’s
psychologist re-administered the WAIS-III, and Busby scored 79. 129 The IQ
range would be 74-84, based on that test and its SEM.
       Dr. Proctor administered a third IQ test on the eve of trial—the
Beta-III—on which Busby scored 81. 130                Proctor testified that this score
“correlates fairly well” with Busby’s WAIS-III score. 131 The SEM for the Beta-
III is not in the record. Busby argued to the TCCA that “[a] mental retardation
expert would opine, however, that the Beta IQ test, because of its less
comprehensive nature, is widely acknowledged to inflate IQ scores generally,



       123   Busby v. Stephens, No. 4:09-CV-160-O, 2015 WL 1037460, at *20 (N.D. Tex. Mar.
10, 2015).
       124 Id.
       125 Id.; 36 RR 64.
       126 Busby, 2015 WL 1037460, at *20; 36 RR 40, 53.
       127 See generally Hall v. Florida, 134 S. Ct. 1986, 1995 (2014).
       128 36 RR 57.
       129 Busby, 2015 WL 1037460, at *20.
       130 Id.
       131 36 RR 48.



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                                       No. 15-70008
to be subject to a higher Flynn Effect rate than the Wechsler scales, and to be
less reliable overall than the Wechsler Scales.” 132 However, no expert did so
opine in the state-court proceedings, and there was no evidence provided to the
TCCA as to what the IQ range would be if the SEM were considered or if the
Flynn Effect were accepted and applied. All that the TCCA had before it
regarding the Beta-III test was the fact that Busby had scored 81 and the
arguments of counsel attempting to discredit or explain that score. Even
assuming that the SEM for the Beta-III test is similar to that for the WAIS-III,
the IQ range would be 76-86. Such a range would be above the range of 75 or
below that the Supreme Court has applied in its recent opinions regarding IQ
scores in the context of an Atkins claim. 133             The Supreme Court said in
Brumfield that evidence of an IQ score whose range, adjusted by the SEM, was
above 75 “could render the state court’s determination reasonable.” 134
       Busby provided arguments in his federal habeas petition regarding the
Beta-III test and his score of 81 that were not presented to the TCCA. He
asserted in federal court that the Beta-III had been “normed” seven years
before it was administered to Busby, and that if adjusted for the Flynn Effect,
the score would be 78.7. 135 He did not point to any expert testimony or other
evidence in the record that supports these arguments. Nor is there evidence
as to the SEM of this test or the range of the score when the SEM is considered.
Again, there was only argument of counsel.                    Busby was provided the



       132  ROA.3525.
       133  See Hall v. Florida, 134 S. Ct. 1986, 1996 (2014) (“For professionals to diagnose—
and for the law then to determine—whether an intellectual disability exists once the SEM
applies and the individual's IQ score is 75 or below the inquiry would consider factors
indicating whether the person had deficits in adaptive functioning. These include evidence
of past performance, environment, and upbringing.”).
        134 Brumfield v. Cain, 135 S. Ct. 2269, 2278 (2015).
        135 ROA.2478.



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                                     No. 15-70008
opportunity to present whatever expert testimony he deemed necessary in the
federal district court proceedings, and he did not present any additional
evidence regarding this test. The only evidence that the TCCA and federal
district court had was that Busby’s full score IQ as measured by the Beta-III
test was 81.
      In 2010, immediately prior to filing his federal habeas petition, Busby
was administered the WAIS-IV and scored a 74. 136 The report of the clinician
who administered this test reflects that, adjusted based on a 95% confidence
interval for the WAIS-IV, Busby’s full scale IQ range is 70-79, which the report
characterizes as “Borderline.” 137
      Before the trial at which Busby was convicted, Proctor also administered
the Wide Range Achievement Test, Third Edition, which measured Busby’s
educational abilities in reading, spelling and math. 138 Busby tested at the
fourth-grade level in reading, third-grade level in spelling, and sixth-grade
level in math. 139
      Busby argues that because the federal district court’s analysis of the
merits of the Atkins claim was based only on IQ scores, it follows that the
district court also concluded that “the [T]CCA’s analysis must have stopped at
that point as well.” First, it appears that the federal district court did consider
Busby’s achievement test scores, which were not IQ test scores. But in any
event, we cannot assume that the TCCA considered only Busby’s IQ scores and
ignored other evidence in Busby’s state habeas application. Nor can we assume
that the TCCA ignored the lack of evidence in Busby’s state habeas application.
Not a single clinician opined that Busby is intellectually disabled, though there


