     Case: 15-70008        Document: 00514510861        Page: 1    Date Filed: 06/13/2018




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

                                       No. 15-70008
                                                                                Fifth Circuit

                                                                              FILED
                                                                          June 13, 2018

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

v.

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

                 Respondent–Appellee.




                     Appeal from the United States District Court
                          for the Northern District of Texas


Before OWEN, GRAVES,* and HIGGINSON, Circuit Judges.
PRISCILLA OWEN, Circuit Judge:
       Edward Lee Busby seeks federal habeas corpus relief, asserting three
claims: that (1) he is intellectually disabled and therefore ineligible for
execution under Atkins v. Virginia, 1 (2) he received ineffective assistance of
counsel on direct appeal, and (3) his trial counsel was ineffective by failing to
conduct an adequate sentencing investigation or by failing to present an


       *   Concurring in the judgment only.

       1 536 U.S. 304, 321 (2002) (“Construing and applying the Eighth Amendment in the
light of our ‘evolving standards of decency,’ we . . . conclude that [the death penalty] is
excessive and that the Constitution ‘places a substantive restriction on the State's power to
take the life’ of a mentally retarded offender.”).
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                                       No. 15-70008
adequate mitigation case during the penalty phase of trial. The district court
denied relief. We affirm the district court’s judgment.
                                              I
       Edward Lee Busby was arrested and charged for the January 2004
kidnapping, robbery, and murder of a seventy-eight-year-old woman, Laura
Crane. 2   Evidence at trial reflected that Busby and a female accomplice,
Kathleen “Kitty” Latimer, abducted Crane from a grocery store parking lot in
Texas, placed her in the trunk of her vehicle, and drove to Oklahoma. 3 Busby
admitted to authorities that he wrapped twenty-three feet of duct tape around
Crane’s face. Crane’s death was caused by asphyxiation. 4 According to a
medical examiner, Crane was bound with such force that her nose deviated
from its normal position. 5 Though Busby admitted his involvement in the
crime, he denied that he intended to kill Crane. 6 At trial, Busby’s counsel twice
attempted to introduce statements attributed to Latimer that potentially
supported Busby’s contention that he did not intend to kill his victim, but these
statements were excluded by the trial court. 7 The jury found Busby guilty. 8
       During the penalty phase of the trial, the jury determined that Busby
posed a future risk of dangerousness to society and that no mitigating factors
warranted a life sentence. 9 These findings required the trial court to sentence
Busby to death. 10 Busby appealed, but his appellate counsel did not challenge



       2 Busby v. State, 253 S.W.3d 661, 663-64 (Tex. Crim. App. 2008), cert. denied, 555 U.S.
1050 (2008).
       3 Id. at 664-65.
       4 Id. at 663-64
       5 Id. at 664.
       6 Id.
       7 Busby v. Stephens, 2015 WL 1037460, at *11-13 (N.D. Tex. Mar. 10, 2015).
       8 Busby, 253 S.W.3d at 663.
       9 Id.; ROA.867-68.
       10 Busby, 253 S.W.3d at 663.



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the exclusion of Latimer’s potentially exculpatory statements. 11 The Texas
Court of Criminal Appeals (TCCA) affirmed, 12 and the Supreme Court denied
Busby’s petition for certiorari. 13
       In Busby’s first state habeas petition, 14 his appointed state habeas
counsel initially asserted an ineffective-assistance-of-trial-counsel (IATC)
claim regarding the adequacy of trial counsel’s mitigation investigation. 15 The
TCCA granted state habeas counsel funding to perform an independent
mitigation investigation. 16     Invoices indicate that state habeas counsel’s
mitigation investigator conducted interviews of several people, including
Busby’s two sisters and mother. 17
       Six months after the filing of Busby’s petition, his state habeas counsel
withdrew the IATC claim, informing the TCCA that he was “convinced that
adequate pretrial mitigation was conducted because no significant additional
mitigating evidence would have been discovered.” 18 The TCCA dismissed the
petition. 19
       Busby then filed a federal habeas corpus petition pursuant to 28
U.S.C. § 2254. 20 This petition alleged seven claims, including for the first time
claims that: (1) Busby’s death sentence violates the Eighth Amendment
because he suffers from an intellectual disability (the term more recently used
by the Supreme Court in describing the condition that Atkins denominated


       11See generally id.
       12Id. at 673.
      13 Busby v. Texas, 555 U.S. 1050 (2008).
      14 See Ex parte Busby, 2009 WL 483096 (Tex. Crim. App. Feb. 25, 2009) (per curiam)

(unpublished).
      15 ROA.2165.
      16 Busby v. Stephens, 2015 WL 1037460, at *14 (N.D. Tex. Mar. 10, 2015).
      17 See ROA.3232-33.
      18 ROA.1551.
      19 Ex parte Busby, 2009 WL 483096, at *1.
      20 ROA.696-1369; 2343-3092.



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“mental retardation”), 21 (2) Busby received ineffective assistance from direct
appeal counsel due to the failure to challenge the trial court’s exclusion of
Latimer’s statements, and (3) Busby received ineffective assistance of trial
counsel because of counsel’s alleged failure to conduct a reasonable mitigation
investigation. 22
       The district court stayed Busby’s federal habeas petition to permit
exhaustion of claims that had not previously been presented in state court. 23
Busby filed a successive state habeas petition, which the TCCA dismissed as
an abuse-of-the-writ. 24 Busby then returned to federal court. 25
       The district court afforded Busby the opportunity to present mitigation
and other evidence at a hearing, but Busby did not identify any witnesses and
offered only arguments of counsel. 26 The district court denied relief. 27 The
court concluded that Busby’s Atkins claim was procedurally defaulted and did
not satisfy the federal miscarriage-of-justice or actual-innocence exceptions to
procedural default. 28 The district court further declined to excuse Busby’s
procedural default of the claim that he received ineffective assistance of
counsel in his direct appeal. 29 The federal district court also concluded that
some of the mitigation evidence presented in Busby’s habeas petition was
duplicative of evidence presented to the jury during his trial, and that, on



       21  See, e.g., Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (“Previous opinions of this
Court have employed the term ‘mental retardation.’ This opinion uses the term ‘intellectual
disability’ to describe the identical phenomenon.”).
        22 ROA.696-858; 2343-2524.
        23 Busby v. Stephens, 2015 WL 1037460, at *2 (N.D. Tex. Mar. 10, 2015); ROA.1877.
        24 Ex Parte Busby, 2013 WL 831550, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam)

(unpublished); ROA.2323-24.
        25 See Busby, 2015 WL 1037460, at *2.
        26 See ROA.3366-3400.
        27 Busby, 2015 WL 1037460, at *28; ROA.3358.
        28 Busby, 2015 WL 1037460, at *18-21.
        29 Id. at *16-18.



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balance, had the jury heard all of the mitigation evidence and weighed it
against the aggravating evidence, there was no reasonable probability that at
least one juror would have struck a different balance and would have answered
the special issues submitted in the sentencing phase differently. 30 We granted
a certificate of appealability on all three claims. 31
                                            II
      We first consider Busby’s Atkins claim and begin with an overarching
summary of our conclusions regarding that claim. Busby was convicted in
November 2005, three years after the Supreme Court’s seminal decision in
Atkins. 32 He had retained a psychologist and mental health expert, Timothy
Proctor, Ph.D., who was a defense witness at his state-court trial. Proctor
administered two IQ tests, on which Busby scored 77 and 81, respectively.
Proctor testified that the score of 77 placed Busby in approximately the bottom
sixth percentile, meaning that 94% of the population had a higher IQ than
Busby, 33 but that Busby was not intellectually disabled. 34 Busby made no
claim before or during that trial, on direct appeal, or in his first state habeas
corpus application that he is intellectually disabled or that any of his counsel
had been ineffective in failing to investigate or pursue such a claim.
      The Atkins claim was first presented to a state court, the TCCA, in a
second, successive habeas petition.          Busby asserted that he was actually
innocent of the death penalty under Article 11.071, section 5.03(a)(3) of the
Texas Code of Criminal Procedure. This claim largely mirrored the Atkins
claim in his federal habeas petition, though he asserts in federal court that he



      30 Id. at *12-14.
      31 Busby v. Davis, 677 F. App’x 884, 893 (5th Cir. 2017) (per curiam) (unpublished).
      32 Atkins v. Virginia, 536 U.S. 304 (2002).
      33 36 RR 55-56.
      34 36 RR 64; Busby, 2015 WL 1037460, at *10.



