     Case: 10-70016       Document: 00512360151         Page: 1     Date Filed: 09/03/2013




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

                                                                            FILED
                                                                        September 3, 2013
                                       No. 10-70016
                                                                           Lyle W. Cayce
                                                                                Clerk
JOHN REYES MATAMOROS,

                                                  Petitioner - Appellant,
v.

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                  Respondent - Appellee.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-2613


Before JOLLY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       In 1992, a Texas jury found John Reyes Matamoros guilty of capital
murder, and the trial court sentenced him to death. The Texas Court of
Criminal Appeals (TCCA) affirmed Matamoros’s conviction and sentence on
direct appeal. A federal district court denied habeas relief and sua sponte denied
a certificate of appealability (COA). Matamoros now urges us to grant a COA on
two claims: (1) that he is mentally retarded and thus ineligible for the death
penalty under Atkins v. Virginia, 536 U.S. 304 (2002), and (2) that the jury


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
     Case: 10-70016      Document: 00512360151        Page: 2    Date Filed: 09/03/2013




                                     No. 10-70016

instructions at the sentencing phase of his trial were unconstitutional under
Penry v. Johnson, 532 U.S. 782 (2001). Matamoros also moves to remand his
Atkins claim to the district court. For the reasons explained below, we GRANT
Matamoros’s request for a COA on his Atkins claim, but DENY both his request
for a COA on the Penry claim and his motion for remand.
                                            I.
      The district court’s comprehensive opinion recounts the factual
background and procedural development of this case. See Matamoros v. Thaler,
No. H-07-2613, 2010 WL 1404368, at *1–3 (S.D. Tex. Mar. 31, 2010). We recite
only the factual and procedural history necessary to our analysis.
      In November 1992, Matamoros stood trial for the capital murder1 of his
neighbor, Eddie Goebel, in the 180th Judicial District for Harris County, Texas.
The jury found Matamoros guilty and answered affirmatively to the punishment
issues submitted under Article 37.071 of the Texas Code of Criminal Procedure.
Accordingly, the trial court sentenced Matamoros to death. The TCCA affirmed
Matamoros’s conviction and sentence on direct appeal. See Matamoros v. State,
901 S.W.2d 470 (Tex. Crim. App. 1995).
      Matamoros filed his initial state application for a writ of habeas corpus on
April 23, 1997, challenging the validity of his conviction and sentence. The
TCCA denied the application. Ex Parte Matamoros, No. 50,791-01 (Tex. Crim.
App. Dec. 5, 2001). Matamoros filed his initial federal habeas petition on July



      1
         At the time of Goebel’s death, a person committed capital murder in Texas when he
“intentionally commit[ted] the murder in the course of committing or attempting to commit
kidnapping, burglary, robbery, aggravated sexual assault, or arson.” Tex. Penal Code Ann.
§ 19.03(a)(2) (West 1974). What was capital murder then is capital murder now. See Tex.
Penal Code Ann. § 19.03(a)(2) (West 2011).

                                            2
    Case: 10-70016     Document: 00512360151      Page: 3   Date Filed: 09/03/2013




                                  No. 10-70016

5, 2002. Matamoros then moved to stay those proceedings so that he could
return to state court and exhaust a claim that he is ineligible for the death
penalty under Atkins because he is mentally retarded.          The district court
granted the motion.
      The TCCA received Matamoros’s successive state habeas application on
October 27, 2003, and remanded the action for the trial court to address the
merits of the Atkins claim. Ex Parte Matamoros, No. 50,791-02, 2007 WL
1707193, at *1 (Tex. Crim. App. June 13, 2007). After an evidentiary hearing in
2006, the trial court entered written findings of fact and conclusions of law
recommending that the TCCA deny relief. Id. The TCCA rejected the finding
that Matamoros had not shown by a preponderance of the evidence that he fails
to meet the first criterion for mental retardation—i.e., significant sub-average
general intellectual functioning.      Id.    Nevertheless, the TCCA denied
Matamoros’s petition because it determined that he had failed to demonstrate
by a preponderance of the evidence that he satisfies the other two criteria for
mental retardation—i.e., sufficient deficiencies in adaptive functioning and the
onset of mental retardation before the age of eighteen. Id. Accordingly, the
TCCA denied Matamoros’s petition.
      Matamoros then returned to federal district court and, on July 10, 2007,
filed the habeas petition that gives rise to the pending request for a COA.
Matamoros asserted that he is ineligible for the death penalty because (1) he is
mentally retarded, (2) the jury instructions used during the sentencing phase of
his trial were unconstitutional, (3) he received ineffective assistance of counsel,
and (4) the Texas capital sentencing scheme is unconstitutional. See Matamoros,
2010 WL 1404368, at *4. The district court granted summary judgment to the


