Morris v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2004

Charles R. Fulbruge III
Clerk
No. 04-70004

KENNETH WAYNE MORRIS,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

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

Before HIGGINBOTHAM, DeMOSS, and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner Kenneth Wayne Morris (“Morris”), a Texas inmate

sentenced to die for the crime of capital murder, seeks a

certificate of appealability (“COA”) from this Court on two issues.

First, Morris seeks review of whether the presentation of a

factually stronger habeas claim always mandates a dismissal without

prejudice based on the exhaustion principle. Second, Morris seeks

review of whether the district court has any equitable remedy that

would permit him to both return to state court for exhaustion and

also protect his right to return to federal court after the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
statute of limitations, 28 U.S.C. § 2244(d)(1)(C), has expired.1

This Court finds the district court’s exhaustion ruling debatable

and thus grants Morris’s request for issuance of a COA on that

issue. We dismiss Morris’s petition for COA on the issue of an

available equitable remedy; that issue is not ripe for review at

this time because the district court has not actually granted

Morris any equitable remedy.

BACKGROUND

In December 1993 Morris was convicted and sentenced to death

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

appeal, the Texas Court of Criminal Appeals affirmed Morris’s

conviction and sentence; the Supreme Court of the United States

denied certiorari. The Texas Court of Criminal Appeals (“TCCA”)

then denied Morris’s application for writ of habeas corpus. In

April 2000 Morris initiated federal habeas proceedings. The

district court denied Morris habeas relief and denied him a COA.

This Court also denied Morris a COA. Morris did not seek

certiorari review in the Supreme Court. Texas set an execution

date of April 15, 2003.

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

Amendment protects against the execution of mentally retarded

defendants. Atkins v. Virginia, 536 U.S. 304, 321 (2002). On

1
Respondent does not separately address this issue in its
response opposing issuance of a COA.

2
April 10, 2003, within ten months after Atkins was decided, Morris

filed a successive application for writ of habeas corpus in state

district court, claiming that Atkins barred his execution because

he suffered from mental retardation. Morris supported his claim of

retardation with affidavits from family members and friends; notes

from a mental health expert appointed for his trial; partial school

records; and an affidavit from psychologist Dr. Richard Garnett who

offered his professional opinion that there were “sufficient

indicators to suggest that Morris has mental retardation, and

should be allowed the opportunity for a full assessment and

evaluation.” The TCCA dismissed Morris’s successive state habeas

application as an abuse of the writ on April 14, 2003.

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

authorization to file a successive federal habeas petition. Morris

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

courts. This Court stayed Morris’s execution and tentatively

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

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

presented in the proposed successive habeas application had not

been previously presented in any prior application to this Court;

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

constitutional law, which had been made retroactive to cases on

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

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

3
41 (5th Cir. 2003). Our authorization for Morris to file his

successive habeas petition was tentative in that it was dependent

on the district court finding that AEDPA’s requirements for such

filing had been met. Id. at 741 (citing 28 U.S.C. § 2244(b)(4)).

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

appointment of counsel and approval of the retention of expert and

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

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

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

on July 7, 2003, with consent of the district court. This petition

raised the sole issue of whether Atkins’ constitutional bar against

execution of the mentally retarded applied to Morris. In addition

to the evidence previously presented in the state courts and the

Fifth Circuit, Morris presented other evidence supporting his

retardation claim to the district court, including an affidavit

from clinical psychologist Dr. Susana A. Rosin who recently tested

Morris’s I.Q. and level of functioning and diagnosed him with

mental retardation; a second affidavit from Dr. Rosin which refuted

Respondent’s claim that Morris was malingering during the testing;

a new affidavit from Dr. Garnett opining that his review of Dr.

Rosin’s findings strengthens his opinion that Morris is mentally

retarded and recommending that a court hold a full hearing into the

retardation issue; two affidavits from James R. Patton, who holds

a doctorate in special education and disabilities, opining that

4
Morris functions intellectually and adaptively within the mentally

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

affidavits from Morris’s original trial counsel stating that they

never asked their mental health expert to test Morris for mental

retardation; a document purportedly signed by Jerome Brown, a

mental health expert appointed to assist with trial preparation,

stating that he performed no formal intellectual testing of Morris

in connection with his evaluation; and another document purportedly

signed by Dr. Garnett reconfirming his diagnosis of Morris as

mentally retarded.

The district court denied Respondent’s motion to dismiss and

accepted Morris’s successive federal petition under 28 U.S.C.

§ 2244(b); denied Respondent’s motion for summary judgment; and

dismissed Morris’s amended petition without prejudice in an order

entered December 5, 2003. In that order the district court

determined that because Morris had not presented his Atkins claim

to the state courts in its current state – supported with

“substantive evidence” – the state courts did not have a fair

opportunity to apply Atkins to the substance of Morris’s now better

documented habeas claim. Therefore, Morris had not exhausted his

Atkins claim. See 28 U.S.C.A. § 2254(b)(1)(A) (West 2004). The

district court indicated, however, that it would equitably toll the

time Morris will have spent in federal court should he return after

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

5
2003, the district court entered an order denying Morris’s motion

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

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

request for COA with this Court.