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is entitled to habeas relief based on the miscarriage of justice exception under
federal common law, which includes the Sawyer v. Whitley actual-innocence-
of-the-death-penalty standard. 35 The federal district court afforded Busby the
opportunity to have an evidentiary hearing. Busby declined such a hearing
and relied on the evidence attached to his federal habeas petition.
       In the course of the state-court trial that resulted in Busby’s conviction
and in his pursuit of state and federal habeas relief, Busby has retained at
least four mental health experts.                 None of them diagnosed Busby as
intellectually disabled or opined that he is intellectually disabled.                    Only
counsel has offered that opinion. His expert witness at the trial resulting in
his conviction and sentencing testified that Busby is not intellectually disabled.
Busby’s second, successive state habeas petition and his federal habeas
petition attach reports from three other experts, mental health literature, and
affidavits or declarations containing information about Busby’s childhood and
life. The record reflects several IQ scores, one of which resulted in a full-scale
IQ score of 81. The fact that Busby has retained at least four mental health
experts over the course of his prosecution and post-conviction proceedings, and
none of them has opined that Busby is intellectually disabled, is compelling
evidence. Busby has failed to show by clear and convincing evidence that “no
reasonable juror [or factfinder] would have found him eligible for the death
penalty.” 36 Stated another way, a reasonable factfinder could conclude from



       35505 U.S. 333 (1992).
       36Id. at 350; see also id. at 336 (“[T]o show ‘actual innocence’ one must show by clear
and convincing evidence that, but for a constitutional error, no reasonable juror would have
found the petitioner eligible for the death penalty.”); id. at 347 (“[T]he ‘actual innocence’
requirement must focus on those elements that render a defendant eligible for the death
penalty.”); id. at 350 (concluding that “it cannot be said that no reasonable juror would have
found, in light of all the evidence, that petitioner was guilty of the aggravated arson for his
participation under the Louisiana law of principals”).

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                                      No. 15-70008
the evidence Busby presented that he is not intellectually disabled.
       The TCCA’s disposition of the Atkins claim withstands scrutiny under
AEDPA. 37 Busby’s contention that, based on Sawyer v. Whitley, he is actually
innocent of the death penalty, likewise fails.
                                             A
       The only state court to have considered Busby’s Atkins claim was the
TCCA.       The claim was presented to that court in a second, successive
application for habeas relief, and the Texas court denied relief in a brief written
order. The Supreme Court has held that “[a] federal habeas court will not
review a claim rejected by a state court ‘if the decision of [the state] court rests
on a state law ground that is independent of the federal question and adequate
to support the judgment.” 38 The federal district court concluded that Busby’s
Atkins claim was procedurally defaulted.               Busby takes issue with this
conclusion, contending that the TCCA’s ruling was a merits decision. We
agree.      The state court’s decision regarding the Atkins claim was not
independent of the federal question, and it necessarily entailed an assessment
of the facts presented in support of the Atkins claim. It was a decision on the
merits within the meaning of AEDPA.
       The TCCA’s order denying relief on the claims set forth in Busby’s
second, successive habeas application said, “we dismiss the application as an
abuse of the writ without considering the merits of the claims.” 39 Generally,
“when a state court issues an order that summarily rejects without discussion
all the claims raised by a defendant, including a federal claim that the



       37 28 U.S.C. § 2254(d)(1), (2).
       38 Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53,
55 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991))).
       39 Ex Parte Busby, 2013 WL 831550, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam)

(unpublished).

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defendant subsequently presses in a federal habeas proceeding, the federal
habeas court must presume (subject to rebuttal) that the federal claim was
adjudicated on the merits.” 40 “The presumption may be overcome when there
is reason to think some other explanation for the state court's decision is more
likely.” 41
       On its face, the TCCA’s order states that is has denied the application as
an abuse of the writ without considering the merits of the claims. This would
appear to be sufficient to rebut the presumption that Busby’s federal claims
were adjudicated on the merits, with at least one exception—his Atkins claim.
His Atkins claim in the TCCA was just one of his claims. His lead contentions
in the TCCA were arguments concerning mitigation evidence that his trial
counsel failed to discover. Busby submitted three broad claims to the TCCA in
his second, successive habeas application: (1) ineffective assistance of trial
counsel during the sentencing phase in failing to conduct a reasonable
sentencing investigation and failing to seek admittance of Latimer’s hearsay
statements, (2) Busby’s sentence violates the Eighth Amendment because he
is intellectually disabled, and (3) his sentence violates the Eighth and
Fourteenth Amendments because he is severely mentally ill. His ineffective-
assistance-of-trial-counsel claim regarding mitigation evidence (unrelated to
intellectual disability) subsumed large portions (the first 76 pages) of his
successive state habeas application.         It is highly probable that the TCCA
denied relief on the ineffective-assistance-of-counsel claims on the ground that




       40 Johnson v. Williams, 568 U.S. 289, 293 (2013) (citing Harrington v. Richter, 562
U.S. 86, 99 (2011)).
       41 Harrington, 562 U.S. at 99-100.

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they were procedurally barred since they were not raised in the initial state
habeas petition. But the same cannot be said of the Atkins claim.
      The TCCA’s seminal decision in Ex parte Blue makes clear that when a
defendant who was convicted post-Atkins raises an Atkins claim for the first
time in a successive habeas application, the Texas court must determine
whether the defendant has asserted facts, which if true, would sufficiently
state an Atkins claim to permit consideration of the successive petition. 42 That
determination is necessarily dependent on a substantive analysis of the federal
question in light of the factual allegations.
      As noted, Busby first raised his Atkins claim in his federal habeas
petition, and the district court stayed that proceeding to permit exhaustion of
the claim by the state courts. His Atkins claim was accordingly presented in a
second state habeas petition to the TCCA. Under section 5 of Texas’s abuse-
of-the-writ statute, the TCCA is required to dismiss successive habeas
petitions 43 unless sufficient specific facts are set forth:
      Sec. 5. (a) If a subsequent application for a writ of habeas corpus
      is filed after filing an initial application, a court may not consider
      the merits of or grant relief based on the subsequent application
      unless the application contains sufficient specific facts
      establishing that:
      (1) the current claims and issues have not been and could not have
          been presented previously . . . because the factual or legal basis
          for the claim was unavailable on the date the applicant filed the
          previous application;

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



      42   230 S.W.3d 151, 162-63 (Tex. Crim. App. 2007).
      43   See TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(c).

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                                     No. 15-70008
      (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 . . . . 44

      The State contends that because intellectual disability, by definition,
must exist during childhood, and because the Supreme Court’s decision in
Atkins had issued well before Busby filed his first state habeas application,
Busby’s successive application was resolved under section 5(a)(1). The State
cites this court’s decision in Rocha v. Thaler 45 for the proposition that the
TCCA’s dismissal did not involve the merits of Busby’s Atkins claim, arguing
that Busby’s claim was dismissed under section 5(a)(1), rather than section
5(a)(3). The State’s argument is not well-taken. It badly misreads this court’s
decision in Rocha as well as the TCCA’s decision in Ex parte Blue. The Rocha
decision expressly recognized that as to Atkins claims that had been resolved
by the TCCA under section 5(a)(1), the TCCA “steps beyond a procedural
determination to examine the merits of an Atkins claim.” 46 The Rocha opinion
concluded that “[t]he new prima-facie showing requirement the [T]CCA had
engrafted onto § 5(a)(1) was specific to Atkins claims,” and that “even as we
were reaching the merits of Atkins claims that had been dismissed under
§ 5(a)(1), we continued to treat other kinds of petitions that had been dismissed
under § 5(a)(1) as having been dismissed on an independent and adequate
state-law ground.” 47 Accordingly, even had the TCCA resolved the Atkins
claim under section 5(a)(1), our court has concluded that the denial of an Atkins
claim under 5(a)(1) is a merits decision. Our decision in Rocha predated the
TCCA’s decision in Blue, and it is now clear that the TCCA no longer resolves



      44 Id. § 5(a).
      45 626 F.3d 815, 838 (5th Cir. 2010).
      46 Id. at 832 (quoting Rivera v. Quarterman, 505 F.3d 349, 359-60 (5th Cir. 2007)).
      47 Id. at 832-33.

