Steven Butler v. William Stephens, Director

Case: 09-70003 Document: 00513185744 Page: 1 Date Filed: 09/09/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Nos. 09-70003, 14-70018 United States Court of Appeals
Fifth Circuit

FILED
September 9, 2015
STEVEN ANTHONY BUTLER,
Lyle W. Cayce
Petitioner - Appellant
Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CV-2103

Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Steven Anthony Butler appeals the district court’s denial of habeas relief
and its denial of his Federal Rule of Civil Procedure 60(b) motion for relief from
judgment. Butler claims he is intellectually disabled 1 and thus ineligible for

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1“Intellectual disability” has become the diagnostic term to refer to what psychologists
previously referred to as “mental retardation.” See Hall v. Florida, 134 S. Ct. 1986, 1990
(2014). The former American Association of Mental Retardation (“AAMR”) has likewise
changed its name to the American Association on Intellectual and Developmental Disability
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the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). Additionally,
we previously granted Butler certificates of appealability on his allegations of
Batson 2 and Brady 3 violations and on one of his claims for ineffective
assistance of counsel. With these claims now before us, we VACATE the
dismissal of Claim 2 of Butler’s federal habeas petition, Butler’s ineffective-
assistance-of-trial-counsel claim, and REMAND this claim for further
consideration. In all other respects, we AFFIRM the district court’s denial of
Butler’s habeas petition and Rule 60(b) motion.
I. Background
In 1988, Butler was convicted of capital murder and sentenced to death
for killing a clerk in a dry cleaning store during an armed robbery. See Butler
v. State, 872 S.W.2d 227, 230–31 (Tex. Crim. App. 1994). Butler later confessed
to committing several similar armed robberies in the months before the capital
murder. According to evidence presented by the State during the sentencing
phase, Butler’s pattern in these armed robberies included approaching
convenience store clerks and demanding money from the cash register at
gunpoint, or pretending to purchase something and demanding money once the
cash register was opened. Butler generally did not hold the clerk at gunpoint
until no one else was in the store. Sometimes he parked his car across the
street from a store, in one instance stating that he left the radio on so it would
not get stolen. As Butler was exiting the scene of his last armed robbery, he

(“AAIDD”). Accordingly, we use the appellations “intellectual disability” and “AAIDD” in
place of the old terminology. See also Williams v. Stephens, 761 F.3d 561, 565 & n.1 (5th Cir.
2014), cert. denied, 135 S. Ct. 1735 (2015).
2 Batson v. Kentucky, 476 U.S. 79 (1986), forbids parties from using peremptory
challenges to exclude jurors on the basis of race.
3 Under Brady v. Maryland, 373 U.S. 83 (1963), the government violates a defendant’s
due process rights if it withholds evidence that is favorable to the defendant and material to
the defendant’s guilt or punishment.
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shot at a sheriff’s deputy who had stopped to investigate Butler’s car on the
side of the road. In the ensuing chaos, Butler stole a vehicle at gunpoint and
sped away, leading police on a high-speed chase until he tossed his gun out of
the car window and pulled over.
Butler lost his direct appeal, see Butler, 872 S.W.2d at 246, and his initial
state habeas petition was denied, see Ex parte Butler, 416 S.W.3d 863, 863
(Tex. Crim. App. 2012). Butler filed an initial federal habeas petition in 2002,
which was dismissed without prejudice to allow him to exhaust his Atkins
claim in state court. He then filed a successive state habeas application raising
an Atkins claim and other issues. See id. The Texas Court of Criminal Appeals
(“TCCA”) remanded the case to the state district court (“trial court”) for
consideration of Butler’s Atkins claim, which was denied in 2007 by order of
the trial court (hereinafter “Trial Court’s 2007 Order”) after a seven-day
hearing. 4 See generally id. During Butler’s Atkins hearing, Dr. George C.
Denkowski testified extensively for the State about Butler’s intellectual and
adaptive functioning capacities and about whether Butler has an intellectual
disability. The trial court extensively cited Dr. Denkowski’s “credible”
testimony as a basis for its findings of fact. The TCCA affirmed the Atkins
determination on appeal. See id. Represented by the same counsel, Butler
returned to federal court to petition for habeas relief, and in September 2008
the district court denied habeas relief, granting the motion for summary

4 As we explain infra at Part III.A.2(a), in reviewing the decision of the “state court,”
we review the decision of the TCCA denying Butler’s state habeas petition, including his
Atkins claim and his ineffective-assistance-of-counsel, Batson, and Brady claims. See
Matamoros v. Stephens, 783 F.3d 212, 220 (5th Cir. 2015); see also Ex Parte Butler, 416
S.W.3d at 863–64. We will refer to the state district court which conducted Butler’s habeas
hearing as the “trial court.” We will refer to the state court whose decision we are reviewing,
the Texas Court of Criminal Appeals, as the “TCCA.” We will refer to the U.S. District Court
for the Southern District of Texas, where Butler filed his federal habeas petition, as the
“district court.”
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judgment filed by the Director of the Texas Department of Criminal Justice.
Butler appeals the district court’s order denying him habeas relief, see
Butler v. Quarterman, 576 F. Supp. 2d 805, 810 (S.D. Tex. 2008) (“District
Court’s 2008 Order” or “Butler”). In that order, the district court noted that
Butler must prove three things to show intellectual disability under Atkins:
“(1) significantly sub-average intellectual functioning, (2) deficits in adaptive
functioning, and (3) onset before age 18.” Id. at 810 (citing Ex Parte Briseno,
135 S.W.3d 1, 7 (Tex. Crim. App. 2004)). The district court granted a certificate
of appealability (“COA”) on the question of whether Butler suffers from an
intellectual disability because it found that “another court could resolve the
issue [of Butler’s intellectual functioning] differently” and “the trial court’s
failure to find that Butler satisfied the first criteria for [intellectual disability]
was based almost entirely on the court’s acceptance of Dr. Denkowski’s heavily
disputed opinions.” Id. at 816. Yet, “[b]ecause Dr. Denkowski was qualified as
an expert in [intellectual disability], and since his testimony support[ed] the
state court’s findings, [the district court concluded] Butler ha[d] not shown by
clear and convincing evidence that the state court’s findings [were] incorrect.”
Id.
Butler appealed the District Court’s 2008 Order to this court and moved
to expand the COA the district court had granted on his Atkins claim to
encompass claims of ineffective assistance of counsel, incompetence to stand
trial, Brady violations during the penalty proceedings, and an allegedly
improperly-remedied Batson violation.
In 2009, Butler’s counsel filed a complaint with the Texas State Board of
Examiners of Psychologists (the “Board”) against Dr. George C. Denkowski,
Ph.D., alleging unprofessional conduct in his forensic psychological assessment
of Butler as the State’s expert in the Atkins hearing. Dr. Denkowski held a

