Edward Busby v. Lorie Davis, Director , 925 F.3d 699 ( 2019 )


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  •      Case: 15-70008       Document: 00514963180      Page: 1   Date Filed: 05/20/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-70008                     FILED
    May 20, 2019
    EDWARD LEE BUSBY,                                                 Lyle W. Cayce
    Clerk
    Petitioner–Appellant,
    v.
    LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent–Appellee.
    Appeal from the United States District Court
    for the Northern District of Texas
    ON PETITION FOR REHEARING EN BANC
    Before OWEN, GRAVES, ∗ and HIGGINSON, Circuit Judges.
    PRISCILLA OWEN, Circuit Judge.
    We treat Edward Lee Busby’s petition for rehearing en banc as a petition
    for panel rehearing pursuant to Fifth Circuit Internal Operating Procedures
    under Federal Rule of Appellate Procedure 35. Busby’s petition for rehearing
    is DENIED. The opinion in No. 15-70008, issued June 13, 2018, and reported
    at 
    892 F.3d 735
    , is hereby WITHDRAWN, and the following opinion is ISSUED
    in its place.
    ∗
    Concurring in the judgment only.
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    No. 15-70008
    Edward Lee Busby seeks federal habeas corpus relief, asserting three
    claims: that (1) he is intellectually disabled and therefore ineligible for
    execution under Atkins v. Virginia, 1 (2) he received ineffective assistance of
    counsel on direct appeal, and (3) his trial counsel was ineffective by failing to
    conduct an adequate sentencing investigation or by failing to present an
    adequate mitigation case during the penalty phase of trial. The district court
    denied relief. We affirm the district court’s judgment.
    I
    Edward Lee Busby was arrested and charged for the January 2004
    kidnapping, robbery, and murder of a seventy-eight-year-old woman, Laura
    Crane. 2   Evidence at trial reflected that Busby and a female accomplice,
    Kathleen “Kitty” Latimer, abducted Crane from a grocery store parking lot in
    Texas, placed her in the trunk of her vehicle, and drove to Oklahoma. 3 Busby
    admitted to authorities that he wrapped twenty-three feet of duct tape around
    Crane’s face. Crane’s death was caused by asphyxiation. 4 According to a
    medical examiner, Crane was bound with such force that her nose deviated
    from its normal position. 5 Though Busby admitted his involvement in the
    crime, he denied that he intended to kill Crane. 6 At trial, Busby’s counsel twice
    attempted to introduce statements attributed to Latimer that potentially
    1 
    536 U.S. 304
    , 321 (2002) (“Construing and applying the Eighth Amendment in the
    light of our ‘evolving standards of decency,’ we . . . conclude that [the death penalty] is
    excessive and that the Constitution ‘places a substantive restriction on the State's power to
    take the life’ of a mentally retarded offender.”).
    2 Busby v. State, 
    253 S.W.3d 661
    , 663-64 (Tex. Crim. App. 2008), cert. denied, 
    555 U.S. 1050
    (2008).
    3 
    Id. at 664-65.
           4 
    Id. at 663-64
           5 
    Id. at 664.
           6 
    Id. 2 Case:
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    supported Busby’s contention that he did not intend to kill his victim, but these
    statements were excluded by the trial court. 7 The jury found Busby guilty. 8
    During the penalty phase of the trial, the jury determined that Busby
    posed a future risk of dangerousness to society and that no mitigating factors
    warranted a life sentence. 9 These findings required the trial court to sentence
    Busby to death. 10 Busby appealed, but his appellate counsel did not challenge
    the exclusion of Latimer’s potentially exculpatory statements. 11 The Texas
    Court of Criminal Appeals (TCCA) affirmed, 12 and the Supreme Court denied
    Busby’s petition for certiorari. 13
    In Busby’s first state habeas petition, 14 his appointed state habeas
    counsel initially asserted an ineffective-assistance-of-trial-counsel (IATC)
    claim regarding the adequacy of trial counsel’s mitigation investigation. 15 The
    TCCA granted state habeas counsel funding to perform an independent
    mitigation investigation. 16      Invoices indicate that state habeas counsel’s
    mitigation investigator conducted interviews of several people, including
    Busby’s two sisters and mother. 17
    Six months after the filing of Busby’s petition, his state habeas counsel
    withdrew the IATC claim, informing the TCCA that he was “convinced that
    7  Busby v. Stephens, No. 4:09-CV-160-O, 
    2015 WL 1037460
    , at *11-13 (N.D. Tex. Mar.