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Atkins claims like Busby’s under section 5(a)(1). The TCCA’s Blue decision
explains that Atkins claims like the one Busby has presented are instead
resolved under section 5(a)(3).        The dismissal of an Atkins claim would,
however, continue to be a merits decisions.
      In Blue, the TCCA held that section 5(a)(1) does not govern when a
petitioner files “his initial writ application after Atkins and nevertheless failed
to invoke the absolute constitutional prohibition against executing the
mentally retarded in that initial writ.” 48 Instead, “the decision whether to
permit him to proceed will be purely a function of whether he can meet one of
the other criteria of Article 11.071, Section 5.” 49            No one contends that
section 5(a)(2) is applicable. Unquestionably, Busby’s petition was resolved
under section 5(a)(3).
      The TCCA’s decision in Blue also compels the conclusion that when the
TCCA dismissed Busby’s Atkins claim in his successive habeas petition, the
TCCA ruled on the merits of his claim. The TCCA’s decision in Blue explains
that “through Article 11.071, Section 5(a)(3), the [Texas] Legislature has
provided a mechanism whereby a subsequent habeas applicant may proceed
with an Atkins claim,” even if the petitioner’s conviction was post-Atkins, and
therefore his first state habeas petition could have raised an Atkins claim but
did not do so. 50 The Atkins claim may be pursued “if [the defendant] is able to
demonstrate to [the TCCA] that there is evidence that could reasonably show,
to a level of confidence by clear and convincing evidence, that no rational finder
of fact would fail to find he is mentally retarded.” 51               In Blue, the TCCA
“construe[d] . . . Section 5(a)(3) to require a threshold showing of evidence that


      48 Ex parte Blue, 230 S.W.3d 151, 156 (Tex. Crim. App. 2007).
      49 Id.
      50 Id. at 154.
      51 Id.



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would be at least sufficient to support an ultimate conclusion, by clear and
convincing evidence, that no rational factfinder would fail to find mental
retardation.” 52
      The TCCA’s decision in Blue examined at length the evidence supporting
the claim that Blue came within Atkins’s prohibition. 53              The Texas court
concluded that the evidence did not meet section 5(a)(3)’s threshold, 54 and the
court dismissed the “subsequent writ application as an abuse of the writ.” 55
This was not a denial of relief on purely state-law procedural grounds,
independent of federal law, because in addressing the Atkins claim, the TCCA
necessarily considered federal law in assessing the sufficiency of the facts
supporting the claim. When Blue subsequently sought habeas relief in the
federal courts, our court noted that “the state accepts that the [T]CCA decided
the merits of Blue’s Atkins claim.” 56
      The TCCA has described section 5(a)(3) as “represent[ing] the [Texas]
Legislature’s attempt to codify something very much like [the] doctrine of
‘actual innocence of the death penalty’ for purposes of subsequent state
writs.” 57 The TCCA deduced that “the Legislature apparently intended to
codify, more or less, the doctrine found in Sawyer v. Whitley.” 58 In Sawyer, a
pre-AEDPA decision, the United States Supreme Court resolved the “standard
for determining whether a petitioner bringing a successive, abusive, or
defaulted federal habeas claim has shown he is ‘actually innocent’ of the death
penalty to which he has been sentenced so that the court may reach the merits


      52 Id. at 163 (emphasis in original).
      53 Id. at 164-66.
      54 Id. at 166.
      55 Id. at 168.
      56 Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011).
      57 Blue, 230 S.W.3d at 160.
      58 Id. (citing Sawyer v. Whitley, 505 U.S. 333 (1992)).



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of the claim” in a successive federal habeas petition. 59 The Supreme Court held
that “to show ‘actual innocence’ one must show by clear and convincing
evidence that, but for a constitutional error, no reasonable juror would have
found the petitioner eligible for the death penalty under the applicable state
law.” 60 In Blue, the TCCA reasoned that because a person who is intellectually
disabled is constitutionally ineligible for the death penalty, “no rational juror
would answer any of the special issues in the State’s favor, if only for the simple
reason that the statutory special issues would not be submitted to the jurors
in the first place.” 61
       Texas Code of Criminal Procedure article 11.071, section 5(a)(3) provides
a state-law actual innocence gateway through which a defendant may present
an Atkins claim that would otherwise be procedurally defaulted under state
law. The TCCA’s denial of Busby’s Atkins claim under section 5(a)(3) is best
understood, therefore, as a determination that Busby did not make a threshold
showing of evidence that would be sufficient to support, by clear and convincing
evidence, an ultimate conclusion that no rational factfinder would fail to find
him intellectually disabled. 62            Because that determination necessarily
considers the merits of a federal constitutional claim based on Atkins, it is not
procedurally defaulted, as that concept has been expressed in federal decisions
such as Walker v. Martin. 63
       This case is in a different procedural posture than one in which a
defendant first raises a claim that he is intellectually disabled at his murder
trial or in his first state habeas application. Since Busby first raised an Atkins



       59 505 U.S. at 335.
       60 Id. at 336.
       61 Blue, 230 S.W.3d at 161.
       62 Id. at 163.
       63 562 U.S. 307, 315-16 (2011).



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claim in a successive habeas petition, section 5(a)(3) requires that Busby must
ultimately prove by “clear and convincing evidence, that no rational factfinder
would fail to find mental retardation.” 64
       The TCCA necessarily held that Busby failed to present “evidence that
could reasonably show, to a level of confidence by clear and convincing
evidence, that no rational finder of fact would fail to find he is mentally
retarded.” 65
                                            B
       Our review of the state court’s disposition of Busby’s Atkins claim is
governed by AEDPA. 66 To the extent that our decision in Rocha v. Thaler could
be read as concluding that the TCCA’s denial of an Atkins claim under Texas
Code of Criminal Procedure article 11.071, section 5(a)(3) would not be subject
to review under AEDPA, 67 Rocha would be contrary to the Supreme Court’s
conclusion in Brumfield v. Cain that “[p]ursuant to [AEDPA], Brumfield could
secure relief only if the state court’s rejection of his [Atkins] claim was either
‘contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,’ or was
‘based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’” 68 Though the substance of Texas
Code of Criminal Procedure article 11.071, section 5(a)(3) may model federal


       64 Blue, 230 S.W.3d at 163.
       65 Id. at 154.
       66 See, e.g., Brumfield v. Cain, 135 S. Ct. 2269, 2275 (2015).
       67 Rocha v. Thaler, 626 F.3d 815, 827 (5th Cir. 2010) (“[I]t follows that this Court

reviews de novo the [T]CCA’s determination that Rocha cannot establish that he is actually
innocent of the death penalty. A gateway claim of actual innocence is not a basis for relief
under AEDPA. Such a claim stands outside of AEDPA and offers to open a door into the
statute that the petitioner’s lack of diligence otherwise would have closed. Gateway claims
of innocence are part of the federal common law of procedural default. De novo review is the
norm in this area.”).
       68 Brumfield, 135 S. Ct. at 2275 (quoting 28 U.S.C. § 2254(d)(1), (2)).



