Moore v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
In the June 27, 2007
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
_____________________________________

ON PETITION FOR REHEARING opinion, Moore v. Quarterman, 454 F.3d 484
(5th Cir. 2006), is WITHDRAWN, and the
following opinion is substituted:
Before SMITH, GARZA, and DENNIS,
Circuit Judges.

PER CURIAM:

Treating the petition for rehearing en banc
as a petition for panel rehearing, the petition
for panel rehearing is GRANTED. The prior
Before SMITH, GARZA, and DENNIS, I.
Circuit Judges. A.
In December 1990 Moore and three other
JERRY E. SMITH, Circuit Judge: men broke into the home of Richard and Eliz-
abeth Ayers, an elderly couple. The men
Eric Moore was convicted of capital mur- robbed and shot the couple, killing Elizabeth
der and sentenced to death in 1991. In the Ayers and paralyzing Richard Ayers.
wake of Atkins v. Virginia, 536 U.S. 304
(2002), he filed a successive petition for habe- Moore was convicted of capital murder and
as corpus relief in state court, arguing that he sentenced to death in June 1991. He appealed
is mentally retarded and thus ineligible for the his conviction and sentence, but the TCCA af-
death penalty. The petition was dismissed as firmed. Moore v. State, 882 S.W.2d 844 (Tex.
an abuse of the writ by the Texas Court of Crim. App. 1994), cert. denied, 513 U.S. 1114
Criminal Appeals (“TCCA”). (1995). Moore then filed his first petition for
habeas relief in state court, which was denied.
This court granted Moore authorization to Ex parte Moore, No. 38,670-01 (Tex. Crim.
file a second federal habeas petition to raise an App. Nov. 25, 1998) (unpublished). His first
Atkins claim. The federal district court ulti- federal habeas petition likewise was denied.
mately found him to be mentally retarded and Moore v. Cockrell, No. 99-CV-18 (E.D. Tex.
accordingly granted the requested relief. But Nov. 26, 2001). A few months after Atkins
because Moore failed to exhaust the remedies had been decided, we affirmed the denial of
available to him on his Atkins claim in state the initial petition. Moore v. Cockrell, No. 01-
court, and because Texas’s abuse-of-the-writ- 41489, 54 Fed. Appx. 591 (5th Cir. 2002) (ta-
doctrine would preclude him from filing an- ble), cert. denied, 538 U.S. 965 (2003).3
other petition based on facts he inexcusably
failed to develop,1 we vacate and remand with B.
instruction to dismiss the petition with preju- In Atkins, 536 U.S. at 321, the Court estab-
dice.2 lished for the first time that the execution of
mentally retarded defendants violates the
Eighth Amendment. After Atkins was decided,
Moore filed a successive habeas petition in
state court under TEX. CODE CRIM. PROC. art.
11.071 § 5(a), arguing that he is ineligible for
1
See TEX. CODE CRIM. PROC. art. 11.071 the death penalty because he is mentally re-
§ 5(a); Ex parte Graves, 70 S.W.3d 103, 114 tarded and that this ground for relief was not
(Tex. Crim. App. 2002); Ex parte Kerr, 64 available to him when he filed his first state
S.W.3d 414, 418 (Tex. Crim. App. 2002). habeas petition.4
2
See Nobles v. Johnson,127 F.3d 409, 420 (5th
Cir. 1997) (“Procedural default . . . occurs when a 3
Neither Moore’s initial state petition nor his
prisoner fails to exhaust available state remedies initial federal petition requested relief on the basis
and the court to which the petitioner would be re- of mental retardation.
quired to present his claims in order to meet the
4
exhaustion requirement would now find the claims Article 11.071 § 5(a) states, in relevant part,
procedurally barred.”). (continued...)

2
 Moore asserted mental retardation as indi- alleged retardation have not been developed,
cated by his score of 74 on an IQ test taken and the parties have presented scant factual or
when he was in grade school, his placement in legal grounds for us to assess the procedural
special education throughout his schooling, default issue” that was raised by the state as a
and his history of head injuries, at least one of defense. Id.
which occurred when he was nine or ten years
old. To substantiate these claims, he cited to We directed the district court to perform its
the trial record but provided no other evi- own review of the record to determine wheth-
dence. He requested an “opportunity to be er Moore had met § 2244’s requirements for
evaluated” and an evidentiary hearing, but the filing a successive habeas petition. If the dis-
TCCA dismissed the successive petition as an trict court was satisfied that those require-
abuse of the writ, asserting that Moore’s peti- ments had been met, it was instructed to con-
tion “fail[ed] to contain sufficient specific facts sider the merits of Moore’s claim and the
which would satisfy the requirements” of arti- state’s defenses. Id.
cle 11.071 § 5(a). Ex Parte Moore, No.
38,670-02 (Tex. Crim. App. Feb. 5, 2003). D.
In his successive federal petition, unlike in
C. his successive state petition, Moore lays out
Moore then sought permission from this the three criteria used by the American Asso-
court to file a second federal habeas petition. ciation on Mental Retardation (“AAMR”) to
We allowed him to do so on the basis of 28 diagnose mental retardation and alleges rea-
U.S.C. § 2244(b)(2)(A), finding that he had sons why he satisfies each.5 As in his state pe-
made a prima facie showing of entitlement to tition, he asserts that he scored a 74 on an IQ
relief under Atkins sufficient to warrant further test when he was seven years old. He argues
exploration of his claim. In re Moore, 67 Fed. that this score indicates both subaverage intel-
Appx. 252 (5th Cir. 2003) (table). We noted, lectual functioning and an onset of retardation
however, that “the facts surrounding Moore’s before age eighteen.6 He also contends that