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Ph.D. in counseling psychology and practiced forensic psychology. We granted
a stay pending the outcome of the complaint. In 2011, Dr. Denkowski entered
into an agreement with the Board regarding Butler’s complaint and others; the
Board found Dr. Denkowski had failed to comply with Board rules, and
potentially state and federal law, in his forensic psychology practice related to
Butler’s complaint. The settlement agreement also “reprimanded” Dr.
Denkowski’s license and prohibited 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” henceforth.
Finally, the agreement fined Dr. Denkowski $7,000.
In light of the settlement agreement and its censure of Dr. Denkowski
for conduct related to Butler’s case, we continued the stay of appellate
proceedings to allow Butler to exhaust his Atkins claim in state court. The
TCCA reconsidered its denial of Butler’s Atkins claim in December 2011 and
remanded the case 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.” Ex parte Butler, 416 S.W.3d at 864.
Without holding another evidentiary hearing or allowing for further
discovery, the trial court signed an order in February 2012 (“Trial Court’s 2012
Order”) “adopting the State’s Proposed Findings of Fact and Conclusions of
Law which recommended that relief be denied.” Id. The Trial Court’s 2012
Order does not substantially differ from the Trial Court’s 2007 Order denying
habeas relief. The Trial Court’s 2012 Order removed references to Dr.
Denkowski’s testimony or affidavit as “credible,” deleted references to reliance
on his testimony in some places, and found that Butler failed to show mental
retardation by a preponderance of the evidence, “even absent the testimony
elicited from [Dr. Denkowski].” Butler appealed, and a majority of the TCCA

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Nos. 09-70003, 14-70018

stated that “[b]ased upon the trial court’s findings and conclusions and our own
review, we deny relief.” Id. at 864. A concurrence signed by three justices and
a dissent signed by two justices discussed whether Butler had shown “by a
preponderance of the evidence, that he has that level and degree of intellectual
disability ‘at which a consensus of Texas citizens would agree that a person
should be exempted from the death penalty.’” Id. (Cochran, J., concurring)
(quoting Briseno, 135 S.W.3d at 6); see also id. at 880–81 (Price, J., dissenting)
(arguing the trial court did not truly revisit its 2007 Order and that “[n]either
the amendments themselves nor the process by which they were made inspire
confidence”). The Supreme Court denied certiorari. Butler v. Texas, 133 S. Ct.
1240 (2013).
With leave of this court and another stay of appellate proceedings, Butler
filed a Rule 60(b)(6) motion in the district court seeking relief from its 2008
denial of his habeas petition. The district court denied the motion, finding
Butler failed to show the determination as to intellectual disability in the Trial
Court’s 2012 Order, as affirmed by the TCCA, was unreasonable. See Butler
v. Stephens (Butler Rule 60(b) Opinion), No. 4:07-CV-2103, 2014 WL 1248037,
at *2 (S.D. Tex. Mar. 25, 2014). The district court noted that a petitioner must
establish all three prongs of the Briseno inquiry to be exempted from execution
by reason of intellectual disability in Texas. Id. at *1. On the first prong, the
district court expressed doubt about the conclusion in its 2008 Order upholding
the trial court’s intellectual function finding. Id. (“This Court felt compelled to
[uphold the trial court’s intellectual function finding] under the extremely
deferential standard of review mandated by the Antiterrorism and Effective
Death Penalty Act. With the censure from the Board, Denkowski’s opinions
are now deserving of no weight, thus calling into serious question this Court’s
conclusion on the question of Butler’s intellectual functioning.” (citation

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omitted)). Nevertheless, the district court denied Butler’s motion because it
found that “the Denkowski censure does not significantly impact the analysis
of Butler’s adaptive functioning,” and Butler would need to show both
intellectual and adaptive deficiencies to obtain habeas relief. Id. at *2.
Butler timely appealed to this court. We held oral argument and granted
COAs regarding Butler’s appeal from the denial of his Rule 60(b) motion, one
of his claims for ineffective assistance of counsel, and his claims that Batson
and Brady violations occurred during his trial. The parties submitted
supplemental briefing on those claims, which we now consider alongside
Butler’s request for habeas relief.
II. Standards of Review
We have jurisdiction to consider each of the claims before us for which
either the district court or this court granted a COA. See 28 U.S.C. § 2253(c)(1);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Butler’s claim that he is
intellectually disabled presents a question of fact, which was decided on its
merits by the trial court and TCCA. See Blue v. Thaler, 665 F.3d 647, 654 (5th
Cir. 2011). Therefore, under the Antiterrorism and Effective Death Penalty
Act (AEDPA), as applicable here, we may only grant habeas relief if the TCCA’s
rejection of Butler’s claim “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d)(2). This overarching standard governs our review of “the state
court’s decision as a whole,” that Butler lacks intellectual disability. Blue, 665
F.3d at 654. We give the individual factual findings supporting that decision
considerable deference and will not overturn those findings merely because we
might have reached a different conclusion. Wood v. Allen, 558 U.S. 290, 301
(2010); see also Matamoros v. Stephens, 783 F.3d 212, 216 (5th Cir. 2015).
Rather, “we presume the state court’s factual findings are correct,” and a

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petitioner must present “clear and convincing evidence” to rebut the
presumption. Matamoros, 783 F.3d at 216 & n.2; see also Blue, 665 F.3d at 654
(noting “[t]he clear-and-convincing evidence standard of § 2254(e)(1) . . . is
‘arguably more deferential’ to the state court than is the unreasonable
determination standard of § 2254(d)(2)” (quoting Wood, 558 U.S. at 301)).
Butler challenges both the TCCA’s overarching determination that he
lacks intellectual disability and its individual findings that he possesses
sufficiently advanced intellectual and adaptive functioning such that he is not
intellectually disabled. Accordingly, he must show by clear and convincing
evidence that it was unreasonable for the TCCA to conclude that he lacks the
intellectual and adaptive functioning deficits that would qualify him as
intellectually disabled. 5 See, e.g., Matamoros, 783 F.3d at 216 & n.2.
Additionally, the district court twice found that Butler failed to prove the
TCCA’s Atkins conclusion was unreasonable. See, e.g., Butler Rule 60(b)
Opinion, 2014 WL 1248037, at *2; Butler, 576 F. Supp. 2d at 827. “In an appeal
of the district court’s denial of habeas relief, this court reviews the district
court’s findings of fact for clear error and its conclusions of law de novo,
applying the same standard of review that the district court applied to the state
court decision.” Roberts v. Thaler, 681 F.3d 597, 603–04 (5th Cir. 2012)
(citations omitted). We review a district court’s denial of relief under Federal
Rule of Procedure 60(b) for an abuse of discretion. See Hernandez v. Thaler,

5 In order to establish intellectual disability under Atkins, Butler would also have to
show the onset of significant limitations in adaptive and intellectual functioning before the
age of 18. Briseno, 135 S.W.3d at 7. We need not decide whether Butler has satisfied this
requirement because we hold that he failed to provide clear and convincing evidence that he
possesses the required deficits in adaptive functioning, or that the TCCA was unreasonable
to conclude he lacks those deficits. Without this showing, Butler cannot prove it was
unreasonable for the TCCA to find that he is not intellectually disabled under Atkins. See
id. (listing the factors necessary to show intellectual disability under Texas law).
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630 F.3d 420, 428 (5th Cir. 2011).
Butler also claims that the trial judge provided an insufficient remedy
for a Batson violation that occurred during the jury selection for his capital
trial. On direct appeal, the TCCA rejected this claim on the merits. See
generally Butler, 872 S.W.2d at 233 (holding the trial judge did not commit
reversible error through the chosen method of remedying the Batson violation).
To obtain habeas relief on his Batson claim, Butler has to show the ultimate
decision of the TCCA was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). “A state court’s decision is deemed
contrary to clearly established federal law if it reaches a legal conclusion in
direct conflict with a prior decision of the Supreme Court or if it reaches a
different conclusion than the Supreme Court on materially indistinguishable
facts.” Matamoros, 783 F.3d at 215 (quoting Gray v. Epps, 616 F.3d 436, 439
(5th Cir. 2010)).
Finally, our COA grant encompasses two claims that were summarily
dismissed by the TCCA: (1) Butler claims his trial counsel was ineffective for
failing to properly investigate his mental state and for failing to raise that
allegedly problematic mental state to challenge Butler’s competence to stand
trial and to present mitigation evidence during the punishment phase of
Butler’s trial; (2) Butler claims Brady violations prejudiced his ability to
present evidence in mitigation and to challenge aggravation evidence during
the punishment phase. The district court found that Butler procedurally
defaulted these claims. See Butler, 576 F. Supp. 2d at 828. We agree, as to
Butler’s ineffective-assistance-of-trial-counsel (“IATC”) claim. Butler thus
must show cause and prejudice for his default to receive merits consideration
by a federal court. See generally Trevino v. Thaler, 133 S. Ct. 1911, 1917 (2013).