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                                     No. 15-70008
common law, it is nevertheless a state law under which the TCCA reached the
merits of Busby’s Atkins claim. The TCCA’s ruling is subject to AEDPA, even
though the review under AEDPA may not differ in any material respect from
a federal court’s application of the federal common-law actual-innocence
exception set forth in Sawyer v. Whitley. 69
      We therefore review the TCCA’s denial of Busby’s Atkins claim under
AEDPA. We must ascertain what established federal law, as determined by
the Supreme Court of the United States, provides with regard to an Atkins
claim that is first raised in a successive habeas petition.
      Supreme Court decisions construing AEDPA indicate that the federal
constitution permits federal courts to deny, as an abuse of the writ, a claim
that a defendant is innocent of the death penalty, if the actual-innocence claim
is brought in a successive application under 28 U.S.C. § 2244, and the factual
predicate for the claim could have been discovered previously through the
exercise of due diligence. 70 There is no basis for concluding that the federal
constitution prohibits the States from similarly denying, as an abuse of the
writ, claims of actual innocence of the death penalty first asserted in a second,
successive state habeas petition.
      As discussed above, the pre-AEDPA decision in Sawyer established that
federal courts could employ the miscarriage of justice exception even if claims
were first raised in successive federal habeas petitions. 71                However, in
McQuiggin v. Perkins, the Supreme Court explained that in enacting AEDPA,
Congress “constrained the application of the [miscarriage-of-justice] exception”
by the inclusion of § 2244(b)(2)(B). 72         That section of AEDPA “limits the


      69 505 U.S. 333, 336 (1992).
      70 See 28 U.S.C. § 2244(b)(2)(B); McQuiggin v. Perkins, 569 U.S. 383, 395-96 (2013).
      71 505 U.S. at 335-36.
      72 569 U.S. at 395.



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                                      No. 15-70008
exception to cases in which ‘the factual predicate for the claim could not have
been discovered previously through the exercise of due diligence,’ and the
petitioner can establish that no reasonable factfinder ‘would have found [her]
guilty of the underlying offense’ by ‘clear and convincing evidence.’” 73 The
Supreme Court reasoned that “Congress thus required second-or-successive
habeas petitioners attempting to benefit from the miscarriage of justice
exception to meet a higher level of proof (‘clear and convincing evidence’) and
to satisfy a diligence requirement that did not exist prior to AEDPA’s
passage.” 74
       Texas law is less demanding than federal law in this regard. A defendant
asserting an Atkins claim post-Atkins is not required to satisfy a diligence
requirement but only to establish “by clear and convincing evidence” that “no
rational juror would have answered in the state’s favor one or more of the
special issues that were submitted to the jury.” 75 The application of this Texas-
law standard to Atkins claims by persons convicted post-Atkins is not “contrary
to . . . clearly established Federal law, as determined by the Supreme Court of
the United States.” 76
       The Supreme Court’s holdings regarding Ford 77 incompetence-to-be-
executed claims cannot be imported, wholesale, into the law governing Atkins
claims. First and foremost, a Ford incompetency-to-be-executed claim is not
necessarily “successive” even if raised in a second or subsequent habeas
application. 78 A Ford claim can be raised in multiple proceedings and not be


       73Id. at 396.
       74Id.
      75 TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(a)(3).
      76 28 U.S.C. § 2254(d)(1).
      77 Ford v. Wainwright, 477 U.S. 399 (1986).
      78 See Panetti v. Quarterman, 551 U.S. 930, 947 (2007) (noting that in Ford the Court

“remand[ed] the case to the District Court to resolve Ford's incompetency claim, even though

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                                       No. 15-70008
“successive.” 79 That is because mental incompetence to be executed is not
categorically a permanent condition. 80 Incompetence may occur at various
points after conviction, and it may recede and later reoccur. A finding that an
inmate is incompetent to be executed does not foreclose the possibility that she
may become competent in the future and would no longer be constitutionally
ineligible for the death penalty. 81 By contrast, intellectual disability is by
definition a permanent condition that must have manifested before the age of
18.    A person who is found to be intellectually disabled is permanently
ineligible to be executed, and the sentence of death is vacated.




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

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

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

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

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                                       No. 15-70008
       Busby’s Atkins claim is successive. He is not entitled under federal law
to de novo review of that claim in state or federal court. Busby does not contend
that the gateway clear-and-convincing-evidence standard in Texas Code of
Criminal Procedure article 11.071, section 5(a)(3) is unconstitutional. The
clear-and-convincing-evidence component of that standard is congruent with
federal law, as set forth in 28 U.S.C. § 2244(b)(2)(B)(ii) and in McQuiggin v.
Perkins, 82 when an actual innocence-of-the-death-penalty claim is first
asserted in a successive habeas application.
                                              C
       A federal court cannot grant habeas relief under 28 U.S.C. § 2254(d)(2)
“unless the adjudication of the claim . . . resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 83 The Supreme Court has held that
“[s]ection 2254(d) applies even where there has been a summary denial” of
habeas relief. 84 The clearly established federal law to be applied to the facts
in the present case is embodied in Atkins and its progeny, and more generally,
in McQuiggin v. Perkins.
       Whether Busby is intellectually disabled is a question of fact, 85 and the
Supreme Court has said that states have some flexibility, within limits, to
define intellectual disability. 86 Though Texas defines intellectual disability by
statute or regulation for some purposes, 87 it has not done so with regard to



       82 569 U.S. 383, 396 (2013).
       83 28 U.S.C. § 2254(d)(2).
       84 Cullen v. Pinholster, 563 U.S. 170, 187 (2011) (citing Harrington v. Richter, 562 U.S.

86, 101-02 (2011)).
       85 See, e.g., Brumfield v. Cain, 808 F.3d 1041, 1057 (5th Cir. 2015).
       86 Moore v. Texas, 137 S. Ct 1039, 1052-53 (2017).
       87 See, e.g., TEX. HEALTH & SAFETY CODE ANN. §§ 591.002, 591.003(7a), (15-a), (20);

19 TEX. ADMIN. CODE § 89.1040(c)(5) (2015).

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                                       No. 15-70008
Atkins proceedings. 88 The TCCA undertook to define intellectual disability in
Ex parte Briseño. 89 However, the Supreme Court held in Moore v. Texas that
the TCCA’s definition of intellectual disability is infirm, in part. 90                    For
purposes of our review today, we will use the definition that the Supreme Court
said in Moore is the “generally accepted, uncontroversial intellectual-disability
diagnostic definition” that the Texas state trial court in Moore had applied:
       (1) intellectual-functioning deficits (indicated by an IQ score
       “approximately two standard deviations below the mean”—i.e., a
       score of roughly 70—adjusted for “the standard error of
       measurement,” AAIDD–11, at 27); (2) adaptive deficits (“the
       inability to learn basic skills and adjust behavior to changing
       circumstances,” Hall v. Florida, 572 U.S. ___, ___, 134 S.Ct. 1986,
       1994, 188 L.Ed.2d 1007 (2014)); and (3) the onset of these deficits
       while still a minor. See App. to Pet. for Cert. 150a (citing AAIDD–
       11, at 1). See also Hall, 572 U.S., at ___, 134 S.Ct., at 1993–1994. 91
       In addition, we will hew to the Supreme Court’s decisions regarding
Atkins claims that post-date the TCCA’s 2013 denial of Busby’s Atkins claim. 92
The State contends that the TCCA’s decision should be assessed under
Supreme Court precedent as it existed as of the date the TCCA’s decision
issued.       We     do    not     resolve    that     question     because      it   is   not
outcome-determinative in this case.
       In denying Busby’s Atkins claim, the TCCA necessarily held that he
failed to present “evidence that, if true, would be sufficient to show by clear
and convincing evidence that no rational factfinder would fail to find him
mentally retarded.” 93 The standard of review that the TCCA applied is not



       88 See Moore, 137 S. Ct. at 1052.
       89 135 S.W.3d 1 (Tex. Crim. App. 2004).
       90 137 S. Ct. at 1044, 1051-52.
       91 Id. at 1045.
       92 See, e.g., id.; Brumfield v. Cain, 135 S. Ct. 2269 (2015); Hall v. Florida, 134 S. Ct.

1986 (2014).
       93 Ex parte Blue, 230 S.W.3d 151, 163 (Tex. Crim. App. 2007).

