Moore v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
In the June 29, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________

m 05-70038
_______________

ERIC LYNN MOORE,

Petitioner-Appellee,

VERSUS

NATHANIEL QUARTERMAN,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellant.

____________________________________

Appeal from the United States District Court
for the Eastern District of Texas
_____________________________________

Before SMITH, GARZA, and DENNIS, death penalty. The petition was dismissed by
Circuit Judges. the Texas Court of Criminal Appeals
(“TCCA”).
JERRY E. SMITH, Circuit Judge:
Moore received permission to file a succes-
Eric Moore was convicted of capital mur- sive federal habeas petition. The district court
der and sentenced to death in 1991. In the ultimately found him to be mentally retarded
wake of Atkins v. Virginia, 536 U.S. 304 and accordingly granted him the requested re-
(2002), he filed a successive petition for habe- lief. But because Moore failed to exhaust the
as corpus relief in state court, arguing that he remedies available to him on his Atkins claim
is mentally retarded and thus ineligible for the in state court, we vacate and remand with in-
struction to dismiss the petition without preju- when he filed his first habeas petition.2
dice.
Moore asserted mental retardation as indi-
I. cated by his score of 74 on an IQ test taken
A. when he was in grade school, his placement in
In December 1990 Moore and three other special education throughout his schooling,
men broke into the home of Richard and Eliz- and his history of head injuries, at least one of
abeth Ayers, an elderly couple. The men which occurred when he was nine or ten years
robbed and shot the couple, killing Elizabeth old. To substantiate these claims, he cited to
Ayers and paralyzing Richard Ayers. the trial record but provided no other evi-
dence. He requested an “opportunity to be
Moore was convicted of capital murder and evaluated” and an evidentiary hearing, but the
sentenced to death in June 1991. He appealed TCCA dismissed the successive petition as an
his conviction and sentence, but the TCCA af- abuse of the writ, asserting that Moore’s peti-
firmed both in June 1994. Moore v. State, 882 tion “fail[ed] to contain sufficient specific facts
S.W.2d 844 (Tex. Crim. App. 1994), cert. de- which would satisfy the requirements” of
nied, 513 U.S. 1114 (1995). Moore then filed article 11.071 § 5(a). Ex Parte Moore, No.
his first petition for habeas relief in state court, 38,670-02 (Tex. Crim. App. Feb. 5, 2003).
which was denied by the TCCA in November
1998. Ex parte Moore, No. 38,670-01 (Tex. C.
Crim. App. Nov. 25, 1998). His first federal Moore then sought permission from this
habeas petition likewise was denied in Novem- court to file a second habeas petition in federal
ber 2001. Moore v. Cockrell, No. 99-CV-18 court. We allowed him to do so on the basis
(E.D. Tex. Nov. 26 2001). We affirmed the of 28 U.S.C. § 2244(b)(2)(A), finding that he
denial of the initial petition in November 2002. had made a prima facie showing of entitlement
Moore v. Cockrell, No. 01-41489, 54 Fed. to relief under Atkins sufficient to warrant
Appx. 591 (5th Cir. 2002), cert. denied, 538 further exploration of his claim. In re Moore,
U.S. 965 (2003).1

B. 2
Article 11.071 § 5(a) states, in relevant part,
In Atkins, 536 U.S. at 321, the Court estab- that
lished for the first time that the execution of
mentally retarded defendants violates the [i]f a subsequent application for a writ of ha-
Eighth Amendment. Moore then filed a suc- beas corpus is filed after filing an initial appli-
cessive habeas petition in state court under cation, a court may not consider the merits of or
TEX. CODE CRIM. PROC. art. 11.071 § 5(a), grant relief based on the subsequent application
arguing that he is ineligible for the death pen- unless the application contains sufficient spe-
alty because he is mentally retarded and that cific facts establishing that . . . the current
this ground for relief was not available to him claims and issues have not been and could not
have been presented previously in a timely in-
itial application or in a previously considered
application filed under this article or Article
1
Neither Moore’s initial state petition nor his 11.07 because the factual or legal basis for the
initial federal petition requested relief on the basis claim was unavailable on the date the applicant
of mental retardation. filed the previous application . . . .

2
67 Fed. Appx. 252 (table) (5th Cir. 2003). We eighteen.4 He also contends that his poor per-
noted, however, that “the facts surrounding formance in school and other events in his per-
Moore’s alleged retardation have not been sonal history that are a part of the trial record
developed, and the parties have presented indicate a deficiency in the adaptive skill areas
scant factual or legal grounds for us to assess of functional academics, social skills, self-
the procedural default issue” that was raised direction, and health and safety.5
by the state as a defense. Id.
On receiving Moore’s successive petition,
We directed the district court to perform its the district court ordered a stay of execution.
own review of the record to determine wheth- Hoping to develop the record in advance of a
er Moore had met § 2244’s requirements for hearing on the merits of his claim, Moore then
filing a successive habeas petition. If the dis- moved the court to authorize his counsel to
trict court was satisfied that those require- obtain “expert investigatory services,” includ-
ments had been met, it was instructed to con- ing a psychologist trained in the field of mental
sider the merits of Moore’s claim and the retardation and a mitigation investigator.
state’s defenses. Id.
The district court denied the motion as pre-
D. mature and later denied the state’s motion to
In his federal petition, unlike in his state pe- dismiss the petition, agreeing with us that
tition, Moore lays out the three criteria used Moore had met the § 2244(b)(2)(A) require-
by the American Association on Mental Retar- ments for filing a successive habeas petition.
dation (“AAMR”) to diagnose mental retar- Moore v. Johnson, No. 03-CV-224 (E.D. Tex.
dation and alleges reasons why he satisfies May 15, 2003). Finding fault with the state
each.3 As in his state petition, he asserts that court’s application of article 11.071 § 5(a), the
he scored a 74 on an IQ test when he was court granted Moore habeas relief, ordering
seven years old. He argues that this score in- the state to release him from custody unless,
dicates both subaverage intellectual function- within 180 days, it reopened his state habeas
ing and an onset of retardation before age petition and conducted a fact-finding hearing
to determine whether he is entitled to relief un-
der Atkins. Moore v. Cockrell, No. 03-CV-