                                        3
    Case: 10-70016     Document: 00512360151      Page: 4    Date Filed: 09/03/2013




                                  No. 10-70016

state and dismissed the petition. Id. at *23. The district court also sua sponte
denied a COA as to all issues. Id. at *22–23.
      On July 22, 2010, Matamoros filed in this court a request for a COA on
only the issues of mental retardation and the jury instructions. The state
opposed the motion. While the COA motion was pending, Matamoros moved to
stay the proceeding so that he could return to state court to present newly
available and unexhausted evidence in support of his Atkins claim. Specifically,
Matamoros sought to present evidence regarding Dr. George Denkowski, the
psychologist who testified as an expert for the state at the 2006 hearing on
Matamoros’s Atkins claim. See Matamoros, 2010 WL 1404368, at *9–10, 14–15.
In April 2011, Denkowski entered into a Settlement Agreement with the Texas
State Board of Examiners of Psychologists, in which his license was
“reprimanded.” Pursuant to the Settlement Agreement, Denkowski agreed to
“not accept any engagement to perform forensic psychological services in the
evaluation of subjects for mental retardation or intellectual disability in criminal
proceedings.” We granted Matamoros’s motion to stay the proceedings.
      Following the stay in this court, the TCCA exercised its authority to
reconsider the initial disposition of Matamoros’s writ. Ex Parte Matamoros, No.
50,791-02, 2011 WL 6241295, at *1 (Tex. Crim. App. Dec. 14, 2011). The TCCA
first remanded the cause to the trial court “to allow it the opportunity to re-
evaluate its initial findings, conclusions, and recommendation in light of the
Denkowski Settlement Agreement.” Id. The TCCA stated that the trial court
could “order affidavits or hold a live hearing if warranted.” Id. Matamoros
tendered new affidavits to the trial court, including an affidavit from Dr. Thomas
Oakland, and requested a hearing. On March 30, 2012, without ruling on or


                                         4
     Case: 10-70016      Document: 00512360151        Page: 5    Date Filed: 09/03/2013




                                     No. 10-70016

discussing Matamoros’s affidavits or request, the trial court signed an order
adopting the state’s Amended Proposed Findings of Fact and Conclusions of
Law, which recommended that relief be denied. The trial court announced that
it had totally discounted “anything in the records provided by Dr. George
Denkowski in this matter.” Ex Parte Matamoros, Nos. 50,791-02 & 50,791-03,
2012 WL 4713563, at *3 (Tex. Crim. App. Oct. 3, 2012) (Price, J., dissenting).
Yet, in the order, the trial court continued to partially rely on records and
evidence provided by Denkowski.2 Nevertheless, consistent with the trial court’s
findings and conclusions, the TCCA again denied Matamoros’s writ application.
Id. at *1.
      Two TCCA judges dissented. Id. at *2–5 (Price, J., joined by Johnson, J.).
The dissent contended that Matamoros “has made a fairly compelling showing
of mental retardation.” Id. at *3. The dissent further observed:
      Given Denkowski’s settlement agreement, and the substantial
      criticisms of his diagnostic methodology, as evidenced by the
      affidavits [Matamoros] has lately tendered, questions abound. For
      example, even taking Denkowski’s testimony out of the mix, is it
      appropriate for this Court—the ultimate arbiter of [Matamoros’s]
      mental retardation—to rely on the TYC records as evidence that the
      applicant suffers no adaptive deficits outside the realm of functional
      academics, considering (as the convicting court apparently did not)
      Dr. Oakland’s criticisms?
Id. at *5.
      Matamoros has returned to this court with a motion to lift the stay and to
remand to the district court for it “to reconsider [his] Atkins claim de novo
without taking into account or in any respect relying on Dr. Denkowski’s