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                                      No. 15-70008
contrary to federal law, for the reasons discussed above. Accordingly, we must
assess whether the TCCA unreasonably determined that the facts set forth in
Busby’s petition, if true, would not establish by clear and convincing evidence
that no rational factfinder would fail to find Busby intellectually disabled.
        We begin with Busby’s IQ scores. Busby was administered five separate
IQ tests between 2001 and 2010. 94 He scored 96 on an unknown IQ test in
2001, 95 and the State offered to “forget about” that test, acknowledging that it
was unreliable. 96 We do not consider that test is our analysis of the evidence.
Prior to his criminal trial, three more IQ tests were administered to Busby. He
received a full scale IQ of 77 on the WAIS-III, administered in 2005 by his
expert witness at trial, Dr. Proctor. 97 The standard error of measurement
(SEM) 98 for the WAIS-III is approximately “plus or minus five,” according to
Dr. Proctor’s trial testimony. 99 Busby’s IQ was therefore in a range of 72-82,
as measured by the WAIS-III. Busby asserted in his successive state habeas
petition that due to the “Flynn Effect,” the score of 77 should be adjusted to
73.7.        Weeks after Dr. Proctor’s assessment, the State’s psychologist re-
administered the WAIS-III, and Busby scored 79. 100 The IQ range would be
74-84, based on that test and its SEM.
        Dr. Proctor administered a third IQ test on the eve of trial—the
Beta-III—on which Busby scored 81. 101              Proctor testified that this score
“correlates fairly well” with Busby’s WAIS-III score. 102 The SEM for the Beta-


        94 Busby v. Stephens, 2015 WL 1037460, at *20 (N.D. Tex. Mar. 10, 2015).
        95 Id.
        96 Id.; 36 RR 64.
        97 Busby, 2015 WL 1037460, at *20; 36 RR 40, 53.
        98 See generally Hall v. Florida, 134 S. Ct. 1986, 1995 (2014).
        99 36 RR 57.
        100 Busby, 2015 WL 1037460, at *20.
        101 Id.
        102 36 RR 48.



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                                       No. 15-70008
III is not in the record. Busby argued to the TCCA that “[a] mental retardation
expert would opine, however, that the Beta IQ test, because of its less
comprehensive nature, is widely acknowledged to inflate IQ scores generally,
to be subject to a higher Flynn Effect rate than the Wechsler scales, and to be
less reliable overall than the Wechsler Scales.” 103 However, no expert did so
opine in the state-court proceedings, and there was no evidence provided to the
TCCA as to what the IQ range would be if the SEM were considered or if the
Flynn Effect were accepted and applied. All that the TCCA had before it
regarding the Beta-III test was the fact that Busby had scored 81 and the
arguments of counsel attempting to discredit or explain that score. Even
assuming that the SEM for the Beta-III test is similar to that for the WAIS-III,
the IQ range would be 76-86. Such a range would be above the range of 75 or
below that the Supreme Court has applied in its recent opinions regarding IQ
scores in the context of an Atkins claim. 104             The Supreme Court said in
Brumfield that evidence of an IQ score whose range, adjusted by the SEM, was
above 75 “could render the state court’s determination reasonable.” 105
       Busby provided arguments in his federal habeas petition regarding the
Beta-III test and his score of 81 that were not presented to the TCCA. He
asserted in federal court that the Beta-III had been “normed” seven years
before it was administered to Busby, and that if adjusted for the Flynn Effect,
the score would be 78.7. 106 He did not point to any expert testimony or other
evidence in the record that supports these arguments. Nor is there evidence



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

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                                     No. 15-70008
as to the SEM of this test or the range of the score when the SEM is considered.
Again, there was only argument of counsel.                Busby was provided the
opportunity to present whatever expert testimony he deemed necessary in the
federal district court proceedings, and he did not present any additional
evidence regarding this test. The only evidence that the TCCA and federal
district court had was that Busby’s full score IQ as measured by the Beta-III
test was 81.
      In 2010, immediately prior to filing his federal habeas petition, Busby
was administered the WAIS-IV and scored a 74. 107 The report of the clinician
who administered this test reflects that, adjusted based on a 95% confidence
interval for the WAIS-IV, Busby’s full scale IQ range is 70-79, which the report
characterizes as “Borderline.” 108
      Before the trial at which Busby was convicted, Proctor also administered
the Wide Range Achievement Test, Third Edition, which measured Busby’s
educational abilities in reading, spelling and math. 109 Busby tested at the
fourth-grade level in reading, third-grade level in spelling, and sixth-grade
level in math. 110
      Busby argues that because the federal district court’s analysis of the
merits of the Atkins claim was based only on IQ scores, it follows that the
district court also concluded that “the [T]CCA’s analysis must have stopped at
that point as well.” First, it appears that the federal district court did consider
Busby’s achievement test scores, which were not IQ test scores. But in any
event, we agree that we cannot assume that the TCCA considered only Busby’s
IQ scores and ignored other evidence in Busby’s state habeas application. It



      107 ROA.4092-96.
      108 ROA.4092.
      109 Busby v. Stephens, 2015 WL 1037460, at *10 (N.D. Tex. Mar. 10, 2015).
      110 Id.

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                                   No. 15-70008
follows that we cannot assume that the TCCA ignored the lack of evidence in
Busby’s state habeas application. Not a single clinician opined that Busby is
intellectually disabled, though there were three reports from mental health
experts appended to Busby’s successive state habeas application. Based on the
record presented to the TCCA, no clinician examined Busby’s IQ scores,
evidence of whether Busby has “adaptive deficits (‘the inability to learn basic
skills and adjust behavior to changing circumstances’)”, or whether there was
an onset of adaptive deficits while Busby was a minor, and then reached the
conclusion that Busby is intellectually disabled.
      Busby retained Gilda Kessner, a Doctor of Psychology, and she
submitted a report dated March 21, 2008. 111 Though Busby did not claim in
his first state habeas petition that he was intellectually disabled, he filed this
report as part of the evidence in his first state habeas proceeding. The same
report was an exhibit to his second, successive state habeas application.
Kessner’s report reflects that she reviewed an array of Busby’s records and the
testimony of Dr. Proctor, who was an expert witness for Busby in his murder
trial. Kessner’s report concludes that the WAIS-III that Proctor administered
to Busby was the current test at the time. 112 Her report reflects that Proctor
testified at trial that Busby scored 77 on that test, and that Proctor testified
that Busby was not mentally retarded because “the DSM-IV diagnosis of
mental retardation would be a score below 70.” 113 However, Kessner opined
that Proctor had not accounted for a phenomenon known as the Flynn Effect,
which posits that there is a rise or gain in IQ scores over time and that
“[r]esearch literature has suggested that this figure is .3 per year beginning



      111 ROA.4103-08.
      112 ROA.4106.
      113 ROA.4106.



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                                  No. 15-70008
the year after the test is normed.” 114 Importantly, Kessner concluded that the
77 score on the WAIS-III “does not rule out a diagnosis of mental retardation,”
and that “a thorough investigation into Mr. Busby’s adaptive behavior history
is necessary to make a proper determination.” 115 The report continued, “[a]t
this time, I do not believe that has been accomplished.” 116 Her report said, “I
am concerned that that the apparent perfunctory reliance on the obtained score
truncated the investigation into the possibility of the presence of mental
retardation in Mr. Busby.” 117 Kessner’s report had explained that “the next
version of the Wechsler series (WAIS-IV) will be available to clinicians in the
fall of 2008.” 118 Her report concluded with this recommendation: “I would
recommend a new evaluation with the WAIS-IV when it is available this fall
so that the issue of the Flynn Effect and questions about the validity of the
score can be avoided.” 119 Kessner’s report addresses only one of the three broad
criteria for diagnosing intellectual disability. As to that criteria, the most she
said was that the WAIS-III score of 77 did not “rule out” intellectual disability.
      After Busby filed his federal habeas petition, he retained two other
experts regarding his mental capacities, and their reports were also appended
to Busby’s second, successive state habeas petition. The report of Gilbert
Martinez reflects that he is a Ph.D., licensed psychologist, and clinical
neuropsychologist, and that Busby “underwent standardized assessment of his
intellectual functioning on February 11, 2010.” 120 The report is relatively brief
and offers no opinion as to whether Busby is intellectually disabled. It reflects


      114 ROA.4106.
      115 ROA.4107.
      116 ROA.4107.
      117 ROA.4107.
      118 ROA.4106.
      119 ROA.4107.
      120 ROA.4091.