4 5
(...continued) The AAMR states that mental retardation “is
that characterized by [1] significantly subaverage in-
tellectual functioning, existing concurrently with
[i]f a subsequent application for a writ of ha- [2] related limitations in two or more of the fol-
beas corpus is filed after filing an initial appli- lowing applicable adaptive skill areas: communi-
cation, a court may not consider the merits of or cation, self-care, home living, social skills, commu-
grant relief based on the subsequent application nity use, self-direction, health and safety, func-
unless the application contains sufficient spe- tional academics, leisure, and work. [3] Mental re-
cific facts establishing that: (1) the current tardation manifests before age 18.” Mental Re-
claims and issues have not been and could not tardation: Definition, Classification, and Systems
have been presented previously in a timely in- of Supports 5 (9th ed. 1992), quoted in Atkins, 536
itial application or in a previously considered U.S. at 309 n.3.
application filed under this article or Article
6
11.07 because the factual or legal basis for the Citing a psychiatric textbook, the Atkins
claim was unavailable on the date the applicant Court, 536 U.S. at 309 n.5, noted that “an IQ be-
filed the previous application . . . . (continued...)

3
his poor performance in school and other 224 (E.D. Tex. July 28, 2003).
events in his personal history that are a part of
the trial record indicate a deficiency in the The state appealed, arguing that a district
adaptive skill areas of functional academics, court can grant habeas relief only if it finds
social skills, self-direction, and health and that a defendant is in custody in violation of
safety.7 the Constitution or laws or treaties of the
United States. The state contended that the
On receiving Moore’s successive petition, court’s determination that the state had misap-
the federal district court ordered a stay of exe- plied its own procedural rule was not suffi-
cution. Hoping to develop the record in ad- cient. Moore cross-appealed, arguing that he
vance of a hearing on the merits of his claim, is entitled to an evidentiary hearing in federal
Moore then moved the court to authorize his court on his claim of mental retardation and
counsel to obtain “expert investigatory ser- that his claim is not procedurally defaulted.
vices,” including a psychologist trained in the
field of mental retardation and a mitigation We agreed with the state and vacated, in-
investigator. structing the court to determine on remand
whether Moore is entitled to an evidentiary
The district court denied the motion as pre- hearing and, regardless of whether it held such
mature and later denied the state’s motion to a hearing, whether Moore’s Atkins claim is
dismiss the petition, agreeing with us that procedurally defaulted. On a finding of no de-
Moore had met the § 2244(b)(2)(A) require- fault, we directed the court to determine
ments for filing a successive habeas petition. whether Moore is entitled to relief on the mer-
Moore v. Johnson, No. 03-CV-224 (E.D. Tex. its of his claim. Moore v. Dretke, 369 F.3d
May 15, 2003). Finding fault with the state 844, 846 (5th Cir. 2004).
court’s application of article 11.071 § 5(a), the
court granted Moore habeas relief, ordering E.
the state to release him from custody unless, In June 2004, the district court issued an
within 180 days, it reopened his state habeas order stating it already had decided, in refusing
petition and conducted a fact-finding hearing to alter or amend the now-vacated writ, that
to determine whether he is entitled to relief un- there was no procedural default. Moore v.
der Atkins. Moore v. Cockrell, No. 03-CV- Dretke, No. 03-CV-224 (E.D. Tex. June 8,
2004).8 It granted an evidentiary hearing and,

6
(...continued)
8
tween 70 and 75 or lower . . . is typically consid- “A federal court may not consider a state pri-
ered the cutoff score for the intellectual function soner’s constitutional claim if the state courts
prong of the mental retardation definition.” based their rejection of that claim on an adequate
and independent state ground.” Emery v. Johnson,
7
In his successive state petition, Moore did not 139 F.3d 191, 194-95 (5th Cir. 1998). If a state
contend that he is limited in two or more adaptive court rejects a habeas petition based on a purely
skill areas. He makes this particular claim for the procedural ground, rather than on a consideration
first time in his federal petition. In addition, he at- of the merits of the constitutional claim, the dis-
taches portions of his school records to his federal missal is independent of that claim. As long as the
petition, a step he did not take when he filed his application of the procedural rule is adequate (i.e.,
state petition. (continued...)

4
in doing so, rejected the state’s contention that duced the testimony of Dr. Antolin Llorente, a
Moore was not entitled to such a hearing un- licensed psychologist who attested to Moore’s
der 28 U.S.C. § 2254(e)(2)(A) because he had substandard intelligence and limitations in
failed factually to develop his Atkins claim in adaptive skills. He opinedSSbased on his own
state court. The court held that § 2254(e)- interaction with Moore (including his adminis-
(2)(A) did not strip Moore of his entitlement tration of an additional IQ test) and his inter-
to an evidentiary hearing, because it deter- views of family members, friends, teachers,
mined that Moore was prevented from devel- and employersSSthat Moore is mentally retard-
oping his claim by the state court’s improper ed. Moore proffered the direct testimony of
application of article 11.071 § 5(a). Id. various family members and friends, most of
whom indicated that Moore had been “slow”
During the three-day hearing, Moore intro- and incapable of handling some of the basic
requirements of daily living from an early age.

