United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-70004
KENNETH WAYNE MORRIS,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, DeMOSS, and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
Petitioner Kenneth Wayne Morris (“Morris”), a Texas inmate
sentenced to die for the crime of capital murder, seeks a
certificate of appealability (“COA”) from this Court on two issues.
First, Morris seeks review of whether the presentation of a
factually stronger habeas claim always mandates a dismissal without
prejudice based on the exhaustion principle. Second, Morris seeks
review of whether the district court has any equitable remedy that
would permit him to both return to state court for exhaustion and
also protect his right to return to federal court after the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
statute of limitations, 28 U.S.C. § 2244(d)(1)(C), has expired.1
This Court finds the district court’s exhaustion ruling debatable
and thus grants Morris’s request for issuance of a COA on that
issue. We dismiss Morris’s petition for COA on the issue of an
available equitable remedy; that issue is not ripe for review at
this time because the district court has not actually granted
Morris any equitable remedy.
BACKGROUND
In December 1993 Morris was convicted and sentenced to death
for the capital offense of murdering James Moody Adams. On direct
appeal, the Texas Court of Criminal Appeals affirmed Morris’s
conviction and sentence; the Supreme Court of the United States
denied certiorari. The Texas Court of Criminal Appeals (“TCCA”)
then denied Morris’s application for writ of habeas corpus. In
April 2000 Morris initiated federal habeas proceedings. The
district court denied Morris habeas relief and denied him a COA.
This Court also denied Morris a COA. Morris did not seek
certiorari review in the Supreme Court. Texas set an execution
date of April 15, 2003.
On June 20, 2002, the Supreme Court held that the Eighth
Amendment protects against the execution of mentally retarded
defendants. Atkins v. Virginia, 536 U.S. 304, 321 (2002). On
1
Respondent does not separately address this issue in its
response opposing issuance of a COA.
2
April 10, 2003, within ten months after Atkins was decided, Morris
filed a successive application for writ of habeas corpus in state
district court, claiming that Atkins barred his execution because
he suffered from mental retardation. Morris supported his claim of
retardation with affidavits from family members and friends; notes
from a mental health expert appointed for his trial; partial school
records; and an affidavit from psychologist Dr. Richard Garnett who
offered his professional opinion that there were “sufficient
indicators to suggest that Morris has mental retardation, and
should be allowed the opportunity for a full assessment and
evaluation.” The TCCA dismissed Morris’s successive state habeas
application as an abuse of the writ on April 14, 2003.
On April 15, 2003, Morris filed a request with this Court for
authorization to file a successive federal habeas petition. Morris
based his request on the same information he presented in the state
courts. This Court stayed Morris’s execution and tentatively
granted his motion to file a successive petition. We held that
Morris had made a prima facie showing that: (1) the claim to be
presented in the proposed successive habeas application had not
been previously presented in any prior application to this Court;
(2) such claim relied on a previously unavailable new rule of
constitutional law, which had been made retroactive to cases on
collateral review by the Supreme Court; and (3) he should be
categorized as mentally retarded. In re Morris, 328 F.3d 739, 740-
3
41 (5th Cir. 2003). Our authorization for Morris to file his
successive habeas petition was tentative in that it was dependent
on the district court finding that AEDPA’s requirements for such
filing had been met. Id. at 741 (citing 28 U.S.C. § 2244(b)(4)).
On April 28, 2003, Morris moved the district court for
appointment of counsel and approval of the retention of expert and
investigative assistance; the court granted this motion on May 20,
2003. Morris then filed a skeletal petition for writ of habeas
corpus in federal district court on May 30, 2003, which he amended
on July 7, 2003, with consent of the district court. This petition
raised the sole issue of whether Atkins’ constitutional bar against
execution of the mentally retarded applied to Morris. In addition
to the evidence previously presented in the state courts and the
Fifth Circuit, Morris presented other evidence supporting his
retardation claim to the district court, including an affidavit
from clinical psychologist Dr. Susana A. Rosin who recently tested
Morris’s I.Q. and level of functioning and diagnosed him with
mental retardation; a second affidavit from Dr. Rosin which refuted
Respondent’s claim that Morris was malingering during the testing;
a new affidavit from Dr. Garnett opining that his review of Dr.