      2
         For example, amended finding nos. 88 and 90 appear to have been drawn from
testimony provided by Denkowski at the 2006 hearing. More generally, amended finding nos.
75–90, regarding adaptive functioning, continued to rely heavily on records from the Texas
Youth Commission (TYC)—records on which Denkowski relied at the 2006 hearing. The trial
court did not address Dr. Oakland’s criticism of Denkowski’s reliance on the TYC records.

                                            5
     Case: 10-70016      Document: 00512360151         Page: 6    Date Filed: 09/03/2013




                                      No. 10-70016
analysis.” This court granted the motion to lift the stay and entered an order
carrying the motion for remand with the request for a COA.
                                            II.
       The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2254, governs our consideration of Matamoros’s motion and request for a COA.
Under AEDPA, a state habeas petitioner must obtain a COA before he can
appeal the federal district court’s denial of habeas relief.                   28 U.S.C.
§ 2253(c)(1)(A); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (describing a
COA as a “jurisdictional prerequisite” without which “federal courts of appeals
lack jurisdiction to rule on the merits of the appeals from habeas petitioners”).
A COA is warranted upon a “substantial showing of the denial of a constitutional
right.” § 2253(c)(2). A petitioner satisfies this standard if “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).3 The issue is “the
debatability of the underlying constitutional claim, not the resolution of the
debate.” Miller-El, 537 U.S. at 342; see id. at 338 (“[A] claim can be debatable
even though every jurist of reason might agree, after the COA has been granted
and the case has received full consideration, that petitioner will not prevail.”).
“This threshold inquiry does not require full consideration of the factual or legal
bases adduced in support of the claims. In fact, the statute forbids it.” Id. at
336. In cases involving the death penalty, “any doubts as to whether a COA
should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson,
213 F.3d 243, 248 (5th Cir. 2000).
       We evaluate the debatability of Matamoros’s constitutional claims through


       3
          To obtain a COA when the district court has denied relief on procedural grounds, a
petitioner must show both that the claim is debatable on the merits and that the district
court’s procedural ruling is debatable. See Slack, 529 U.S. at 484–85.

                                             6
    Case: 10-70016     Document: 00512360151      Page: 7    Date Filed: 09/03/2013




                                  No. 10-70016
the lens of AEDPA’s highly deferential standard, which “demands that
state-court decisions be given the benefit of the doubt.” Renico v. Lett, 130 S. Ct.
1855, 1862 (2010) (internal quotation marks omitted). We defer to the state trial
court’s factual findings, Moody v. Quarterman, 476 F.3d 260, 267–68 (5th Cir.
2007), and consider only the record that was before the state court, Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). We review “only the ultimate legal
determination by the state court—not every link in its reasoning.” Neal v.
Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc).
      Under AEDPA, a federal court may not grant habeas relief unless the
petitioner has first exhausted state remedies with respect to the claim at issue.
§ 2254(b). To prevail, the habeas petitioner must prove that the state court’s
constitutional adjudication “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 “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.” § 2254(d)(1)–(2). Clearly
established federal law is comprised of “the holdings, as opposed to the dicta, of
[the Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state-court decision
is contrary to clearly established federal law when it “arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Id. at 413. A state-court decision fails the
“unreasonable application” prong if it “correctly identifies the governing legal
rule [from the Supreme Court’s cases] but applies it unreasonably to the facts of
a particular prisoner’s case.” Id. at 407–08.