    10, 2015).
    8 
    Busby, 253 S.W.3d at 663
    .
    9 Id.; ROA.867-68.
    10 
    Busby, 253 S.W.3d at 663
    .
    11 See generally 
    id. 12 Id.
    at 673.
    13 Busby v. Texas, 
    555 U.S. 1050
    (2008).
    14 See Ex parte Busby, No. WR-70,747-01, 
    2009 WL 483096
    (Tex. Crim. App. Feb. 25,
    2009) (per curiam) (unpublished).
    15 ROA.2165.
    16 Busby v. Stephens, No. 4:09-CV-160-O, 
    2015 WL 1037460
    , at *14 (N.D. Tex. Mar.
    10, 2015).
    17 See ROA.3232-33.
    3
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    adequate pretrial mitigation was conducted because no significant additional
    mitigating evidence would have been discovered.” 18 The TCCA dismissed the
    petition. 19
    Busby then filed a federal habeas corpus petition pursuant to 28
    U.S.C. § 2254. 20 This petition alleged seven claims, including for the first time
    claims that: (1) Busby’s death sentence violates the Eighth Amendment
    because he suffers from an intellectual disability (the term more recently used
    by the Supreme Court in describing the condition that Atkins denominated
    “mental retardation”), 21 (2) Busby received ineffective assistance from direct
    appeal counsel due to the failure to challenge the trial court’s exclusion of
    Latimer’s statements, and (3) Busby received ineffective assistance of trial
    counsel because of counsel’s alleged failure to conduct a reasonable mitigation
    investigation. 22
    The district court stayed Busby’s federal habeas petition to permit
    exhaustion of claims that had not previously been presented in state court. 23
    Busby filed a subsequent state habeas petition, which the TCCA dismissed as
    an abuse-of-the-writ. 24 Busby then returned to federal court. 25
    The district court afforded Busby the opportunity to present mitigation
    and other evidence at a hearing, but Busby did not identify any witnesses and
    18  ROA.1551.
    19  Ex parte Busby, 
    2009 WL 483096
    , at *1.
    20 ROA.696-1369, 2343-3092.
    21 See, e.g., Hall v. Florida, 
    134 S. Ct. 1986
    , 1990 (2014) (“Previous opinions of this
    Court have employed the term ‘mental retardation.’ This opinion uses the term ‘intellectual
    disability’ to describe the identical phenomenon.”).
    22 ROA.696-858; 2343-2524.
    23 Busby v. Stephens, No. 4:09-CV-160-O, 
    2015 WL 1037460
    , at *2 (N.D. Tex. Mar. 10,
    2015); ROA.1877.
    24 Ex Parte Busby, No. WR-70,747-02, 
    2013 WL 831550
    , at *1 (Tex. Crim. App. Mar.
    6, 2013) (per curiam) (unpublished); ROA.2323-24.
    25 See Busby, 
    2015 WL 1037460
    , at *2.