8
(...continued)
The state countered with the testimony of
not arbitrary), it bars federal review of the consti- Dr. Gary Mears, a licensed and board-certified
tutional claim. “It is not always easy, however, to psychologist who had examined Moore. Mears
determine whether a state court decision is based asserted that Moore has good communication
on state procedural grounds or, instead, on the and interpersonal skills and was capable of
court’s interpretation of federal law.” Id. at 195. recalling with clarity his early childhood expe-
riences, his academic and work histories, and
The state court dismissed Moore’s successive his criminal record. Mears examined Moore’s
habeas petition for failure to meet the requirements school and psychological testing records and
of article 11.071 § 5(a). The federal district court concluded that although Moore is arguably of
initially determined that the state court’s ruling did substandard intelligence, he is not deficient in
not result in a procedural default of Moore’s Atkins any of the AAMR’s enumerated adaptive skill
claim for either one of two possible reasons:
areas. Mears noted that Moore had in fact
(1) The dismissal under article 11.071 § 5(a) is in-
made a reasonable effort to succeed in life.
dependent of the Atkins claim because all that the
statute requires is an allegation of specific facts es-
tablishing that the factual or legal basis of the The state also challenged the validity of
asserted claim was previously unavailable; the Moore’s IQ scores and emphasized that he
ruling is inadequate, however, because given that had not in fact been in special education
minimal procedural requirement, the dismissal of throughout his schooling. The state intro-
Moore’s petition was arbitrary; or (2) the dismissal duced the testimony of some of Moore’s
is not independent of the Atkins claim, because the teachers, who believed that his poor perfor-
TCCA performs a threshold merits inquiry under mance in an academic setting was not on ac-
article 11.071 § 5(a). count of substandard ability, but because of his
disinterest and his refusal to apply himself.
When it later ruled on the merits of Moore’s The state also proffered the testimony of
Atkins claim, the court adopted only holding (1). four correctional officers who had interacted
See infra. The district court never ruled on wheth-
with Moore on a daily basis. All of them in-
er, as the state contends on appeal, Moore’s claim
dicated that Moore communicates well and
is procedurally defaulted under 28 U.S.C. § 2254-
(b)(1)(A) for failure to exhaust state court reme- successfully socializes with others.
dies.

5
 Following the hearing, the district court rect.10
again granted Moore habeas relief, holding
that he is mentally retarded and thus ineligible II.
for the death penalty pursuant to Atkins. A.
Moore v. Dretke, No. 03-CV-224 (E.D. Tex. In the district court, the state opposed
July 1, 2005).9 The court found that the state Moore’s request for an evidentiary hearing on
court’s dismissal of Moore’s petition was not the basis of 28 U.S.C. § 2254(e)(2), arguing
a ruling on the merits, but rather was an inde- that Moore had failed factually to develop his
pendent, though inadequate, application of ar- Atkins claim in state court and thus should not
ticle 11.071 § 5(a). The court therefore em- be allowed such a hearing in federal court. On
ployed a de novo standard of review in as- appeal the state contends that Moore’s pres-
sessing the merits of Moore’s claim, determin- entation of new factual allegations, along with
ing that no deference was owed to the state supporting evidence, in federal court that he
court’s ruling under the Anti-Terrorism and did not include in his state petition implicates
Effective Death Penalty Act of 1996 the exhaustion requirement of 28 U.S.C.
(“AEDPA”), 28 U.S.C. § 2254. § 2254(b)(1)(A). We have at least twice held
that any problems presented by allegations and
The state appeals, advancing three main ar- evidence introduced for the first time on fed-
guments in the alternative: (1) Moore’s claim eral review are “more accurately analyzed
is procedurally defaulted under 28 U.S.C. under the ‘exhaustion’ rubric . . . .” Dowthitt
§ 2254(b)(1)(A) because he failed to exhaust v. Johnson, 230 F.3d 733, 745 (5th Cir. 2000);
his state court remedies before proceeding to
federal court; the petition he filed with the
10
TCCA amounted to a mere conclusional alle- Although the state represents in its briefs that
gation of mental retardation that deprived the it does not waive the argument that Moore’s Atkins
state court of the opportunity to rule on the claim is procedurally defaulted because the state
substance of his claim; (2) the state court’s court’s dismissal was predicated on an independent
and adequate state ground, the state offers no sup-
dismissal of Moore’s successive petition was
port for that argument other than to claim that “the
merits-based and accordingly should be upheld issue is certainly debatable.” It instead spends
given the deference it is owed under AEDPA; much of its brief discussing the effect of the state
and (3) even if the district court was correct in court’s ruling if it is in fact merits-based and thus
employing a de novo standard, the district not independent of Moore’s constitutional claim.
court’s factual findings with regard to Moore’s Because the state failed adequately to brief the
intellectual and adaptive functioning are clearly issue of whether the state court’s dismissal of
erroneous, and its legal conclusion that Moore Moore’s successive petition provides an independ-
falls under the protection of Atkins is incor- ent and adequate bar to federal habeas review, the
argument is waived. See United States v. Marti-
nez, 263 F.3d 436, 438 (5th Cir. 2001). The state
has not, however, waived its argument with regard
to the particular reason for why there is no proce-
dural default. Although the district court held that
9
The court directed the state to release Moore the state court dismissal was independent of the
from custody unless, within 180 days, it perma- merits of Moore’s Atkins claim, yet inadequate, the
nently stayed his execution or reformed his sen- state contends that the dismissal arguably was not
tence to life imprisonment. independent of the merits of the claim.