Rosin’s findings strengthens his opinion that Morris is mentally
retarded and recommending that a court hold a full hearing into the
retardation issue; two affidavits from James R. Patton, who holds
a doctorate in special education and disabilities, opining that
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Morris functions intellectually and adaptively within the mentally
retarded range and that this condition predated his 18th birthday;
affidavits from Morris’s original trial counsel stating that they
never asked their mental health expert to test Morris for mental
retardation; a document purportedly signed by Jerome Brown, a
mental health expert appointed to assist with trial preparation,
stating that he performed no formal intellectual testing of Morris
in connection with his evaluation; and another document purportedly
signed by Dr. Garnett reconfirming his diagnosis of Morris as
mentally retarded.
The district court denied Respondent’s motion to dismiss and
accepted Morris’s successive federal petition under 28 U.S.C.
§ 2244(b); denied Respondent’s motion for summary judgment; and
dismissed Morris’s amended petition without prejudice in an order
entered December 5, 2003. In that order the district court
determined that because Morris had not presented his Atkins claim
to the state courts in its current state – supported with
“substantive evidence” – the state courts did not have a fair
opportunity to apply Atkins to the substance of Morris’s now better
documented habeas claim. Therefore, Morris had not exhausted his
Atkins claim. See 28 U.S.C.A. § 2254(b)(1)(A) (West 2004). The
district court indicated, however, that it would equitably toll the
time Morris will have spent in federal court should he return after
having exhausted any available state court remedies. On January 7,
5
2003, the district court entered an order denying Morris’s motion
to alter or amend judgment under Rule 59(e), or alternatively for
the issuance of a COA. Morris then noticed his appeal and filed a
request for COA with this Court.
DISCUSSION
Morris filed his Section 2254 petition for a writ of habeas
corpus after the effective date of AEDPA. Therefore, his petition
is subject to the procedures imposed by AEDPA; Morris’s right to
appeal is governed by the COA requirements of § 2253(c). See Slack
v. McDaniel, 529 U.S. 473, 478 (2000).
Under AEDPA, a petitioner must obtain a COA before an appeal
can be taken to this Court. 28 U.S.C.A. § 2253(c) (West 2004); see
also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“[U]ntil a
COA has been issued federal courts of appeals lack jurisdiction to
rule on the merits of appeals from habeas petitioners.”). When a
habeas petitioner requests permission to seek appellate review of
the dismissal of his petition, this Court limits its examination to
a “threshold inquiry into the underlying merit of his claims.”
Miller-El, 537 U.S. at 327.
A COA will be granted if the petitioner makes “a substantial
showing of the denial of a constitutional right.” 28 U.S.C.A.
§ 2253(c)(2) (West 2004). Meeting this standard requires a
petitioner to demonstrate that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have
6
been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 336 (internal quotations and citation
omitted). “[A] claim can be debatable even though every jurist of
reason might agree, after the COA has been granted and the case has
received full consideration, that petitioner will not prevail.”
Id. at 338.
When the district court denies a petitioner’s petition on
procedural grounds without reaching the underlying constitutional
claim, a COA should issue if the petitioner demonstrates both that
reasonable jurists would find it debatable whether the district
court was correct in its procedural ruling and that reasonable
jurists would find it debatable whether the petition states a valid
claim of the denial of a constitutional right. Slack, 529 U.S. at
478. Here, because this case involves the death penalty, “any
doubts as to whether a COA should issue must be resolved in
[Morris’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th
Cir. 2000).
Whether a COA should issue on the district court’s finding that
Morris had not exhausted his Atkins claim in the state courts.
Section 2254 provides that habeas relief shall not be granted
on unexhausted claims. 28 U.S.C.A. § 2254(b)(1)(A) (West 2004).
“The exhaustion requirement is satisfied when the substance of the
federal habeas claim has been fairly presented to the highest state
court.” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999).