                                         7
    Case: 10-70016     Document: 00512360151      Page: 8    Date Filed: 09/03/2013




                                  No. 10-70016
                                        III.
      Matamoros seeks either a COA on whether he is a mentally retarded
offender whose execution is unconstitutional under Atkins or a remand to the
district court for a hearing on this Atkins claim. Matamoros also seeks a COA
as to whether the jury instructions violated Penry by precluding the jury from
giving full effect to his mitigating evidence. We address each issue in turn,
ultimately granting a COA on the Atkins claim, but denying Matamoros’s motion
for remand and denying a COA on the Penry claim.
                                        A.
      With respect to his Atkins claim, Matamoros filed both a request for a COA
and a motion for remand to the district court.         We address these filings
separately, beginning with his request for a COA.
                                         1.
      Matamoros advances a two-part argument regarding his Atkins claim.
First, he contends that the state court’s finding that he is not mentally retarded
was unreasonable because it is based on the 1992 American Association for
Mental Retardation (AAMR) definition of mental retardation, not the updated
2002 definition. The district court rejected this argument.
      Reasonable jurists would not debate the district court’s decision regarding
the AAMR definitions.      Atkins does not mandate that a state adopt any
particular clinical definition of mental retardation. See Atkins, 536 U.S. at 317
(leaving “to the State[s] the task of developing ways to enforce the constitutional
restriction upon [their] execution of sentences” (alterations in original) (footnote
omitted) (quoting Ford v. Wainwright, 477 U.S. 399, 416–17 (1986))); see Clark
v. Quarterman, 457 F.3d 441, 445 (5th Cir. 2006) (“Although the [Atkins] Court
did refer to the clinical definitions of mental retardation promulgated by the
AAMR and the [American Psychological Association], it did not dictate that the

                                         8
    Case: 10-70016     Document: 00512360151      Page: 9    Date Filed: 09/03/2013




                                  No. 10-70016
approach and analysis of the State must track the AAMR or the APA exactly.”).
Moreover, this court recently held that, for purposes of Atkins, Texas need not
follow AAMR procedures when determining whether a prisoner is mentally
retarded. Chester v. Thaler, 666 F.3d 340, 347 (5th Cir. 2011), cert. denied, 133
S. Ct. 525 (2012). Therefore, reasonable jurists would not debate the district
court’s conclusion regarding the state court’s use of the 1992 AAMR definition
for mental retardation. To the extent that Matamoros’s request for a COA relies
on this specific argument, he has not cast any doubt that the state court’s
decision was contrary to, or involved an unreasonable application of, clearly
established federal law. See § 2254(d)(1).
      Matamoros advances a second argument in his request for a COA on the
Atkins claim. Matamoros challenges the state court’s “mistaken reliance” on
Denkowski’s testimony and methodology. This is not the first time Denkowski’s
methodology and credibility have come under scrutiny. In Ex Parte Plata, No.
AP-75820, 2008 WL 151296, at *1 (Tex. Crim. App. Jan. 16, 2008), the TCCA
accepted the state habeas trial court’s recommendation that Denkowski’s
testimony not be credited, due to what the trial court found were pervasive
errors in Denkowski’s administration and scoring of the prisoner’s IQ and
adaptive deficit tests. See id.; Ex Parte Plata, No. 693143-B (Tex. 351st Dist. Ct.,
Harris County, Sept. 28, 2007). Furthermore, our court has at least twice before
granted COAs on Atkins claims involving Denkowski’s testimony and
methodology. See Maldonado v. Thaler, 389 F. App’x 399, 403–04 (5th Cir.
2010); Pierce v. Thaler, 355 F. App’x 784, 794–95 (5th Cir. 2009).
      When we granted COAs in Maldonado and Pierce, the Texas State Board
of Examiners of Psychologists’ complaint against Denkowski was unresolved.
While Matamoros’s COA request was pending, Denkowski entered into the
Settlement Agreement, which formally “reprimanded” his license and prohibits