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                                    No. 15-70008
in a chart that Martinez administered the WAIS-IV, that Busby’s full scale IQ
score was 74, and that within a 95% confidence interval, his IQ score was
70-79. 121 Under a column in this chart labelled “Qualitative Description,” the
word “Borderline” appears with regard to Busby’s full scale IQ score. 122 The
report also reflects that Martinez administered a Test of Memory Malingering,
and “[t]here was no evidence of misrepresentation of cognitive or intellectual
functioning.” 123
      Federal habeas counsel also retained Bekh Bradley-Davino, Ph.D., who
is a licensed clinical psychologist. 124       Bradley-Davino spent ten hours
evaluating Busby in person and reviewed a substantial amount of written
material and records. 125 Bradley-Davino prepared a 20-page report, most of
which does not pertain to whether Busby is intellectually disabled. But in a
section titled “Limited Intellectual Abilities and Academic Problems Became
Apparent in Mr. Busby’s Childhood and Continued into Adulthood,” the report
states that “[a] number of sources of data including school records, behavioral
descriptions provided by Mr. Busby as well as his family, teachers, and peers,
and results of standardized tests, indicate that at a young age Mr. Busby
demonstrated        significant   signs   of   impaired/limited    academic     and
intellectual/mental abilities.” 126 The report also recounts the results of the
WAIS-IV IQ test administered by Martinez and its full scale IQ score of 74,
and concludes that “[t]his score reflects significant limitations in intellectual
functioning, approximately two standard deviations below the mean.” 127 The


      121 ROA.4092.
      122 ROA.4092.
      123 ROA.4091.
      124 ROA.1283.
      125 ROA.1283-84.
      126 ROA.1289.
      127 ROA.1289.



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                                     No. 15-70008
report reflects that Busby was placed in special education by at least the
seventh grade, that he had “significant problems in academic functioning
beginning early,” and that he could not understand some of the more complex
plays during high school football practice. 128 But there is no conclusion drawn
from all of the facts in Bradley-Davino’s report that Busby is intellectually
disabled. Instead, the report closes with this recommendation: “I additionally
strongly recommend further evaluation of Mr. Busby by an expert in mental
retardation in light of his clear history of extensive intellectual and adaptive
functioning limitations.” 129 From this, a reasonable person could certainly
conclude that Busby should be further evaluated. But this is not a conclusion
that Busby is intellectually disabled. To the contrary, it underscores this
expert’s opinion that further evaluation would be necessary to determine
whether Busby is intellectually disabled. A reasonable juror or factfinder could
fail to conclude from this evidence, even “in light of [Busby’s] clear history of
extensive intellectual and adaptive functioning limitations,” that Busby was
intellectually disabled.
      If Busby was in fact evaluated by an expert in intellectual disability, as
Kessner and Bradley-Davino recommended, Busby has not disclosed the
results of such an evaluation. The district court noted that the entire report
prepared by Martinez was not included as part of Busby’s evidence. We do not
know, therefore, what conclusions, if any, Martinez may have drawn in that
report as to whether Busby is intellectually disabled.
      We conclude that Busby’s successive petition in state court falls short of
presenting clear and convincing evidence that no rational factfinder would fail
to find him intellectually disabled. We cannot say that the TCCA’s denial of



      128   ROA.1289-90.
      129   ROA.1302.
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                                    No. 15-70008
the Atkins claim in Busby’s successive habeas application “was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding” 130 or an unreasonable application of clearly
established federal law to those facts.
                                           D
      As an independent basis for habeas relief, Busby contends that, as a
matter of federal common law, he is actually innocent of the death penalty and
ineligible for execution because he is intellectually disabled. He does not base
this claim on AEDPA, but instead, on a pre-AEDPA decision, Sawyer v.
Whitley. 131
        The Supreme Court held in House v. Bell that AEDPA does not address
the circumstances that another federal common-law actual-innocence
standard, the Schlup standard, 132 was crafted by the federal courts to address
and therefore that the Schlup standard of review, rather than AEDPA,
governed the claim of actual innocence in House. 133               The Sawyer actual-
innocence standard of review is similar, though not identical to, the Schlup
actual-innocence standard, and they are both part of the miscarriage-of-justice
standard defined by the Supreme Court’s habeas corpus jurisprudence. 134 The
Supreme Court explained that the Schlup standard applies when a “petitioner
asserts his actual innocence of the underlying crime,” and it requires that “he
must show ‘it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence’ presented in his habeas petition.” 135



      130 28 U.S.C. § 2254(d)(2).
      131 505 U.S. 333 (1992).
      132 See Schlup v. Delo, 513 U.S. 298, 319-322 (1995).
      133 House v. Bell, 547 U.S. 518, 539 (2006).
      134 See Calderon v. Thompson, 523 U.S. 538, 558-60 (1998).
      135 Id. at 559.



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                                     No. 15-70008
The Sawyer standard applies when “a capital petitioner challenges his death
sentence, in particular,” and then, “he must show ‘by clear and convincing
evidence’ that no reasonable juror would have found him eligible for the death
penalty in light of the new evidence.” 136
      Subsequently, the Supreme Court held in McQuiggin v. Perkins that
although AEDPA, specifically 28 U.S.C. §§ 2244(b)(2)(B) and 2254(e)(2),
“constrained the application of the [miscarriage of justice] exception,” those
provisions “reflect Congress’ will to modify the miscarriage of justice exception
with respect to second-or-successive petitions and the holding of evidentiary
hearings in federal court.” 137 However, with respect to “a first petition for
federal habeas relief, the miscarriage of justice exception survived AEDPA’s
passage intact and unrestricted.” 138 Busby’s actual-innocence-of-the-death-
penalty claim was first raised in his first federal habeas petition.
      The question, therefore, is whether Busby has shown by clear and
convincing evidence that no reasonable juror would have found him eligible for
the death penalty in light of the evidence set forth in his federal habeas
petition. The evidence in Busby’s federal petition was very similar to that
presented in his state petition. Busby is not contending in our court that the
federal district court should have held an evidentiary hearing on his Atkins
claim or erred in failing to do so. In fact, Busby was given the opportunity to
present evidence at an evidentiary hearing, but he did not identify any
witnesses that he wished to call at such a hearing. He relied on the evidence
set forth in his habeas petition in the federal district court. We reach the same




      136 Id. at 559-60.
      137 569 U.S. 383, 395-96 (2013) (emphasis in original).
      138 Id. at 397.



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                                       No. 15-70008
conclusion that the federal district reached, which is that “Busby has not
shown by clear and convincing evidence that he is mentally retarded.” 139
      The district court’s factual findings primarily considered Busby’s IQ
scores. However, we have considered all of the evidence presented by Busby,
and he failed to establish by clear and convincing evidence that he is
intellectually disabled, for the same reasons that we reached that conclusion
in part II-C above. Our review in part II-C was conducted under AEDPA, but
the outcome is the same applying the actual-innocence standard in Sawyer v.
Whitley, rather than AEDPA.
                                             III
      Busby asserts that he received ineffective assistance of counsel in his
direct appeal. During the guilt phase of Busby’s trial, the state trial court
refused to admit a written statement from a technician who had administered
a lie detector test to Kathleen “Kitty” Latimer, who was Busby’s accomplice in
the kidnapping and murder of Laura Crane. The technician had told Latimer
that her responses regarding the details of the crime indicated evasion, and
the technician’s written statement reflects that Latimer then stated that she
had not been truthful and that she told Busby to tie up Crane or to tape her
down to keep her from making noise while in the trunk. Busby’s direct appeal
counsel, who also served as his trial counsel, did not raise the exclusion of this
testimony as an issue in the direct appeal. Busby was appointed different
counsel to pursue his initial state habeas application, and that attorney did not
assert a claim that direct appeal counsel was ineffective in failing to raise the
exclusion of Latimer’s statements as an issue on direct appeal. Busby concedes
that the claim is procedurally defaulted since it was not raised in his initial
state habeas application.