    4
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    offered only arguments of counsel. 26 The district court denied relief. 27 The
    court concluded that Busby’s Atkins claim was procedurally defaulted and did
    not satisfy the federal miscarriage-of-justice or actual-innocence exceptions to
    procedural default. 28 The district court further declined to excuse Busby’s
    procedural default of the claim that he received ineffective assistance of
    counsel in his direct appeal. 29 The federal district court also concluded that
    some of the mitigation evidence presented in Busby’s habeas petition was
    duplicative of evidence presented to the jury during his trial, and that, on
    balance, had the jury heard all of the mitigation evidence and weighed it
    against the aggravating evidence, there was no reasonable probability that at
    least one juror would have struck a different balance and would have answered
    the special issues submitted in the sentencing phase differently. 30 We granted
    a certificate of appealability on all three claims. 31
    II
    We first consider Busby’s Atkins claim and begin with an overarching
    summary of our conclusions regarding that claim. Busby was convicted in
    November 2005, three years after the Supreme Court’s seminal decision in
    Atkins. 32 He had retained a psychologist and mental health expert, Timothy
    Proctor, Ph.D., who was a defense witness at his state-court trial. Proctor
    administered two IQ tests, on which Busby scored 77 and 81, respectively.
    Proctor testified that the score of 77 placed Busby in approximately the bottom
    sixth percentile, meaning that 94% of the population had a higher IQ than
    26 See ROA.3366-3400.
    27 Busby, 
    2015 WL 1037460
    , at *28; ROA.3358.
    28 Busby, 
    2015 WL 1037460
    , at *18-21.
    29 
    Id. at *16-18.
          30 
    Id. at *12-14.
          31 Busby v. Davis, 677 F. App’x 884, 893 (5th Cir. 2017) (per curiam) (unpublished).
    32 Atkins v. Virginia, 
    536 U.S. 304
    (2002).
    5
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    Busby, 33 but that Busby was not intellectually disabled. 34 Busby made no
    claim before or during that trial, on direct appeal, or in his first state habeas
    corpus application that he is intellectually disabled or that any of his counsel
    had been ineffective in failing to investigate or pursue such a claim.
    The Atkins claim was first presented in Busby’s federal habeas petition.
    Busby argued that the evidence presented in that petition “proves by a
    preponderance of the evidence that he has mild mental retardation.” 35 The
    federal district court stayed proceedings to permit Busby to present the claim
    to a state court. 36 Because the Atkins claim was raised in state court in a
    second habeas petition and could have been presented in the first state habeas
    proceeding, Texas law required the TCCA to treat the claim as a successive
    habeas petition. 37 Busby asserted that he was actually innocent of the death
    penalty under article 11.071, section 5(a)(3) of the Texas Code of Criminal
    Procedure, 38 which essentially embodies the elements of the federal actual-
    innocence standard as set forth in Sawyer v. Whitley. 39 The TCCA denied the
    Atkins claim without an evidentiary hearing, 40 and Busby has not challenged
    the lack of a hearing.
    After the TCCA rejected his Atkins claim, Busby relied on the evidence
    attached to his federal habeas petition. It largely, but not entirely, mirrored
    the evidence presented to the TCCA. In his second amended petition for
    33  36 RR 55-56.
    34  36 RR 64; Busby, 
    2015 WL 1037460
    , at *10.
    35 ROA.820.
    36 ROA.1877.
    37 See Ex parte Blue, 
    230 S.W.3d 151
    , 156 (Tex. Crim. App. 2007); TEX. CODE CRIM.
    PRO. ANN. Art. 11.071, § 5(a) (West Supp. 2018).
    38 TEX. CODE CRIM. PRO. ANN. Art. 11.071, § 5(a)(3) (West Supp. 2018).
    39 
    505 U.S. 333
    , 336 (1992).
    40 See Ex parte Busby, No. WR-70,747-02, 
    2013 WL 831550
    , at *1 (Tex. Crim. App.
    Mar. 6, 2013) (per curiam) (unpublished).
    6
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    habeas relief in federal district court following the TCCA’s denial of relief,
    Busby addressed only the factual underpinnings of his Atkins claim. 41 He
    affirmatively relied upon the TCCA’s decision in Ex parte Briseño, 42 citing it as
    authoritative throughout his briefing on the Atkins claim. 43          Though he
    asserted that the TCCA had ruled on the merits in denying the Atkins claim, 44
    Busby did not argue in his briefing in the federal district court that the TCCA’s
    decision was based on an “unreasonable application of clearly established
    Federal law.” 45 Although he has forfeited such a claim by failing to raise it in
    the federal district court, we review the TCCA’s decision under § 2254(d)(1),
    out of an abundance of caution.