6
see also Morris, 413 F.3d at 498. D.
The state argues that Moore’s successive
B. state habeas petition was sparse to the point of
Under § 2254(b)(1)(A), “[a]n application amounting to a brief, conclusional allegation of
for a writ of habeas corpus on behalf of a per- mental retardation. The state emphasizes in
son in custody pursuant to the judgment of a particular that Moore made no allegations and
State court shall not be granted unless it ap- offered no evidence before the TCCA with re-
pears that the applicant has exhausted the rem- gard to his limitations in adaptive skill areas.
edies available in the courts of the State.” The The state contends that the presentation of
exhaustion requirement “is not jurisdictional, such allegations and evidence for the first time
but reflects a policy of federal-state comity de- in federal court fundamentally alters Moore’s
signed to give the State an initial opportunity Atkins claim, rendering it unexhausted. We
to pass upon and correct alleged violations of agree.
its prisoners’ federal rights.” Anderson v.
Johnson, 338 F.3d 382, 386 (5th Cir. 2003) In Anderson, an “admittedly close case” on
(internal citations and quotations omitted). whether the petitioner had exhausted his state
Whether a federal habeas petitioner has satis- court remedies with respect to his ineffective
fied the exhaustion requirement is a question assistance of counsel claim, this court asserted
of law that we review de novo. Id. that the fact that “the portion of Anderson’s
state post-conviction brief dedicated to inef-
C. fective assistance is remarkably detailed in
The exhaustion requirement is satisfied if both fact and law” provided the tipping point
petitioner has fairly “presented the substance in favor of a finding of exhaustion. Anderson,
of his claim to the state courts.” Vasquez v. 338 F.3d at 388. In Morris v. Dretke, 413
Hillery, 474 U.S. 254, 258 (1986). The re- F.3d 484 (5th Cir. 2005), an even more recent
quirement is not satisfied if he “presents new “admittedly close” case in which we addressed
legal theories or factual claims in his federal the question with which we are now facedSS
habeas petition. We have consistently held whether new evidence introduced in federal
that a petitioner fails to exhaust state remedies court rendered petitioner’s Atkins claim unex-
when he presents material additional eviden- haustedSSwe similarly emphasized the impor-
tiary support to the federal court that was not tance of the detail with which the state petition
presented to the state court.” Anderson, 338 was presented. Morris, 413 F.3d at 496.
F.3d at 386. (internal citations and quotations
omitted). Evidence is not material for exhaus- The petitioner in Morris had not included
tion purposes if it “supplements, but does not an IQ score in his successive state habeas pe-
fundamentally alter, the claim presented to the tition, because he lacked the funds to obtain
state courts.” Id. at 386-87. The failure to ex- the expert assistance required to administer
haust is a procedural bar to federal review that such a test. After his state petition was dis-
may be excused if the petitioner “can demon- missed, we allowed Morris to file a successive
strate cause for the defaults and actual preju- federal habeas petition, and the district court
dice.” Martinez v. Johnson, 255 F.3d 229, granted him leave to retain expert and investi-
239 (5th Cir. 2001). gative assistance. As a result, Morris was able
to present a full-scale IQ score of 53 at the
subsequent evidentiary hearing on the merits

7
of his federal petition. Id. at 489. Morris’s mental retardation claim.” Id. Final-
ly, we noted that Morris had consistently as-
The state contended that Morris’s Atkins serted that “given the opportunity and resourc-
claim was unexhausted because he had failed es, intellectual tests would confirm” his mental
to present this IQ evidence to the state court. retardation. Id. Accordingly, we held that the
We disagreed, asserting that although, as in state court had been given a fair opportunity to
Anderson, Morris’s federal claim was “un- rule on the substance of Morris’s Atkins claim
questionably in a comparatively stronger evi- and that therefore his presentation of the IQ
dentiary posture than it was in state court,” score for the first time on federal review sup-
several factors weighed in Morris’s favor. Id. plemented, but did not fundamentally alter,
at 496 (internal citations and quotations omit- that claim.
ted). Most notably,
The successive habeas petition Moore filed
[Morris] . . . properly outlined the AAMR’s with the TCCA pales in comparison to the one
definition for mental retardation, since we considered in Morris. As we have dis-
adopted by the TCCA as one of Texas’s cussed, Moore merely asserted in his petition
current standards for determining mental that he had scored a 74 on an IQ test when he
retardation, [Ex parte Briseno, 135 S.W.3d was a child, that he had been placed in special
1, 7-8 (Tex. Crim. App. 2004)], and noted education throughout his schooling, and that
the necessity to meet all three essential he had suffered multiple head injuries, one of
prongs of the definition. See id. Morris al- which occurred when he was no older than
so clearly acknowledged that IQ evidence ten.
was lacking in his particular case but still
insisted “[t]here is good reason to believe Moore cited to the trial record in support of
that [Morris is retarded] . . . because of the these claims but offered neither school records
documented history of adaptive deficits,” nor supporting affidavits from family members,
including Morris’s “inability to read and friends, teachers, or even the psychologist who
write and his failure in functional academ- had testified on his behalf at trial. He refer-
ics,” “inability to obey the law and follow enced neither the AAMR’s diagnostic criteria
rules,” “inability to avoid victimization,” for mental retardation nor the similar definition
“inability to develop instrumentalities of of retardation contained in § 591.003 of the
daily living [and] occupational skills,” and Texas Health and Safety Code.11 Most impor-
“inability to maintain a safe environment,” tantly, he failed to allege that he is deficient in
all of which were attested to by the sworn two or more adaptive skill areas and indeed
affidavits and school records presented to made no mention of adaptive limitations as
the state courts. such.