      139   Busby v. Stephens, 2015 WL 1037460, at *21 (N.D. Tex. Mar. 10, 2015).
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                                    No. 15-70008
      Busby contends that he has established cause for the default by
demonstrating that his state habeas counsel was deficient in failing to raise
the claim, relying upon the Supreme Court’s decisions in Martinez v. Ryan 140
and Trevino v. Thaler. 141 However, in Davila v. Davis, 142 which issued while
this case was pending in our court, the Supreme Court held that ineffective
assistance of state habeas counsel is not sufficient cause to excuse the
procedural default of a claim for ineffective assistance of direct appeal
counsel. 143 “Because a prisoner does not have a constitutional right to counsel
in state postconviction proceedings, ineffective assistance in those proceedings
does not qualify as cause to excuse a procedural default.” 144
      Busby contends that his claim of ineffective assistance of appellate
counsel will never be considered unless an exception is made. The Davila
decision expressly rejected the same argument, 145 reasoning that “the Court in
Martinez was principally concerned about trial errors—in particular, claims of
ineffective assistance of trial counsel.” 146 The Court explained that “[t]he
criminal trial enjoys pride of place in our criminal justice system in a way that
an appeal from that trial does not,” 147 and the Court “declin[ed] to expand the
Martinez exception to the distinct context of ineffective assistance of appellate
counsel.” 148




      140  566 U.S. 1 (2012).
      141  569 U.S. 413 (2013).
       142 137 S. Ct. 2058 (2017).
       143 Id. at 2065.
       144 Id. at 2062.
       145 Id. at 2066 (“Petitioner’s primary argument is that his claim of ineffective

assistance of appellate counsel might never be reviewed by any court, state or federal,
without expanding the exception to the rule in Coleman.” (citing Coleman v. Thompson, 501
U.S. 722 (1991))).
       146 Id. (emphasis in original).
       147 Id.
       148 Id. at 2067.

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




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                                       No. 15-70008
counsel’s failure to raise the denial of admittance of [Latimer’s statements]
under Texas evidentiary law is a separate claim for relief.” 149 Footnote 28 says:
       Latimer’s statement was also admissible under Texas law as a
       statement against interest. Counsel did seek admission on that
       basis, but the trial court erroneously sustained the State’s
       objection. Although trial counsel preserved the error that the
       admission was not a statement against interest, counsel
       inexplicably did not raise the error as a ground of appeal.
       Counsel’s failure to raise this error on direct appeal is the basis of
       a claim that Mr. Busby was deprived of the effective assistance of
       counsel on appeal. 150
This issue was not otherwise designated as a claim for relief or otherwise
briefed or supported by any argument. Under Texas law, it was forfeited. 151
       Even were we not barred from reaching the merits of the defaulted or
procedurally barred claim, it would fail because Busby cannot establish the
prejudice prong of review for ineffective-assistance-of-counsel claims.                  The
Strickland analysis requires the petitioner to show “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 152 Busby must show that “but for his
counsel’s” failure to raise the issue on appeal, “he would have prevailed on his
appeal.” 153 The polygraph technician’s written statement said:
       Following the examination, Ms. Latimer was advised of the
       deceptive nature of her responses to the above noted relevant
       questions. She was asked for an explanation at which time she
       maintained that she did lie to me about encouraging or instructing
       Mr. Busby to tape up Ms. Crane. She stated that at one of the first
       stops where they got gas she could continue to hear Ms. Crane


       149ROA.3496.
       150ROA.3497.
      151 See Ex parte Garcia, 2008 WL 4573962, at *1 (Tex. Crim. App. 2008) (per curiam)

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

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                                       No. 15-70008
       banging in the trunk and she stated she realized the music was
       not going to stop the noise from being heard. She stated she told
       [Busby] “You are going to have to tie her up or tape her down
       because she is making too much noise.” She stated at the next
       truck stop where they stopped, she told him again “we need to do
       something.” She stated she told him “I said you need to tie her up
       or do something because she is making too much noise.” During
       the final portion of the post-test interview, she continued to deny
       that she actually saw Ms. Crane taped up in the trunk and denied
       Mr. Busby’s allegations that she helped or participated in tying up
       Ms. Crane in any way. 154
The federal district court recognized “it is not a defense to murder that
someone told the defendant to do it,” and that “Latimer’s statement is not
inconsistent with Busby’s guilt; it inculpates both of them.” 155                      More
importantly, as the federal district court explained, “[t]here is no question that
Busby was the individual who taped the victim and ultimately caused her
death. His fingerprint was lifted from the duct tape.” 156 “Busby admits he
taped the victim while he was alone with her at Walmart and Latimer was at
the LaQuinta hotel.” 157
       Had Busby’s appellate counsel pursued on appeal the claim that the trial
court erred in excluding Latimer’s statements, the TCCA would have applied
Texas Rule of Appellate Procedure 44.2(b), and it would have examined the
record as a whole. 158 If the court was fairly assured that the error did not
influence the jury or had but a slight effect, it would conclude that the error
was harmless. 159 There is no reasonable probability that the TCCA would have


       154  Busby v. Stephens, 2015 WL 1037460, at *11 (N.D. Tex. Mar. 10, 2015).
       155  Id. at *13.
        156 Id. at 14 n.10.
        157 Id.
        158 See Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005) (citing Morales v.

State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).
        159 Id. (“When evaluating harm from non-constitutional error flowing from the

exclusion of relevant evidence, we examine the record as a whole, and if we are fairly assured

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                                       No. 15-70008
reversed and granted Busby a new trial because it is highly likely that the
TCCA would have concluded that any error in excluding Latimer’s statements
was harmless. Latimer’s statements would have had only a slight effect, if any,
on the jury’s finding of guilt and the jury’s findings at the penalty phase. The
evidence is clear that Busby wrapped 23 feet of tape around his victim’s head
and used such force that her nose was dislocated. He did this when alone,
while Latimer was at a motel.
                                              IV
       Busby contends that his trial counsel, Strickland, was ineffective in
failing “to uncover a wealth of readily available mitigating evidence that was
necessary to both developing an accurate mental health diagnosis and
presenting a persuasive mitigation case to the jury.”                   The district court
pretermitted the question of whether trial counsel was ineffective and
proceeded directly to an analysis of whether, assuming trial counsel was
ineffective, Busby was prejudiced. 160 The district court carefully considered all
of the evidence presented at trial, both mitigating and aggravating evidence.
It then considered evidence that Busby says should have been presented, and
concluded that Busby had failed to satisfy the prejudice prong of the
ineffective-assistance-of trial-counsel claim. 161
       To establish ineffective assistance of trial counsel under Strickland, a
petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness” 162 and “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have



that the error did not influence the jury or had but a slight effect, we conclude that the error
was harmless.”).
       160 Busby, 2015 WL 1037460, at *12.
       161 Id. at *16.
       162 Strickland v. Washington, 466 U.S. 668, 687-88 (1984).



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                                   No. 15-70008
been different.” 163 When a Strickland claim is based on an allegedly deficient
sentencing investigation, the petitioner may establish prejudice by showing
that “the totality of the available mitigation evidence . . . reweigh[ed] . . .
against the evidence in aggravation” 164 creates “a reasonable probability that
at least one juror would have struck a different balance” and recommended a
life sentence instead of death. 165 We agree with the district court that this
latter standard has not been met.
      With regard to the available mitigation evidence and the evidence in
aggravation, we will not set forth that evidence in minute detail, because the
district court has done so thoroughly and accurately. 166 We agree with the
conclusions that the district court reached regarding the weight of the
aggravating evidence as measured against the “new” mitigating evidence. 167
      We will only briefly, and generally, recount the evidence. At Busby’s
trial, custodians of his school records testified that he had a mixed academic
record, 168 was required to repeat two grades, 169 was frequently absent from
school, and ultimately dropped out of school. 170 They also noted that he was
enrolled in special education classes for students with IQ’s lower than average,
but above 70. 171 His special education teacher spoke to Busby’s lack of support
at home, his life as a “follower” in a segregated neighborhood, 172 and her




      163 Id. at 694.
      164 Sears v. Upton, 561 U.S. 945, 955-56 (2010) (per curiam) (quoting Porter v.
McCollum, 558 U.S. 30, 41 (2009) (per curiam)).
      165 Wiggins v. Smith, 539 U.S. 510, 537 (2003).
      166 See Busby v. Stephens, 2015 WL 1037460, at *4-*12 (N.D. Tex. Mar. 10, 2015).
      167 Id. at *13.
      168 35 RR 17-24.
      169 35 RR 16, 24.
      170 35 RR 16.
      171 35 RR 27.
      172 35 RR 36-38.