7
“[A]s a general rule dismissal is not required when evidence
presented for the first time in a habeas proceeding supplements,
but does not fundamentally alter, the claim presented to the state
courts.” Anderson v. Johnson, 338 F.3d 382, 386-87 (5th Cir. 2003)
(internal quotation marks and citation omitted); see also id. at
388 n.24 (citing Vasquez v. Hillery, 474 U.S. 254, 262 (1986)).
For example, in Anderson, where the highest state court denied
Anderson’s petition without holding an evidentiary hearing, even
though he presented more and stronger evidence (an affidavit from
a key eyewitness not called at his trial), this Court determined
that the new evidence did not “fundamentally alter” his ineffective
assistance of counsel (“IAC”) claim and therefore held that
Anderson had properly exhausted. 338 F.3d at 388-89; see also
Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir. 2000) (finding
that Dowthitt had exhausted his IAC mental illness claim where he
had presented assertions of his paranoia and schizophrenia to the
state courts, even though he later offered additional affidavits by
mental health experts to the federal court that were not previously
presented to the state courts).
However, a petitioner fails to exhaust available state
remedies when he presents “material additional evidentiary support
that was not presented to the state court.” Anderson, 338 F.3d at
386 (quoting Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996)).
“[E]vidence that places the claims in a significantly different
8
legal posture must first be presented to the state courts.”
Anderson, 338 F.3d at 387 (internal quotation marks and citation
omitted); see, e.g., Graham, 94 F.3d at 965, 969 (5th Cir. 1996)
(concluding that Graham’s new offering of several affidavits of
alibis and eyewitnesses, a police report, two psychologist reports,
and a firearms report to the federal court but not the state courts
rendered his IAC and actual innocence claims unexhausted). The
exhaustion inquiry that courts perform – determining whether
additional evidence fundamentally alters or merely supplements the
state petition – is necessarily case and fact specific. Anderson
338 F.3d at 386, 338 n.24.
Exhaustion may be excused. “A petitioner may overcome such a
procedural default [lack of exhaustion], however, and obtain
federal habeas corpus review of his barred claims on the merits, if
he can demonstrate cause for the defaults and actual prejudice.”
Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001). A
petitioner may also overcome a procedural default if he can show
that “failure to consider the claims will result in a fundamental
miscarriage of justice.” Barrientes v. Johnson, 221 F.3d 741, 758
(5th Cir. 2000) (quoting Coleman v. Thompson, 501 U.S. 722, 750
(1991)). Also, “exhaustion is not required if it would plainly be
futile.” Graham, 94 F.3d at 969 (citation omitted).
Here, Morris first argues that [his] “claim of mental
retardation was presented to the state courts and they refused to
9
rule on that claim on the merits.” That is, the TCCA dismissed his
claim on a procedural ground rather than denying it on the merits;
thus, his Atkins claim is exhausted in the state courts. Morris
alternatively argues that he meets the standard for showing cause
because the state court refused to hear his Atkins claim and also
did not permit him to develop adequate evidence supporting his
claim of mental retardation. Morris asserts actual prejudice is
met because when the state courts did not allow him to establish
that the death penalty could not constitutionally be applied to
him, this resulted in a miscarriage of justice. At the district
court level, Morris raised the following: the TCCA arbitrarily
applied its procedural default rules and so its failure to follow
Section 5 of Article 11.071 of the Texas Code of Criminal Procedure
cannot serve as an independent and adequate state procedural bar to
his Atkins claim in federal court; every new fact brought in
federal court does not render a claim unexhausted; and even if such
additional factual information alters a claim to such an extent
that the state courts have not had a fair opportunity to consider
it, the district court can consider if Morris meets any equitable
exceptions to exhaustion, such as cause and prejudice or futility.2
Respondent basically argues that the district court was
correct in finding that the new evidence Morris sought to present
2
These arguments are laid out in Petitioner’s Reply Argument
to the Respondent’s Brief in Opposition to the Petitioner’s Funding
Request.
10
in federal court rendered his claim unexhausted, that the district
court implicitly found that Morris could not meet any exception to
exhaustion, and that reasonable jurists could not debate this. At
the district court level, Respondent argued that Morris’s abuse of
the writ constituted an independent and adequate state procedural
bar; Morris did not provide the state courts with bona fide
evidence of his mental retardation claim to merit subsequent
review; and any evidence the district court allowed Morris to
investigate and uncover would be unexhausted.
