                                                        United States Court of Appeals
                                                                 Fifth Circuit

                         REVISED JUNE 30, 2005
                                                              F I L E D
                                                               June 16, 2005
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                                                                  Clerk


                             No. 04-70004


                         KENNETH WAYNE MORRIS,

                                                 Petitioner-Appellant,


                                versus


  DOUG DRETKE, Director, Texas Department of Criminal Justice,
               Correctional Institutions Division,

                                                 Respondent-Appellee.



             Appeal from the United States District Court
                  For the Southern District of Texas


Before HIGGINBOTHAM, DeMOSS, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

     Petitioner-Appellant Kenneth Wayne Morris (“Morris”) sought a

COA on the issue whether the presentation of a factually stronger

habeas claim in federal court than in the state courts always

mandates a dismissal without prejudice based on the exhaustion

principle.    Morris v. Dretke, 379 F.3d 199, 201 (5th Cir. 2004).

We granted Morris a COA on that exhaustion issue and asked the

parties to specifically address the following:

     [W]hether Morris’s presentation of additional evidence of
     mental retardation in federal court beyond that which he
     presented in the state courts is exhausted because it
     only supplemented his state Atkins [v. Virginia, 536 U.S.
     304 (2002)] claim or is unexhausted because it
     fundamentally altered his state Atkins claim; and if
     Morris’s claim is [thus rendered] unexhausted, whether he
     has met any exception to excuse exhaustion.

Id. at 207.   For the following reasons, we determine that Morris’s

presentation of new evidence merely supplemented the Atkins claim

he had already presented to the state courts; his Atkins claim

meets exhaustion per 28 U.S.C. § 2254(b)(1)(A); and the district

court erred   in   dismissing     Morris’s    Atkins   claim   for    want   of

exhaustion.   Therefore, we VACATE the order of dismissal without

prejudice and REMAND with instruction to conduct an evidentiary

hearing to determine whether Morris is mentally retarded and thus

categorically ineligible for the death penalty pursuant to Atkins.

See 536 U.S. at 321 (holding the Eighth Amendment “places a

substantive restriction on the State's power to take the life of a

mentally retarded offender”) (internal quotation marks and citation

omitted).

                                 BACKGROUND

     In December 1993 Morris was convicted and sentenced to death

for the capital offense of murdering James Moody Adams.              On direct

appeal, the Texas Court of Criminal Appeals (“TCCA”) affirmed

Morris’s conviction and sentence; the Supreme Court of the United

States   denied    certiorari.      The   TCCA    then   denied      Morris’s

application for writ of habeas corpus.             In April 2000 Morris

initiated federal habeas proceedings.          The district court denied

                                     2
Morris habeas relief and denied him a COA.    This Court also denied

Morris a COA.    Morris did not seek certiorari review in the Supreme

Court.   Texas set an execution date of April 15, 2003.

     On June 20, 2002, the Supreme Court held that the Eighth

Amendment protects against the execution of mentally retarded

defendants.     Atkins, 536 U.S. at 321. Atkins claims are applicable

to defendants on collateral review.      Bell v. Cockrell, 310 F.3d

330, 332 (5th Cir. 2002).    Those defendants whose convictions were

already final on direct review, like Morris, had one year to file

their Atkins claims under 28 U.S.C. § 2244(d)(1)(C).     On April 10,

2003, within ten months after Atkins was decided, Morris filed a

successive application for writ of habeas corpus in state district

court. The sole legal basis for Morris’s successive state writ was

Atkins’s application to him as a mentally retarded person facing

execution.    Morris argued that his application met the subsequent

application requirements of Article 11.071, Section 5, of the Texas

Code of Criminal Procedure because the constitutional legal basis

for his claim, Atkins, was unavailable at the time he filed his

previous state habeas corpus application.

     In his successive state application, Morris referenced the

American Association on Mental Retardation (“AAMR”) standard for

determining mental retardation:

     Mental retardation refers to substantial limitations in
     present functioning.      It is characterized by [1]
     significantly   subaverage   intellectual   functioning,
     existing concurrently with [2] related limitations in two

                                   3
      or more of the following applicable adaptive skill areas:
      communication, self-care, home living, social skills,
      community use, self-direction, health and safety,
      functional academics, leisure, and work.      [3] Mental
      retardation manifests before age 18.

AAMR, MENTAL RETARDATION: DEFINITION, CLASSIFICATION,    AND   SYSTEMS   OF   SUPPORT 5

(9th ed. 1992).1       Morris also referenced the nearly identical

definition of mental retardation in the Diagnostic and Statistical

Manual of Mental Disorders:

      The   essential  feature   of   Mental   Retardation   is
      significantly subaverage general intellectual functioning
      (Criterion A) that is accompanied by significant
      limitations in adaptive functioning in at least two of
      the following skill areas:     communication, self-care,
      home living, social/interpersonal skills, use of
      community resources, self-direction, functional academic
      skills, work, leisure, health, and safety (Criterion B).
      The onset must occur before age 18 years (Criterion C).

AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC   AND   STATISTICAL MANUAL       OF   MENTAL

DISORDERS 41 (text rev., 4th ed. 2000) (“DSM-IV”).

      Morris recognized the lack of Intelligence Quotient (“IQ”)

evidence in his record but noted various school records obtained by

his   counsel,   including    a   letter   concerning      Morris’s           official

withdrawal    from   the   Cypress-Fairbanks         Public    Schools         special



      1
       The current AAMR definition of mental retardation provides:

      Mental retardation is a disability characterized by
      significant limitations both [1] in intellectual
      functioning and [2] in adaptive behavior as expressed in
      conceptual, social, and practical adaptive skills. [3]
      This disability originates before age 18.

AAMR, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 19
(10th ed. 2002). Morris also provided this definition in his state
habeas petition.

                                      4
assignment campus.2 Morris also supported his claim of retardation

with evidence regarding his adaptive deficits: affidavits from

family members and friends noting he cannot read or write with any

proficiency    and    had   always     been         very   suggestible          and   easily

influenced; notes from a mental health expert appointed for his

trial, Dr. Jerome Brown, indicating Morris was intellectually

limited and had learning problems; and partial school records

classifying Morris as learning disabled and indicating he dropped

out at age 15 after repeating the eighth grade, having failed the

third,    fifth,     and    eighth    grades         and    most     of     his       special

education/resource classes.