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We need not decide whether Butler’s Brady claim is procedurally defaulted
because we conclude he cannot show the alleged violations caused him
prejudice to overcome any default or are sufficiently material to prove this
claim on the merits; therefore, Butler’s Brady claim fails.
III. Discussion
A. Butler’s Atkins Claim
Butler’s habeas petitions before the state and federal courts argue he
cannot be executed because he has an intellectual disability. In Atkins, “the
Supreme Court held that the Eighth Amendment forbids the execution of
[intellectually disabled] persons,” but it “le[ft] to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon
their execution of sentences.” Maldonado v. Thaler, 625 F.3d 229, 232 (5th Cir.
2010) (citing Atkins, 536 U.S. at 317). In Briseno, 135 S.W.3d at 7, the Texas
Court of Criminal Appeals followed the AAMR’s (now AAIDD’s) definition 6 and
“require[d] three elements for a finding of [intellectual disability]: (1)
significantly subaverage intellectual functioning (generally, a full-scale IQ
score of 70 or below); (2) deficits in adaptive functioning; and (3) onset before
age 18.” Maldonado, 625 F.3d at 233 (citing Briseno, 135 S.W.3d at 7)).
As explained below, we hold Butler has failed to show by clear and
convincing evidence that it was unreasonable for the TCCA to conclude that he
lacks the required adaptive functioning deficits. See Matamoros, 783 F.3d at

6 Although some states set their intellectual disability criteria by statute, Texas has
not done so. However, Briseno found the AAMR’s (now AAIDD’s) definition similar to that
in Texas Health & Safety Code § 591.003(13), now codified at § 591.003(7-a): “‘Intellectual
disability’ means significantly subaverage general intellectual functioning that is concurrent
with deficits in adaptive behavior and originates during the developmental period.” TEX.
HEALTH & SAFETY CODE ANN. § 591.003(7-a) (West Supp. 2014); Briseno, 135 S.W.3d at 6–8.
Briseno adopted this definition for Texas, in conjunction with a separate list of factors courts
should consider when making adaptive behavior findings. Briseno, 135 S.W.3d at 7–8.
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216 & n.2; Briseno, 135 S.W.3d at 7. We therefore need not and do not reach
whether Butler has shown the TCCA was also unreasonable in finding he lacks
the required intellectual functioning deficits. See, e.g., Henderson v. Stephens,
791 F.3d 567, 580 (5th Cir. 2015); see also Maldonado, 625 F.3d at 233 (citing
Briseno, 135 S.W.3d at 7)).
1. Butler’s Rule 60(b) Motion
The State argues in passing that we “should consider the Rule 60(b)(6)
issue abandoned by Butler” because he “failed to brief the Rule 60(b)(6) issue”
in supplemental briefing. We conclude the matter is adequately briefed, and
we proceed to the merits.
2. The Adaptive Function Findings
The Texas Health and Safety Code defines adaptive behavior as “the
effectiveness with or degree to which a person meets the standards of personal
independence and social responsibility expected of the person’s age and
cultural group.” TEX. HEALTH & SAFETY CODE ANN. § 591.003(1) (West 2010).
Finding significant limitations in adaptive functioning is one of the three
criteria a petitioner must meet to show intellectual disability under Atkins in
Texas. Briseno, 135 S.W.3d at 6–7. The trial court found that Butler failed to
show deficits in adaptive behavior. The TCCA denied Butler’s Atkins claim
“[b]ased upon the trial court’s findings and conclusions and [its] own review.”
Ex parte Butler, 416 S.W.3d at 864. Butler argues the finding of the TCCA and
trial court was unreasonable on multiple grounds.
Primarily, Butler asserts that Dr. Denkowski’s opinions on intellectual
functioning and dubious practices tainted the trial court’s determination of
adaptive functioning. According to Butler, this influence led the trial court to
make that determination against established scientific principles by: “fail[ing]
to (a) examine both strengths and limitations, (b) consider[ing] and [giving]

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overriding weight to a few examples of atypical behavior by Mr. Butler rather
than focusing on his typical behavior, and (c) consider[ing] his criminal
behaviors as showing adaptive strengths.” In Butler’s view, Atkins and Hall
v. Florida, 134 S. Ct. 1986 (2014), mandate that courts closely follow
established scientific and clinical principles when making findings on adaptive
function, and the trial court did not do so when it disregarded the Vineland
Adaptive Behavior test of Butler’s adaptive skills given by Dr. Denis Keyes,
Butler’s expert. See Hall, 134 S. Ct. at 1990, 1995 (holding Florida’s
mandatory cutoff at an IQ score of 70 for considering a petitioner’s claim for
intellectual disability “disregard[ed] established medical practice”). Butler
contends that the trial court exacerbated this error by disregarding testimony
from Butler’s friends and family about his adaptive limitations, influenced by
Dr. Denkowski’s belief that this testimony is not reliable.
Even excluding Dr. Denkowski’s testimony on our own review of the
evidence, see Matamoros, 783 F.3d at 220, we conclude that we cannot grant
relief with respect to the trial court’s methods in examining Butler’s strengths
and limitations, considering his criminal behaviors, or relying on the Briseno
factors. Neither Atkins nor Hall mandates that courts scrupulously follow
clinical guidelines. Instead, the Supreme Court allows states to set their own
definitions of intellectual disability. The TCCA has set the standard for Texas
by adopting the definition of intellectual disability from the AAIDD, Briseno,
135 S.W.3d at 7, and by enumerating seven additional factors for courts to
consider, see id. at 8–9. 7