There is no doubt, as Morris concedes, that Morris’s Atkins
claim is now amplified by the factual evidence that has been
developed in the course of his successive federal habeas
proceeding. The district court determined that Morris’s additional
evidence significantly expanded the nature of his Atkins claim.
However, while now admittedly armed with test results and expert
affidavits, Morris proceeds in federal court under the exact
constitutional provision and with the same legal argument as he had
in the state courts. Further, the district court did not directly
discuss or address whether Morris met any equitable exception to
exhaustion; indeed, the court did not mention such exceptions at
all.3
3
The court also stated its decision was influenced by the
“unsettled nature of Atkins jurisprudence” in Texas courts, which
has been recently addressed by the TCCA. See Ex Parte Briseno,
135 S.W.3d 1, 8-10 (Tex. Crim. App. 2004) (determining that the
mental retardation finding is not constitutionally required to be
11
The district court may have been correct in its exhaustion
analysis. Yet in light of the extremely case- and fact-specific
nature of the exhaustion inquiry, the correctness of the district
court’s procedural ruling is debatable by reasonable jurists. See
Slack, 529 U.S. at 478. Also, based on a threshold review of
Morris’s petition, and keeping in mind that this Court has
previously found Morris to have set forth a prima facie showing of
mental retardation, Morris, 328 F.3d at 741, and that the district
court when accepting submission of his successive habeas petition
noted that “Morris’s pleadings show an I.Q. score and related
deficiencies that would arguably prevent his execution under
Atkins,” reasonable jurists would also find it debatable that
Morris’s petition states a valid claim of the denial of a
constitutional right based upon Atkins. See Slack, 529 U.S. at
478. Thus, we grant Morris a COA on the exhaustion issue.
Whether a COA should issue on whether the district court has any
equitable remedy that would toll the time Morris will have spent in
and protect his right to return to federal court.
Because the district court here only stated that it intended
to equitably toll Morris’s time spent in federal court but did not
and could not actually toll that time until an unknown later date,
this Court finds that the district court’s indication to make a
made by a jury and the petitioner bears the burden of proof by a
preponderance of the evidence to establish that he is “mentally
retarded” under the American Association on Mental Retardation or
the Texas Health and Safety Code § 591.003(13) criteria).
12
possible future decision regarding the application of equitable
tolling is not an issue ripe for review. See, e.g., Monk v.
Huston, 340 F.3d 279, 282 (5th Cir. 2003) (noting general ripeness
principles direct courts to dismiss a case or issue for lack of
ripeness if it is abstract or hypothetical). Thus, we dismiss
Morris’s petition for COA on the issue of an available equitable
remedy.
CONCLUSION
Morris has satisfied this Court that reasonable jurists would
find it debatable whether the district court was correct in its
procedural ruling that found Morris’s Atkins claim unexhausted.
Likewise, Morris has satisfied this Court that reasonable jurists
would find it debatable whether his habeas petition based on Atkins
states a valid claim of the denial of a constitutional right.
However, this Court concludes that the district court’s indication
that it would equitably toll Morris’s time spent in federal court
if he returns to federal court is not a decision ripe for our
review. For the reasons set forth above, we therefore GRANT
Morris’s application for COA on the issue of exhaustion but DISMISS
his application for COA on the issue of whether an equitable remedy
exists.
We further instruct the Clerk to set a briefing schedule on
the exhaustion issue and advise this panel when briefing is
complete so that oral argument can be scheduled as the panel so
13
desires. We further request that the parties address the following
questions in their briefs: whether Morris’s presentation of
additional evidence of mental retardation in federal court beyond
that which he presented in the state courts is exhausted because it
only supplemented his state Atkins claim or is unexhausted because
it fundamentally altered his state Atkins claim; and if Morris’s
claim is unexhausted, whether he has met any exception to excuse
exhaustion.
COA GRANTED in part; and DISMISSED in part.
14