      In addition, Morris included an affidavit from psychologist

Dr. Richard Garnett who reviewed the above materials “in an attempt

to determine whether there was sufficient evidence to support a

motion for a hearing to determine whether or not Mr. Morris might

meet the criteria for mental retardation as defined by current

psychological      theory.”          Dr.    Garnett        offered        his     informed,

professional opinion that there were “indeed sufficient indicators

to suggest that Mr. Morris has mental retardation” and “[h]e should

be   given   the   opportunity        for       a   professional      assessment         and

evaluation as a part of that review, and [] then go before the

court for a determination.”            Morris indicated that Dr. Brown had



      2
      Morris entered the alternative learning center (“ALC”) after
receiving grades of 50 or below in every class at his regular
campus. Morris was subsequently expelled from the ALC.

                                            5
made a determination that he was not mentally retarded.                  However,

Dr. Garnett noted that Dr. Brown “for some reason apparently did

not administer a test of intellectual level.”              Morris contended

that Dr. Brown’s testing and methodology rendered his mental

retardation assessment scientifically unreliable, in light of his

not having used any intelligence testing instrument.

      Morris argued that together all the evidence he submitted

demonstrated his deficiencies in the following specific adaptive

behavioral skill areas:          (1) conceptual, referring to Morris’s

inability   to    read   and    write   and   his   failures   in    functional

academics; (2) social, referring to Morris’s inability to obey the

law and follow rules, and his inability to avoid victimization; and

(3)   practical,    referring      to   Morris’s     inability      to   develop

instrumentalities of daily living or occupational skills, and his

inability to maintain a safe environment.

      Furthermore, Morris maintained that Gerald Bierbaum, one of

the   attorneys    signing      Morris’s      successive   application,       had

approached the trial court to request that counsel be appointed so

an expert could be obtained to perform intellectual testing and to

request a modification of the execution date.              Morris contended

that the trial court would consider such request if the state did

not oppose it and that the attorneys who signed Morris’s successive

writ conferred with the Harris County District Attorney’s office,

which was so opposed.          Morris argued that an evidentiary hearing

was necessary to develop and fully present all available evidence

                                        6
supporting his claim of mental retardation under Atkins.                  Morris

then       expressly   requested   the       following:   leave   to   file   his

successive state writ, the appointment of counsel, the necessary

resources to establish his claims, and an evidentiary hearing. The

TCCA dismissed Morris’s successive state habeas application as an

abuse of the writ on April 14, 2003.3

       On April 15, 2003, Morris filed a request with this Court for

authorization to file a successive federal habeas petition. Morris

based his request on the same information he presented in the state

courts.        This Court stayed Morris’s execution and tentatively

granted his motion to file a successive petition.                 We held that


       3
      The Respondent-Appellee Doug Dretke (the “Director”) in his
response brief on appeal has “abandon[ed] any perceived reliance of
procedural default” based on abuse of the writ in the state courts
“[t]o the extent any prior pleading by the [state] in this case can
be construed as conceding or arguing procedural default.”       The
Director here thus expressly waives this argument on appeal; if
this Court determines such new evidence does not render Morris’s
claim unexhausted, the Director suggests he then will argue that
the TCCA’s adjudication, as a decision on the merits, is subject to
AEDPA deference. As we do not find the Director’s waiver here in
any way “questionable,” see Graham v. Johnson, 94 F.3d 958, 971
(5th Cir. 1996) (rejecting the state’s waiver on exhaustion where
it simply wanted to avoid further politicization of Graham’s case),
and because express waivers are ordinarily to be honored, see id.
at 970, we exercise our discretion to accept the Director’s waiver
of the argument that abuse of the writ acts an a state procedural
bar to federal review in Morris’s case. Thus, this Court does not
engage in an analysis of whether the TCCA’s treatment of Morris’s
successive state habeas application based on Atkins resulted in an
independent and adequate state bar to federal habeas review. See,
e.g., In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003) (Jones, J.,
concurring) (noting in movant’s case, where he sought leave to file
a successive federal habeas petition based on Atkins, there was “no
reason why federal courts are not bound by the procedural bar rule
to deny him federal habeas relief” based on abuse of the writ).

                                         7
Morris had made a prima facie showing that:                      (1) the claim to be

presented in the proposed successive habeas application had not

been previously presented in any prior application to this Court;

(2) such claim relied on a previously unavailable new rule of

constitutional law, which had been made retroactive to cases on

collateral review by the Supreme Court; and (3) he should be

categorized as mentally retarded. In re Morris, 328 F.3d 739, 740-

41 (5th Cir. 2003).             Our authorization for Morris to file his

successive habeas petition was tentative in that it was dependent

on the district court finding that the requirements under the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) for

such filing       had    been   met.    Id.       at     741    (citing   28    U.S.C. §

2244(b)(4)).

     On    April    28,    2003,    Morris       moved    the     district     court   for

appointment of counsel and approval of the retention of expert and

investigative assistance; the court granted this motion on May 20,

2003.     Morris then filed a skeletal petition for writ of habeas

corpus in federal district court on May 30, 2003, which he amended

on July 7, 2003.          This petition raised the sole issue whether

Atkins’s constitutional bar against execution of the mentally

retarded applied to Morris. In addition to the evidence previously

presented    in    the    state    courts       and    the     Fifth   Circuit,   Morris

presented new evidence supporting his retardation claim to the

district court, including an affidavit from clinical psychologist


                                            8
Dr. Susana A. Rosin who recently tested Morris’s IQ and level of

adaptive   and   conceptual    functioning.    Morris    presented   two

affidavits from James R. Patton who holds a doctorate in special

education and disabilities; Dr. Patton reviewed Morris’s IQ results

along with all the materials presented to the state courts.

     Morris scored a verbal IQ of 57, a performance IQ of 58, and

a full-scale IQ of 53 on the Wechsler Adult Intelligence Scale-III

tests (“WAIS-III”) administered by Dr. Rosin.      The first prong of

the AAMR definition of mental retardation is performance on an

appropriate intellectual assessment instrument that is two standard

deviations below the mean, which is approximately 70 on the WAIS-

III.4 On the Wide Range Achievement Test-3 (“WRAT-3") administered

by Dr. Rosin, Morris scored less than 45 on each conceptual skill

subtest (reading, arithmetic, and spelling).            On the Vineland

Adaptive Behavior Scales (“VABS”) tests Dr. Rosin administered,

Morris achieved standard scores of 34 in communication, 44 in

social, and 40 in daily living.         The second prong of the AAMR

definition of mental retardation is performance on an appropriate

adaptive behavior instrument that is two standard deviations below

the mean, which is approximately 70 on the VABS and the WRAT-3,

according to Dr. Patton.      Dr. Rosin unequivocally diagnosed Morris

with mental retardation.      Morris presented a second affidavit from


     4
      “‘Significantly subaverage intellectual functioning is
defined as an IQ of about 70 or below (approximately 2 standard
deviations below the mean).’” Ex Parte Briseno, 135 S.W.3d 1, 7
n.24 (Tex. Crim. App. 2004)(quoting DSM-IV at 39).