                                         9
    Case: 10-70016       Document: 00512360151          Page: 10     Date Filed: 09/03/2013




                                       No. 10-70016
him from “accept[ing] any engagement to perform forensic psychological services
in the evaluation of subjects for mental retardation or intellectual disability in
criminal proceedings.” We granted Matamoros’s motion to stay the proceeding
in this court while he presented evidence of the Settlement Agreement to the
state courts. As noted above, a majority of the TCCA agreed with the trial
court’s recommended findings and conclusions and denied the application. See
Ex Parte Matamoros, 2012 WL 4713563, at *1. But Judges Price and Johnson
dissented. In his dissenting opinion, Judge Price, joined by Judge Johnson,
referred to affidavits that Matamoros filed with the state trial court, including
the affidavit of Dr. Oakland, a psychologist and co-author of the Adaptive
Behavior Assessment System (ABAS).4 Id. at *3–5. The dissent noted that the
trial court’s amended findings and conclusions failed to address Dr. Oakland’s
criticisms of relying on certain types of information to assess Matamoros’s
adaptive functioning, such as records from the TYC. Id. at *4–5. The dissent
further opined that “even taking Denkowski’s testimony out of the mix,” the
Settlement Agreement and Dr. Oakland’s affidavit raise important questions
about whether it is appropriate for the state courts “to rely on the TYC records
as evidence that [Matamoros] suffers no adaptive deficits outside the realm of
functional academics.” Id. at *5. Moreover, the trial court’s amended findings
continued to include references to Denkowski’s testimony, albeit without
explicitly invoking his name.
       It is against this backdrop that we must decide whether reasonable jurists
could debate the district court’s conclusion that the state court’s rejection of
Matamoros’s Atkins claim was reasonable. See Blue v. Thaler, 665 F.3d 647, 661


       4
        The dissent also referred to a signed but unsworn affidavit from Dr. Jack M. Fletcher,
a psychology professor, which Matamoros proffered to the state court. Ex Parte Matamoros,
2012 WL 4713563, at *4.

                                             10
    Case: 10-70016         Document: 00512360151           Page: 11      Date Filed: 09/03/2013




                                         No. 10-70016
(5th Cir. 2011). We conclude that Matamoros has met this “threshold” showing.
See Miller-El, 537 U.S. at 336, 338. It is consistent with prior cases involving
Denkowski’s methodology to grant a COA in this case so that we may give “full
consideration [to] the factual [and] legal bases adduced in support of
[Matamoros’s] claim.”5 See Miller-El, 537 U.S. at 336; see also Maldonado, 389
F. App’x at 403–04; Pierce, 355 F. App’x at 794–95. Accordingly, we grant
Matamoros’s request for a COA with respect to his Atkins claim.
                                                2.
       The thrust of Matamoros’s motion for remand is that the district court
should have an opportunity to reach a different conclusion on the Atkins claim
in light of the subsequent state court proceedings regarding Denkowski. But
whether the district court would reach a different conclusion in light of the now-
supplemented state court record is irrelevant. Under AEDPA, it is the state trial
court’s factual findings to which we must defer if reasonable, not the district
court’s. See Pinholster, 131 S. Ct. at 1398 (explaining that under AEDPA we
consider only the record that was before the state court); Moody, 476 F.3d at
267–68 (recognizing that AEDPA requires us to defer to the state trial court’s


       5
          The state asserts that Denkowski’s methodology is beside the point because the
district court concluded that “[e]ven if Denkowski’s opinion is disregarded, . . . the state court’s
conclusion was reasonable.” 2010 WL 1404368, at *15. The state further asserts that the
state court’s amended findings of fact determined that “any criticism or discussion of
Denkowski’s methodology concerning adaptive behavior testing in [Matamoros’s] case” is
“irrelevant.” For two reasons these statements do not convince us that we should deny
Matamoros’s request for a COA on his Atkins claim. First, Matamoros correctly points out
that even though the state court ostensibly found any discussion of Denkowski’s methodology
“irrelevant,” some of the court’s amended findings regarding Matamoros’s adaptive functioning
continue to include citations to Denkowski’s testimony. Second, we are mindful that “the
statute forbids” us from fully considering the factual and legal bases in support of Matamoros’s
Atkins claim as part of the “threshold inquiry” regarding his request for a COA. Miller-El, 537
U.S. at 336; see also id. at 338 (“[A] claim can be debatable even though every jurist of reason
might agree, after the COA has been granted and the case has received full consideration, that
petitioner will not prevail.”).