Id. (emphasis added).

Furthermore, we acknowledged with ap- 11
“‘[M]ental retardation’ means significantly
proval that “Morris saw fit to present an ex-
subaverage intellectual functioning that is concur-
pert affidavit [along with his state petition],
rent with deficits in adaptive behavior and origi-
which, albeit preliminarily, provided a psychol- nates during the developmental period.” TEX.
ogist’s acknowledgment of and support for HEALTH & SAFETY CODE § 591.003(13).

8
 Moore’s contention that he was in special more than a scintilla of evidence on that prong.
education throughout his schooling arguably Indeed, there is no excuse for why he did not
could be construed as an allegation that he was at minimum submit affidavits from his family
only minimally functional in an academic set- members confirming his limitations in two or
ting. In support of that bare assertion, how- more areas of adaptive functioning. As was
ever, he did not “identify any specific special true in Dowthitt, 230 F.3d at 758, “[g]iven that
education classes or provide documentation of the family members were willing to testify at a
those classes,” Moreno, 450 F.3d at 164, nor hearing, [Moore] could have easily obtained
did he offer any reason why he could not pre- their affidavits [before he filed his petition in
sent such evidence. Moore’s petition did not state court]. A reasonable person in [his]
touch, even arguably, on any other adaptive place would have done at least as much . . . .
skill area, let alone explain why supporting evi- Obtaining affidavits from family members is
dence was lacking. Such a petition cannot be not cost prohibitive.”
considered sufficiently “detailed in fact and
law” to warrant a finding of exhaustion. E.
We recognize that the Atkins Court did not
In Morris, 413 F.3d at 497, we noted that adopt a particular criterion for determining
the AAMR’s three diagnostic criteria are inter- whether a defendant is mentally retarded; the
dependent and that evidence satisfying one Court instead left to the states “the task of de-
prong is, “standing completely on its own,” veloping appropriate ways to enforce the con-
not sufficient to avoid summary dismissal of an stitutional restriction . . . .” Atkins, 536 U.S.
Atkins claim. Given that interdependence, it at 317. We also acknowledge that at the time
cannot be said that where a defendant’s state Moore filed his petition, neither the Texas leg-
petition completely neglects one prong of the islature nor the TCCA had developed a precise
AAMR inquiry, the presentation of evidence in means of determining whether a criminal de-
support of that prong on federal review merely fendant qualifies for Atkins relief.
supplements his Atkins claim.
The Atkins Court, however, did reference
It is true that Morris’s state petition was the AAMR’s criteria and noted that most al-
missing the allegation of a below-average IQ ready-existing statutory definitions of mental
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 cri-

9
teria or the substantially equivalent § 591- [a] second or subsequent writ must contain
.003(13) definition of mental retardation and ‘sufficient specific facts’ to support an ap-
(2) either alleged why he satisfies each cri- plicant’s Atkins claim. A writ application
terion or asserted reasons why he is currently which makes the naked assertion, ‘I am
incapable of presenting any evidence on a par- mentally retarded,’ obviously does not suf-
ticular prong. fice to leap over this second hurdle. If it
did, every inmate on death row would be
Moore’s state court petition is more akin to equally entitled to file a subsequent writ in
the type of conclusional allegation that we the hope that something, somewhere, might
found insufficient to support exhaustion on an turn up to support this bare assertion.”
ineffective assistance of counsel claim in Kun-
kle v. Dretke, 352 F.3d 980 (5th Cir. 2003), Ex Parte Williams, 2003 WL 1787634, at *1
than it is to the robust claim of mental retarda- (Tex. Crim. App. 2003) (Cochran, J., concur-
tion presented to the state by the petitioner in ring) (unpublished).
Morris. Moore’s Atkins claim is therefore de-
faulted under 28 U.S.C. § 2254(b)(1)(A). Neither Williams nor Briseno had been de-
cided when Moore filed his second state ha-
F. beas petition, and we do not rigidly hold him
We decline to excuse Moore’s failure to ex- to the pellucid standards announced in those
haust his state court claim. “The failure to ex- cases; it is, nonetheless, reasonable to require
haust is a procedural bar to federal review that him to cite a standard already mentioned by
may be excused if the petitioner can demon- the Supreme Court in Atkins and on the books
strate cause for the defaults and actual preju- in two Texas authorities at the time of his pe-
dice.” Hillery, 474 U.S. at 260. Here, there tition and to supply (or argue credibly as to
was no cause; nothing “external to the peti- why he could not supply) evidence to support
tioner” prevented him from at least referring to his claim.
the test for mental retardation that had been
discussed by the Supreme Court and had ap- As we have explained, Moore failed ade-
peared in two other Texas authorities at the quately to do this. To excuse his petition
time of his petition, or from supplying school would be to excuse an inadequate and conclu-
records or affidavits from family members at- sional filing that, for reasons not fairly attrib-
testing to his adaptive limitations. utable to factors outside the petitioner’s con-
trol, denied the state court its fair opportunity
Moore argues that, at the time he filed his to develop a standard by which to implement
petition, he did not know how extensive his Atkins and evaluate Moore’s petition.
factual pleading had to be to satisfy § 11.071
in the context of an Atkins claim. He did Because our finding of unexcused failure to
know, however, that Texas had to develop a exhaust state remedies alone requires the dis-
standard to implement Atkins. He noted at or- missal of the petition, it is unnecessary to con-
al argument that § 11.071 is analogous to the sider the state’s remaining arguments. Based
federal bar on successive habeas petitions, on Moore’s default of his state court remedies,
§ 2254(b)(2)(A), which requires a petitioner to we VACATE the judgment granting the writ
make a prima facie showing of entitlement to and REMAND with instruction to dismiss
relief. It should have been obvious to him that Moore’s Atkins claim with prejudice.