                                    9
Dr.   Rosin     which    refuted     Respondent’s         claim   that   Morris     was

malingering during the testing.                  Dr. Patton opined that Morris

functions       intellectually       and     adaptively      within   the     mentally

retarded range and that this condition predated his 18th birthday.

      Morris also presented a new affidavit from Dr. Garnett stating

that his review of Dr. Rosin’s findings strengthened his opinion

that Morris is mentally retarded and recommending that a court hold

a   full   hearing      on   the   retardation         issue.     Morris     presented

affidavits from Morris’s original trial counsel stating that they

never asked their mental health expert to test Morris for mental

retardation, but rather to determine whether Morris posed a threat

of future danger. Finally, Morris presented a document purportedly

signed     by    Dr.    Brown,     stating      that    he   performed      no   formal

intellectual testing of Morris in connection with his evaluation;

and another document purportedly signed by Dr. Garnett reconfirming

his diagnosis of Morris as mentally retarded.

      The Director moved to dismiss and for summary judgment.

Morris responded to both motions and requested the district court

conduct an evidentiary hearing.                 In an order entered December 5,

2003, the district court denied the Director’s motion to dismiss

and accepted submission of Morris’s successive federal petition

under 28 U.S.C. § 2244(b); denied the Director’s motion for summary

judgment;       and    dismissed      Morris’s         amended    petition       without

prejudice.        In that order the district court determined that

because Morris had not presented his Atkins claim to the state

                                           10
courts in its current state – supported with “substantive evidence”

– the state courts did not have a fair opportunity to apply Atkins

to the substance of Morris’s now better documented habeas claim.

Therefore, Morris had not exhausted his Atkins claim.               See 28

U.S.C.A. § 2254(b)(1)(A) (West Supp. 2004).          The district court

indicated, however, that it would equitably toll the time Morris

will have spent in federal court should he return after having

exhausted any available state court remedies.        On January 7, 2003,

the district court entered an order denying Morris’s motion to

alter or amend judgment under Rule 59(e), or alternatively for the

issuance of a COA.      Morris then noticed his appeal and filed a

request for COA with this Court.         On July 21, 2004, we granted

Morris a COA on the issue of exhaustion.       Morris, 379 F.3d at 207.

                               DISCUSSION

     28   U.S.C.   §   2254(b)(1)(A)    requires   that   federal   habeas

petitioners fully exhaust available state court remedies before

proceeding   in    federal   court.5     The   longstanding   exhaustion

requirement is not jurisdictional, but reflects the policy of

federal-state comity, which is designed to give state courts the


     5
      Section 2254(b)(1)(A) provides:

     An application for a writ of habeas corpus on behalf of
     a person in custody pursuant to the judgment of a State
     court shall not be granted unless it appears that–
     (A) the applicant has exhausted the remedies available in
     the courts of the State . . . .

28 U.S.C.A. § 2254(b)(1)(A) (West Supp. 2004).

                                   11
initial opportunity   to consider and correct alleged violations of

their prisoners’ federal rights.      Anderson v. Johnson, 338 F.3d

382, 386 (5th Cir. 2003).     This Court reviews de novo the legal

question of whether a federal habeas petitioner has exhausted state

court remedies.   Id. (citing, in part, Wilder v. Cockrell, 274 F.3d

255, 259 (5th Cir. 2001)).6

     “The exhaustion requirement is satisfied when the substance of

the federal habeas claim has been fairly presented to the highest

state court.”   Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999).

Such presentment can take place via direct appeal or state habeas

proceedings.    Orman v. Cain, 228 F.3d 616, 620 (5th Cir. 2000).

“[A]s a general rule dismissal is not required when evidence

presented for the first time in a habeas proceeding supplements,

but does not fundamentally alter, the claim presented to the state

courts.”   Anderson, 338 F.3d at 386-87 (internal quotation marks

and citation omitted); see also id. at 388 n.24 (citing Vasquez v.

Hillery, 474 U.S. 254, 262 (1986)).

     For example, in Anderson, where the highest state court denied



     6
      The Director argues that the proper standard for this Court
to review the district court’s dismissal without prejudice here is
abuse of discretion. In Horsley v. Johnson, 197 F.3d 134 (5th Cir.
1999), cited by the Director, this Court decided whether the
district court’s dismissal without prejudice as opposed to with
prejudice was an abuse of discretion, not the legal issue of
whether new evidence rendered the petitioner’s claim unexhausted.
We instead review that discrete question of law de novo. Anderson,
338 F.3d at 386 (citations omitted).

                                 12
Anderson’s petition without holding an evidentiary hearing, even

though he presented more and stronger evidence (an affidavit from

a key eyewitness not called at his trial) in his federal habeas

petition, this Court determined that the new evidence did not

“fundamentally alter” his ineffective assistance of counsel (“IAC”)

claim and therefore held that Anderson had properly exhausted. 338

F.3d at 388-89; see also Dowthitt v. Johnson, 230 F.3d 733, 746

(5th Cir. 2000) (finding that Dowthitt had exhausted his IAC mental

illness claim where he had presented detailed assertions of his

paranoid schizophrenia to the state courts, even though he later

offered additional affidavits by mental health experts opining on

that same diagnosis to the federal court that were not previously

presented to the state courts).

     However, “evidence that places the claims in a significantly

different legal posture must first be presented to the state

courts.”   Anderson, 338 F.3d at 387 (internal quotation marks and

citation   omitted);   see,   e.g.,     Graham,   94    F.3d   at   965,   969

concluding that Graham’s new offering of several affidavits of

alibis and eyewitnesses, a police report, two psychologist reports,

and a firearms report to the federal court but not the state courts

rendered his IAC and actual innocence claims unexhausted).                 The

exhaustion   inquiry   that   courts    perform   –    determining   whether

additional evidence fundamentally alters or merely supplements the

state petition – is necessarily case and fact specific.             Anderson,



                                   13
38 F.3d at 386, 388 n.24.

     Lack of exhaustion may be excused. “A petitioner may overcome

such a procedural default, however, and obtain federal habeas

corpus review of his barred claims on the merits, if he can

demonstrate cause for the defaults and actual prejudice.” Martinez

v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001) (discussing whether

an IAC claim not presented to the state courts was procedurally

barred). A petitioner may also overcome a procedural default if he

can show that “failure to consider the claims will result in a

fundamental miscarriage of justice.”   Barrientes v. Johnson, 221

F.3d 741, 758 (5th Cir. 2000) (quoting Coleman v. Thompson, 501

U.S. 722, 750 (1991)).   Also, “exhaustion is not required if it

would plainly be futile.”   Graham, 94 F.3d at 969.