                                                11
    Case: 10-70016      Document: 00512360151         Page: 12    Date Filed: 09/03/2013




                                     No. 10-70016
factual findings). Therefore, remanding this case to the district court to allow
it to make new findings would serve no meaningful purpose.                      We deny
Matamoros’s motion for remand.
                                            B.
       Matamoros also contends that the jury instructions at the sentencing
phase of his trial were unconstitutional. See Penry v. Johnson, 532 U.S. 782
(2001) (“Penry II”); Penry v. Lynaugh, 492 U.S. 302 (1989) (“Penry I”); see also
Smith v. Texas, 550 U.S. 297 (2007); Brewer v. Quarterman, 550 U.S. 286
(2007). Although the district court found that the jury instructions “plainly
violat[ed]” Penry II, it denied Matamoros’s claim for habeas relief on procedural
grounds, concluding that Matamoros had not exhausted this claim in state
court. See Matamoros, 2010 WL 1404368, at *17–18. Because the district court
denied relief on procedural grounds, Matamoros must show that the district
court’s procedural ruling is debatable. See Slack, 529 U.S. at 484–85.
       AEDPA prohibits a federal court from granting a writ of habeas corpus
unless: “(A) the applicant has exhausted the remedies available in the courts of
the State; or (B)(I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights
of the applicant.” 28 U.S.C. § 2254(b)(1). Here, Matamoros raised his claim
based on Penry II for the first time in his federal habeas petition. Although
Matamoros included evidence regarding potential mitigating factors in his state
court habeas application, he argued only that the jury instructions violated his
rights under Penry I.6 See Matamoros, 2010 WL 1404368, at *17. Because
Matamoros failed to raise his Penry II claim before the Texas courts, reasonable



       6
        Moreover, Matamoros does not argue that there is an absence of a corrective process
in Texas or that any such process is ineffective.

                                            12
   Case: 10-70016     Document: 00512360151     Page: 13   Date Filed: 09/03/2013




                                 No. 10-70016
jurists would not debate the district court’s decision to dismiss the claim on
procedural grounds.
      Furthermore, as the district court explained, Matamoros’s failure to
exhaust requires a dismissal with prejudice because Texas law would bar
Matamoros’s unexhausted Penry II claim as an abuse of writ. A procedural bar
for habeas review occurs when the court to which a petitioner must present his
claims to satisfy the exhaustion requirement would find the unexhausted claims
procedurally barred. Id. at *18 (citing Coleman v. Thompson, 501 U.S. 722, 735
n.1 (1991)). Texas prohibits successive writs challenging the same conviction
except where:
      (1) the current claims and issues have not been and could not have
      been presented previously in a timely initial application or in a
      previously considered application filed under this article or Article
      11.07 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 under 37.071, 37.0711,
      or 37.072.
Tex. Code. Crim. Proc. art. 11.071. Because Matamoros’s Penry II claim was
available when he originally filed his writ, he cannot show that reasonable
jurists would debate the district court’s procedural conclusion. See Fearance v.
Scott, 56 F.3d 633, 642 (5th Cir. 1995) (stating that “the highest court of the
State of Texas announced that it would as a rule dismiss as abuse of the writ
an applicant for a subsequent writ of habeas corpus rais[ing] issues that existed



                                       13
   Case: 10-70016     Document: 00512360151     Page: 14   Date Filed: 09/03/2013




                                 No. 10-70016
at the time of his first writ” (alteration in original) (internal quotation marks
omitted)).
                                      IV.
      For the reasons above, we GRANT Matamoros’s application for a COA on
whether he is ineligible for the death penalty because he mentally retarded. We
DENY Matamoros’s motion for remand to the district court and DENY his
request for a COA based on the jury instructions.




                                       14