4
Citing a psychiatric textbook, the Atkins
3
The AAMR states that mental retardation “is Court, 536 U.S. at 309 n.5, noted that “an IQ be-
characterized by [1] significantly subaverage in- tween 70 and 75 or lower . . . is typically consid-
tellectual functioning, existing concurrently with ered the cutoff score for the intellectual function
[2] related limitations in two or more of the fol- prong of the mental retardation definition.”
lowing applicable adaptive skill areas: communi-
5
cation, self-care, home living, social skills, commu- In his state petition, Moore did not contend
nity use, self-direction, health and safety, func- that he is limited in two or more adaptive skill
tional academics, leisure, and work. [3] Mental areas. He makes this particular claim for the first
retardation manifests before age 18.” Mental Re- time in his federal petition. In addition, he attaches
tardation: Defiition, Classification, and Systems of portions of his school records to his federal peti-
Supports 5 (9th ed. 1992), quoted in Atkins, 536 tion, a step he did not take when he filed his state
U.S. at 309 n.3. petition.

3
224 (E.D. Tex. July 28, 2003). in doing so, rejected the state’s contention that
Moore was not entitled to such a hearing un-
The state appealed, arguing that a district der 28 U.S.C. § 2254(e)(2)(A) because he had
court can grant habeas relief only if it finds failed factually to develop his Atkins claim in
that a defendant is in custody in violation of state court. The court held that § 2254(e)-
the Constitution or laws or treaties of the (2)(A) did not strip Moore of his entitlement
United States. The state contended that the to an evidentiary hearing, because it deter-
court’s determination that the state had misap- mined that Moore was prevented from devel-
plied its own procedural rule was not suffi- oping his claim by the state court’s improper
cient. Moore cross-appealed, arguing that he application of article 11.071 § 5(a). Id.
is entitled to an evidentiary hearing in federal
court on his claim of mental retardation and
that his claim is not procedurally defaulted. 6
(...continued)
not arbitrary), it bars federal review of the
We agreed with the state and vacated, in- constitutional claim. “It is not always easy, how-
structing the court to determine on remand ever, to determine whether a state court decision is
whether Moore is entitled to an evidentiary based on state procedural grounds or, instead, on
hearing and, regardless of whether it held such the court’s interpretation of federal law.” Id. at
a hearing, whether Moore’s Atkins claim is 195.
procedurally defaulted. On a finding of no de-
fault, we directed the court to determine The state court dismissed Moore’s successive
whether Moore is entitled to relief on the mer- habeas petition for failure to meet the requirements
its of his claim. Moore v. Dretke, 369 F.3d of article 11.071 § 5(a), the relevant text of which
844, 846 (5th Cir. 2004). is laid out supra at note 2. The federal district
court initially determined that the state court’s rul-
E. ing did not result in a procedural default of
In June 2004, the district court issued an Moore’s Atkins claim for either one of two possible
reasons: (1) The dismissal under article 11.071 §
order stating it already had decided, in refusing
5(a) is independent of the Atkins claim because all
to alter or amend the now-vacated writ, that that the statute requires is an allegation of specific
there was no procedural default. Moore v. facts establishing that the factual or legal basis of
Dretke, No. 03-CV-224 (E.D. Tex. June 8, the asserted claim was previously unavailable; the
2004).6 It granted an evidentiary hearing and, ruling is inadequate, however, because given that
minimal procedural requirement, the dismissal of
Moore’s petition was arbitrary; or (2) The dis-
6
“A federal court may not consider a state missal is not independent of the Atkins claim,
prisoner’s constitutional claim if the state courts because the TCCA performs a threshold merits
based their rejection of that claim on an adequate inquiry under article 11.071 § 5(a).
and independent state ground.” Emery v. Johnson,
139 F.3d 191, 194-95 (5th Cir. 1998). If a state When it later ruled on the merits of Moore’s
court rejects a habeas petition based on a purely Atkins claim, the court adopted only holding (1).
procedural ground, rather than on a consideration See infra. The district court never ruled on wheth-
of the merits of the constitutional claim, the dis- er, as the state contends on appeal, Moore’s claim
missal is independent of that claim. As long as the is procedurally defaulted under 28 U.S.C. § 2254-
application of the procedural rule is adequate (i.e., (b)(1)(A) for failure to exhaust state court reme-
(continued...) dies.