    Busby has retained at least four mental health experts during the course
    of his trial and post-conviction proceedings. None of them has diagnosed Busby
    as intellectually disabled or opined that he is intellectually disabled. Only
    counsel has offered that opinion. His expert witness at the trial resulting in
    his conviction and sentencing testified that Busby is not intellectually disabled.
    Busby’s second state habeas petition and his federal habeas petition attach
    reports from three other experts, mental health literature, and affidavits or
    declarations containing information about Busby’s childhood and life. The
    record reflects several IQ scores, one of which resulted in a full-scale IQ score
    of 81. 46 The TCCA’s decision was not “based on an unreasonable determination
    of the facts in light of the evidence presented in the State court proceeding.” 47
    Clearly established federal law is not violated or misapplied when a state
    41 ROA.2462-2493.
    42 
    135 S.W.3d 1
    (Tex. Crim. App. 2004).
    43 ROA.2462-2477.
    44 ROA.2492.
    45 28 U.S.C. § 2254(d)(1).
    46 ROA.2453.
    47 28 U.S.C. § 2254(d)(2).
    7
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    court requires an inmate, convicted after Atkins, who presents an Atkins claim
    in a second, successive state habeas petition to show by clear and convincing
    evidence that “no reasonable juror [or factfinder] would have found him eligible
    for the death penalty.” 48 Stated another way, when a reasonable factfinder
    could conclude from the evidence Busby presented that he is not intellectually
    disabled, a state court has not violated clearly established federal law. Under
    federal law, if an actual-innocence claim were presented in a successive federal
    habeas petition, a clear-and-convincing-evidence standard would be applied. 49
    Federal law does not require states to apply a less demanding standard in a
    successive state habeas proceeding. Alternatively, applying a preponderance-
    of-the-evidence standard, the TCCA’s decision was not based on an
    unreasonable determination of the facts in light of the evidence presented to
    it. No expert has ever opined that Busby is intellectually disabled.
    The TCCA’s disposition of the Atkins claim withstands scrutiny under
    AEDPA. 50
    A
    The only state court to have considered Busby’s Atkins claim was the
    TCCA. The claim was presented to that court in a second application for
    habeas relief, and the Texas court denied relief in a brief written order. The
    Supreme Court has held that “[a] federal habeas court will not review a claim
    rejected by a state court ‘if the decision of [the state] court rests on a state law
    ground that is independent of the federal question and adequate to support the
    48 See Sawyer v. Whitley, 
    505 U.S. 333
    , 349 (1992) (holding that to establish actual
    innocence, a petitioner must show “by clear and convincing evidence that but for
    constitutional error, no reasonable juror would find him eligible for the death penalty”); TEX.
    CODE CRIM. PRO. ANN. Art. 11.071, § 5.03(a)(3) (West Supp. 2018).
    49 See 28 U.S.C. § 2244(b)(2)(B)(ii); McQuiggin v. Perkins, 
    569 U.S. 383
    , 395-96 (2013).
    50 28 U.S.C. § 2254(d)(1), (2).
    8
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    judgment.” 51 The federal district court concluded that Busby’s Atkins claim
    was procedurally defaulted.            Busby takes issue with this conclusion,
    contending that the TCCA’s ruling was a merits decision. We agree. The state
    court’s decision regarding the Atkins claim was not independent of the federal
    question, and it necessarily entailed an assessment of the facts presented in
    support of the Atkins claim. It was a decision on the merits within the meaning
    of AEDPA.