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                                     No. 15-70008
observation that he was a difficult student. 173 The fact that Busby attempted
to commit suicide on four occasions and was hospitalized on each occasion was
presented to the jury. 174 Busby’s expert witness advised the jury that he had
found “documented evidence of long-standing chronic alcohol abuse” and
“longstanding and chronic” abuse of “essentially illegal drugs,” meaning
“[s]treet drugs.” 175
      The state introduced aggravation evidence at trial showing that Busby
had an extensive criminal history and a violent nature. 176 Busby previously
pled guilty to a robbery in which he attacked the victim with a box cutter,
causing the victim to be covered in blood from his waste up, then stole the
victim’s truck and other personal property 177 Busby pleaded guilty to stealing
donations from the Salvation Army. 178 During his time in prison for these
offenses, Busby was a violent and aggressive inmate. 179 A Kmart employee
testified that Busby once attempted to steal batteries and when he was
confronted, he threatened the employee and his family. 180 The State also
showed that Busby committed acts of violence while acting as a “pimp” for
Latimer and others, that he was a long-standing gang member, 181 that he had
violently assaulted and injured Latimer, and that he had been arrested
multiple times on drug and weapons charges. 182 The jury found that Busby




      173 35 RR 47.
      174 See, e.g., 36 RR 58.
      175 36 RR 57.
      176 See generally 33-34 RR.
      177 33 RR 13-19, 192.
      178 33 RR 72-80.
      179 33 RR 86-89, 142-150, 154-58, 164-68, 174-78.
      180 34 RR 35-38.
      181 34 RR 5-143.
      182 34 RR 21-30, 48-60, 156-58.



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                                     No. 15-70008
posed a future risk of dangerousness to society and that no mitigating factors
warranted a life sentence. 183
      Busby alleges that his new mitigation evidence generally tends to show
that (1) Busby was abandoned by his mother the first two years of his life and
instead lived with his grandmother; (2) Busby and his sisters were abused by
their mother and father and grew up in a violent household; (3) Busby’s
hometown was segregated and racially-biased; (4) Busby grew up in extreme
poverty; (5) Busby was “slow” and suffered from intellectual disability and
mental illness; (6) Busby was easily manipulated by women; and (7) Busby was
addicted to crack, marijuana, and alcohol. 184
      Busby asserted that his mother did not obtain prenatal healthcare when
pregnant with him. 185      According to Busby’s sisters, Busby’s mother was
physically violent with her children. She would “whoop” them with a “belt,
switch, shoe or extension cord.” His mother also physically attacked Busby’s
father and another male with whom she lived after Busby’s father left. Her
children often witnessed the altercations. In one incident, Busby’s mother
attempted to run over the man with whom she lived while Busby was in the
vehicle with her. 186 Busby’s mother also stabbed a man with whom she lived
in his hands with a butcher knife when he was attempting to deflect her
attacks. 187 One sister claimed that Busby’s mother did not love Busby and
would tell him that he was “just like [his] sorry-ass daddy.” 188 They also
described Busby’s father as a “drunk” and stated that Busby’s “dad would hit



      183 Busby v. State, 253 S.W.3d 661, 663 (Tex. Crim. App. 2008).
      184 See ROA.2451-58.
      185 ROA.2236.
      186 ROA.2566-67, 2575-76.
      187 ROA.2567.
      188 ROA.2566.



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                                 No. 15-70008
him with anything” when he was inebriated. 189 One sister said that they were
poor, Busby and his siblings were “hungry sometimes,” and the water was once
“cut off for about a week.” 190      Both sisters described Busby as slow,
irresponsible, and unhygienic. 191
      Other declarations said that Busby exhibited low intelligence, his
family’s income was low, his mother neglected him, and noted the absence of a
father figure. 192 They also commented upon Busby’s “mood swings” and mental
health issues, including his attempt to commit suicide in his teenage years. 193
Several noted that Busby was a follower when it came to women, especially
Latimer, who was described as his girlfriend. 194
      A declaration from a clinical psychologist opined that Busby experienced
“repeated physical and emotional abuse and neglect,” when he was a child and
also “witnessed violent actions committed by his mother.” 195 His declaration
noted that while much of the “described emotional and behavioral problems
are consistent” with post-traumatic stress disorder (PTSD), “it is impossible to
determine if Mr. Busby would have met the criteria for [PTSD] in
adolescence.” 196    He did, however, diagnose Busby with bipolar disorder,
anxiety disorder, and polysubstance dependence in remission. 197
      Some of Busby’s “new” evidence is not in fact new. It is cumulative of
the evidence adduced at trial, as the federal district court found. 198      We


      189 ROA.2567, 2574.
      190 ROA.2576-77.
      191 ROA.2568-70, 2578.
      192 ROA.2581-83; ROA.2584-85; ROA.2586; ROA.2588-89; ROA.2945-46; ROA.2947-

48; ROA.2949; ROA.2950-51.
      193 ROA.2582, 2585-86, 2946, 2947.
      194 ROA.2946-51.
      195 ROA.2953.
      196 ROA.2961.
      197 ROA.2963.
      198 Busby v. Stephens, 2015 WL 1037460, at *12 (N.D. Tex. Mar. 10, 2015).



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                                    No. 15-70008
concluded in Parr v. Quarterman 199 that though mitigation evidence may not
have been presented “as effectively as it might have been,” a petitioner could
not show prejudice when the jury heard evidence regarding an unstable
childhood and the “State’s case on punishment was strong.” 200 Similarly,
Busby repeats much of the testimony elicited at trial regarding his childhood,
intellectual acuity, and predispositions towards women and substance abuse.
His sisters testified at trial, and while the additional, post-conviction
statements from his sisters “undoubtedly provide[d] more details” of Busby’s
childhood, we held in Newbury v. Stephens 201 that evidence “of the same genre
as that presented to the jury at trial” could not outweigh the state’s
“overwhelming” evidence of future dangerousness. 202             Indeed, when “the
evidence of [] future dangerousness was overwhelming . . . . it is virtually
impossible to establish prejudice.” 203
      Busby’s new mitigation evidence, considered with that adduced at trial,
does not outweigh the State’s aggravation evidence such that “there is a
reasonable probability that at least one juror” would have recommended a life
sentence. 204 He was therefore not prejudiced by his trial counsel’s allegedly
deficient mitigation investigation, and his IATC claim fails. 205
      The district court did not directly address Busby’s contention that trial
counsel was ineffective in discovering and presenting evidence that Busby is



      199   472 F.3d 245 (5th Cir. 2006).
      200   Id. at 258.
        201 756 F.3d 850 (5th Cir. 2014) (per curiam).
        202 Id. at 873-74.
        203 Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002) (citing Strickland v.

Washington, 466 U.S. 668, 698 (1984)).
        204 Wiggins v. Smith, 539 U.S. 510, 537 (2003).
        205 Strickland, 466 U.S. at 697 (“[Courts] need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies.”).

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                                       No. 15-70008
intellectually disabled. However, trial counsel retained an expert to evaluate
Busby. It was that expert’s opinion that the two IQ tests that he administered
to Busby reflected that he was not intellectually disabled. Trial counsel did
not have the benefit of the Supreme Court’s decisions, issued long after the
trial, regarding IQ evidence. 206 Busby has not offered any evidence that trial
“counsel’s representation fell below an objective standard of reasonableness”
with regard to his investigation of Busby’s intellectual functioning or
presentation of evidence of Busby’s intellectual functioning based on the
standards of professionalism prevailing at the time. 207 Additionally, even with
the benefit of the assistance of three additional mental health experts during
habeas proceedings, Busby has not been diagnosed as intellectually disabled.
Accordingly, assuming, without deciding, that Busby raised and adequately
briefed in our court and in the federal district court a claim that trial counsel
was ineffective in failing to contend before or during the state trial court
conviction proceedings that Busby is intellectually disabled, the claim fails for
lack of evidence that trial counsel should have disregarded the retained
expert’s opinion that Busby was not intellectually disabled.
                                      *        *        *
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       206 See, e.g., Moore v. Texas, 137 S. Ct. 1039 (2017); Brumfield v. Cain, 135 S. Ct. 2269
(2015); Hall v. Florida, 134 S. Ct. 1986 (2014).
       207 Strickland, 466 U.S. at 687-88.

                                              40