7 The factors are: “[1] Did those who knew the person best during the developmental
stage—his family, friends, teachers, employers, authorities—think he was [intellectually
disabled] at that time, and, if so, act in accordance with that determination? [2] Has the
person formulated plans and carried them through or is his conduct impulsive? [3] Does his
conduct show leadership or does it show that he is led around by others? [4] Is his conduct in
response to external stimuli rational and appropriate, regardless of whether it is socially
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We have explicitly addressed arguments attacking the Briseno factors as
insufficiently tied to clinical standards, even after Hall was decided, holding:
Unlike the [IQ-score] cutoff at issue in Hall, the Briseno factors do
not conflict with Atkins. . . . Atkins says nothing about what kind
of evidence should be considered when determining whether a
defendant’s significantly subaverage general intellectual
functioning meaningfully limits his adaptive functioning. That
question has been left explicitly to the states, and the definition
adopted by Texas in Briseno, including the Briseno factors, in no
way departs from any of the Court’s pronouncements.
Mays v. Stephens, 757 F.3d 211, 218–19 (5th Cir. 2014) (citing Atkins, 536 U.S.
at 308 n.3, 318), cert. denied, 135 S. Ct. 951 (2015). Therefore, the trial court
permissibly relied on factors enumerated by Briseno and approved by this court
in making findings regarding Butler’s adaptive functioning. See, e.g., Briseno,
135 S.W.3d at 8–9; Matamoros, 783 F.3d at 218 & n.6 (noting that the Briseno
factors have been criticized as “lack[ing] a scientific basis” but upholding their
use, as this court has “previously held that Briseno is a constitutionally
permissible interpretation and application of Atkins”). This includes its
consideration of Butler’s adaptive strengths alongside his limitations. See
Henderson, 791 F.3d at 586 (“Under Briseno, the TCCA was free to weigh all
of the evidence, not just the evidence of [the petitioner’s] limitations and [his]
expert witness’s testimony, in making its factual determination . . . .”);
Williams v. Quarterman, 293 F. App’x 298, 313–14 (5th Cir. 2008) 8 (noting
courts may consider adaptive strengths in this analysis and finding no clear

acceptable? [5] Does he respond coherently, rationally, and on point to oral or written
questions or do his responses wander from subject to subject? [6] Can the person hide facts
or lie effectively in his own or others’ interests? [7] Putting aside any heinousness or
gruesomeness surrounding the capital offense, did the commission of that offense require
forethought, planning, and complex execution of purpose?” Id. at 8–9.
8 Although Williams is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).

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error in the district court’s finding of no significant adaptive limitations (citing
Clark v. Quarterman, 457 F.3d 441, 447 (5th Cir. 2006)). Briseno also approved
consideration of a person’s criminal behavior in examining adaptive
functioning limitations, and we have said that practice does not contravene
Atkins or Hall. See generally Chester v. Thaler, 666 F.3d 340, 347 & n.1, 349
(5th Cir. 2011); Briseno, 135 S.W.3d at 8–9. Finally, even if we disagreed with
the focus of the trial court on some evidence over other evidence or might have
made different credibility determinations and findings, that disagreement
would not be sufficient to grant habeas relief as to the TCCA’s ultimate
rejection of Butler’s petition absent clear and convincing evidence to the
contrary of its factual findings. See Kinsel v. Cain, 647 F.3d 265, 270 & nn.18–
19 (5th Cir. 2011) (“recognizing that credibility determinations in particular
are entitled to a strong presumption of correctness” and that a petitioner must
show they were erroneous by clear and convincing evidence (citing Pippin v.
Dretke, 434 F.3d 782, 792 (5th Cir. 2005) and Miller-El, 537 U.S. at 340). 9
(a) Dr. Denkowski’s Influence
In an attempt to proffer such clear and convincing evidence, Butler seeks
to discredit several areas of the trial court’s findings as tainted by Dr.
Denkowski’s influence. In other cases involving Dr. Denkowski, we have
attempted to set aside Dr. Denkowski’s problematic influence by disregarding
his testimony and examining whether, on the rest of the evidence, a petitioner

9 The same applies to the trial court’s rejection of the Vineland exam results.
Although the trial court relied in part on Dr. Denkowski’s testimony to reject Dr. Keyes’s
interpretation of those results, it also relied on its finding that Dr. Keyes was not credible
and on Dr. Keyes’s own comment that Butler’s score on the exam was “spuriously low.” Thus,
as Butler suggests, we will consider the information Butler’s friends provided to Dr. Keyes
during interviews for the exam, but we do not find clear and convincing evidence in this
record that the trial court unreasonably disregarded Dr. Keyes’s interpretation of the results
of the Vineland exam. See Kinsel, 647 F.3d at 270.
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Nos. 09-70003, 14-70018

met their burden to show the state court’s determination was unreasonable.
See, e.g., Maldonado, 625 F.3d at 236 (“[The petitioner] is not entitled to habeas
relief because even disregarding [Dr. Denkowski’s] testimony, he cannot meet
his burden . . . .”); Matamoros, 783 F.3d at 220. In Matamoros, we took a two-
pronged approach. First, we held that we would view the TCCA as the relevant
decision maker, excising some of Dr. Denkowski’s influence because the TCCA
“explicitly stated that it relied [on] . . . [its] own review” in denying the state
habeas petition. Matamoros, 783 F.3d at 220 (citation omitted). Second, in the
alternative, we specified that we reviewed “the state court’s decision, not the
written opinion explaining that decision.” Id. (citation omitted); see also
Maldonado, 625 F.3d at 239. In Matamoros, this approach led us to “conduct
our own review of the evidence (excluding Dr. Denkowski’s testimony) and
determine whether [the petitioner showed] clearly and convincingly that the
[TCCA’s] decision—that [petitioner] did not meet his burden of proof—was
unreasonable.” 783 F.3d at 220. We will follow the same approach in this case.
In this case, as in Matamoros, the TCCA “den[ied] relief” based both
upon the trial court’s findings “and [its] own review.” Ex Parte Butler, 416
S.W.3d at 864. Additionally, on reconsideration, given Dr. Denkowski’s
censure, the trial court found that Butler failed to show intellectual disability
by a preponderance of the evidence, “even absent the testimony elicited by Dr.
George Denkowski during the habeas proceedings.” Id. at 881 (Price, J.,
dissenting). As highlighted by the TCCA’s dissenting justices, the trial court
in the Trial Court’s 2012 Order gave a disturbingly cursory consideration to
the new information about Dr. Denkowski and seemed to continue to rely on
his discredited methods. 10 Id. at 880–81 (Price, J., dissenting) (criticizing the

10Id. at 880 (Price, J., dissenting) (noting the trial court reportedly “simply announced
from the bench that it would not reconsider its Atkins ruling,” invited the State to submit a
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Trial Court’s 2012 Order as “an only-slightly-reworked version of the original”
2007 Order that did little more than delete the word “credible” before
descriptions of Dr. Denkowski’s testimony, such that “[n]either the
amendments themselves nor the process by which they were made inspire
confidence”). While we do not countenance the trial court’s conduct on remand,
we conclude that—even without Dr. Denkowski’s testimony—Butler has not
met his AEDPA burden with respect to adaptive functions. 11
(b) Findings Regarding Adaptive Behavior Skill Areas
In the Trial Court’s 2007 and 2012 Orders, it found that Butler lacks the
required adaptive functioning deficits after considering the Briseno factors and
the AAIDD definition of intellectual disability and based on testimony from Dr.
Denkowski, Dr. Denis Keyes (Butler’s expert), and Butler’s friends and family
members. The TCCA affirmed the Trial Court’s 2012 Order, so that is the
decision we review. In making its adaptive function findings, the trial court
relied primarily on testimony from Butler’s friends and family about his habits,
actions, and adaptive abilities, as well as on observations of Butler during the
investigation of his crimes, during his trials, and in prison. Those findings
inherently involved credibility determinations and assessments of live
witnesses, which Butler can only overcome in this court by showing clear and
convincing evidence that those determinations were erroneous. See Kinsel, 647
F.3d at 270. He has failed to meet that burden. The record reveals
considerable evidence, discounting Dr. Denkowski, on both sides of the

new set of proposed facts and conclusions, did not invite Butler to do the same, and signed
the State’s proposed facts and conclusions as its new order, “without a single change”).
11 Although we have thoroughly reviewed the evidence in the record, we will not
attempt to summarize it in full here. We will only refer to portions of it as necessary.