10
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 miscar-

riage 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

11
findings were clearly erroneous. The majority opinion

disposes of the case on the exhaustion issue, finding

that, under Dowthitt v. Johnson, 230 F.3d 733, 745 (5th

Cir. 2000), this case is “more accurately analyzed under

the ‘exhaustion’ rubric[.]”.1 Because it finds that Moore

presented material additional evidence in federal court

that was not presented to the state court, it 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.

A. Incorrect Test Applied to Exhaustion Analysis

My first point of contention is with the test created by

the majority. The majority recognizes that Moore filed

his successive state habeas petition after Atkins v.

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.

12
Virginia, 536 U.S. 304 (2002), but before the Texas Court

of Criminal Appeals decided Ex Parte Briseno, 135 S.W.3d

1 (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. Neverthe-

less, the majority decides 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 as-

serted reasons why he is currently incapable of present-

ing any evidence on a particular prong.” Apparently, the

majority reaches 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 retarda-

13
tion 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 successive 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 successive state habeas

petition, Moore provided evidence of a low IQ, that he

2
Atkins, 536 U.S. at 317 (leaving to the states “the
task of developing appropriate ways to enforce the
constitutional restriction”).
3
The majority opinion states that Moore’s petition
“cannot be considered sufficiently ‘detailed in fact and
law’ to warrant a finding of exhaustion.”
14
had been in 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 func-

tioning; (2) limitations in adaptive functioning; and (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 successive state habeas peti-

tion.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, 450 F.3d 158 (5th Cir. 2006), as

authority to disregard that Moore’s claim of being in

special education classes as evidence that he suffers

from limited adaptive functioning. In Moreno, this court

declined to issue a COA on Moreno’s Atkins claim, finding

4
The majority does not take issue with Moore’s evidence
of “significantly subaverage intellectual functioning”
and “onset prior to age 18.” The only problem appears to
be with Moore’s evidence of limited adaptive functioning.
15
no error in the district court’s decision that the state

court reasonably held that Moreno did not present a prima

facie Atkins claim. Id. at 165. In his successive state

habeas petition, Moreno presented evidence that he scored

a 64 on an IQ test when he was 35 years old. Id. at 164.

He also alleged that he attended special education

classes as a child, thus arguing that he suffered adap-

tive limitations. Id. The Moreno panel stated that

Moreno’s “only evidentiary support for [the special

education] claim was the 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 164.

The majority in this case uses that 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 conclu-

sion 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

16
evidence, such as Moreno’s employment history, fails to

suggest adaptive limitations. Balanced against this

meager evidence of adaptive limitations is the substan-

tial evidence that Moreno possesses adaptive behavioral

skills.” Id. at 165. 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. Id. 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 that he is mentally retarded and therefore not

eligible for the death penalty according to Atkins in

state court, his claim was properly exhausted and there

was no bar to the district court 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:

17
 We have consistently held that a petitioner
fails to exhaust state remedies when he presents
material additional 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 adap-

tive 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 function-

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

claims presented in state court “through expansion of the

record” with evidence such as “more sophisticated statis-

tical 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

18
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. 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 comparatively

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

19
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 interdependent.” 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] ‘attempted to expedite federal review by deliber-

ately withholding essential facts from the state

courts.’” Id. at 496. Therefore, 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, supplemen-

tal evidence is presented in federal court, that peti-

tioner has exhausted his claim in federal court, even if

his federal court evidence makes his case stronger.

B. The Prima Facie Requirement Applied Retroactively

My second point of contention is the majority’s charac-

terization of the Texas Court of Criminal Appeals’

20
decision as a consideration of Moore’s claims on the

merits and as analogous to the merits inquiries in Morris

and Moreno, which both included within the scope of an

Atkins claim in a motion for authorization to file a

successive habeas petition, a prima facie showing that

the petitioner is, in fact, mentally retarded. The

majority opinion agrees with the state’s argument that

“Moore's successive state habeas petition was sparse to

the point of amounting to a brief, conclusional allega-

tion of mental retardation.”