     The district court’s dismissal without prejudice of Morris’s

successive federal habeas petition was premised entirely on that

court’s legal conclusion that the new evidence presented for the

first time to the federal court rendered Morris’s Atkins claim

unexhausted.

Whether the district court erred in finding that Morris’s
additional evidence presented in federal court rendered his Atkins
claim unexhausted.

     Morris contends he argued consistently and identically in

state and federal court that he is mentally retarded and thus his

execution is barred by the Eighth Amendment pursuant to Atkins.

Morris argues that although the evidence he was able to introduce


                                14
in the district court was greater than that introduced in the state

courts, his underlying, singular Atkins claim was not fundamentally

altered and thus was properly exhausted in the state courts.                 For

this proposition, Morris primarily relies on Vasquez, Anderson, and

Dowthitt.

      In Vasquez, the district court pursuant to Rule 7 of the

federal habeas rules directed the federal habeas petitioner and the

state     to   provide    additional    statistical      data   in   order   to

“supplement and clarify” the state court record presented for

review.     474 U.S. at 257.    The state objected that the additional

evidence drastically altered the petitioner’s equal protection

challenge already presented to the state courts, such that the

claim was rendered “unsuitable for federal habeas review without

prior consideration by the state courts.”              Id.   The Supreme Court

rejected the state’s argument and held that “the supplemental

evidence presented . . . did not fundamentally alter the legal

claim already considered by the state courts, and, therefore, did

not   require    that    [Hillery]     be   remitted    to   state   court   for

consideration of that evidence.”            Id. at 260 (emphasis added).

      In Dowthitt, the habeas petitioner argued that he had been

deprived of the effective assistance of counsel because his trial

counsel had failed to present a mitigation defense based on his

mental illness.         230 F.3d at 743.       In state court proceedings,

Dowthitt presented his Strickland v. Washington, 466 U.S. 668


                                       15
(1984), claim based on evidence his counsel on habeas located,

including a hospital form and Air Force records indicating Dowthitt

suffered from mental illness.                 Dowthitt, 230 F.3d at 743-44.

However,     on     federal    habeas,     Dowthitt   additionally     produced

affidavits        from   two   mental     health    experts    whose   clinical

impressions were that Dowthitt had paranoid and schizophrenic

features – severe mental problems.             Id. at 744.    Morris notes this

decision was made pursuant to the exhaustion standards laid out in

Graham, 94 F.3d at 968, and Joyner v. King, 786 F.2d 1317, 1320

(5th Cir. 1986) – whether the claim before the federal court is “in

a significantly different and stronger evidentiary posture than it

was before the state courts.”              This Court found that “Dowthitt

[did] not allege ‘new facts’ via the affidavits of the two experts

because ‘all crucial factual allegations were before the state

courts at the time they ruled on the merits’ of Dowthitt’s habeas

petition.”        Dowthitt, 230 F.3d at 746.           Because Dowthitt had

presented to the state habeas court his assertions that he suffered

from paranoid schizophrenia, this Court determined the expert

affidavits added little to those claims and did not run afoul of

the exhaustion requirement.              Id. (finding consideration of the

affidavits not precluded).

     Morris argues that this Court in Anderson employed a different

framework for analyzing new evidence not presented to the state

courts on habeas.         In state court habeas proceedings, Anderson


                                         16
argued under Strickland that his attorney was ineffective for

failing to investigate and present the testimony of an eyewitness

named Arthur Gray, whose testimony would have excluded Anderson as

the perpetrator.    Anderson, 338 F.3d at 385-86.                 Anderson did not

include any evidence to support this allegation.                   Id.   However, in

federal court, Anderson attached Arthur Gray’s affidavit stating

that Anderson was not present at the scene of the crime.                        Id.

While the Court conceded that the exhaustion standard in the

situation where new evidence is presented to the federal court

which has not been presented to the state courts was nebulous, id.

at 387, the Court recited:             “Although exhaustion inquiries are

fact-specific, as a general rule dismissal is not required when

evidence presented       for   the    first       time   in   a   [federal]   habeas

proceeding supplements, but does not fundamentally alter, the claim

presented to the state courts.”             Id. at 386-87 (internal quotation

marks omitted) (citing Caballero v. Keane, 42 F.3d 738, 741 (2d.

Cir.   1994)).     The    Court      held       the   exhaustion    principle   was

satisfied, noting in an “admittedly close case” that several

factors weighed in favor of exhaustion.               Anderson, 338 F.3d at 388.

       First, as Morris explains, the ineffectiveness portion of

Anderson’s state habeas brief was “remarkably detailed in both fact

and law.”   Id.    The brief explained Anderson’s counsel’s lack of

investigation into the eyewitness Arthur Gray and what he could

have testified to at trial.          Id.    Second, Anderson was diligent and

                                           17
consistent in arguing his claim:              “The ‘new’ evidence (Gray’s

affidavit) does not ‘fundamentally alter’ Anderson’s state claim;

it merely confirms what he has been asserting all along.”                Id.     As

such, the additional evidence was a “supplement” to the state court

record but did not place his claim in a “significantly different

legal posture.”     Id.    Third, the Court noted that Anderson did not

attempt to expedite federal review by withholding essential facts

from the state courts.        Id. at 389.      Any failure to develop facts

was not the result of a lack of diligence; “if the state court had

held an evidentiary hearing, Gray’s exculpatory testimony likely

would have been elicited, as it was in the federal proceedings.”

Id.

      Morris stresses the Court in Anderson considered Joyner and

related Fifth Circuit precedent of limited relevance because such

cases were decided before or without reference to Vasquez.                      338

F.3d at 389 n.24.          Morris also emphasizes the case- and fact-

specific   nature     of    the   inquiry     whether      new    evidence     just

supplements or fundamentally alters a claim.               See id.

      Morris attempts to distinguish his case from those cases in

which courts of appeals have found new evidence presented for the

first   time   in   federal   court    rendered      the   petitioner’s      claim

unexhausted,    arguing     unlike    in    those   cases,   in   his   case    the

additional evidence did not transform his Atkins claim into an




                                       18
entirely new claim.7      Finally, Morris contends Graham has no import

because it does not mention Vasquez.

      In sum, Morris likens his case to particularly that of the

petitioner in Anderson and applies the factors therein.             Morris

asserts, first, his state petition was remarkably detailed in fact

and   law   –   not   a   general,   conclusory   allegation   of   mental

retardation. Second, Morris argues he diligently brought forth all

the evidence he had or could obtain before filing and applied all

of the existing law and authorities.       Moreover, at the state court

level, Morris requested counsel be appointed and funds be granted

so he could establish his Atkins claim.        Last, Morris contends he

did not deliberately withhold any portion of his claim in order to

expedite federal review or to obtain a more favorable forum.

Therefore, Morris insists the district court erred in dismissing

his Atkins claim.