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equation. In light of this conflicting evidence, we do not find clear and
convincing evidence that the TCCA’s determination was unreasonable.
Following Briseno’s approach, the trial court analyzed Butler’s level of
adaptive functioning based on the AAMR diagnostic manual’s definition of
adaptive behavior deficits as existing “when an individual has significant
limitations in at least two of ten skill areas.” The ten skill areas include
“communication, self-care, home living, social skills, community use, self-
direction, health and safety, functional academics, leisure, and work.”
Matamoros, 783 F.3d at 217 (quoting Atkins, 536 U.S. at 308 n.3). 12 The trial
court found strengths in each of these areas that support the TCCA’s decision.
In functional academics, the trial court found that Butler subscribed to
publications to read in his prison cell and was able to read, write, and order
items from the prison commissary without exceeding his balance. Butler
communicated proficiently when he confessed to police officers and when he
testified in court, he read the newspaper and kept clippings about his crimes,
and he gave orders to his victims during the robberies, joked with his fiancée,
and effectively explained his absence from duty in the National Guard.
Regarding social skills, community use, and self-direction, the trial court found
Butler spent time helping elderly neighbors and children, dated and became
engaged after a long-term relationship, was described by his fiancée as a “class
clown” who was “tender, soothing, and made [her] laugh,” and was previously
described by his father as “a normal, active, and trustworthy man.” Butler also

12 See also AMERICAN ASSOCIATION OF MENTAL RETARDATION, MENTAL
RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORTS 76–77, 81 (10th ed.
2002) [hereinafter “AAMR Manual”]; AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 49 (rev. 4th ed. 2000) [hereinafter “DSM-IV”]
(endorsing the two-of-ten subcategories adaptive functioning framework under its diagnostic
criteria for what was then referred to as mental retardation).

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possessed and drove a car as a teenager and was able to understand and follow
traffic rules. Butler sought out jobs and completed basic training in the
National Guard, which the trial court found involves “listening to and following
instructions, learning how to fire, clean, assemble and dissemble a firearm,
keeping one’s uniform orderly, and keeping one’s bunk area clean and neat.”
Butler planned and carried out schemes through his crimes, and he avoided
capture by watching the news and changing out his license plate to avoid
detection. In his daily life, the trial court found Butler could heat up his own
meals, drive to and from work and other places, and care for himself in a
confinement setting with health care and personal care items found in his cell.
Evidence before the trial court also suggested limitations in Butler’s
adaptive functioning, but it does not clearly and convincingly outweigh the
evidence that Butler lacks the deficits required by Atkins and Briseno. For
example, friends and family members reported that Butler had difficulty
managing money, including skills like opening a bank account, budgeting,
checking for change following a purchase, paying bills, and balancing a
checkbook. Butler demonstrated little knowledge of dictionaries and
encyclopedias in high school and scored poorly in a class involving life skills
and finances. Friends often ordered food for him at restaurants and helped
him to apply for jobs and find lodging, transportation, and furniture. Friends
and family members said they often had to explain things to Butler repeatedly
before he understood. A speech and language pathologist testified that Butler’s
testimony at another trial was similar to that of an 8-to-10-year-old child with
language impairments and “consistent with the speech of an adult with
intellectual disability.” Witnesses described Butler as a shy, withdrawn
follower who was made fun of in school, could not play sports because he could
not comprehend the rules or strategy, avoided conflicts because he could not

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resolve them, and had difficulty comprehending jokes and romantic
commitments. The trial court questioned the credibility of some of the
witnesses; in any event, the evidence in support of Butler’s adaptive function
claims was not sufficient to overcome the evidence against those claims in light
of the deferential standard we apply.
In short, we have little doubt that the Trial Court’s 2007 and 2012 Orders
were weakened by reliance on Dr. Denkowski’s testimony. But excising that
testimony—and findings dependent on it—leaves behind evidence that
supports the TCCA’s finding that Butler lacks significant deficits in adaptive
functioning. Under AEDPA, Butler has not met his burden to show the TCCA’s
decision to dismiss his Atkins claim was unreasonable. See 28 U.S.C.
§ 2254(d)(2); Matamoros, 783 F.3d at 220.
(c) Briseno’s Constitutionality after Brumfield v. Cain
Butler urges in supplemental briefing that the Supreme Court’s recent
decision in Brumfield v. Cain supports a rejection or more careful scrutiny of
the Briseno factors in favor of a more clinical approach. See 135 S. Ct. 2269,
2280–82 (2015) (citing clinical standards and disagreeing with a state habeas
court’s reliance on considerations similar to the Briseno factors to deny the
petitioner’s request for an evidentiary hearing). Butler attacks each of the
Briseno factors as lacking any basis in clinical standards, instead being based
on unscientific evidence submitted in the underlying state habeas case in
Briseno. The factors do not accurately capture whether an individual is
intellectually disabled, Butler avers, because they “begin with a false
dichotomy” between intellectual disability and a personality disorder, which is
an unscientific assumption.
The Supreme Court in Brumfield did not indicate a rejection of the
Briseno factors as a whole. The Court simply disagreed with the application of

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certain similar considerations in that case, which prevented a petitioner from
receiving an evidentiary Atkins hearing when there was at least some
indication he might have an intellectual disability. Id. at 2281 (observing it
was “critical to remember” that to obtain an evidentiary hearing, the petitioner
“was not obligated to show that he was intellectually disabled, or even that he
would likely be able to prove as much,” only that he could “raise a reasonable
doubt as to his intellectual disability” (citation omitted)). As we recently held
in Henderson, Brumfield “does not cast any doubt on the constitutionality of
the Briseno standard. Unlike the petitioner in Brumfield, [Butler] had an
evidentiary hearing at which he presented expert testimony and other
evidence in support of his Atkins claim.” 791 F.3d at 586.
We hold that under Brumfield, as before, Butler has failed to show by
clear and convincing evidence that the TCCA was unreasonable to find that he
lacks the required adaptive functioning deficits. This is fatal to his Atkins
claim; therefore, we AFFIRM the district court’s denial and dismissal of
Butler’s Atkins claim. See Butler, 576 F. Supp. 2d at 827.
B. Butler’s Batson Claim
Butler also claims that the trial judge in his capital trial erred by
providing an inadequate remedy for a Batson violation, and that the TCCA’s
decision upholding that remedy on appeal was “contrary to, or involved an
unreasonable application of, clearly established” Supreme Court precedent. 28
U.S.C. § 2254(d)(1); see also Matamoros, 783 F.3d at 215. Batson held that a
party may not exercise a peremptory challenge on the basis of a juror’s race.
Batson v. Kentucky, 476 U.S. 79 (1986). Butler protests that, after the trial
court found the prosecution’s peremptory challenge violated Batson, it
implemented a remedy that was not mentioned by the Supreme Court in
Batson and which contravenes the spirit of Batson by effectively rewarding the