DISCUSSION

Morris filed his Section 2254 petition for a writ of habeas

corpus after the effective date of AEDPA. Therefore, his petition

is subject to the procedures imposed by AEDPA; Morris’s right to

appeal is governed by the COA requirements of § 2253(c). See Slack

v. McDaniel, 529 U.S. 473, 478 (2000).

Under AEDPA, a petitioner must obtain a COA before an appeal

can be taken to this Court. 28 U.S.C.A. § 2253(c) (West 2004); see

also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a

COA has been issued federal courts of appeals lack jurisdiction to

rule on the merits of appeals from habeas petitioners.”). When a

habeas petitioner requests permission to seek appellate review of

the dismissal of his petition, this Court limits its examination to

a “threshold inquiry into the underlying merit of his claims.”

Miller-El, 537 U.S. at 327.

A COA will be granted if the petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C.A.

§ 2253(c)(2) (West 2004). Meeting this standard requires a

petitioner to demonstrate that “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have

6
been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further.”

Miller-El, 537 U.S. at 336 (internal quotations and citation

omitted). “[A] claim can be debatable even though every jurist of

reason might agree, after the COA has been granted and the case has

received full consideration, that petitioner will not prevail.”

Id. at 338.

When the district court denies a petitioner’s petition on

procedural grounds without reaching the underlying constitutional

claim, a COA should issue if the petitioner demonstrates both that

reasonable jurists would find it debatable whether the district

court was correct in its procedural ruling and that reasonable

jurists would find it debatable whether the petition states a valid

claim of the denial of a constitutional right. Slack, 529 U.S. at

478. Here, because this case involves the death penalty, “any

doubts as to whether a COA should issue must be resolved in

[Morris’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th

Cir. 2000).

Whether a COA should issue on the district court’s finding that
Morris had not exhausted his Atkins claim in the state courts.

Section 2254 provides that habeas relief shall not be granted

on unexhausted claims. 28 U.S.C.A. § 2254(b)(1)(A) (West 2004).

“The exhaustion requirement is satisfied when the substance of the

federal habeas claim has been fairly presented to the highest state

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

7
“[A]s a general rule dismissal is not required when evidence

presented for the first time in a habeas proceeding supplements,

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

courts.” Anderson v. Johnson, 338 F.3d 382, 386-87 (5th Cir. 2003)

(internal quotation marks and citation omitted); see also id. at

388 n.24 (citing Vasquez v. Hillery, 474 U.S. 254, 262 (1986)).

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

Anderson’s petition without holding an evidentiary hearing, even

though he presented more and stronger evidence (an affidavit from

a key eyewitness not called at his trial), this Court determined

that the new evidence did not “fundamentally alter” his ineffective

assistance of counsel (“IAC”) claim and therefore held that

Anderson had properly exhausted. 338 F.3d at 388-89; see also

Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir. 2000) (finding

that Dowthitt had exhausted his IAC mental illness claim where he

had presented assertions of his paranoia and schizophrenia to the

state courts, even though he later offered additional affidavits by

mental health experts to the federal court that were not previously

presented to the state courts).

However, a petitioner fails to exhaust available state

remedies when he presents “material additional evidentiary support

that was not presented to the state court.” Anderson, 338 F.3d at

386 (quoting Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996)).

“[E]vidence that places the claims in a significantly different

8
legal posture must first be presented to the state courts.”

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

omitted); see, e.g., Graham, 94 F.3d at 965, 969 (5th Cir. 1996)

(concluding that Graham’s new offering of several affidavits of

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

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

rendered his IAC and actual innocence claims unexhausted). The

exhaustion inquiry that courts perform – determining whether

additional evidence fundamentally alters or merely supplements the

state petition – is necessarily case and fact specific. Anderson

338 F.3d at 386, 338 n.24.

Exhaustion may be excused. “A petitioner may overcome such a

procedural default [lack of exhaustion], however, and obtain

federal habeas corpus review of his barred claims on the merits, if

he can demonstrate cause for the defaults and actual prejudice.”

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

petitioner may also overcome a procedural default if he can show

that “failure to consider the claims will result in a fundamental

miscarriage of justice.” Barrientes v. Johnson, 221 F.3d 741, 758

(5th Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 750

(1991)). Also, “exhaustion is not required if it would plainly be

futile.” Graham, 94 F.3d at 969 (citation omitted).