      136  ROA.4092-96.
      137  ROA.4092.
       138 Busby v. Stephens, No. 4:09-CV-160-O, 2015 WL 1037460, at *10 (N.D. Tex. Mar.

10, 2015).
       139 Id.

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                                   No. 15-70008
were three reports from mental health experts appended to Busby’s second
state habeas application. Based on the record presented to the TCCA, no
clinician examined Busby’s IQ scores, evidence of whether Busby has “adaptive
deficits (‘the inability to learn basic skills and adjust behavior to changing
circumstances’)”, or whether there was an onset of adaptive deficits while
Busby was a minor, and then reached the conclusion that Busby is
intellectually disabled.
      Busby retained Gilda Kessner, a Doctor of Psychology, and she
submitted a report dated March 21, 2008. 140 Though Busby did not claim in
his first state habeas petition that he was intellectually disabled, he filed this
report as part of the evidence in his first state habeas proceeding. The same
report was an exhibit to his second state habeas application. Kessner’s report
reflects that she reviewed an array of Busby’s records and the testimony of Dr.
Proctor, who was an expert witness for Busby in his murder trial. Kessner’s
report concludes that the WAIS-III that Proctor administered to Busby was
the current test at the time. 141 Her report reflects that Proctor testified at trial
that Busby scored 77 on that test, and that Proctor testified that Busby was
not mentally retarded because “the DSM-IV diagnosis of mental retardation
would be a score below 70.” 142 However, Kessner opined that Proctor had not
accounted for a phenomenon known as the Flynn Effect, which posits that
there is a rise or gain in IQ scores over time and that “[r]esearch literature has
suggested that this figure is .3 per year beginning the year after the test is
normed.” 143 Importantly, Kessner concluded that the 77 score on the WAIS-III
“does not rule out a diagnosis of mental retardation,” and that “a thorough


      140 ROA.4103-08.
      141 ROA.4106.
      142 ROA.4106.
      143 ROA.4106.



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                                  No. 15-70008
investigation into Mr. Busby’s adaptive behavior history is necessary to make
a proper determination.” 144 The report continued, “[a]t this time, I do not
believe that has been accomplished.” 145 Her report said, “I am concerned that
that the apparent perfunctory reliance on the obtained score truncated the
investigation into the possibility of the presence of mental retardation in Mr.
Busby.” 146   Kessner’s report had explained that “the next version of the
Wechsler series (WAIS-IV) will be available to clinicians in the fall of 2008.” 147
Her report concluded with this recommendation: “I would recommend a new
evaluation with the WAIS-IV when it is available this fall so that the issue of
the Flynn Effect and questions about the validity of the score can be
avoided.” 148 Kessner’s report addresses only one of the three broad criteria for
diagnosing intellectual disability. As to that criteria, the most she said was
that the WAIS-III score of 77 did not “rule out” intellectual disability.
      After Busby filed his federal habeas petition, he retained two other
experts regarding his mental capacities, and their reports were also appended
to Busby’s second state habeas petition. The report of Gilbert Martinez reflects
that he is a Ph.D., licensed psychologist, and clinical neuropsychologist, and
that Busby      “underwent    standardized assessment of         his intellectual
functioning on February 11, 2010.” 149 The report is relatively brief and offers
no opinion as to whether Busby is intellectually disabled. It reflects in a chart
that Martinez administered the WAIS-IV, that Busby’s full scale IQ score was
74, and that within a 95% confidence interval, his IQ score was 70-79. 150 Under


      144 ROA.4107.
      145 ROA.4107.
      146 ROA.4107.
      147 ROA.4106.
      148 ROA.4107.
      149 ROA.4091.
      150 ROA.4092.