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prosecution for its impermissible peremptory strike.
In Batson, the Supreme Court acknowledged two acceptable methods of
ameliorating the harm from an unlawful challenge—reinstating the
improperly stricken juror or discharging the venire and selecting a new jury
from an entirely new panel. Id. at 99 n.24. Yet, the Court left trial courts the
discretion to fashion an appropriate remedy:
We decline . . . to formulate particular procedures to be followed
upon a defendant’s timely objection to a prosecutor’s challenges.
....
In light of the variety of jury selection practices followed in our
state and federal trial courts, we make no attempt to instruct these
courts how best to implement our holding today. For the same
reason, we express no view on whether it is more appropriate in a
particular case, upon a finding of discrimination against black
jurors, for the trial court to discharge the venire and select a new
jury from a panel not previously associated with the case, or to
disallow the discriminatory challenges and resume selection with
the improperly challenged jurors reinstated on the venire . . . .
Id. at 99 & n.24 (citations omitted).
During jury selection for Butler’s capital trial, the trial court divided all
prospective jurors into smaller groups. See Butler, 872 S.W.2d at 231, 233.
The Batson issue arose during the voir dire of the fourth group. Id. at 231.
One member of the group was selected (Jimmie Lewis), but the prosecution
exercised a peremptory challenge on an African-American member of the
panel, Delores Hadnott. Id. at 231–33. Butler’s counsel objected that this
strike by the prosecution was exercised in a racially discriminatory manner.
Id. at 231–32. The trial court sustained the objection. After much back and
forth during which Butler’s attorney argued that the entire “array” of
prospective jurors (all summoned jurors, not just this small group) should be
excused or that Hadnott should be seated, the trial judge dismissed the entire
small group (not all summoned prospective jurors), unseating Lewis and also

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excusing Hadnott. Id. at 232–33. Three jurors selected from previous small
groups, or mini panels, remained on the jury. Id. The judge also returned the
used peremptory strike to the State. Id.
On direct appeal the TCCA found the trial court’s remedy
constitutionally sufficient under Batson, on the merits. See id. at 233. The
district court likewise found that “[w]hile the remedy chosen by the trial court
may not have been ideal, the trial court’s Batson remedy was not ‘so patently
incorrect as to be unreasonable.’” Butler, 576 F. Supp. 2d at 831 (quoting
Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001)).
Under AEDPA, we cannot address this issue de novo; instead, we ask
whether the trial court’s chosen remedy and the TCCA’s affirmance of that
remedy directly conflict with a prior decision of the Supreme Court or reach a
different conclusion than the Supreme Court on materially indistinguishable
facts. See Matamoros, 783 F.3d at 215. They do not. Accordingly, we leave
the larger question of Batson remedies to another day and AFFIRM the district
court on this point. See 28 U.S.C. § 2254(d)(1); Matamoros, 783 F.3d at 215.
C. Butler’s Brady Claim
Butler also requests habeas relief because he claims the prosecution
violated Brady v. Maryland by withholding evidence that would have
undermined the prosecution’s presentation of aggravating circumstances
during the punishment phase of his capital trial. See 373 U.S. 83, 87 (1963).
Brady prohibits the suppression of favorable impeachment or exculpatory
evidence by the prosecution. Id.; Canales v. Stephens, 765 F.3d 551, 574 (5th
Cir. 2014).
To prove a Brady violation on the merits, Butler must show “(1) the
evidence at issue, whether exculpatory or impeaching, [was] favorable to
[Butler]; (2) “[the] evidence [was] suppressed by the State, either willfully or

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inadvertently; and (3) prejudice . . . ensued.” Canales, 765 F.3d at 574 (quoting
Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). “Unless suppressed evidence
is ‘material for Brady purposes, [its] suppression [does] not give rise to
sufficient prejudice to overcome [a] procedural default.’” Banks v. Dretke, 540
U.S. 668, 698 (2004) (quoting Strickler, 527 U.S. at 282). In other words, “[t]he
prejudice component [of a procedurally-defaulted Brady claim] is the same as
materiality for Brady purposes.” Canales, 765 F.3d at 574 (citing Banks, 540
U.S. at 691). In determining materiality,
courts should not simply ask whether, “after discounting the
inculpatory evidence in light of the undisclosed evidence, the
remaining evidence is sufficient to support the jury’s conclusions.”
Instead, the proper inquiry is whether “the favorable evidence
could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.”
Id. (citations omitted) (quoting Strickler, 527 U.S. at 290). As this court has
observed, “[t]he question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in a verdict
worthy of confidence.” United States v. Brown, 650 F.3d 581, 588 (5th Cir.
2011) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
“The suppressed evidence need not be admissible to be material under
Brady; but it must, somehow, create a reasonable probability that the result of
the proceeding would be different.” Id. To show a reasonable probability of a
different outcome, “the ‘likelihood of a different result must be substantial, not
just conceivable.’” Id. (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)).
We assess the materiality of suppressed evidence collectively. Id.; see also
Canales, 765 F.3d at 574 (citing Kyles, 514 U.S. at 436).
We need not decide whether Butler procedurally defaulted his Brady
claim because, regardless of any default, Butler would have to show the alleged

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Brady violations were material (or prejudicial) to succeed on the merits and
overcome procedural default. See Canales, 765 F.3d at 574–75 (citing Banks,
540 U.S. at 691); cf. Hooks v. Thaler, 394 F. App’x 79, 82 n.3 (5th Cir. 2010)
(“Because we hold that [the petitioner] has failed to satisfactorily demonstrate
ineffective assistance, we need not address whether [he] properly exhausted
his claim in the state courts.” (citing Richardson v. Quarterman, 537 F.3d 466,
474 n.3 (5th Cir. 2008))). Even assuming that the information Butler describes
was not disclosed, we conclude that the allegedly suppressed information was
not “material” within the meaning of Brady.
Three groups of allegedly suppressed evidence related to witness
testimony establishing Butler’s culpability in other crimes used as aggravating
factors in his sentencing. While a Brady violation can be premised on the
suppression of impeachment evidence, the evidence in question here would not
have provided impeachment sufficient to “undermine confidence in the
outcome.” Canales, 765 F.3d at 568; see also Banks, 583 F.3d at 311. With
respect to Gwen Blackwell, who was a witness to a robbery, Madonna Benoit,
who was a witness to a different robbery and attempted murder, and Winnie
Silcox, who was a witness to yet another robbery and sexual assault, Butler
confessed to all of these crimes. His confessions and other evidence the
prosecution presented render the alleged impeachment evidence insufficient to
put the whole case in such a different light as to undermine confidence in
whether Butler received a fair trial, “resulting in a verdict worthy of
confidence.” Brown, 650 F.3d at 588; see also Canales, 765 F.3d at 574. Thus,
even assuming arguendo the allegedly suppressed evidence would bear on
these witnesses’ credibility, Butler has failed to establish materiality.
The final item claimed as suppressed Brady material is information
contained in a series of published newspaper articles impugning one Louisiana