The legal requirements for a valid Atkins claim were not

clear at time Moore filed his second application for

post-conviction relief in state court and when the Texas

Court of Criminal Appeals denied his application under

Texas Code of Criminal Procedure, Article 11.071, Section

5(a). It denied his application simply as an “abuse of

the writ,” because the application failed to “contain

sufficient specific facts which would satisfy the re-

quirements of Art. 11.071 Sec. 5(a).” Ex Parte Moore,

No. 38,670-02 (Tex. Crim. App. Feb. 5, 2003). Impor-

tantly, the judgment was filed on February 5th, 2003.

21
 The basis for the majority’s application of the Morris

and Moreno standards for their state exhaustion analysis

presumably is the assumption that the “sufficient facts”

language in 11.071 is analogous to the prima facie

showing of mental retardation required as part of a

petitioner’s Atkins claim before a successive petition is

permitted in federal court under 28 U.S.C. § 2244(b).

The majority states, “[t]he successive habeas petition

Moore filed with the TCCA pales in comparison to the one

we considered in Morris,” which is a federal 28 U.S.C. §

2244 case. The majority builds its opinion from this

two-part foundation: (1) motions for successive habeas

petitions based on an Atkins claim in both state and

federal courts require a prima facie showing; (2) the

prima facie requirement is comparable between federal and

state courts. From these two premises, the majority

concludes that the new evidence supporting Moore’s prima

facie showing of mental retardation as presented to the

federal courts “fundamentally alter[s]” the Atkins claim

presented to the state court. As the majority holds,

since the state and federal appellate forums both require

22
the presentation of such evidence adjudged under similar

standards, the petitioner cannot be excused from his

failure to present this evidence in state court.

The two premises that underpin the majority’s conclusion

do not apply to Moore unless they are unfairly applied

retroactively. The premise that the Texas courts and the

Fifth Circuit include a prima facie showing, as part of

a motion to file a successive petition for post-convic-

tion relief based on an Atkins claim, did not exist when

Moore filed his second state application for post-convic-

tion relief, and more importantly, when the Texas Court

of Criminal Appeals rendered its judgment on February 5,

2003. The Texas Court of Criminal Appeals, in a divided

unpublished opinion in Ex Parte Williams, 2003 WL 1787634

(Tex. Crim. App. Feb. 26, 2003) and the Fifth Circuit in

In re Morris, 328 F.3d 739 (5th Cir. Apr. 15, 2003),

required, for the first time, a prima facie evidentiary

showing for Atkins claims in applications to file succes-

sive petitions for post-conviction relief. Subsequently,

the Texas courts then equated these federal and state

requirements as analogous. See, e.g., Ex Parte Riveria,

23
2003 WL 21752841 *1 n. 2 (Tex. Crim. App. July 25, 2003).

As one can see, all these decisions occurred after the

Texas Court of Criminal Appeals ruled on Moore’s succes-

sive application for post-conviction relief. Even Ex

Parte Williams, the first case in this series, was

determined after Moore already filed his motion to

authorize his successive federal habeas petition on

February 11, 2003, Moore v. Cockrell, 2003 WL 25321830 *1

(E.D.Tex. 2003), which we subsequently approved. See

Moore v. Dretke, 369 F.3d 844, 845 (5th Cir. 2004).

Unlike the standards issue raised in the previous

section, Moore could not have possibly predicted when he

filed his state petition and his motion to file a succes-

sive habeas petition in federal court that a prima facie

evidentiary showing of mental retardation was required in

his state application for post-conviction relief. In

fact, the dissenters in Ex Parte Williams rejected the

view that Article 11.071 Section 5(a) required a prima

facie evidentiary showing, but would have required only

“sufficient facts” necessary to point out that an inter-

vening change in the law provided a new claim previously

24
foreclosed. See Ex Parte Williams, 2003 WL 1787634, at

6 (Price, J., dissenting). Applying similar reasoning as

the Ex Parte Williams dissenters, the Tenth Circuit in

Ochoa v. Sirmons, 485 F.3d 538, 544-545 (10th Cir. 2007),

criticized the Fifth Circuit’s decision in In Re Morris

as having no basis in precedent, and, thus, disputed our

incorporation of a prima facie evidentiary showing into

the Atkins claim in motions for authorization to file

successive federal habeas petitions. See Ochoa, 485 F.3d

at 541-545 & n.4 (“Development and resolution of the

mental retardation issue is, rather, the province of the

district court in the proceedings we properly authorize

on the distinct grounds specified in § 2244(b)(2)(A)”).

Clearly, it was reasonable for Moore to believe that his

state claim and federal claim when filed at the appellate

court level were the same claims, regardless of the

evidentiary proof incorporated into them, since an Atkins

claim did not require any prima facie showing of mental

retardation in applications for successive petitions for

post-conviction relief at the appellate levels before Ex

Parte Williams and In Re Morris. The majority’s conclu-

25
sion that because the evidence provided for the prima

facie showing of mental retardation was different for

federal and state forums, and therefore the whole Atkins

claim was not factually exhausted in state court, retro-

actively applies the prima facie showing requirement in

Ex Parte Williams and In Re Morris to Moore’s state

petition. Before these standards existed, we cannot

assume that the Texas Criminal Court of Appeals examined

the merits of the prima facie evidence of mental retarda-

tion, because they were not required to. In fact, per

the dissenters in Ex Parte Williams, the Texas Criminal

Court of Appeals should examine only whether “sufficient

facts” establish that the “legal basis for his claim was

unavailable when he filed his initial application for

writ of habeas corpus.” Ex Parte Williams, 2003 WL

1787634, at *6 (Price, J., dissenting) (emphasis added).