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                                   No. 15-70008
a column in this chart labelled “Qualitative Description,” the word “Borderline”
appears with regard to Busby’s full scale IQ score. 151 The report also reflects
that Martinez administered a Test of Memory Malingering, and “[t]here was
no evidence of misrepresentation of cognitive or intellectual functioning.” 152
      Federal habeas counsel also retained Bekh Bradley-Davino, Ph.D., who
is a licensed clinical psychologist. 153      Bradley-Davino spent ten hours
evaluating Busby in person and reviewed a substantial amount of written
material and records. 154 Bradley-Davino prepared a 20-page report, most of
which does not pertain to whether Busby is intellectually disabled. But in a
section titled “Limited Intellectual Abilities and Academic Problems Became
Apparent in Mr. Busby’s Childhood and Continued into Adulthood,” the report
states that “[a] number of sources of data including school records, behavioral
descriptions provided by Mr. Busby as well as his family, teachers, and peers,
and results of standardized tests, indicate that at a young age Mr. Busby
demonstrated     significant     signs   of   impaired/limited    academic     and
intellectual/mental abilities.” 155 The report also recounts the results of the
WAIS-IV IQ test administered by Martinez and its full scale IQ score of 74,
and concludes that “[t]his score reflects significant limitations in intellectual
functioning, approximately two standard deviations below the mean.” 156 The
report reflects that Busby was placed in special education by at least the
seventh grade, that he had “significant problems in academic functioning
beginning early,” and that he could not understand some of the more complex



      151 ROA.4092.
      152 ROA.4091.
      153 ROA.1283.
      154 ROA.1283-84.
      155 ROA.1289.
      156 ROA.1289.



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                                    No. 15-70008
plays during high school football practice. 157 But there is no conclusion drawn
from all of the facts in Bradley-Davino’s report that Busby is intellectually
disabled. Instead, the report closes with this recommendation: “I additionally
strongly recommend further evaluation of Mr. Busby by an expert in mental
retardation in light of his clear history of extensive intellectual and adaptive
functioning limitations.” 158 From this, a reasonable person could certainly
conclude that Busby should be further evaluated. But this is not a conclusion
that Busby is intellectually disabled. To the contrary, it underscores this
expert’s opinion that further evaluation would be necessary to determine
whether Busby is intellectually disabled. A reasonable juror or factfinder could
fail to conclude from this evidence, even “in light of [Busby’s] clear history of
extensive intellectual and adaptive functioning limitations,” that Busby was
intellectually disabled.
      If Busby was in fact evaluated by an expert in intellectual disability, as
Kessner and Bradley-Davino recommended, Busby has not disclosed the
results of such an evaluation. The district court noted that the entire report
prepared by Martinez was not included as part of Busby’s evidence. We do not
know, therefore, what conclusions, if any, Martinez may have drawn in that
report as to whether Busby is intellectually disabled.
      We cannot say that the TCCA’s denial of the Atkins claim in Busby’s
successive habeas application “was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding” 159 or
an unreasonable application of clearly established federal law to those facts.