      7
      For example, Morris contends in Demarest v. Price, 130 F.3d
922, 938-39 (10th Cir. 1997), the petitioner presented for the
first time in federal court such substantial new evidence that his
Strickland claims effectively became new claims attacking new forms
of ineffectiveness. Likewise, in Caballero, 42 F.3d at 739-41, the
Second Circuit found the petitioner’s claim unexhausted because a
new fact concerning trial counsel’s being under the influence of
drugs during the trial cast the Strickland claim in an entirely new
light.   See also Cruz v. Warden, 907 F.2d 665 (7th Cir. 1990)
(finding new factual allegations regarding trial counsel’s behavior
rendered petitioner’s Strickland claim unexhausted). In Landano v.
Rafferty, 897 F.2d 661, 669-70 (3d. Cir. 1990), although the
petitioner made his Brady v. Maryland, 373 U.S. 83 (1963), claims
in both state and federal court, only at the federal level did he
indicate what Brady material had been suppressed; so his claim was
unexhausted.

                                     19
       The Director responds that the district court was within its

discretion in dismissing Morris’s federal habeas petition without

prejudice8 because Morris’s new evidence fundamentally alters his

claim under established federal law.                    The Director insists that

Morris’s additional evidence, the newly generated IQ evidence, is

so fundamental to his claim of mental retardation that, standing

alone, it would have warranted successive review in the state

courts.

       The Director first points to the significance of the new

evidence as a major factor in determining whether the advanced

claim is exhausted. The Director argues that Kunkle v. Dretke, 352

F.3d       980    (5th    Cir.   2003),   controls.        In    state    court,   the

petitioner, Kunkle, only presented a conclusory affidavit from

trial      counsel       “contending   that     there    was   abundant   mitigating

evidence . . . including a troubled home life and a family history

of mental illness” to support his IAC claim.                   Id. at 987.   However,

in federal court, Kunkle presented actual evidentiary support,

including an affidavit from his mother and a detailed psychological

report.          Id.   The Director notes that this Court emphasized the

significant difference between asserting a conclusory theory and

actually backing up that theory with concrete evidence; this Court

found Kunkle’s claim unexhausted.                Id. at 988.

       Second, the Director argues that Morris does not meet the


       8
        See supra n.6.

                                           20
factor of whether the evidence is ascertainable from that extant

record or discoverable from existing data.          See Vasquez, 474 U.S.

at 259 (finding computer-generated statistics presented existing

data in a more reliable way); see also Dowthitt, 230 F.3d at 745-46

(noting newly presented affidavits were based on discoverable

medical records).

     The Director next maintains that by applying the above factors

to Morris’s case, his new IQ evidence fundamentally alters his

Atkins claim. The Director argues that in the state courts, Morris

presented no IQ data at all, much less an IQ score below 70.              With

the new evidence, stresses the Director, Morris’s Atkins claim

turned around 180 degrees because his IQ test scores alone could

withstand a summary dismissal, regardless of any additional data

supporting the other prongs of mental retardation.            See Ex parte

Williams, No. 43,907-02, 2003 WL 1787634, at *2-3 (Tex. Crim. App.

Feb. 26, 2003) (Cochran, J., joined by Meyers, J., concurring in

dismissal)    (unpublished   opinion).      In    addition,   the   Director

contends, unlike Vasquez, Morris’s missing IQ data could never have

been educed from the existing record; Morris’s alleged diagnosis of

mental retardation depends on the five IQ tests administered on

successive    federal   habeas   review   and    interpretation     of   those

results.     Also, the Director notes that Morris’s IQ evidence was

not requested, as in Vasquez, as an interpretive aid for meaningful

review.    The Director maintains Morris’s new evidence sheds new


                                    21
light on his claim that the state courts should be given the

opportunity to review.

     The Director also suggests that, although not intentionally,

Morris is attempting state court bypass to achieve a more favorable

forum and cannot demonstrate he acted diligently in state court.

Finally, the Director argues that in light of ongoing development

of state court procedures implementing Atkins, justice would be

better served by insisting on exhaustion.            That is, the federal

court’s premature adjudication of Morris’s stronger Atkins claim

would deprive the state court of the potential opportunity to make

important law on successively presented and facially stronger

Atkins claims in the context of Article 11.071, Section 5.

     In reply, Morris distinguishes his case from that of Kunkle.

Morris notes the Court there concluded “Kunkle had not exhausted

this ineffective assistance claim because Kunkle possessed this

additional information at the time he filed his second state

petition,    yet   failed   to   present   these   significant   additional

facts.”     352 F.3d at 988.     Unlike Kunkle, Morris did not possess

the IQ scores and affidavits concerning those scores when he filed

his second state habeas petition. Morris instead presented all the

concrete evidence he did have to support his Atkins claim and

requested resources to develop further evidence; he argues he did

not possess the evidence and deliberately bypass state court.

Moreover, Morris argues Kunkle has little import here because the


                                     22
decision relied not on Anderson, but rather on Graham, which did

not mention Vasquez.      Morris also discounts any reliance on the

unpublished Williams as to any supposed threshold evidentiary

requirement for Atkins claims because Williams has no precedential

value.

      The district court here found that Morris supported his

successive state application “with little more than speculation.”

The court primarily cited Joyner, 786 F.2d at 1320, for the

proposition   that   comity    and   federalism       require   “new   factual

allegations in support of a previously asserted legal theory” first

be presented to the state courts.          The court then concluded that

the   expanded   nature   of   Morris’s      Atkins    claim    rendered   his

successive petition unexhausted.          We disagree.

      After thorough case- and fact-specific review of Morris’s

situation, this Court concludes that the new IQ evidence presented

for the first time in federal court, although it indeed factually

bolstered his sole Atkins claim, did not render Morris’s Atkins

claim – which same legal Eighth Amendment claim he presented to the

state courts and supported with pertinent, if not conclusive,

evidence of low intellectual functioning and adaptive deficits,

from childhood on – as fundamentally altered and thus unexhausted.

We find Morris’s case falls much closer on the spectrum to the

cases where this Court has found new evidence merely supplemented

the petitioner’s claims.       Therefore, the district court erred in


                                     23
finding that the new evidence rendered Morris’s Atkins claim

unexhausted in the state courts.

       Similar to the petitioner in Dowthitt, Morris has produced on

federal habeas additional evidentiary support indicating, beyond

what    the     evidence       he     produced    in     the    state    habeas    courts

indicated,       that    he    is     mentally    retarded.        The     same   crucial

intellectual and adaptive deficiencies alleged by Morris in the

state courts – which led Dr. Garnett to conclude Morris indeed

sufficiently         possessed        the   required       indicators       for    mental

retardation to merit further professional assessment and court

review    –     have    been    affirmed    by     such    additional      professional

assessment evidence presented to the federal court.                       See Dowthitt,

230 F.3d at 746 (noting the crucial facts of Dowthitt’s mental

illness of the paranoid, schizophrenic type had already been

presented       to     the    state    courts     and    thus    finding    the   expert

affidavits further supporting that mental illness exhausted).