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law enforcement officer and the sheriff’s office where he and another officer
worked during the general time frame when these officers investigated Butler.
We agree with the State that newspaper articles published about this law
enforcement office and one of the officers after Butler’s trial do not constitute
“suppressed” Brady materials. To the extent the prosecution is imputed with
knowledge about the underlying information, it is too vague and attenuated to
Butler’s investigation to be material. Accordingly, we conclude that there is no
need to remand the Brady analysis to the district court and we AFFIRM the
district court’s denial of relief on this basis.
D. Butler’s Ineffective Assistance Claim
We also granted a COA on Butler’s claim that his trial counsel was
ineffective for failing to investigate and raise: (1) Butler’s competence to stand
trial, and (2) mitigation evidence regarding Butler’s mental state during the
penalty phase of his capital trial. The district court rejected this claim as
procedurally defaulted. See Butler, 576 F. Supp. 2d at 828. The claim was not
raised in Butler’s initial state habeas proceeding and, relying on then-current
precedent, the district court held that Butler could make no claim for
ineffective assistance of state habeas counsel for failure to raise the ineffective-
assistance-of-trial-counsel claim. Id. at 829–30 (citing Coleman v. Thompson,
501 U.S. 722, 752–53 (1991) (holding there is no constitutional right to an
attorney, much less an effective attorney, in state post-conviction proceedings)
and Martinez v. Johnson, 255 F.3d 229, 241 (5th Cir. 2001) (“[I]neffective
assistance of habeas counsel cannot provide cause for a procedural default.”)).
After the district court’s decision, the Supreme Court held that
defendants convicted in Texas may attempt to demonstrate that the
ineffectiveness of state habeas counsel is cause for failure to raise an IATC
claim during state habeas proceedings. See Martinez v. Ryan, 132 S. Ct. 1309,

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1318–19 (2012) (holding habeas petitioners may show cause for such default in
specific circumstances in states that require petitioners to raise IATC claims
in initial state habeas proceedings, rather than on direct appeal); Trevino, 133
S. Ct. at 1915, 1921 (holding Martinez applies to inmates convicted in Texas,
because Texas functionally requires petitioners to raise IATC claims in initial
state habeas proceedings). Therefore, if Butler’s IATC claim has been
procedurally defaulted, whether Butler can show cause and prejudice under
the new standards of Martinez and Trevino must be ascertained.
1. Procedural Default
When considering state prisoners’ habeas petitions under 28 U.S.C.
§ 2254, federal courts may not consider the merits of claims that have been
dismissed by state courts on state-law procedural grounds which are adequate
and independent of the federal, constitutional merits of the claims. See
Balentine v. Thaler, 626 F.3d 842, 851 (5th Cir. 2010) (citing Coleman, 501 U.S.
at 729). Therefore, the first question we must answer is whether the TCCA’s
dismissal of Buter’s IATC claim was based on such an adequate and
independent state-law ground, or whether the TCCA’s dismissal of that claim
is interwoven with federal law such that a federal court may review it on the
merits. If this claim has been procedurally defaulted, Butler must also show
cause and prejudice for his failure to present this claim in his first state habeas
application.
Butler presented the IATC claim in his second state application for
habeas corpus. After the state trial court denied Butler’s IATC claim, along
with his second habeas application, the TCCA dismissed the claim. Ex parte
Butler, No. 41,121-02 (Tex. Crim. App. Sept. 15, 2004) (unpublished). In doing
so, the TCCA found Butler’s Atkins claim in his second state petition
“satisfie[d] the requirements of Article 11.071 § 5(a), TEX. CODE CRIM. PROC.,”

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but that “[t]he remaining allegations [in his petition did] not satisfy an
exception and [were] dismissed as an abuse of the writ.” Id. at 2.
The TCCA’s unpublished order thus dismissed Butler’s IATC claim
without specifying whether it did so based on “a state-law procedural ground,”
or on the merits in a manner dependent on federal law. See Rocha v. Thaler,
626 F.3d 815, 820 (5th Cir. 2010). If the TCCA’s rejection of Butler’s claim was
based “on a state procedural rule, and that procedural rule provides an
independent and adequate ground for dismissal” apart from the federal,
constitutional merits of the claim, that claim has been procedurally defaulted.
Id. at 820–21; Canales, 765 F.3d at 564. In this case, Butler claims the TCCA
dismissed his IATC claim “based on a state procedural ground that was not
independent of the merits of [his] constitutional claim[].” 13
When, as here, “the adequacy and independence of any possible state law
ground is not clear from the face of the [state court] opinion,” this court must
attempt to discern the grounds on which a claim was dismissed. See Canales,
765 F.3d at 564 (quoting Michigan v. Long, 463 U.S. 1032, 1040–41 (1983)).
Unless it “fairly appear[s] that the state court rested its decision primarily on
federal grounds,” we do not accept as “the most reasonable explanation . . . that
the state judgment rested on federal grounds.” Id. (quoting Coleman, 501 U.S.
at 737). Instead, we look beyond the dismissal order:
When the dismissal is silent, this [c]ourt looks to the arguments
made in state court to try to determine whether the dismissal was
based on independent and adequate state law or whether instead
it relied on or was interwoven with federal law.

13 No one disputes that a dismissal for “abuse of the writ” by the TCCA constitutes an
adequate basis for decision. “A procedural rule is adequate when it is ‘firmly established and
regularly followed,’ even if there is an occasional aberrant state court decision.” Balentine,
626 F.3d at 856 (quoting Ford v. Georgia, 498 U.S. 411, 423–24 (1991)). “We have previously
held that the [TCCA] regularly enforces the Section 5(a) requirements.” Id. at 856–57.

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Id. at 565 (citation omitted) (quoting Balentine, 626 F.3d at 854–56).
Interpreting the TCCA’s “boilerplate dismissal for an abuse of the writ”
is complicated because it did so under Section 5 of Article 11.071 of the Texas
Code of Criminal Procedure, and any of the three grounds for dismissal of
subsequent writs in § 5(a) may involve merits determinations that are not
independent of federal law. 14 Id.; see also, e.g., Rocha, 626 F.3d at 835–39;
Balentine, 626 F.3d at 854–55. Only § 5(a)(1) and (3) are relevant here, since
Butler does not challenge his guilt through his IATC claim. See Balentine, 626
F.3d at 855 (noting § 5(a)(2) was “inapplicable” when a petitioner alleged
ineffective investigation and presentation of mitigation evidence). We have
previously noted that, in attempting to determine whether a subsequent
application is barred under § 5(a)(1), the TCCA engages in a two-step analysis.
The TCCA asks whether:
1) the factual or legal basis for an applicant’s current claims [were]
unavailable as to all of his previous applications; and 2) the specific
facts alleged, if established, would constitute a constitutional
violation that would likely require relief from either the conviction
or sentence.
Id. at 853 (quoting Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App.
2007)). At the first step, dismissing a claim because its factual or legal basis
was previously available would be a determination based on adequate and
independent state procedural grounds. Id. Dismissing a claim that cannot
satisfy the second step of the analysis would involve a “question of federal
constitutional law.” Id. (citation omitted).
Here, the TCCA’s order was silent, only specifying that Butler’s claims
were dismissed for failing to “satisfy an exception.” Therefore, as in Balentine,