      157 ROA.1289-90.
      158 ROA.1302.
      159 28 U.S.C. § 2254(d)(2).



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                                        No. 15-70008
                                               F
      In our initial opinion in this case (now withdrawn), we construed Busby’s
invocation of the federal actual-innocence doctrine as the assertion of an
independent ground for relief. 160 In his petition for rehearing, Busby insists
that he raised this claim in the alternative, as an exception to procedural
default should we have found his Atkins claim procedurally defaulted. We
accordingly express no opinion as to the viability of a federal actual-innocence
claim as an independent ground for relief.
                                              III
      Busby asserts that he received ineffective assistance of counsel in his
direct appeal. During the guilt phase of Busby’s trial, the state trial court
refused to admit a written statement from a technician who had administered
a lie detector test to Kathleen “Kitty” Latimer, who was Busby’s accomplice in
the kidnapping and murder of Laura Crane. The technician had told Latimer
that her responses regarding the details of the crime indicated evasion, and
the technician’s written statement reflects that Latimer then stated that she
had not been truthful and that she told Busby to tie up Crane or to tape her
down to keep her from making noise while in the trunk. Busby’s direct appeal
counsel, who also served as his trial counsel, did not raise the exclusion of this
testimony as an issue in the direct appeal. Busby was appointed different
counsel to pursue his initial state habeas application, and that attorney did not
assert a claim that direct appeal counsel was ineffective in failing to raise the
exclusion of Latimer’s statements as an issue on direct appeal. Busby concedes
that the claim is procedurally defaulted since it was not raised in his initial
state habeas application.



      160   Busby v. Davis, 892 F.3d 735, 754-55 (5th Cir. 2018).

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                                      No. 15-70008
       Busby contends that he has established cause for the default by
demonstrating that his state habeas counsel was deficient in failing to raise
the claim, relying upon the Supreme Court’s decisions in Martinez v. Ryan 161
and Trevino v. Thaler. 162 However, in Davila v. Davis, 163 which issued while
this case was pending in our court, the Supreme Court held that ineffective
assistance of state habeas counsel is not sufficient cause to excuse the
procedural default of a claim for ineffective assistance of direct appeal
counsel. 164 “Because a prisoner does not have a constitutional right to counsel
in state postconviction proceedings, ineffective assistance in those proceedings
does not qualify as cause to excuse a procedural default.” 165
       Busby contends that his claim of ineffective assistance of appellate
counsel will never be considered unless an exception is made. The Davila
decision expressly rejected the same argument, 166 reasoning that “the Court in
Martinez was principally concerned about trial errors—in particular, claims of
ineffective assistance of trial counsel.” 167 The Court explained that “[t]he
criminal trial enjoys pride of place in our criminal justice system in a way that
an appeal from that trial does not,” 168 and the Court “declin[ed] to expand the
Martinez exception to the distinct context of ineffective assistance of appellate
counsel.” 169




       161 566 U.S. 1 (2012).
       162 569 U.S. 413 (2013).
       163 137 S. Ct. 2058 (2017).
       164 Id. at 2065.
       165 Id. at 2062.
       166 Id. at 2066 (citing Coleman v. Thompson, 501 U.S. 722 (1991)) (“Petitioner’s

primary argument is that his claim of ineffective assistance of appellate counsel might never
be reviewed by any court, state or federal, without expanding the exception to the rule in
Coleman.”).
       167 Id.
       168 Id.
       169 Id. at 2067.

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                                  No. 15-70008
      We note that while Busby asserted in his second state habeas petition
that trial counsel was ineffective for failing to offer additional grounds as to
why the hearsay statements were admissible, Busby has abandoned that claim
in this court. He has not included it in the issues he has raised, and he has not
argued or briefed such a claim. He now argues that “[t]rial counsel preserved
error for direct appeal” and that trial counsel’s “argument that Latimer’s
statements were admissible hearsay is undoubtedly a ‘solid, meritorious
argument’ that was supported by ‘controlling precedent’ and should have been
raised.”
      We further note that although Busby was represented by Strickland both
at trial and on direct appeal, Busby does not contend that there was a conflict
of interest because of this representation or that Strickland’s failure to contend
on appeal that it was error to exclude Latimer’s statements was related to any
conflict of interest arising out of the fact that Strickland also represented
Busby at trial. Strickland would not have been in a position of arguing on
direct appeal that he was ineffective in the trial court because he failed to
assert additional grounds for admitting the hearsay evidence, since Busby now
asserts that the trial court erred when it excluded the evidence in spite of
Strickland’s “solid, meritorious” arguments in the trial court.
      There is an additional reason that relief should be denied on this claim.
There appears to have been an adequate, independent state-law procedural
rule that supported the TCCA’s denial of this claim. Busby’s second habeas
application in the TCCA did not adequately brief or argue the ineffective-
assistance-of-direct-appeal-counsel claim. That claim is mentioned only in
footnotes 27 and 28 of that application. Footnote 27 says “[d]irect appeal