       As were the petitioner’s claims in Anderson, Morris’s “claim[]

[is] unquestionably in a comparatively stronger evidentiary posture

than [it was] in state court,” 338 F.3d at 388 (internal quotation

marks and citation omitted).                     But, similarly, “several facts

militate in favor of exhaustion in this admittedly close case.”

Id.    First, thorough review of Morris’s successive state habeas

brief reveals that his Atkins claim was “remarkably detailed in

both     fact    and     law.”      Anderson,      338    F.3d    at     388.      Morris


                                            24
unquestionably brought his Eighth Amendment claim pursuant to

Atkins. He also properly outlined the AAMR’s definition for mental

retardation, since adopted by the TCCA as one of Texas’s current

standards for determining mental retardation, Briseno, 135 S.W.3d

at 7-8, and noted the necessity to meet all three essential prongs

of the definition.     See id.      Morris also clearly acknowledged that

IQ evidence was lacking in his particular case but still insisted

“[t]here is good reason to believe that [Morris is retarded] . . .

because of the documented history of adaptive deficits,” including

Morris’s “inability to read and write and his failure in functional

academics,”    “inability    to     obey    the   law   and   follow     rules,”

“inability    to    avoid   victimization,”        “inability       to   develop

instrumentalities of daily living [and] occupational skills,” and

“inability to maintain a safe environment,” all of which were

attested to by the sworn affidavits and school records presented to

the state courts.

     Moreover, Morris saw fit to present an expert affidavit,

which,     albeit     preliminarily,        provided     a     psychologist’s

acknowledgment of and support for Morris’s mental retardation

claim.     Morris has consistently asserted that he is mentally

retarded     and    that,   given     the    opportunity      and    resources,

intellectual tests would confirm that.             As in Anderson, the new

evidence the district court allowed Morris to develop here does not

fundamentally alter his state claim; it functions as a “supplement


                                      25
to the record presented to the state court, but does not place the

claim[] in a significantly different legal posture.”           338 F.3d at

388 (internal quotation marks and citation omitted).

     As we also noted in Anderson in reaching our conclusion,

despite what the Director argues here, we see nothing in this

record that shows Morris “attempted to expedite federal review by

deliberately withholding essential facts from the state courts.”

Id. at 389 (citing Vasquez, 474 U.S. at 260).        There is no evidence

that Morris intentionally withheld any previous IQ testing results

or chose to forego any provided opportunity for the proper IQ

testing.

     Morris’s case is distinguishable from the petitioner in Graham

because it was ascertainable what further evidence Morris would be

providing to the federal court if he could develop it – IQ scores

indicative of low intelligence and evaluation of those results. In

contrast, Graham presented an abundance of new evidence to the

federal court that had not been presented, even abstractly, to the

state courts – including several affidavits from eyewitnesses and

alibi witnesses, who had not previously been mentioned in Graham’s

state habeas proceedings; a psychologist’s report regarding the

unreliability of the identification testimony by the state’s main

witness;   and    a   police   ballistics   report   showing    a   weapons

discrepancy.     94 F.3d at 965.   Moreover, this Court also took into

consideration Graham’s freedom to pursue his actual innocence claim



                                    26
in a post-conviction evidentiary hearing, see id. at 969 (citing

Graham v. Texas Board of Pardons and Paroles, 913 S.W.2d 745, 751

(Tex. Ct. App.–Austin 1996)), and that his IAC claim had been

dismissed without prejudice by the TCCA, see 94 F.3d at 969 (citing

Ex Parte Graham, 853 S.W.2d 565, 571 & n.1 (Tex. Crim. App. 1993)).

In contrast, Morris’s Atkins claim was dismissed by the TCCA as an

abuse of the writ.9

     Morris’s case is also distinguishable from Kunkle, the chief

case the Director relies on, because there Kunkle only presented to

the state courts “a conclusory affidavit from trial counsel”

regarding mitigation evidence of Kunkle’s troubled home life and

his family’s history of mental illness.   352 F.3d at 987.   Only at

the federal level did Kunkle produce an affidavit from his mother

and a psychological report.     Id.   Here, Morris presented school

records and multiple affidavits from his family members with

personal knowledge of his learning and adaptive issues.       Plus,

Kunkle had a second procedural opportunity to present such new

evidence to the state courts; his federal habeas petition had been

dismissed as “mixed” because it contained exhausted and unexhausted

claims.   Id. at 987-88.   This Court noted that Kunkle provided no


     9
      In addition, Morris is correct that Graham did not cite
Vasquez but instead cited Joyner and Brown v. Estelle, 701 F.2d 494
(5th Cir. 1983). In Anderson, we noted that such “decisions . . .
issued prior to (or soon after and without reference to) the
Supreme Court’s decision in Vasquez v. Hillery . . . are of limited
relevance here.” 338 F.3d at 388 n.24.

                                 27
explanation of “why he did not present to the state court the same

materials he had prepared and submitted to the federal court.”               Id.

at 990. Here, Morris presented his single Atkins claim to both the

federal and state courts; he also explicitly acknowledged what

particular evidence he lacked and requested a chance to acquire

it.10

        Moreover, we note the Director points to no binding authority

that requires an IQ test specifically, that is, entirely alone, at

the core, or as any singular threshold, to provide the basis for a

finding of mental retardation.           Instead, the AAMR definition of

mental retardation adopted by the TCCA in Briseno requires a

showing of      three   interdependent       prongs.   135   S.W.3d   at   7-8.

Likewise, the Texas Health and Safety Code section 591.003(13),

also adopted by the TCCA as an alternative standard to the AAMR

definition for a petitioner to show his mental retardation, defines

mental       retardation    as    “significantly       subaverage     general

intellectual     functioning     that   is    concurrent   with   deficits   in

adaptive behavior and originates during the developmental period.”

TEX. HEALTH & SAFETY CODE ANN. § 591.003(13) (Vernon 2003); Briseno, 135

S.W.3d at 7.       Thus, IQ evidence standing completely on its own

cannot provide the 180-degree turn the Director insists it does to

withstand summary dismissal.        See, e.g., Briseno, 135 S.W.3d at 7



        10
      Kunkle relied on Graham and Brown but did not cite either
Vasquez or Anderson. See supra n.9.

                                        28
n.24 (“Psychologists and other mental health professionals are

flexible in their assessment of mental retardation; thus, sometimes

a person whose IQ has tested above 70 may be diagnosed as mentally

retarded while a person whose IQ tests below 70 may not be mentally

retarded.”); Stevenson v. State, 73 S.W.3d 914, 917 (Tex. Crim.