14 The available “exceptions” are contained within Article 11.071 § 5(a) of the Texas
Code of Criminal Procedure.
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Butler “would have needed to present sufficient specific facts to support one of
the following” in his second state habeas petition in order for it to fairly appear
to us that the TCCA’s dismissal of this claim was interwoven with its federal
merits:
(1) the [IATC claim] ha[s] 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 [IATC] claim was
unavailable on the date the applicant filed the previous
application;
....
(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 Article 37.071,
37.0711, or 37.072.
Id. at 855 (citing § 5(a)(1), (3)).
Butler argued in his second state habeas petition that his IATC claim
should be considered because he was prevented from conveying necessary facts
to his state habeas counsel due to his incompetence at the time the first petition
was filed. Butler also argued that his incompetence destroyed the attorney-
client relationship under agency principles, such that his first state habeas
petition was not effective. Butler did not cite any authority directly on point
for the latter argument. To support his argument that incompetence should
prevent procedural default of state habeas claims, Butler cited Ex parte Mines,
in which the TCCA held that it was neither constitutionally nor statutorily
required that a death-row habeas petitioner “be competent to assist his counsel
in filing an application for habeas corpus relief.” 26 S.W.3d 910, 911, 914 (Tex.
Crim. App. 2000) (en banc). In Ex parte Mines, the TCCA appeared to leave
open the possibility that a petitioner’s “alleged incompetency might be grounds
for the untimely raising of an issue if it could not have been raised earlier

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Nos. 09-70003, 14-70018

because of that incompetency.” Id. at 916 (quoting People v. Kelly, 822 P.2d
385, 414 (Cal. 1992)); see also id. at 916 n.33 (collecting cases on either side of
this issue). Butler argued this portion of the opinion supported considering his
IATC claim on the merits, despite its omission from his first habeas petition.
As in Balentine, we do not believe the TCCA “silently accepted one or
more” of Butler’s novel arguments to disregard the prior availability of his
IATC claim “and then, with equal silence, reached the merits of his [IATC]
claim” before rejecting it on the merits, again, in silence. Balentine, 626 F.3d
at 855. To state a claim for relief under § 5(a)(3), Butler would have had to
show that his IATC claim made him “ineligible for the death penalty,” along
the lines of the “fundamental miscarriage of justice” exception in federal
habeas law, or potentially that “no rational juror would have answered the
mitigation special issue in the State’s favor” absent the claimed IATC error.
Id. at 856 (quoting Sawyer v. Whitley, 505 U.S. 333 (1992), Rocha, 619 F.3d at
402–03, and Ex parte Blue, 230 S.W.3d 151, 159–60, 161 n.42 (Tex. Crim. App.
2007)). As in Balentine, the TCCA’s order here did not appear to “reach the
merits of . . . ineligibility for the death penalty.” Id. Butler’s IATC claim in his
second state habeas petition thus did not meet the requirements for either
§ 5(a)(1) or (3). Accordingly, we hold that the TCCA rejected Butler’s IATC
claim based on adequate and independent state grounds and that Butler’s
IATC claim was procedurally defaulted. See id. at 855–56.
2. Cause and Prejudice for the Default
Although Butler procedurally defaulted his IATC claim, he argues he can
demonstrate cause and prejudice for the default and that this court should
remand the IATC claim to the district court to determine whether it has “some
merit” under Martinez and Trevino. See Martinez, 132 S. Ct. at 1318 (“To
overcome [procedural] default, a prisoner must also demonstrate that the

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Nos. 09-70003, 14-70018

underlying [IATC] claim is a substantial one, which is to say that the prisoner
must demonstrate that the claim has some merit.” (citing Miller–El, 537 U.S.
322)). We have previously remanded cases for further proceedings when the
district court or this court initially rejected IATC claims as procedurally
defaulted before Martinez and Trevino were decided. See, e.g., Ibarra v.
Stephens, 723 F.3d 599, 600 (5th Cir. 2013) (vacating a prior panel decision,
granting a COA on an IATC claim, and remanding to the district court for
further proceedings on that claim); Cantu v. Thaler, 682 F.3d 1053, 1053–54
(5th Cir. 2012) (vacating an earlier decision dismissing a federal habeas
petition and underlying IATC claim as procedurally defaulted and remanding
to the district court to “decide in the first instance the impact of Martinez v.
Ryan on [the petitioner’s] contention that he had cause for his procedural
default”). 15
We have declined to remand such cases when petitioners have not
presented at least “debatable” ineffective assistance claims, 16 under AEDPA’s
heightened standard when a state habeas court initially reviewed and rejected
the ineffective assistance claims, 17 or when a district court had already

15See also Neathery v. Stephens, 746 F.3d 227, 229 (5th Cir. 2014) (remanding for a
reconsideration of IATC claims under Martinez and Trevino and instructing the district court
to determine whether any claims were preserved and if so, the merits of those claims); Ayestas
v. Stephens, 553 F. App’x 422, 423 (5th Cir. 2014) (similar); Rayford v. Stephens, 552 F. App’x
367, 368 (5th Cir. 2014) (similarly remanding “for full reconsideration” under Trevino and
Martinez, after briefing but before any opinion had been issued); Washington v. Stephens,
551 F. App’x 122, 123 (5th Cir. 2014) (granting COA on IATC claim and remanding for
reconsideration in light of Trevino).
16 Reed v. Stephens, 739 F.3d 753, 774 n.11 (5th Cir.) (denying a COA and collecting
cases that declined to remand in similar circumstances), cert. denied, 135 S. Ct. 435 (2014).
17Escamilla v. Stephens, 602 F. App’x 939, 940 (5th Cir. 2015), cert. petition filed, No.
14-9844 (May 18, 2015).

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Nos. 09-70003, 14-70018

considered and dismissed the petitioner’s claim on the merits. 18 Butler’s IATC
claim is dissimilar to the claims in Reed, Escamilla, Newbury, and similar
cases because no court has yet considered the merits of the claim or whether
Butler may show cause and prejudice under Martinez and Trevino.
In this case, we conclude that the trial court should, in the first instance,
be allowed to apply Martinez in accordance with Trevino to determine whether
Butler can demonstrate cause for his procedural default and whether his
claims have some merit under Martinez. See Ibarra, 723 F.3d at 600; Martinez,
132 S. Ct. at 1318. We therefore VACATE the district court’s dismissal of
Claim 2 of Butler’s Amended Petition for Writ of Habeas Corpus—Butler’s
IATC claim—and REMAND this claim for further consideration. 19
IV. Conclusion
We AFFIRM the district court’s denial of Butler’s Rule 60(b) motion. We
also AFFIRM the district court’s dismissal of Claims 1, 4, and 7 of Butler’s
federal habeas petition, respectively, his Atkins, Brady, and Batson claims. We
VACATE the district court’s dismissal of Claim 2 of Butler’s federal habeas
petition, his IATC claim, and REMAND that claim for further consideration.

18 Newbury v. Stephens, 756 F.3d 850, 872 (5th Cir. 2014) (“Because Newbury has
already received all of the relief available to him under the authority of Martinez and Trevino,
that is, review of the merits by the federal court, it is not necessary for us to remand the case
for the district court to determine whether Newbury’s state habeas counsel was ineffective or
whether his IATC claim has ‘some merit’ under Martinez.”), cert. denied, 135 S. Ct. 1197
(2015).
19 We note that we remand only Claim 2 of Butler’s federal habeas petition, for IATC
“in failing to investigate and raise Butler’s mental state regarding his competence to stand
trial and as mitigation evidence during sentencing.” Butler v. Stephens, 600 F. App’x 246,
247 (5th Cir. 2015). We declined to grant COAs on Claims 3 and 5 of Butler’s petition, for
incompetence to stand trial and for IATC due to his counsel’s failure to challenge his
confession as involuntary; therefore, these claims are no longer at issue. See id.
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