4
 During the three-day hearing, Moore intro- Following the hearing, the district court
duced the testimony of Dr. Antolin Llorente, a again granted Moore habeas relief, holding
licensed psychologist who attested to Moore’s that he is mentally retarded and thus ineligible
substandard intelligence and limitations in for the death penalty pursuant to Atkins.
adaptive skills. He opinedSSbased on his own Moore v. Dretke, No. 03-CV-224 (E.D. Tex.
interaction with Moore (including his adminis- July 1, 2005).7 The court found that the state
tration of an additional IQ test) and his inter- court’s dismissal of Moore’s petition was not
views of family members, friends, teachers, a ruling on the merits, but rather was an inde-
and employersSSthat Moore is mentally retard- pendent, though inadequate, application of
ed. Moore proffered the direct testimony of article 11.071 § 5(a). The court therefore
various family members and friends, most of employed a de novo standard of review in as-
whom indicated that Moore had been “slow” sessing the merits of Moore’s claim, determin-
and incapable of handling some of the basic ing that no deference was owed to the state
requirements of daily living from an early age. court’s ruling under the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), 28
The state countered with the testimony of U.S.C. § 2254.
Dr. Gary Mears, a licensed and board-certified
psychologist who had examined Moore. Mears The state appeals, advancing three main ar-
asserted that Moore has good communication guments in the alternative: (1) Moore’s claim
and interpersonal skills and was capable of is procedurally defaulted under 28 U.S.C.
recalling with clarity his early childhood expe- § 2254(b)(1)(A) because he failed to exhaust
riences, his academic and work histories, and his state court remedies before proceeding to
his criminal record. Mears examined Moore’s federal court; the petition he filed with the
school and psychological testing records and TCCA amounted to a mere conclusional alle-
concluded that although Moore is arguably of gation of mental retardation that deprived the
substandard intelligence, he is not deficient in state court of the opportunity to rule on the
any of the AAMR’s enumerated adaptive skill substance of his claim; (2) the state court’s
areas. Mears noted that Moore had in fact dismissal of Moore’s successive petition was
made a reasonable effort to succeed in life. merits-based and accordingly should be upheld
given the deference it is owed under AEDPA;
The state also challenged the validity of and (3) even if the district court was correct in
Moore’s IQ scores and emphasized that he employing a de novo standard, the district
had not in fact been in special education court’s factual findings with regard to Moore’s
throughout his schooling. The state intro- intellectual and adaptive functioning are clearly
duced the testimony of some of Moore’s erroneous, and its legal conclusion that Moore
teachers, who believed that his poor perfor- falls under the protection of Atkins is incor-
mance in an academic setting was not on ac-
count of substandard ability, but because of his
disinterest and his refusal to apply himself.
The state also proffered the testimony of
four correctional officers who had interacted 7
The court directed the state to release Moore
with Moore on a daily basis. All of them in-
from custody unless, within 180 days, it perma-
dicated that Moore communicates well and nently stayed his execution or reformed his sen-
successfully socializes with others. tence to life imprisonment.

5
rect.8 be allowed such a hearing in federal court. On
appeal the state contends that Moore’s pres-
II. entation of new factual allegations, along with
A. supporting evidence, in federal court that he
In the district court, the state opposed did not include in his state petition implicates
Moore’s request for an evidentiary hearing on the exhaustion requirement of 28 U.S.C.
the basis of 28 U.S.C. § 2254(e)(2), arguing § 2254(b)(1)(A). We have at least twice held
that Moore had failed factually to develop his that any problems presented by allegations and
Atkins claim in state court and thus should not evidence introduced for the first time on fed-
eral review are “more accurately analyzed
8
under the ‘exhaustion’ rubric . . . .” Dowthitt
Although the state represents in its briefs that v. Johnson, 230 F.3d 733, 745 (5th Cir. 2000);
it does not waive the argument that Moore’s Atkins see also Morris, 413 F.3d at 498.
claim is procedurally defaulted because the state
court’s dismissal was predicated on an independent
and adequate state ground, the state offers no
B.
support for that argument other than to claim that Under § 2254(b)(1)(A), “[a]n application
“the issue is certainly debatable.” It instead spends for a writ of habeas corpus on behalf of a per-
much of its brief discussing the effect of the state son in custody pursuant to the judgment of a
court’s ruling if it is in fact merits-based and thus State court shall not be granted unless it ap-
not independent of Moore’s constitutional claim. pears that the applicant has exhausted the rem-
Because the state failed adequately to brief the edies available in the courts of the State.” The
issue of whether the state court’s dismissal of exhaustion requirement “is not jurisdictional,
Moore’s successive petition provides an independ- but reflects a policy of federal-state comity de-
ent and adequate bar to federal habeas review, the signed to give the State an initial opportunity
argument is waived. See United States v. Marti- to pass upon and correct alleged violations of
nez, 263 F.3d 436, 438 (5th Cir. 2001). its prisoners’ federal rights.” Anderson v.
Johnson, 338 F.3d 382, 386 (5th Cir. 2003)
Accordingly, we will not further analyze this
(internal citations and quotations omitted).
issue of procedural default, although we note that
there is disagreement within this circuit with regard
Whether a federal habeas petitioner has satis-
to the effect of the dismissal, under article 11.071 fied the exhaustion requirement is a question
§ 5(a), of a successive habeas petition raising a of law that we review de novo. Id.
previously unavailable factual or legal claim.
Compare Morris v. Dretke, 413 F.3d 484, 500 n.4 C.
(5th Cir. 2005) (Higginbotham, J., concurring) The exhaustion requirement is satisfied if
with In re Johnson, 334 F.3d 403, 405 (5th Cir. petitioner has fairly “presented the substance
2003) (Jones, J., concurring); see also Moreno v. of his claim to the state courts.” Vasquez v.
Dretke, 2006 WL 1352161, at *4 n.3 (5th Cir. Hillery, 474 U.S. 254, 258 (1986). The re-
May 18, 2006). We also note that the state has not quirement is not satisfied if he “presents new
waived its argument with regard to the particular legal theories or factual claims in his federal
reason for why there is no procedural default. habeas petition. We have consistently held
Although the district court held that the state court
that a petitioner fails to exhaust state remedies
dismissal was independent of the merits of Moore’s
when he presents material additional eviden-
Atkins claim, yet inadequate, the state contends that
the dismissal arguably was not independent of the
tiary support to the federal court that was not
merits of the claim. presented to the state court.” Anderson, 338