If the Texas Court of Criminal Appeals denied Moore’s

petition because he did not allege sufficient facts to

establish that an Atkins claim was unavailable when he

filed the initial writ, then it committed a clear consti-

tutional error by denying the retroactivity of Atkins.

26
If the Texas court actually examined the merits of the

evidence for mental retardation and dismissed the entire

Atkins claim under article 11.071 based on the insuffi-

ciency of evidence for mental retardation, then the

decision was arbitrary, since there was no requirement or

notice that such a prima facie showing was required at

that time for article 11.071 section 5(a) review. This

was the conclusion of the district court. Moore v.

Dretke, 2005 WL 1606437, *3 (E.D.Tex. 2005); see supra

______ at n.8.5

In effect, the Texas Court of Criminal Appeals’ decision

must either be considered clear constitutional error for

failing to apply Atkins claims retroactively or, as the

district court found, the decision was arbitrary for

analyzing the merits under a prima facie showing require-

ment when the petitioner was not required to make such a

5
The other possibility was that the Texas Court of
Criminal Appeals’ denial of Moore’s second application
for post-conviction relief was based on an independent
procedural bar. That argument was waived. See, supra,
footnote 1.
27
showing.6 Additionally, since the Atkins claim in applica-

tions for successive petitions for post-conviction relief

did not include an evidentiary component in state or

federal forums when Moore’s state claim was adjudicated,

his state claim should not be considered “fundamentally”

different from the federal claim for exhaustion purposes

based solely on differences in evidentiary support.

Finally, the plaintiff never “failed” to exhaust the

facts presented to the federal courts below, because a

prima facie showing of mental retardation was never

required at that time in the state court. Cf. Morris v.

Dretke, 413 F.3d 484, 499-500 (5th Cir. 2005)

(Higginbotham, J., concurring) (“The [Supreme] Court

rejected a ‘no-fault’ reading of [28 U.S.C. § 2244], and

found that ‘[u]nder the opening clause of § 2254(e)(2),

a failure to develop the factual basis of a claim is not

established unless there is lack of diligence, or some

greater fault, attributable to the prisoner or the

6
In addition, before In Re Riveria, the evidentiary
standards found in federal court opinions should not be
presumed to apply to any merits inquiry at the state
level.
28
prisoner's counsel.’”). In any event, the injustices

detailed above will only magnify and complement the

equity arguments discussed below.

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, some-

thing 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 circum-

stances of the proceeding in which the error occurred”

have “worked to the petitioner’s actual and substantive

29
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

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, and did not express

his mental retardation evidence using the AAMR catego-

ries, 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

30
Briseno and Ex Parte Williams, caused Moore’s inability

to present his mental retardation evidence according to

the now-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 retarda-

tion evidence such that it would be acceptable to the

Texas Court of Criminal Appeals caused the state court to

dismiss Moore’s successive 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.

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. Thomp-

son, 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

31
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 peti-

tioner 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 Amend-

ment. 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 penalty.”

32
 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 retardation definitions adopted by the Texas

Court of Criminal Appeals in Briseno. The AAMR defines

mental retardation as:

A disability characterized by significant limi-
tations 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, CLASSIFICATION AND

SYSTEMS OF SUPPORTS (10th Ed. 2002) at 1. Therefore, as

33
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 prop-

erly found that Moore presented sufficient evidence to

warrant a finding of mental 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.7 On the WAIS-III, administered in 2004,

7
The Weschler Adult Intelligence Scales test (the
“WAIS”) is the standard instrument in the U.S. for
assessing intellectual functioning. The Flynn effect
(continued...)
34
Moore scored a 66. Last, 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 psychol-

ogist, 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 psycholo-

gist, 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 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.

Second, to support the claim that he suffers from

7
(...continued)
recognizes that norm IQ scores across a population have
increased approximately 3 points per decade.
35
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.8 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,

8
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.
36
and reviewed Moore’s academic records, vocational work,

communication skills, health and safety, social skills,

leisure, self-care, home living, use of community re-

sources, 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 defini-

tion of mental retardation was satisfied. Therefore, it

was not clearly 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 neces-

sary to reach this issue because this case cannot be

disposed of on the exhaustion question alone. Consider-

ing 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

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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 de-

faulted, the state still maintains that the dismissal of

Moore’s successive 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 reviewed the state court’s

dismissal only to determine whether it was “contrary to,

or involved an unreasonable application 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 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

38
application rule.9 This was a pure procedural decision,

and it 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. Further-

more, the district court’s ruling granting Moore habeas

relief was not in error. Because it holds otherwise, I

dissent from the majority opinion.

9
Alternatively, the Texas Court of Criminal Appeals may
have incorrectly dismissed Moore’s application when it
examined whether there were “sufficient facts” to support
a legal basis for his claim, i.e., if Atkins applied
retroactively to his claim. If it dismissed his claim by
failing to apply Atkins retroactively to Moore’s claim,
then there is clear constitutional error.
39