App. 2002) (“A low IQ score by itself, however, does not support a

finding   of   mental     retardation.”).        Finally,     the    unpublished

concurrence in Williams suggesting otherwise, 2003 WL 1787634, at

*2-3, fails to establish any threshold factual burden based on IQ

alone for Atkins claims.

     Morris specifically presented to the state courts a sworn

affidavit from a psychologist who, after reviewing all the other

testimonial and school record evidence likewise presented to the

state courts, made the crucial preliminary factual allegation that

there   was    a   probability    Morris     indeed    suffered     from   mental

retardation.       Although in federal court Morris has additionally

presented IQ scores and expert assessment of those scores, the

crucial fact that Morris possessed sufficient indicators for a

diagnosis of mental retardation had already been presented to the

state courts.      The substance of Morris’s Atkins claim was fairly

presented to the highest state court, the TCCA.               Thus, we find as

a matter of law on this record that Morris’s Atkins claim was not

presented to the federal court in a significantly different legal

posture   than     in   the   state   courts   and    that   the    new   evidence


                                        29
presented did not fundamentally alter his Atkins claim. Because we

find that Morris’s new evidence has met the exhaustion requirement

of § 2254(b)(1)(A) for his Atkins claim to continue in federal

court, this Court need not reach any argument concerning any

exception to exhaustion.

      In his prayer for relief, Morris requests that we remand his

case to the district court for an evidentiary hearing.         We agree to

so remand and note the following.              In cases where the legal

question is whether the new evidence a petitioner puts forth for

the first time on federal habeas on a particular claim already

asserted on state habeas is exhausted under § 2254(b), subparts (d)

and   (e)   of   §   2254   concerning    “factual   development”   are   not

implicated.      Dowthitt, 230 F.3d at 745 & nn.11-12.     In Dowthitt, we

specifically considered that although both the Director and the

petitioner “argue[d] this issue as one of ‘factual development’

under § 2254(d) and (e), it is more accurately analyzed under the

‘exhaustion’ rubric of § 2254(b).”         Id. at 745.   We explained that

if new evidence on the particular claim is determined to be

exhausted under § 2254(b)(1)(A), such evidence is not precluded

from review and can properly be considered by the federal court.

See id. at 745-46.          We thus rejected the approach whereby a

petitioner would have to meet the factual development requirements

of § 2254(e)(2) to be entitled to have his new evidence on the

particular claim be reviewed in federal court.            See id. at 745 &


                                     30
nn. 11-12.

      Instead, this Circuit classifies these specific cases as

presenting the question whether the new evidence, not previously

presented to the state courts but presented for the first time to

the   federal     court,   has    met   the    exhaustion     requirement     of    §

2254(b)(1)(A), see id.           We do not in this case ask the question

whether the petitioner has “failed to develop the factual basis of

a claim in State court proceedings.”                  28 U.S.C. § 2254(e)(2).

Here, Morris, having met the § 2254(b)(1)(A) exhaustion requirement

on the IQ evidence presented for the first time on federal habeas,

need not additionally overcome the obstacles of § 2254(e)(2).                      See

Dowthitt, 230 F.3d at 745 & nn.11-12.            Thus, because there is, and

can   be,   no   lingering   concern     about       “factual       development”   in

Morris’s case, under Rule 8(a) of the Rules Governing Section 2254

Cases in the United States District Courts, the federal court here

retains full discretion to grant Morris an evidentiary hearing.

See, e.g., Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000);

Clark v. Johnson, 202 F.3d 760, 765 (5th Cir. 2000).

                                   CONCLUSION

      Having carefully reviewed the record of this case and the

parties’ respective briefing and arguments, for the reasons set

forth above, we conclude the district court erred in finding that

Morris’s presentment of new evidence to the federal court rendered

his   Atkins     claim   unexhausted     per    28   U.S.C.     §    2254(b)(1)(A).


                                        31
Therefore, on this record and in light of our holding, we VACATE

the   district   court’s   order   dismissing   Morris’s   claim   without

prejudice and REMAND with instruction to conduct an evidentiary

hearing on the merits of Morris’s Atkins claim.

VACATED and REMANDED with instruction.




                                    32
PATRICK E. HIGGINBOTHAM, Circuit Judge, Concurring:

      While I join in the judgment vacating the district court’s

order dismissing Morris’ petition, I write separately to explain my

rejection of the State’s argument that Morris is not entitled to an

evidentiary hearing because he failed to develop the factual basis

of his Atkins claim before the Court of Criminal Appeals.

      If a habeas applicant has “failed to develop the factual basis

of a claim in State court proceedings,” a federal habeas court may

not   hold    an   evidentiary    hearing   on   the   claim   unless   certain

conditions are met.11       It is undisputed that Morris did not present

IQ evidence during his state habeas proceedings for the simple

reason that it did not yet exist.           Lack of presentation, however,

is not the same as “failure to develop.”           In Williams v. Taylor,12

the Supreme Court addressed the meaning of the word “failed” in

§ 2254(e)(2).        The Court rejected a “no-fault” reading of the

statute, and found that “[u]nder the opening clause of § 2254(e)(2),

a failure to develop the factual basis of a claim is not established


      11
        28 U.S.C. § 2254(e)(2). An applicant may receive an evidentiary hearing
despite failure to develop the factual basis of a claim when:
      (A)   the claim relies on–
            (i)   a new rule of constitutional law, made retroactive to
                  cases on collateral review by the Supreme Court, that
                  was previously unavailable; or
            (ii) a factual predicate that could not have been previously
                  discovered through the exercise of due diligence; and
      (B)   the facts underlying the claim would be sufficient to
            establish by clear and convincing evidence that but for
            constitutional error, no reasonable fact-finder would have
            found the applicant guilty of the underlying offense.
Id. Morris does not argue that he meets these conditions.
      12
           529 U.S. 420 (2000).
unless     there   is    lack   of   diligence,    or   some   greater   fault,

attributable to the prisoner or the prisoner’s counsel.”13

     The State argues that Morris failed to exercise diligence in

developing his Atkins claim, and therefore should be barred from

receiving an evidentiary hearing.            The State observes that although

Atkins had been decided ten months before Morris’ execution date,

he waited until five days before his execution date to file

affidavits in support of his claim. In addition, the State contends

that Morris failed to make an “on-the-record” request for funds to

develop his IQ evidence, and that his condition was previously

discoverable in any event since he was greater than eighteen years

of age.