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                                     No. 15-70008
counsel’s failure to raise the denial of admittance of [Latimer’s statements]
under Texas evidentiary law is a separate claim for relief.” 170 Footnote 28 says:
       Latimer’s statement was also admissible under Texas law as a
       statement against interest. Counsel did seek admission on that
       basis, but the trial court erroneously sustained the State’s
       objection. Although trial counsel preserved the error that the
       admission was not a statement against interest, counsel
       inexplicably did not raise the error as a ground of appeal.
       Counsel’s failure to raise this error on direct appeal is the basis of
       a claim that Mr. Busby was deprived of the effective assistance of
       counsel on appeal. 171
This issue was not otherwise designated as a claim for relief or otherwise
briefed or supported by any argument. Under Texas law, it was forfeited. 172
       Even were we not barred from reaching the merits of the defaulted or
procedurally barred claim, it would fail because Busby cannot establish the
prejudice prong of review for ineffective-assistance-of-counsel claims.               The
Strickland analysis requires the petitioner to show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 173 Busby must show that “but for his
counsel’s” failure to raise the issue on appeal, “he would have prevailed on his
appeal.” 174 The polygraph technician’s written statement said:
       Following the examination, Ms. Latimer was advised of the
       deceptive nature of her responses to the above noted relevant
       questions. She was asked for an explanation at which time she
       maintained that she did lie to me about encouraging or instructing
       Mr. Busby to tape up Ms. Crane. She stated that at one of the first
       stops where they got gas she could continue to hear Ms. Crane


       170 ROA.3496.
       171 ROA.3497.
       172 See Ex parte Garcia, No. WR-40,214-02, 2008 WL 4573962, at *1 (Tex. Crim. App.

2008) (per curiam) (unpublished) (citing Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim.
App. 1995)); Ex parte Schoolcraft, 107 S.W.3d 674, 677 (Tex. App.—San Antonio 2003).
       173 Strickland v. Washington, 466 U.S. 668, 694 (1984).
       174 Smith v. Robbins, 528 U.S. 259, 285 (2000).

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                                       No. 15-70008
       banging in the trunk and she stated she realized the music was
       not going to stop the noise from being heard. She stated she told
       [Busby] “You are going to have to tie her up or tape her down
       because she is making too much noise.” She stated at the next
       truck stop where they stopped, she told him again “we need to do
       something.” She stated she told him “I said you need to tie her up
       or do something because she is making too much noise.” During
       the final portion of the post-test interview, she continued to deny
       that she actually saw Ms. Crane taped up in the trunk and denied
       Mr. Busby’s allegations that she helped or participated in tying up
       Ms. Crane in any way. 175
The federal district court recognized “it is not a defense to murder that
someone told the defendant to do it,” and that “Latimer’s statement is not
inconsistent with Busby’s guilt; it inculpates both of them.” 176                   More
importantly, as the federal district court explained, “[t]here is no question that
Busby was the individual who taped the victim and ultimately caused her
death. His fingerprint was lifted from the duct tape.” 177 “Busby admits he
taped the victim while he was alone with her at Walmart and Latimer was at
the LaQuinta hotel.” 178
       Had Busby’s appellate counsel pursued on appeal the claim that the trial
court erred in excluding Latimer’s statements, the TCCA would have applied
Texas Rule of Appellate Procedure 44.2(b), and it would have examined the
record as a whole. 179 If the court was fairly assured that the error did not
influence the jury or had but a slight effect, it would conclude that the error




       175   Busby v. Stephens, No. 4:09-CV-160-O, 2015 WL 1037460, at *11 (N.D. Tex. Mar.
10, 2015).
       176  Id. at *13.
       177  Id. at *14 n.10.
        178 Id.
        179 See Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005) (citing Morales v.

State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).

