concurring:
While I join in the judgment vacating the district court’s order dismissing Morris’ petition, I write separately to explain my rejection of the State’s argument that Morris is not entitled to an evidentiary hearing because he failed to develop the factual basis of his Atkins claim before the Court of Criminal Appeals.
If a habeas applicant has “failed to develop the factual basis of a claim in State court proceedings,” a federal habeas court may not hold an evidentiary hearing on the claim unless certain conditions are met.1 It is undisputed that Morris did not present IQ evidence during his state habeas proceedings for the simple reason that it did not yet exist. Lack of presentation, however, is not the same as “failure to develop.” In Williams v. Taylor,2 the Supreme Court addressed the meaning of the word “failed” in § 2254(e)(2). The Court rejected a “no-fault” reading of the statute, and found that “[ujnder 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 prisoner’s counsel.”3
The State argues that Morris failed to exercise diligence in developing his Atkins claim, and therefore should be barred from receiving an evidentiary hearing. The State observes that although Atkins had been decided ten months before Morris’ execution date, he waited until five days before his execution date to file affidavits in support of his claim. In addition, the State contends that Morris failed to make an “on-the-record” request for funds to develop his IQ evidence, and that his condition was previously discoverable in any *500event since he- was greater than eighteen years of age.
The State’s argument ignores .the fact that, in his successive habeas application before the Court of Criminal Appeals, Morris requested that the Court “appoint him counsel and provide him with the necessary resources to establish his claims.” As part of the evidence he wished to further develop, Morris cited the need for “intellectual testing.” The Court denied this request by dismissing Morris’ application as an abuse of the writ. This was a rejection of the merits of the petition, not a finding of procedural default constituting an independent bar to federal review.4
Because Morris requested resources to further develop his Atkins claim, and specifically referenced the need for intellectual testing, he did not fail to develop diligently the factual basis of his claim at the state level such that he should be denied an evidentiary hearing bqfore the federal habeas court. While it is true that Morris could have sought testing earlier, the harsh reality is that such testing is costly, and death row inmates typically lack independent financial means, as did Morris. Further, Morris had no incentive to obtain such testing prior to the Court’s decision in Atkins given the Court’s position in Penry v. Lynaugh.5 Finally, the record indicates that Morris, with the assistance of volunteer counsel, diligently sought to gather evidence of mental retardation during the time period after Atkins was decided, and prior to Morris’ scheduled execution date.6
It is not a matter of an obligation to pay for intellectual testing of a prisoner raising a colorable Atkins claim warranting further development. It is rather that there was a barrier placed before the petitioner through no fault of his own — indigence. When a prisoner diligently seeks to develop a colorable Atkins claim by requesting funding for intellectual testing and his request is rejected by the state court, § 2254(e)(2) will not bar him from develop*501ing such evidence in federal court.7 A petitioner “is not at fault when his diligent efforts to perform an act are thwarted, for example, by the conduct of another or by happenstance. Fault lies, in those circumstances, either with the person who interfered with the accomplishment of the act or with no one at all.”8
The State is correct to argue that our review of the Court of Criminal Appeals’ judgment must be conducted under a deferential standard. The AEDPA provides that a habeas application filed by a state prisoner
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.9
While demanding deference, however, this rule does not require that we confine -our review of Morris’ Atkins claim to the record before the state court. The Supreme Court explained in Williams:
Interpreting § 2254(e)(2) so that “failed” requires lack of diligence or some other fault avoids putting it in .needless tension with § 2254(d).... If the opening clause of § 2254(e)(2) covers a request for an evidentiary hearing on a claim which was pursued with diligence but remained undeveloped in state court because, for instance, ,the prosecution concealed the facts, a prisoner lacking clear and convincing evidence of innocence could be barred from a hearing on the claim even if he. could satisfy § 2254(d).10
Limiting a federal court’s review to the record before the state habeas court would undermine the Court’s intention in Williams of providing state habeas petitioners who did not “fail” to develop their claims with a vehicle to do so at the federal level.
In short, the State’s contention that Morris should not be allowed an evidentia-ry hearing is, without merit because Morris diligently sought to- develop his Atkins claim at the state level. The wisdom of it aside, the State was within its rights to deny Morris assistance in obtaining intellectual testing; however,. it cannot deny him the ability to continue his diligent pursuit of such testing before the federal habeas court.
. 28 U.S.C. § 2254(e)(2). An applicant may receive an evidentiary hearing despite failure to develop the factual basis of a claim when:
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
Id. Morris does not argue that he meets these conditions.
. 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).
. Id. at 432, 120 S.Ct. 1479.
. A dismissal under article 11.071(5)(a) normally Constitutes an adequate and independent procedural bar to federal review. See Tex.Crim. Proc.Code Ann. art. 11.071, § 5 (Vernon 2005); Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir.1998). However, in the Atkins context, Texas courts have imported an antecedent showing of "sufficient specific facts” .to merit further review, rendering dismissal of suoh claims under article 11.071(5)(a) a decision on the merits. See Stewart v. Smith, 536 U.S. 856, 860, 122 S.Ct. 2578, 153 L.Ed.2d 762 (2002) ("Our cases make clear that when resolution'of [a] state procedural law question depends on a federal constitutional ruling, the state-law prong of the court’s holding is not independent of federal law, and our [direct review] jurisdiction is not precluded.’ ” (quoting Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985))).
. 492 U.S. 302, 335, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), overruled by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ("[A]t present, there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses for us to conclude that it is categorically prohibited by the Eighth Amendment.”)
. In this time period, counsel was able to obtain the record from Morris' original trial, the records of Morris’ examining physician at trial (which did not include intellectual testing data), the records remaining from Morris' attendance in school (many of the records had been destroyed), Morris' adult probation records from Harris County, and affidavits from Dr. Richard Garnett, Jimmie Morris, Ayanna Shauntay Sweatt, Craig Morris, and Darrel Morris. Further, Morris indicates in his successive state application for writ of habeas corpus that he asked the state trial court in which his application was filed for apppintment of counsel for the purpose of obtaining psychological testing. This request was apparently denied after it was opposed by the Harris County District Attorney's office.
. The Supreme Court reached a similar conclusion in Williams:
We do not suggest the State has an obligation to pay for investigation of as yet undeveloped claims; but if the prisoner has made a reasonable effort to discovery the claims to commence or continue state proceedings, § 2254(e)(2) will not bar him from developing them in federal court.
529 U.S. at 443, 120 S.Ct. 1479; see also United States ex rel. Hampton v. Leibach, 347 F.3d 219, 233-34 (7th Cir.2003) (evidentiary hearing allowed to consider affidavit that was not presented to the state court when the state court had denied petitioner's request for an evidentiary hearing at the state level for the purpose of developing the testimony contained in the affidavit); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir.2001) (evidentiary hearing allowed when petitioner diligently pursued his ineffective assistance .claim in state habeas proceedings, had twice requested hearings to develop evidence, and both requests were refused by the state courts).
. Williams, 529 U.S. at 432, 120 S.Ct. 1479.
. 28 U.S.C. § 2254(d)(1)-(2).
. 529 U.S. at 434, 120 S.Ct. 1479.