    The TCCA’s order denying relief on the claims set forth in Busby’s second
    state habeas application said, “we dismiss the application as an abuse of the
    writ without considering the merits of the claims.” 52 Generally, “when a state
    court issues an order that summarily rejects without discussion all the claims
    raised by a defendant, including a federal claim that the defendant
    subsequently presses in a federal habeas proceeding, the federal habeas court
    must presume (subject to rebuttal) that the federal claim was adjudicated on
    the merits.” 53 “The presumption may be overcome when there is reason to
    think some other explanation for the state court's decision is more likely.” 54
    On its face, the TCCA’s order states that is has denied the application as
    an abuse of the writ without considering the merits of the claims. This would
    appear to be sufficient to rebut the presumption that Busby’s federal claims
    were adjudicated on the merits, with at least one exception—his Atkins claim.
    His Atkins claim in the TCCA was just one of his claims. His lead contentions
    in the TCCA were arguments concerning mitigation evidence that his trial
    
    51 Walker v
    . Martin, 
    562 U.S. 307
    , 315 (2011) (quoting Beard v. Kindler, 
    558 U.S. 53
    ,
    55 (2009)).
    52 Ex Parte Busby, No. WR-70,747-02, 
    2013 WL 831550
    , at *1 (Tex. Crim. App. Mar.
    6, 2013) (per curiam) (unpublished).
    53 Johnson v. Williams, 
    568 U.S. 289
    , 293 (2013) (citing Harrington v. Richter, 
    562 U.S. 86
    , 99 (2011)).
    54 
    Harrington, 562 U.S. at 99-100
    .
    9
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    counsel failed to discover. Busby submitted three broad claims to the TCCA in
    his second habeas application: (1) ineffective assistance of trial counsel during
    the sentencing phase in failing to conduct a reasonable sentencing
    investigation and failing to seek admittance of Latimer’s hearsay statements,
    (2) Busby’s sentence violates the Eighth Amendment because he is
    intellectually disabled, and (3) his sentence violates the Eighth and Fourteenth
    Amendments because he is severely mentally ill. His ineffective-assistance-of-
    trial-counsel claim regarding mitigation evidence (unrelated to intellectual
    disability) subsumed large portions (the first 76 pages) of his second state
    habeas application. It is highly probable that the TCCA denied relief on the
    ineffective-assistance-of-trial-counsel claims on the ground that they were
    procedurally barred since they were not raised in the initial state habeas
    petition. But the same cannot be said of the Atkins claim.
    The TCCA’s seminal decision in Ex parte Blue makes clear that when a
    defendant who was convicted post-Atkins raises an Atkins claim for the first
    time in a successive habeas application, the Texas court must determine
    whether the defendant has asserted facts, which if true, would sufficiently
    state an Atkins claim to permit consideration of the successive petition. 55 That
    determination is necessarily dependent on a substantive analysis of the Eighth
    and Fourteenth Amendments as applied to the factual allegations.
    As noted, Busby first raised his Atkins claim in his federal habeas
    petition, and the district court stayed that proceeding to permit exhaustion of
    the claim by the state courts. His Atkins claim was accordingly presented in a
    second state habeas petition to the TCCA. Under section 5 of Texas’s abuse-
    55   
    230 S.W.3d 151
    , 162-63 (Tex. Crim. App. 2007).
    10
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    of-the-writ statute, the TCCA is required to dismiss subsequent habeas
    petitions 56 unless sufficient specific facts are set forth:
    Sec. 5. (a) If a subsequent application for a writ of habeas corpus
    is filed after filing an initial application, a court may not consider
    the merits of or grant relief based on the subsequent application
    unless the application contains sufficient specific facts
    establishing that:
    (1) the current claims and issues have not been and could not have
    been presented previously . . . because the factual or legal basis
    for the claim was unavailable on the date the applicant filed the
    previous application;
    (2) by a preponderance of the evidence, but for a violation of the
    United States Constitution no rational juror could have found
    the applicant guilty beyond a reasonable doubt; or
    (3) by clear and convincing evidence, but for a violation of the
    United States Constitution no rational juror would have
    answered in the state's favor one or more of the special issues
    that were submitted to the jury in the applicant's trial . . . . 57
    The State contends that because intellectual disability, by definition,
    must exist during childhood, and because the Supreme Court’s decision in
    Atkins had issued well before Busby filed his first state habeas application,
    Busby’s second application was resolved under section 5(a)(1). The State cites
    this court’s decision in Rocha v. Thaler 58 for the proposition that the TCCA’s
    dismissal did not involve the merits of Busby’s Atkins claim, arguing that
    Busby’s claim was dismissed under section 5(a)(1), rather than section 5(a)(3).