6
F.3d at 386. (internal citations and quotations The petitioner in Morris had not included
omitted). Evidence is not material for exhaus- an IQ score in his successive state habeas pe-
tion purposes if it “supplements, but does not tition, because he lacked the funds to obtain
fundamentally alter, the claim presented to the the expert assistance required to administer
state courts.” Id. at 386-87. The failure to ex- such a test. After his state petition was dis-
haust is a procedural bar to federal review that missed, we allowed Morris to file a successive
may be excused if the petitioner “can demon- federal habeas petition, and the district court
strate cause for the defaults and actual preju- granted him leave to retain expert and investi-
dice.” Martinez v. Johnson, 255 F.3d 229, gative assistance. As a result, Morris was able
239 (5th Cir. 2001). to present a full-scale IQ score of 53 at the
subsequent evidentiary hearing on the merits
D. of his federal petition. Id. at 489.
The state argues that Moore’s successive
state habeas petition was sparse to the point of The state contended that Morris’s Atkins
amounting to a brief, conclusional allegation of claim was unexhausted because he had failed
mental retardation. The state emphasizes in to present this IQ evidence to the state court.
particular that Moore made no allegations and We disagreed, asserting that although, as in
offered no evidence before the TCCA with re- Anderson, Morris’s federal claim was “un-
gard to his limitations in adaptive skill areas. questionably in a comparatively stronger evi-
The state contends that the presentation of dentiary posture than it was in state court,”
such allegations and evidence for the first time several factors weighed in Morris’s favor. Id.
in federal court fundamentally alters Moore’s at 496 (internal citations and quotations omit-
Atkins claim, rendering it unexhausted. We ted). Most notably,
agree.
[Morris] . . . properly outlined the AAMR's
In Anderson, an “admittedly close case” on definition for mental retardation, since
whether the petitioner had exhausted his state adopted by the TCCA as one of Texas’s
court remedies with respect to his ineffective current standards for determining mental
assistance of counsel claim, this court asserted retardation, [Ex parte Briseno, 135 S.W.3d
that the fact that “the portion of Anderson’s 1, 7-8 (Tex. Crim. App. 2004)], and noted
state post-conviction brief dedicated to inef- the necessity to meet all three essential
fective assistance is remarkably detailed in prongs of the definition. See id. Morris al-
both fact and law” provided the tipping point so clearly acknowledged that IQ evidence
in favor of a finding of exhaustion. Anderson, was lacking in his particular case but still
338 F.3d at 388. In Morris, a more recent insisted “[t]here is good reason to believe
“admittedly close” case that addressed the that [Morris is retarded] . . . because of the
same question with which we are now documented history of adaptive deficits,”
facedSSwhether new evidence introduced in including Morris’s “inability to read and
federal court rendered petitioner’s Atkins claim write and his failure in functional academ-
unexhaustedSSwe similarly emphasized the ics,” “inability to obey the law and follow
importance of the detail with which the state rules,” “inability to avoid victimization,”
petition was presented. Morris, 413 F.3d at “inability to develop instrumentalities of
496. daily living [and] occupational skills,” and
“inability to maintain a safe environment,”

7
 all of which were attested to by the sworn Texas Health and Safety Code.9 Most impor-
affidavits and school records presented to tantly, he failed to allege that he is deficient in
the state courts. two or more adaptive skill areas and indeed
made no mention of adaptive limitations as
Id. (emphasis added). such.

Furthermore, we acknowledged with ap- Moore’s contention that he was in special
proval that “Morris saw fit to present an ex- education throughout his schooling arguably
pert affidavit [along with his state petition], could be construed as an allegation that he was
which, albeit preliminarily, provided a psycholo- only minimally functional in an academic
gist’s acknowledgment of and support for setting. In support of that bare assertion,
Morris’s mental retardation claim.” Id. Final- however, he did not “identify any specific
ly, we noted that Morris had consistently as- special education classes or provide documen-
serted that “given the opportunityand resourc- tation of those classes,” Moreno, 2006 WL
es, intellectual tests would confirm” his mental 1352161, at *4, nor did he offer any reason for
retardation. Id. Accordingly, we held that the why he could not present such evidence.
state court had been given a fair opportunity to Moore’s petition did not touch, even arguably,
rule on the substance of Morris’s Atkins claim on any other adaptive skill area, let alone
and that therefore his presentation of the IQ explain why supporting evidence was lacking.
score for the first time on federal review sup- Such a petition cannot be considered suffi-
plemented, but did not fundamentally alter, ciently “detailed in fact and law” to warrant a
that claim. finding of exhaustion.

The successive habeas petition Moore filed In Morris, 413 F.3d at 497, we noted that
with the TCCA pales in comparison to the one the AAMR’s three diagnostic criteria are inter-
we considered in Morris. As we have dis- dependent and that evidence satisfying one
cussed, Moore merely asserted in his petition prong is, “standing completely on its own,”
that he had scored a 74 on an IQ test when he not sufficient to avoid summary dismissal of an
was a child, that he had been placed in special Atkins claim. Given that interdependence, it
education throughout his schooling, and that cannot be said that where a defendant’s state
he had suffered multiple head injuries, one of petition completely neglects one prong of the
which occurred when he was no older than AAMR inquiry, the presentation of evidence in
ten. support of that prong on federal review merely
supplements his Atkins claim.
Moore cited to the trial record in support of
these claims but offered neither school records It is true that Morris’s state petition was
nor supporting affidavits from familymembers, missing the allegation of a below-average IQ
friends, teachers, or even the psychologist who
had testified on his behalf at trial. He refer-
enced neither the AAMR’s diagnostic criteria 9
“‘[M]ental retardation’ means significantly
for mental retardation nor the similar definition
subaverage intellectual functioning that is concur-
of retardation contained in § 591.003 of the
rent with deficits in adaptive behavior and origi-
nates during the developmental period.” TEX.
HEALTH & SAFETY CODE § 591.003(13).