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                                       No. 15-70008
was harmless. 180 There is no reasonable probability that the TCCA would have
reversed and granted Busby a new trial because it is highly likely that the
TCCA would have concluded that any error in excluding Latimer’s statements
was harmless. Latimer’s statements would have had only a slight effect, if any,
on the jury’s finding of guilt and the jury’s findings at the penalty phase. The
evidence is clear that Busby wrapped 23 feet of tape around his victim’s head
and used such force that her nose was dislocated. He did this when alone,
while Latimer was at a motel.
                                              IV
       Busby contends that his trial counsel, Strickland, was ineffective in
failing “to uncover a wealth of readily available mitigating evidence that was
necessary to both developing an accurate mental health diagnosis and
presenting a persuasive mitigation case to the jury.”                   The district court
pretermitted the question of whether trial counsel was ineffective and
proceeded directly to an analysis of whether, assuming trial counsel was
ineffective, Busby was prejudiced. 181 The district court carefully considered all
of the evidence presented at trial, both mitigating and aggravating evidence.
It then considered evidence that Busby says should have been presented, and
concluded that Busby had failed to satisfy the prejudice prong of the
ineffective-assistance-of trial-counsel claim. 182
       To establish ineffective assistance of trial counsel under Strickland, a
petitioner must show that “counsel’s representation fell below an objective



       180  Id. (“When evaluating harm from non-constitutional error flowing from the
exclusion of relevant evidence, we examine the record as a whole, and if we are fairly assured
that the error did not influence the jury or had but a slight effect, we conclude that the error
was harmless.”).
       181 Busby, 2015 WL 1037460, at *12.
       182 Id. at *16.



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                                    No. 15-70008
standard of reasonableness” 183 and “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” 184 When a Strickland claim is based on an allegedly deficient
sentencing investigation, the petitioner may establish prejudice by showing
that “the totality of the available mitigation evidence . . . reweigh[ed] . . .
against the evidence in aggravation” 185 creates “a reasonable probability that
at least one juror would have struck a different balance” and recommended a
life sentence instead of death. 186 We agree with the district court that this
latter standard has not been met.
      With regard to the available mitigation evidence and the evidence in
aggravation, we will not set forth that evidence in minute detail, because the
district court has done so thoroughly and accurately. 187 We agree with the
conclusions that the district court reached regarding the weight of the
aggravating evidence as measured against the “new” mitigating evidence. 188
      We will only briefly, and generally, recount the evidence. At Busby’s
trial, custodians of his school records testified that he had a mixed academic
record, 189 was required to repeat two grades, 190 was frequently absent from
school, and ultimately dropped out of school. 191 They also noted that he was
enrolled in special education classes for students with IQ’s lower than average,




      183 Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
      184 Id. at 694.
      185 Sears v. Upton, 561 U.S. 945, 955-56 (2010) (per curiam) (quoting Porter v.

McCollum, 558 U.S. 30, 41 (2009)).
      186 Wiggins v. Smith, 539 U.S. 510, 537 (2003).
      187 See Busby v. Stephens, No. 4:09-CV-160-O, 2015 WL 1037460, at *4-12 (N.D. Tex.

Mar. 10, 2015).
      188 Id. at *13.
      189 35 RR 17-24.
      190 35 RR 16, 24.
      191 35 RR 16.



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                                     No. 15-70008
but above 70. 192 His special education teacher spoke to Busby’s lack of support
at home, his life as a “follower” in a segregated neighborhood, 193 and her
observation that he was a difficult student. 194 The fact that Busby attempted
to commit suicide on four occasions and was hospitalized on each occasion was
presented to the jury. 195 Busby’s expert witness advised the jury that he had
found “documented evidence of long-standing chronic alcohol abuse” and
“longstanding and chronic” abuse of “essentially illegal drugs,” meaning
“[s]treet drugs.” 196
      The state introduced aggravation evidence at trial showing that Busby
had an extensive criminal history and a violent nature. 197 Busby previously
pled guilty to a robbery in which he attacked the victim with a box cutter,
causing the victim to be covered in blood from his waste up, then stole the
victim’s truck and other personal property 198 Busby pleaded guilty to stealing
donations from the Salvation Army. 199 During his time in prison for these
offenses, Busby was a violent and aggressive inmate. 200 A Kmart employee
testified that Busby once attempted to steal batteries and when he was
confronted, he threatened the employee and his family. 201 The State also
showed that Busby committed acts of violence while acting as a “pimp” for
Latimer and others, that he was a long-standing gang member, 202 that he had
violently assaulted and injured Latimer, and that he had been arrested