    The State’s argument is not well-taken. It badly misreads this court’s decision
    in Rocha as well as the TCCA’s decision in Ex parte Blue. 59
    56 See TEX. CODE CRIM. PROC. ANN. art. 11.071 § 5(c) (West Supp. 2018).
    57 
    Id. § 5(a).
          58 
    626 F.3d 815
    , 838 (5th Cir. 2010).
    59 
    230 S.W.3d 151
    .
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    The Rocha opinion discussed cases that predated the TCCA’s decision in
    Blue, and Rocha recognized that, though the TCCA addressed Atkins claims
    under section 5(a)(1) for a period of time, by the time Rocha was decided, the
    TCCA had begun resolving Atkins claims like Busby’s under section 5(a)(3). 60
    Moreover, the opinion in Rocha expressly recognized that, during the bygone
    era in which the TCCA considered Atkins claims under section 5(a)(1), the
    TCCA “step[ped] beyond a procedural determination to examine the merits of
    an Atkins claim.” 61 The Rocha opinion said,
    This prima-facie review meant that CCA decisions dismissing
    Atkins claims for failure to satisfy § 5(a)(1) rested on the merits of
    those claims.      Consequently, the federal courts were not
    procedurally barred from considering federal habeas petitions
    advancing Atkins claims that had been dismissed as abuses of the
    writ for failure to satisfy § 5(a)(1). We first recognized that this
    new, Atkins-specific screening function had robbed § 5(a)(1)
    dismissals of their independent, state-law character in our 2005
    decision in Morris v. Dretke. 62
    The Rocha opinion concluded that “[t]he new prima-facie-showing
    requirement the [T]CCA had engrafted onto § 5(a)(1) was specific to Atkins
    claims,” and that “even as we were reaching the merits of Atkins claims that
    had been dismissed under § 5(a)(1), we continued to treat other kinds of
    petitions that had been dismissed under § 5(a)(1) as having been dismissed on
    an independent and adequate state-law ground.” 63 Accordingly, even had the
    TCCA resolved Busby’s Atkins claim under section 5(a)(1), our court has
    concluded that the denial of an Atkins claim under section 5(a)(1) meant that
    60 
    Rocha, 626 F.3d at 822
    , 829-841.
    61 
    Id. at 832
    (quoting Rivera v. Quarterman, 
    505 F.3d 349
    , 359-60 (5th Cir. 2007)).
    62 
    Id. at 831.
          63 
    Id. at 832
    -33.
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    the merits of the claim were considered by the TCCA, and the claim was not
    procedurally defaulted.
    In Blue, the TCCA held that section 5(a)(1) does not govern when a
    petitioner files “his initial writ application after Atkins and nevertheless failed
    to invoke the absolute constitutional prohibition against executing the
    mentally retarded in that initial writ.” 64 Instead, “the decision whether to
    permit him to proceed will be purely a function of whether he can meet one of
    the other criteria of Article 11.071, Section 5.” 65 The TCCA expressly held that
    such Atkins claims are reviewed under section 5(a)(3). 66 Unquestionably then,
    Busby’s Atkins claim was resolved under section 5(a)(3).