8
usually needed to support a finding of substan- retardation “conform to the clinical definitions
dard intellectual functioning. The petition, . . . .” Id. at 317 n.22. In addition, in Ex
however, “recognized the lack of [IQ] evi- Parte Briseno, 135 S.W. 3d 1, 7 (Tex. Crim.
dence in his record but noted various school App. 2004), the court stated that even before
records obtained by his counsel” were indica- it officially adopted the AAMR’s criteria in the
tive of his subpar intelligence. Id. at 487. Atkins context, it had “previously employed”
Moreover, the absence of IQ evidence in his that definition in analyzing allegations of re-
state petition was appropriately explained by tardation relative to claims made under Penry
the fact that Morris at that time lacked the v. Lynaugh, 492 U.S. 302 (1989). Accord-
funds to obtain testing. ingly, it is fair to conclude that even for habeas
petitions filed pre-Briseno, a petitioner has not
Moore, by contrast, neglected to specify his adequately presented the substance of his
adaptive limitations and failed to provide a Atkins claim to the TCCA unless he has, at the
plausible excuse for why he could not present very least, (1) outlined either the AAMR
more than a scintilla of evidence on that prong. criteria or the substantially equivalent § 591-
Indeed, there is no excuse for why he did not .003(13) definition of mental retardation and
at minimum submit affidavits from his family (2) either alleged why he satisfies each cri-
members confirming his limitations in two or terion or asserted reasons why he is currently
more areas of adaptive functioning. As was incapable of presenting any evidence on a par-
true in Dowthitt, 230 F.3d at 758, “[g]iven that ticular prong.
the family members were willing to testify at a
hearing, [Moore] could have easily obtained Moore’s state court petition is more akin to
their affidavits [before he filed his petition in the type of conclusional allegation that we
state court]. A reasonable person in [his] found insufficient to support exhaustion on an
place would have done at least as much . . . . ineffective assistance of counsel claim in Kun-
Obtaining affidavits from family members is kle v. Dretke, 352 F.3d 980 (5th Cir. 2003),
not cost prohibitive.” than it is to the robust claim of mental retarda-
tion presented to the state by the petitioner in
E. Morris. Moore’s Atkins claim is therefore de-
We recognize that the Atkins Court did not faulted under 28 U.S.C. § 2254(b)(1)(A). Be-
adopt a particular criteria for determining cause that finding alone requires the dismissal
whether a defendant is mentally retarded; the of the petition, it is unnecessary for us to con-
Court instead left to the states “the task of de- sider the remaining arguments advanced by the
veloping appropriate ways to enforce the con- state.
stitutional restriction . . . .” Atkins, 536 U.S.
at 317. We also acknowledge that at the time Based on Moore’s failure to exhaust his
Moore filed his petition, neither the Texas leg- state court remedies, we VACATE the judg-
islature nor the TCCA had developed a precise ment granting the writ, and we REMAND
means of determining whether a criminal with instruction to dismiss Moore’s Atkins
defendant qualifies for Atkins relief. claim without prejudice and for consideration
of Rhines v. Weber, 544 U.S. 269 (2005).
The Atkins Court, however, did reference
the AAMR’s criteria and noted that most al-
ready-existing statutory definitions of mental

9
DENNIS, Circuit Judge, dissenting:

I respectfully dissent from the majority’s decision to vacate the

district court’s judgment granting Moore relief from the death

penalty. Specifically, I do not agree that Moore failed to exhaust

his state court remedies. Even if I were to agree that Moore

failed to exhaust his state court remedies, I believe that he

nevertheless is entitled to federal habeas review because he has

shown both sufficient cause for the default and actual prejudice.

Additionally, a fundamental miscarriage of justice will result if

we fail to consider the merits of Moore’s Atkins claim. Finally,

there was sufficient evidence to support the district court’s

finding that Moore is mentally retarded. Therefore, the federal

district court’s ruling granting Moore habeas relief should be

affirmed.

1.

Exhaustion of State Remedies

The state presented three alternative arguments on appeal: (1)

Moore failed to exhaust state court remedies; (2) the federal

district court erred in reviewing Moore’s claim de novo; and (3)

the district court’s factual findings were clearly erroneous. The

majority opinion disposes of the case on the exhaustion issue,

finding that, under Dowthitt v. Johnson, this case is “more

accurately analyzed under the ‘exhaustion’ rubric[.]” 230 F.3d 733,

10
745 (5th Cir. 2000).1 Because the majority finds that Moore presented material additional

evidence in federal court that was not presented to the state court, the majority concludes that

Moore’s Atkins claim is unexhausted, and therefore dismisses his petition. Given the

circumstances of this case, however, the majority’s finding of

failure to exhaust is in error.

My first point of contention is with the test created by the

majority. The majority recognizes that Moore filed his subsequent

state habeas petition after Atkins v. Virginia, 536 U.S. 304, 321

(2002), but before the Texas Court of Criminal Appeals decided Ex

Parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), the case in

which the Texas Court of Criminal Appeals adopted the definition of

mental retardation to be used in Atkins cases. Nevertheless, the

majority has decided that “it is fair to conclude that even for

habeas petitions filed pre-Briseno, a petitioner has not adequately

presented the substance of his Atkins claim to the [Texas Court of

Criminal Appeals] unless he has, at the very least, (1) outlined

either the AAMR criteria or the substantially equivalent §

591.003(13) definition of mental retardation and (2) either alleged

why he satisfies each criterion or asserted reasons why he is

currently incapable of presenting any evidence on a particular

1
In footnote 8, the majority concludes that, because it was not
adequately briefed, the state has waived its argument that Moore’s
Atkins claim is procedurally defaulted because the state court’s
dismissal was based on the requirements of TEX. CODE CRIM. PROC. art.
11.071 §5(a), which was an independent and adequate state court ground.
I agree with the assessment that this argument is waived.

11
prong.” Apparently, the majority has come to this conclusion

because the Texas Court of Criminal Appeals indicated in Briseno

that it had “previously employed” the AAMR definition of mental

retardation in cases making claims under Penry v. Lynaugh, 492 U.S.