Here, Morris first argues that [his] “claim of mental

retardation was presented to the state courts and they refused to

9
rule on that claim on the merits.” That is, the TCCA dismissed his

claim on a procedural ground rather than denying it on the merits;

thus, his Atkins claim is exhausted in the state courts. Morris

alternatively argues that he meets the standard for showing cause

because the state court refused to hear his Atkins claim and also

did not permit him to develop adequate evidence supporting his

claim of mental retardation. Morris asserts actual prejudice is

met because when the state courts did not allow him to establish

that the death penalty could not constitutionally be applied to

him, this resulted in a miscarriage of justice. At the district

court level, Morris raised the following: the TCCA arbitrarily

applied its procedural default rules and so its failure to follow

Section 5 of Article 11.071 of the Texas Code of Criminal Procedure

cannot serve as an independent and adequate state procedural bar to

his Atkins claim in federal court; every new fact brought in

federal court does not render a claim unexhausted; and even if such

additional factual information alters a claim to such an extent

that the state courts have not had a fair opportunity to consider

it, the district court can consider if Morris meets any equitable

exceptions to exhaustion, such as cause and prejudice or futility.2

Respondent basically argues that the district court was

correct in finding that the new evidence Morris sought to present

2
These arguments are laid out in Petitioner’s Reply Argument
to the Respondent’s Brief in Opposition to the Petitioner’s Funding
Request.

10
in federal court rendered his claim unexhausted, that the district

court implicitly found that Morris could not meet any exception to

exhaustion, and that reasonable jurists could not debate this. At

the district court level, Respondent argued that Morris’s abuse of

the writ constituted an independent and adequate state procedural

bar; Morris did not provide the state courts with bona fide

evidence of his mental retardation claim to merit subsequent

review; and any evidence the district court allowed Morris to

investigate and uncover would be unexhausted.

There is no doubt, as Morris concedes, that Morris’s Atkins

claim is now amplified by the factual evidence that has been

developed in the course of his successive federal habeas

proceeding. The district court determined that Morris’s additional

evidence significantly expanded the nature of his Atkins claim.

However, while now admittedly armed with test results and expert

affidavits, Morris proceeds in federal court under the exact

constitutional provision and with the same legal argument as he had

in the state courts. Further, the district court did not directly

discuss or address whether Morris met any equitable exception to

exhaustion; indeed, the court did not mention such exceptions at

all.3

3
The court also stated its decision was influenced by the
“unsettled nature of Atkins jurisprudence” in Texas courts, which
has been recently addressed by the TCCA. See Ex Parte Briseno,
135 S.W.3d 1, 8-10 (Tex. Crim. App. 2004) (determining that the
mental retardation finding is not constitutionally required to be

11
 The district court may have been correct in its exhaustion

analysis. Yet in light of the extremely case- and fact-specific

nature of the exhaustion inquiry, the correctness of the district

court’s procedural ruling is debatable by reasonable jurists. See

Slack, 529 U.S. at 478. Also, based on a threshold review of

Morris’s petition, and keeping in mind that this Court has

previously found Morris to have set forth a prima facie showing of

mental retardation, Morris, 328 F.3d at 741, and that the district

court when accepting submission of his successive habeas petition

noted that “Morris’s pleadings show an I.Q. score and related

deficiencies that would arguably prevent his execution under

Atkins,” reasonable jurists would also find it debatable that

Morris’s petition states a valid claim of the denial of a

constitutional right based upon Atkins. See Slack, 529 U.S. at

478. Thus, we grant Morris a COA on the exhaustion issue.

Whether a COA should issue on whether the district court has any
equitable remedy that would toll the time Morris will have spent in
and protect his right to return to federal court.

Because the district court here only stated that it intended

to equitably toll Morris’s time spent in federal court but did not

and could not actually toll that time until an unknown later date,

this Court finds that the district court’s indication to make a

made by a jury and the petitioner bears the burden of proof by a
preponderance of the evidence to establish that he is “mentally
retarded” under the American Association on Mental Retardation or
the Texas Health and Safety Code § 591.003(13) criteria).

12
possible future decision regarding the application of equitable

tolling is not an issue ripe for review. See, e.g., Monk v.

Huston, 340 F.3d 279, 282 (5th Cir. 2003) (noting general ripeness

principles direct courts to dismiss a case or issue for lack of

ripeness if it is abstract or hypothetical). Thus, we dismiss

Morris’s petition for COA on the issue of an available equitable

remedy.

CONCLUSION

Morris has satisfied this Court that reasonable jurists would

find it debatable whether the district court was correct in its

procedural ruling that found Morris’s Atkins claim unexhausted.

Likewise, Morris has satisfied this Court that reasonable jurists

would find it debatable whether his habeas petition based on Atkins

states a valid claim of the denial of a constitutional right.

However, this Court concludes that the district court’s indication

that it would equitably toll Morris’s time spent in federal court

if he returns to federal court is not a decision ripe for our

review. For the reasons set forth above, we therefore GRANT

Morris’s application for COA on the issue of exhaustion but DISMISS

his application for COA on the issue of whether an equitable remedy

exists.

We further instruct the Clerk to set a briefing schedule on

the exhaustion issue and advise this panel when briefing is

complete so that oral argument can be scheduled as the panel so

13
desires. We further request that the parties address the following

questions in their briefs: whether Morris’s presentation of

additional evidence of mental retardation in federal court beyond

that which he presented in the state courts is exhausted because it

only supplemented his state Atkins claim or is unexhausted because

it fundamentally altered his state Atkins claim; and if Morris’s

claim is unexhausted, whether he has met any exception to excuse

exhaustion.

COA GRANTED in part; and DISMISSED in part.

14