      192 35 RR 27.
      193 35 RR 36-38.
      194 35 RR 47.
      195 See, e.g., 36 RR 58.
      196 36 RR 57.
      197 See generally 33-34 RR.
      198 33 RR 13-19, 192.
      199 33 RR 72-80.
      200 33 RR 86-89, 142-150, 154-58, 164-68, 174-78.
      201 34 RR 35-38.
      202 34 RR 5-143.



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                                     No. 15-70008
multiple times on drug and weapons charges. 203 The jury found that Busby
posed a future risk of dangerousness to society and that no mitigating factors
warranted a life sentence. 204
      Busby alleges that his new mitigation evidence generally tends to show
that (1) Busby was abandoned by his mother the first two years of his life and
instead lived with his grandmother; (2) Busby and his sisters were abused by
their mother and father and grew up in a violent household; (3) Busby’s
hometown was segregated and racially-biased; (4) Busby grew up in extreme
poverty; (5) Busby was “slow” and suffered from intellectual disability and
mental illness; (6) Busby was easily manipulated by women; and (7) Busby was
addicted to crack, marijuana, and alcohol. 205
      Busby asserted that his mother did not obtain prenatal healthcare when
pregnant with him. 206      According to Busby’s sisters, Busby’s mother was
physically violent with her children. She would “whoop” them with a “belt,
switch, shoe or extension cord.” His mother also physically attacked Busby’s
father and another male with whom she lived after Busby’s father left. Her
children often witnessed the altercations. In one incident, Busby’s mother
attempted to run over the man with whom she lived while Busby was in the
vehicle with her. 207 Busby’s mother also stabbed a man with whom she lived
in his hands with a butcher knife when he was attempting to deflect her
attacks. 208 One sister claimed that Busby’s mother did not love Busby and
would tell him that he was “just like [his] sorry-ass daddy.” 209 They also


      203 34 RR 21-30, 48-60, 156-58.
      204 Busby v. State, 253 S.W.3d 661, 663 (Tex. Crim. App. 2008).
      205 See ROA.2451-58.
      206 ROA.2236.
      207 ROA.2566-67, 2575-76.
      208 ROA.2567.
      209 ROA.2566.



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                                    No. 15-70008
described Busby’s father as a “drunk” and stated that Busby’s “dad would hit
him with anything” when he was inebriated. 210 One sister said that they were
poor, Busby and his siblings were “hungry sometimes,” and the water was once
“cut off for about a week.” 211         Both sisters described Busby as slow,
irresponsible, and unhygienic. 212
      Other declarations said that Busby exhibited low intelligence, his
family’s income was low, his mother neglected him, and noted the absence of a
father figure. 213 They also commented upon Busby’s “mood swings” and mental
health issues, including his attempt to commit suicide in his teenage years. 214
Several noted that Busby was a follower when it came to women, especially
Latimer, who was described as his girlfriend. 215
      A declaration from a clinical psychologist opined that Busby experienced
“repeated physical and emotional abuse and neglect,” when he was a child and
also “witnessed violent actions committed by his mother.” 216 His declaration
noted that while much of the “described emotional and behavioral problems
are consistent” with post-traumatic stress disorder (PTSD), “it is impossible to
determine if Mr. Busby would have met the criteria for [PTSD] in
adolescence.” 217    He did, however, diagnose Busby with bipolar disorder,
anxiety disorder, and polysubstance dependence in remission. 218




      210 ROA.2567, 2574.
      211 ROA.2576-77.
      212 ROA.2568-70, 2578.
      213 ROA.2581-83, 2584-85, 2586, 2588-89, 2945-46, 2947-48, 2949, 2950-51.
      214 ROA.2582, 2585-86, 2946, 2947.
      215 ROA.2946-51.
      216 ROA.2953.
      217 ROA.2961.
      218 ROA.2963.