302 (1989). Though the Texas courts previously had relied on

definitions of mental retardation in Penry cases, they had not yet

clarified what standard would be used in Atkins cases, as they were

directed to do by the Supreme Court.2 At the time Moore filed his

subsequent state habeas petition, there was nothing in Texas’

Atkins jurisprudence to direct Moore on how to present evidence of

mental retardation in his petition. Therefore, I disagree with the

majority that it is “fair to conclude” that Moore was required to

present his mental retardation evidence in the manner set forth by

the AAMR or the Texas Health and Safety Code.

Despite the fact that Moore was not required to present his

mental retardation evidence in accordance with definitions not yet

adopted by Texas, Moore did give evidence of mental retardation

such that his petition was sufficiently “detailed in fact and law”

to warrant a finding of exhaustion.3 In his subsequent state habeas

petition, Moore provided evidence of a low IQ, that he had been in

2
Atkins, 536 U.S. at 317 (leaving to the states “the task of
developing appropriate ways to enforce the constitutional restric-
tion[.]”).
3
The majority opinion states that Moore’s petition “cannot be
considered sufficiently ‘detailed in fact and law’ to warrant a finding
of exhaustion.”

12
special education, had brain damage, and that the onset of these

problems was prior to age 18. To claim that he is mentally

retarded, Moore had to assert: (1) significantly subaverage general

intellectual functioning; (2) limitations in adaptive functioning;

(3) an onset prior to age 18. Briseno, 135 S.W.3d at 8. Clearly,

Moore touched on all three of the criteria for mental retardation

in his subsequent state habeas petition.4 Therefore, he “presented the substance

of his claim to the state court[]”, thus satisfying the exhaustion requirement. Vasquez v. Hillery, 474

U.S. 254, 258 (1986).

The majority turns to this Circuit’s recent opinion, Moreno v. Dretke, as authority to disregard that

Moore’s claim of being in special education classes is evidence that he suffers from

limited adaptive functioning. 2006 WL 1352161 (5th Cir. May 18,

2006). In Moreno, this Court declined to issue a COA on Moreno’s

Atkins claim, finding no error in the district court’s decision

that the state court reasonably held that Moreno did not present a

prima facie Atkins claim. In his subsequent state habeas petition,

Moreno presented evidence that he scored a 64 on an IQ test when he

was 35 years old. He also alleged that he attended special

education classes as a child, thus arguing that he suffered

adaptive limitations. The Moreno panel stated that Moreno’s “only

evidentiary support for [the special education] claim was the

4
The majority does not take issue with Moore’s evidence of “signifi-
cantly subaverage intellectual functioning” and “onset prior to age 18.”
The only problem appears to be with Moore’s evidence of limited adaptive
functioning.

13
psychologist’s report reciting Moreno’s self-reported educational

background. He could not identify any specific special education

classes or provide documentation of those classes.” Id. at *4.

The majority in this case uses this statement from Moreno to

conclude that Moore’s claim that he was in special education

classes is not sufficient to constitute proof of limited adaptive

functioning. The majority’s conclusion is in error.

In Moreno, the Court based its decision on much more than the

lack of supporting evidence of special education classes. The

Moreno panel explained, “[m]uch of this evidence, such as Moreno’s

employment history, fails to suggest adaptive limitations.

Balanced against this meager evidence of adaptive limitations is

the substantial evidence that Moreno possesses adaptive behavioral

skills.” Id. The Moreno panel did not conclude that claiming to

have been in special education classes was not enough to qualify as

proof of limited adaptive functioning, but that, in Moreno’s case,

the evidence to the contrary outweighed the allegations that Moreno

was in special education classes because he suffered limited

adaptive functioning. This is not the situation in Moore’s case,

and therefore, the case before us is distinguishable from Moreno.

Since Moore adequately presented the substance of his claim in

state court - that he is mentally retarded and therefore not

eligible for the death penalty according to Atkins - his claim was

properly exhausted and there was no bar to the district court

14
ruling on the merits of Moore’s Atkins claim. Accordingly, any new

evidence presented to the district court merely supplemented

Moore’s state claim. As the majority explains:

We have consistently held that a petitioner fails to
exhaust state remedies when he presents material addi-
tional evidentiary support to the federal court that was
not presented to state court.” Anderson v. Johnson, 338
F.3d 382, 386 (5th Cir. 2003). Evidence is not material
for exhaustion purposes if it “supplements, but does not
fundamentally alter, the claim presented to the state
court.” Id. at 386-87.

To support the claim that he suffers from limited adaptive

functioning, Moore offered a vast amount of evidence in federal

court that was not presented to state court, including testimony

from family, friends, teachers, and neighbors, as well as school

records. This testimony merely supplemented Moore’s claim that he

was in special education classes and suffered limited adaptive

functioning. Moore is allowed to “supplement and clarify” his

claims presented in state court “through expansion of the record”

with evidence such as “more sophisticated statistical analyses than

were presented in state courts” and “introduction of new factual

materials supportive of those already in the record[.]” See Randy

Hertz & James S. Liebman, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE §

23.3c, at 1088-89 (5th ed. 2005) (internal citations omitted).

Because Moore’s additional evidence presented in federal court did

not “fundamentally alter the legal claim” presented in state court,

his claim was not unexhausted. See Vasquez, 474 U.S. at 260.

The majority attempts to distinguish this case from Morris v.

15
Dretke, 413 F.3d 484 (5th Cir. 2005), a case in which this Circuit

found that, though the petitioner presented more evidence in

federal court than in state court, his Atkins claim was not

unexhausted. The Court came to this conclusion even though it

found that Morris’ federal claim was “unquestionably in compara-

tively stronger evidentiary posture than it was in state court”

because Morris presented an IQ score in federal district court and

had not presented an IQ score in his state court habeas petition.