     The State’s argument ignores the fact that in his successive

habeas application before the Court of Criminal Appeals, Morris

requested that the Court “appoint him counsel and provide him with

the necessary resources to establish his claims.”              As part of the

evidence he wished to further develop, Morris cited the need for

“intellectual testing.” The Court denied this request by dismissing

Morris’ application as an abuse of the writ.             This was a rejection

of the merits of the petition, not a finding of procedural default

constituting an independent bar to federal review.14


      13
           Id. at 432.
      14
        A dismissal under article 11.071(5)(a) normally constitutes an adequate
and independent procedural bar to federal review. See TEX. CRIM. PROC. CODE ANN.
art. 11.071, § 5 (Vernon 2005); Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir.
1998). However, in the Atkins context, Texas courts have imported an antecedent

                                        34
     Because Morris requested resources to further develop his

Atkins claim, and specifically referenced the need for intellectual

testing, he did not fail to develop diligently the factual basis of

his claim at the state level such that he should be denied an

evidentiary hearing before the federal habeas court.              While it is

true that Morris could have sought testing earlier, the harsh

reality is that such testing is costly, and death row inmates

typically lack independent financial means, as did Morris. Further,

Morris had no incentive to obtain such testing prior to the Court’s

decision in Atkins given the Court’s position in Penry v. Lynaugh.15

Finally, the record indicates that Morris, with the assistance of

volunteer counsel, diligently sought to gather evidence of mental

retardation during the time period after Atkins was decided, and

prior to Morris’ scheduled execution date.16


showing of “sufficient specific facts” to merit further review, rendering
dismissal of such claims under article 11.071(5)(a) a decision on the merits.
See Steward v. Smith, 536 U.S. 856, 860 (2002) (“Our cases make clear that when
resolution of [a] state procedural law question depends on a federal
constitutional ruling, the state-law prong of the court’s holding is not
independent of federal law, and our [direct review] jurisdiction is not
precluded.’” (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).
      15
        492 U.S. 302, 335 (1989), overruled by Atkins v. Virginia, 536 U.S. 304
(2002) (“[A]t present, there is insufficient evidence of a national consensus
against executing mentally retarded people convicted of capital offenses for us
to conclude that it is categorically prohibited by the Eighth Amendment.”)
      16
         In this time period, counsel was able to obtain the record from Morris’
original trial, the records of Morris’ examining physician at trial (which did
not include intellectual testing data), the records remaining from Morris’
attendance in school (many of the records had been destroyed), Morris’ adult
probation records from Harris County, and affidavits from Dr. Richard Garnett,
Jimmie Morris, Ayanna Shauntay Sweatt, Craig Morris, and Darrel Morris. Further,
Morris indicates in his successive state application for writ of habeas corpus
that he asked the state trial court in which his application was filed for
appointment of counsel for the purpose of obtaining psychological testing. This
request was apparently denied after it was opposed by the Harris County District

                                      35
     It is not a matter of an obligation to pay for intellectual

testing of a prisoner raising a colorable Atkins claim warranting

further development.        It is rather that there was a barrier placed

before the petitioner through no fault of his own--indigence.               When

a prisoner diligently seeks to develop a colorable Atkins claim by

requesting funding for intellectual testing and his request is

rejected by the state court, § 2254(e)(2) will not bar him from

developing such evidence in federal court.17           A petitioner “is not

at fault when his diligent efforts to perform an act are thwarted,

for example, by the conduct of another or by happenstance.                Fault

lies, in those circumstances, either with the person who interfered

with the accomplishment of the act or with no one at all.”18

     The State is correct to argue that our review of the Court of

Criminal Appeals’ judgment must be conducted under a deferential

standard.     The AEDPA provides that a habeas application filed by a


Attorney’s office.
      17
         The Supreme Court reached a similar conclusion in Williams:
      We do not suggest the State has an obligation to pay for
      investigation of as yet undeveloped claims; but if the prisoner has
      made a reasonable effort to discovery the claims to commence or
      continue state proceedings, § 2254(e)(2) will not bar him from
      developing them in federal court.
529 U.S. at 443; see also United States ex rel. Hampton v. Leibach, 347 F.3d 219,
233-34 (7th Cir. 2003) (evidentiary hearing allowed to consider affidavit that
was not presented to the state court when the state court had denied petitioner’s
request for an evidentiary hearing at the state level for the purpose of
developing the testimony contained in the affidavit); Greer v. Ohio, 264 F.3d
663, 681 (6th Cir. 2001) (evidentiary hearing allowed when petitioner diligently
pursued his ineffective assistance claim in state habeas proceedings, had twice
requested hearings to develop evidence, and both requests were refused by the
state courts).


      18
           Williams, 529 U.S. at 432.

                                        36
state prisoner

     shall not be granted with respect to any claim that was
     adjudicated on the merits in State court proceedings
     unless the adjudication of the claim

     (1)    resulted in a decision that was contrary to, or
            involved an unreasonable application of, clearly
            established Federal law, as determined by the
            Supreme Court of the United States; or

     (2)    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.19

While demanding deference, however, this rule does not require that

we confine our review of Morris’ Atkins claim to the record before

the state court.      The Supreme Court explained in Williams:

     Interpreting § 2254(e)(2) so that “failed” requires lack
     of diligence or some other fault avoids putting it in
     needless tension with § 2254(d). . . . If the opening
     clause of § 2254(e)(2) covers a request for an
     evidentiary hearing on a claim which was pursued with
     diligence but remained undeveloped in state court
     because, for instance, the prosecution concealed the
     facts, a prisoner lacking clear and convincing evidence
     of innocence could be barred from a hearing on the claim
     even if he could satisfy § 2254(d).20

Limiting a federal court’s review to the record before the state

habeas court would undermine the Court’s intention in Williams of

providing state habeas petitioners who did not “fail” to develop

their claims with a vehicle to do so at the federal level.

     In short, the State’s contention that Morris should not be

allowed an evidentiary hearing is without merit because Morris


     19
          28 U.S.C. § 2254(d)(1)-(2).
     20
          529 U.S. at 434.

                                        37
diligently sought to develop his Atkins claim at the state level.

The wisdom of it aside, the State was within its rights to deny

Morris assistance in obtaining intellectual testing; however, it

cannot deny him the ability to continue his diligent pursuit of such

testing before the federal habeas court.




                                38
DENNIS, Circuit Judge, concurring:



     I join fully in Judge DeMoss’s opinion. Moreover, I heartily

endorse Judge Higginbotham’s analysis of the state’s failure to

develop argument and applaud the passion and eloquence with which

he argues.   Further, I believe that Judge Higginbotham’s reasoning,

and that of the Supreme Court in Williams v. Taylor, 529 U.S. 420

(2000), should inform this court’s application of the exhaustion

rubric.




                                 39