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                                       No. 15-70008
       Some of Busby’s “new” evidence is not in fact new. It is cumulative of
the evidence adduced at trial, as the federal district court found. 219               We
concluded in Parr v. Quarterman 220 that though mitigation evidence may not
have been presented “as effectively as it might have been,” a petitioner could
not show prejudice when the jury heard evidence regarding an unstable
childhood and the “State’s case on punishment was strong.” 221 Similarly,
Busby repeats much of the testimony elicited at trial regarding his childhood,
intellectual acuity, and predispositions towards women and substance abuse.
His sisters testified at trial, and while the additional, post-conviction
statements from his sisters “undoubtedly provide[d] more details” of Busby’s
childhood, we held in Newbury v. Stephens 222 that evidence “of the same genre
as that presented to the jury at trial” could not outweigh the state’s
“overwhelming” evidence of future dangerousness. 223                Indeed, when “the
evidence of [] future dangerousness was overwhelming . . . . it is virtually
impossible to establish prejudice.” 224
       Busby’s new mitigation evidence, considered with that adduced at trial,
does not outweigh the State’s aggravation evidence such that “there is a
reasonable probability that at least one juror” would have recommended a life




       219   Busby v. Stephens, No. 4:09-CV-160-O, 2015 WL 1037460, at *12 (N.D. Tex. Mar.
10, 2015).
       220472 F.3d 245 (5th Cir. 2006).
       221Id. at 258.
      222 756 F.3d 850 (5th Cir. 2014) (per curiam).
      223 Id. at 873-74.
      224 Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002) (citing Strickland v.

Washington, 466 U.S. 668, 698 (1984)).

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                                        No. 15-70008
sentence. 225 He was therefore not prejudiced by his trial counsel’s allegedly
deficient mitigation investigation, and his IATC claim fails. 226
       The district court did not directly address Busby’s contention that trial
counsel was ineffective in discovering and presenting evidence that Busby is
intellectually disabled. However, trial counsel retained an expert to evaluate
Busby. It was that expert’s opinion that the two IQ tests that he administered
to Busby reflected that he was not intellectually disabled. Trial counsel did
not have the benefit of the Supreme Court’s decisions, issued long after the
trial, regarding IQ evidence. 227 Busby has not offered any evidence that trial
“counsel’s representation fell below an objective standard of reasonableness”
with regard to his investigation of Busby’s intellectual functioning or
presentation of evidence of Busby’s intellectual functioning based on the
standards of professionalism prevailing at the time. 228 Additionally, even with
the benefit of the assistance of three additional mental health experts during
habeas proceedings, Busby has not been diagnosed as intellectually disabled.
Accordingly, assuming, without deciding, that Busby raised and adequately
briefed in our court and in the federal district court a claim that trial counsel
was ineffective in failing to contend before or during the state trial court
conviction proceedings that Busby is intellectually disabled, the claim fails for
lack of evidence that trial counsel should have disregarded the retained
expert’s opinion that Busby was not intellectually disabled.
                                      *        *        *




       225  Wiggins v. Smith, 539 U.S. 510, 537 (2003).
       226  Strickland, 466 U.S. at 697 (“[Courts] need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.”).
        227 See, e.g., Moore v. Texas, 137 S. Ct. 1039 (2017); Brumfield v. Cain, 135 S. Ct. 2269

(2015); Hall v. Florida, 134 S. Ct. 1986 (2014).
        228 Strickland, 466 U.S. at 687-88.

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                            No. 15-70008
  For the foregoing reasons, we AFFIRM the judgment of the district court.




                                 44