Id. at 496 (internal citations omitted). The Morris Court found

that Morris “clearly acknowledged that IQ evidence was lacking in

[Morris’] particular case, but still insisted ‘[t]here is good

reason to believe that [Morris is retarded]. . . because of the

documented history of adaptive deficits[.]’” Id. (citations

omitted).

Apparently, the Morris Court looked to Morris’ evidence of

limited adaptive functioning to compensate for the lack of an IQ

score. Even the majority in this case concedes the Morris Court’s

point that “the AAMR’s three diagnostic criteria are interdepen-

dent.” See Id. at 497. Thus, there is no reason why, in Moore’s

case, this Court could not look to the evidence of special

education and brain injury to deduce that Moore had limited

adaptive functioning. This is especially true since, as in Morris,

there is “nothing in [the] record that shows that [Moore] ‘at-

tempted to expedite federal review by deliberately withholding

essential facts from the state courts.’” Id. at 496. Therefore,
16
the outcome in Morris actually supports Moore in this case. Where,

as in Moore’s situation, the substance of a petitioner’s claim was

presented in state court, and additional, supplemental evidence is

presented in federal court, that petitioner has exhausted his claim

in federal court, even if his federal court evidence makes his case

stronger.

2.

Exceptions to the Exhaustion Rule

The failure to exhaust may be excused if the petitioner “can

demonstrate cause for the defaults and actual prejudice.” Martinez

v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001). This Circuit has

recognized that “[c]ause is defined as something external to the

petitioner, something that cannot fairly be attributed to him that

impedes his efforts to comply with the state procedural rule.

‘Cause’ factors may include interference by officials that makes

compliance with the procedural rule impracticable, a showing that

the factual or legal basis for the claim was not reasonably

available to counsel, and ineffective assistance of counsel [...]

on direct appeal.” Matchett v. Dretke, 380 F.3d 844, 848-49 (5th

Cir. 2004) (internal citations omitted). Further, prejudice is

found where “the specific facts and circumstances of the proceeding

in which the error occurred” have “worked to the petitioner’s

actual and substantive disadvantage.” Hertz & Liebman, supra, §

26.3c, at 1346-47 (emphasis in original)(citing United States v.

Frady, 456 U.S. 152, 170 (1982) and United States v. Olano, 507
17
U.S. 725, 734-35, 736, 739-41 (1993)).

Given this standard, it is evident that even if Moore’s claims

are unexhausted, he satisfies the “cause and prejudice” exception

to the exhaustion rule. Though Moore did not provide all of the

evidence available to him in order to support his assertion that he

attended special education classes as a child, nor did he express

his mental retardation evidence using the AAMR categories, he did

state that “[t]o date, there has been no published case from the

Court of Criminal Appeals giving guidance to what constitutes

retardation under Texas law.” Contrary to the majority’s position,

Moore’s statement regarding the then-uncertain state of Texas law

does provide an explanation of why such supporting evidence was

lacking - Moore had not received guidance from Texas courts on how

to present his evidence of mental retardation post-Atkins.

Certainly, something external to Moore, namely that Texas had not

yet decided Briseno, caused Moore’s inability to present his mental

retardation evidence according to an established Texas procedure.

Further, the facts and circumstances of Moore’s case demonstrate

that Moore was prejudiced by this lack of guidance. The fact that

Moore did not know how to set forth his mental retardation evidence

such that it would be acceptable to the Texas Court of Criminal

Appeals caused the state court to dismiss Moore’s subsequent state

habeas petition. This is clearly an “actual and substantive

disadvantage” suffered by Moore. As such, Moore has satisfied the

“cause and prejudice” exception to the exhaustion rule.

18
 Another exception to the exhaustion rule applies to situations

where the petitioner can “demonstrate...that failure to consider

the claims will result in a fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Supreme Court

has made clear that the “miscarriage of justice” exception extends

to cases in which “[t]he Constitutional violation has probably

resulted in the imposition of a death sentence upon one who is

actually innocent of a death sentence.” Hertz & Liebman, supra, §

26.4, at 1369 (internal citations omitted); see also Dugger v.

Adams, 489 U.S. 401, 411 n.6 (1989). This means that a petitioner

can invoke the “miscarriage of justice” exception if, but for the

failure to exhaust, “the petitioner would have not been eligible

for the death penalty because some constitutional or state

statutory prerequisite for the imposition of a death sentence could

not have been satisfied.” Hertz & Liebman, supra, § 26.4, at 1369-

71; see also Sawyer v. Whitley, 505 U.S. 333, 343, 345-50 (1992).

Moore easily satisfies this exception because, as explained in

section 3 of this dissent, when allowed to look at the merits of

Moore’s Atkins claim, the district court properly found that Moore

is mentally retarded. Therefore, in accordance with the Supreme

Court’s finding in Atkins, Moore is ineligible for the death

penalty, as his execution would constitute cruel and unusual

punishment in violation of the Eighth Amendment. In other words,

the evidence in this case shows that any alleged failure to exhaust

is excused because Moore is actually “innocent of the death
19
penalty.”

3.

The District Court’s Finding of Mental Retardation

The majority does not reach the issue of whether the district

court erred in finding that Moore is mentally retarded. It is

necessary to reach this issue, however, because Moore’s Atkins

claim was either exhausted in state court, or his failure to

exhaust is excused. Therefore, this appeal cannot be disposed of

on a finding of failure to exhaust. Accordingly, it is necessary

to turn to the state’s argument that the district court’s factual

findings were clearly erroneous.

