     Case: 15-70030   Document: 00514838227     Page: 1   Date Filed: 02/15/2019




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

                                                                       FILED
                                 No. 15-70030                  February 15, 2019
                                                                  Lyle W. Cayce
OBIE D. WEATHERS, III,                                                 Clerk


             Petitioner - Appellant

v.

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

             Respondent - Appellee



                Appeals from the United States District Court
                      for the Western District of Texas


ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES


Before KING, JONES, and HAYNES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      This case was remanded from the Supreme Court of the United States
for reconsideration in light of its decision in Moore v. Texas, 137 S. Ct. 1039
(2017). There, on direct appeal, the Supreme Court held that the Briseño
factors “may not be used . . . to restrict qualification of an individual as
intellectually disabled.”   Moore, 137 S. Ct. at 1044; see Ex parte Briseño,
135 S.W.3d 1, 3 (Tex. Crim. App. 2004), abrogated by Moore v. Texas, 137 S. Ct.
1039 (2017). Because applying Moore retroactively to this case contradicts the
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Court’s recent decision in Shoop v. Hill, ___ S. Ct. ___ (Jan. 7, 2019), we affirm
the district’s court’s judgment
                                  BACKGROUND
      Obie Weathers III was convicted of the 2000 capital murder of Ted
Church and was sentenced to death for that crime. His conviction and sentence
were affirmed on direct appeal, Weathers v. State, 2003 WL 22410067 (Tex.
Crim. App. Oct. 22, 2003). Then followed two rounds of state habeas review,
the last of which concerned his Atkins claim and was resolved against him in
2014. In Weathers v. Davis, 659 F. App’x 778 (5th Cir. 2016), cert. granted,
judgment vacated, 138 S. Ct. 315 (2018), this court denied a COA to appeal the
federal district court’s rejection of habeas relief on his Atkins claim.
      Weathers sought certiorari from the Supreme Court, urging for the first
time that Texas’s Briseño factors used as an adjunct to clinical findings of
mental retardation were unconstitutional. In light of Moore, the Supreme
Court granted his petition and remanded the case to this court for further
consideration. We granted a COA and obtained additional briefing from both
parties to consider whether the state courts’ rejection of Weathers’s Atkins
claim was reasonable in light of Moore.
      In 2016, this court summarized the facts of this case:
            After a crime spree involving a string of burglaries,
            theft, one murder, and one sexual assault of an elderly
            man over the course of just a few months, one evening
            in February, 2000, Weathers entered Pierce’s Ice
            House, a tavern in San Antonio, Texas, wielding a
            handgun and concealing his face with a pillowcase
            with eyeholes cut out. Weathers informed the patrons
            that he intended to rob the ice house, but he told the
            three black men present to remain calm because he
            only wanted to rob the white individuals. Weathers
            robbed the white patrons, then ordered a waitress at
            gun point to empty the cash register. While the
            waitress was carrying the till to Weathers, she
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                                      No. 15-70030
              stumbled and Weathers pointed his gun at her head.
              At this time, one of the bar patrons, Ted Church . . .
              swung at and grabbed Weathers. In the ensuing
              struggle, Weathers shot Church twice in the head and
              once in the abdomen. Weathers fled with over two-
              hundred dollars, but he was apprehended eleven days
              later and confessed to this and other crimes. Church
              was rushed to the hospital and underwent multiple
              surgeries, but he died weeks later from irreparable
              damages to his pancreas caused by the gunshot
              wound.

Weathers, 659 F. App’x at 779-80.
       This court’s 2016 opinion discusses at length Weathers’s various appeals
and concluded that reasonable jurists could not debate the district court’s
denial of his Atkins-claim. That opinion also examines the facts underlying his
contention that the state court inappropriately credited the State’s medical
expert while discrediting Weathers’s expert. This court also noted “the dearth
of evidence concerning the third prong of Briseño (adopting the AAMR),
whether any intellectual disability and adaptive deficits were evident before
age 18.” Weathers, 659 F. App’x at 789. 1
                                     DISCUSSION
       We granted a COA on remand from the Supreme Court, received further
briefing, and reviewed the district court’s findings of fact for clear error and its
conclusions of law de novo. Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir.
2001). To obtain federal habeas relief from state custody, AEDPA requires the



       1 This court observed that “[t]here was no IQ evidence before Weathers turned 18, and
the anecdotal evidence about his pre-adult years was decidedly mixed.” Weathers,
659 F. App’x at 789. While some teachers testified that Weathers struggled in school, others
wrote in school reports that Weathers was capable but instead chose not to complete his work.
Id. One teacher testifying in support of Weathers was unable to explain why he had received
such high grades from her. Id. Further, while Weathers was placed in special education
classes when he was younger, the record did not provide a reason for the placement (whether
intellectual, emotional, or behavioral). Id.
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petitioner to demonstrate that the state court’s adjudication of the claim
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), 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,” id.
§ 2254(d)(2). Williams v. Stephens, 761 F.3d 561, 566 (5th Cir. 2014). Events
following the remand have rendered further discussion of many of the parties’
arguments unnecessary.
      We adhere to this court’s previous decision because the Supreme Court
has just affirmed that lower courts may not properly apply Moore retroactively
in habeas corpus to state court decisions that preceded it. Shoop v. Hill,
__ S. Ct. at ___ (holding that Moore was not “clearly established law” under
AEDPA regarding execution of the mentally disabled in 2008 when the Ohio
Court of Appeals rejected a petitioner’s Atkins claim).
      Shoop resolved a circuit split between Cain v. Chappell, 870 F.3d 1003,
1024 n.9 (9th Cir. 2017) (“Moore itself cannot serve as ‘clearly established’ law
at the time the state court decided Cain’s claim.”), pet. for cert. filed, No. 17-
9218 (June 5, 2018); Davis v. Kelley, 854 F.3d 967, 970 (8th Cir. 2017) (same),
and Hill v. Anderson, 881 F.3d 483, 492 (6th Cir. 2018), vacated and remanded
sub nom. Shoop v. Hill.
      Moore and Hall 2 (on which Weathers also places some weight) were both
decided after the Texas courts rejected Weathers’s Atkins claim. Compare Ex
parte Weathers, 2014 WL 1758977 (April 30, 2014), with Moore, 137 S. Ct. 1039
(2017), and Hall, 134 S. Ct. 1986 (May 27, 2014). As with Moore, it cannot be
contended that Hall, which overturned a formulaic IQ standard that had been
used by the state of Florida but never in Texas, simply enunciated “clearly


      2   Hall v. Florida, 134 S. Ct. 1986 (2014).
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established Federal law” made retroactive as required by AEDPA. Kilgore v.
Sec’y., Fla. Dep’t. of Corr., 805 F.3d 1301, 1315 (11th Cir. 2015), cert. denied,
138 S. Ct. 446 (2017). Hall even acknowledged it was extending Supreme
Court precedent based on the Court’s independent judgment. Hall, 134 S. Ct.
at 1999-2000; Kilgore, id.
      Consequently, Shoop bars our considering the applicability of Moore to
Weathers’s earlier-rejected claim of mental disability. The judgment of the
district court is AFFIRMED.




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