The district court analyzed Moore’s habeas petition using the

AAMR definition of mental retardation, one of the mental retarda-

tion definitions adopted by the Texas Court of Criminal Appeals in

Briseno. The AAMR defines mental retardation as:

A disability characterized by significant limitations in
both intellectual functioning and in adaptive behavior,
as expressed in conceptual, social, and practical
adaptive skills. This disability originates before age
18. Briseno, 135 S.W.3d at 8; American Association of
Mental Retardation, MENTAL RETARDATION: DEFINITION, CLASSIFICA-
TION AND SYSTEMS OF SUPPORTS (10th Ed. 2002) at 1.

Therefore, as explained earlier, to prove that he is mentally

retarded, Moore had to establish: (1) significantly subaverage

general intellectual functioning; (2) limitations in adaptive

functioning; and (3) an onset prior to age 18. See Briseno, 135

S.W.3d at 8. The district court properly found that Moore

presented sufficient evidence to warrant a finding of mental

20
retardation.

First, Moore met his burden of showing that he suffered from

subaverage general intellectual functioning. The state claims that

the district court erred in finding Moore mentally retarded,

because that finding was made in the absence of a single, valid IQ

score, and instead on the sole basis of subjective, anecdotal

testimony from biased family members. Moore has taken four IQ

tests over his lifetime. The first was the Primary Mental

Abilities Test (“PMA”) given at age 6, on which he scored a 74. He

also received a 76 on the WAIS-R taken at age 24 in 1991, which was

adjusted to a 72.1 to account for the Flynn effect.5 On the WAIS-III,

administered in 2004, Moore scored a 66. Lastly, Moore took a TONI-2 non-verbal reasoning test

and scored in the Very Poor Range. At trial, though Dr. Gary Mears, the

state’s expert psychologist, did testify that he had some questions

about the accuracy of the IQ scores, he also stated that he would

agree with Dr. Antolin Llorente, Moore’s expert psychologist, that

Moore satisfied the significantly subaverage general intellectual

functioning prong of the mental retardation definition. Dr.

Llorente testified that all of Moore’s IQ scores, including the one

taken at age 6, were consistent with the WAIS-III score of 66. Dr.

Llorente also testified that Moore was assessed for response bias

to determine whether he was fabricating his results, and no such

5
The Weschler Adult Intelligence Scales test (the “WAIS”) is the
standard instrument in the US for assessing intellectual functioning.
The Flynn effect recognizes that norm IQ scores across a population have
increased approximately 3 points per decade.
21
bias was found. Given the agreement among the experts and the

concession by the state’s expert, there appears to be sufficient

evidence for the district court to have determined that Moore

satisfied this prong of the definition.

Secondly, to support the claim that he suffers from limited

adaptive functioning, Moore offered a significant amount of

evidence in federal court, including testimony from family,

friends, teachers, and neighbors, as well as school records.6 Though

Dr. Mears stated that Moore was not limited in adaptive functioning, he admitted that he could not

effectively assess adaptive functioning without the use of adaptive functioning scales. Dr. Llorente,

though, did confidently conclude that Moore suffered from adaptive deficits in every area of set forth

by the DSM-IV or the AAMR. Likewise, there was sufficient evidence for the district court to

conclude that the onset of Moore’s mental retardation occurred before age 18. Again, the experts

agreed that this was the case. In addition to the experts, testimony was given by Moore’s family

members explaining that it was common knowledge within the community that Moore was “slow”

as a child. Overall, the district court listened to the opinions of experts, heard testimony from family

members, and reviewed Moore’s academic records, vocational work, communication skills, health

and safety, social skills, leisure, self-care, home living, use of community resources, and victimization

and gullibility. Based on all of these factors, there was sufficient evidence for the

district court to conclude that each prong of the definition of

mental retardation was satisfied. Therefore, it was not clearly

6
There is evidence that Moore was not in special education classes,
but in “corrective classes.” It appears that this distinction is
inconsequential, because the point is that Moore was not able to keep
up with children his age.
22
erroneous for the district court to conclude that Moore is mentally

retarded.

4.

District Court’s Standard of Review

The majority also does not reach the issue of whether the

district court applied an incorrect standard of review to Moore’s

habeas petition. Again, it is necessary to reach this issue

because this case cannot be disposed of on the exhaustion question

alone. Considering the procedural history of this case, it is

apparent that the district court employed the correct standard of

review.

The state takes issue with the district court’s decision to

review Moore’s claim de novo and its explanation that it was doing

so because the state court’s dismissal was procedural in nature and

was not an adjudication on the merits. Though the state argues

that large portions of Moore’s mental retardation claim are

procedurally defaulted, the state still maintains that the

dismissal of Moore’s subsequent state habeas application may not

have been independent of Atkins and, thus, may not be an absolute

procedural dismissal. If this is the case, then the district court

should have only reviewed the state court’s dismissal to determine

whether it was “contrary to, or involved an unreasonable applica-

tion of, clearly established federal law as determined by the

United States Supreme Court, or resulted in a decision based on an

unreasonable determination of the facts in light of the evidence

23
presented in the state court proceeding,” as directed by AEDPA. 28

U.S.C. § 2254(d)(1)-(2).

However, Moore’s claim was not adjudicated on the merits in state

court. The Texas Court of Criminal Appeals dismissed Moore’s

application because it found that Moore had failed to allege

specific facts in his application that would satisfy the elements

of the Texas subsequent application rule. This was a pure

procedural decision, and did not involve the Texas Court of

Criminal Appeals hearing Moore’s evidence to determine whether he

is in fact mentally retarded. When a state court does not

adjudicate a claim on its merits, the federal court must determine

the claim de novo. Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th

Cir. 2000). Therefore, AEDPA’s deferential standard of review does

not apply. As such, the district court did not err in undertaking

a de novo review of Moore’s Atkins claim.

Conclusion

For the reasons indicated, the district court did not err in

hearing Moore’s federal habeas petition. Furthermore, the district

court’s ruling granting Moore habeas relief was not in error.

Because it holds otherwise, I dissent from the majority opinion.

24