    The TCCA’s decision in Blue also compels the conclusion that when the
    TCCA dismissed Busby’s Atkins claim in his second habeas proceeding, the
    TCCA considered the merits of his claim. The TCCA’s decision in Blue explains
    that “through Article 11.071, Section 5(a)(3), the [Texas] Legislature has
    provided a mechanism whereby a subsequent habeas applicant may proceed
    with an Atkins claim,” even if the petitioner’s conviction was post-Atkins, and
    therefore his first state habeas petition could have raised an Atkins claim but
    did not do so. 67 The Atkins claim may be pursued “if [the defendant] is able to
    demonstrate to [the TCCA] that there is evidence that could reasonably show,
    to a level of confidence by clear and convincing evidence, that no rational finder
    of fact would fail to find he is mentally retarded.” 68               In Blue, the TCCA
    “construe[d] . . . Section 5(a)(3) to require a threshold showing of evidence that
    would be at least sufficient to support an ultimate conclusion, by clear and
    64 Ex parte Blue, 
    230 S.W.3d 151
    , 156 (Tex. Crim. App. 2007).
    65 
    Id. 66 Id.
    at 162.
    67 
    Id. at 154,
    162.
    68 
    Id. at 154.
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    convincing evidence, that no rational factfinder would fail to find mental
    retardation.” 69
    The TCCA’s decision in Blue examined at length the evidence supporting
    the claim that Blue came within Atkins’s prohibition. 70              The Texas court
    concluded that the evidence did not meet section 5(a)(3)’s threshold, 71 and the
    court dismissed the “subsequent writ application as an abuse of the writ.” 72
    This was not a denial of relief on purely state-law procedural grounds,
    independent of federal law, because in addressing the Atkins claim, the TCCA
    necessarily considered federal law in assessing the sufficiency of the facts
    supporting the claim. When Blue subsequently sought habeas relief in the
    federal courts, our court noted that “the state accepts that the [T]CCA decided
    the merits of Blue’s Atkins claim.” 73
    The TCCA has described section 5(a)(3) as “represent[ing] the [Texas]
    Legislature’s attempt to codify something very much like [the] doctrine of
    ‘actual innocence of the death penalty’ for purposes of subsequent state
    writs.” 74 The TCCA deduced that “the Legislature apparently intended to
    codify, more or less, the doctrine found in Sawyer v. Whitley.” 75 In Sawyer, a
    pre-AEDPA decision, the United States Supreme Court resolved the “standard
    for determining whether a petitioner bringing a successive, abusive, or
    defaulted federal habeas claim has shown he is ‘actually innocent’ of the death
    penalty to which he has been sentenced so that the court may reach the merits
    69 
    Id. at 163.
          70 
    Id. at 164-66.
          71 
    Id. at 166.
          72 
    Id. at 168.
          73 Blue v. Thaler, 
    665 F.3d 647
    , 654 (5th Cir. 2011).
    74 Ex parte Blue, 
    230 S.W.3d 151
    , 160 (Tex. Crim. App. 2007).
    75 
    Id. (citing Sawyer
    v. Whitley, 
    505 U.S. 333
    (1992)).
    14
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    No. 15-70008
    of the claim” in a successive federal habeas petition. 76 The Supreme Court held
    that “to show ‘actual innocence’ one must show by clear and convincing
    evidence that, but for a constitutional error, no reasonable juror would have
    found the petitioner eligible for the death penalty under the applicable state
    law.” 77 In Blue, the TCCA reasoned that because a person who is intellectually
    disabled is constitutionally ineligible for the death penalty, “no rational juror
    would answer any of the special issues in the State’s favor, if only for the simple
    reason that the statutory special issues would not be submitted to the jurors
    in the first place.” 78
    Texas Code of Criminal Procedure article 11.071, section 5(a)(3) provides
    a state-law actual innocence gateway through which a defendant may present
    an Atkins claim that would otherwise be procedurally defaulted under state
    law. The TCCA’s denial of Busby’s Atkins claim under section 5(a)(3) is best
    understood, therefore, as a determination that Busby did not make a threshold
    showing of evidence that would be sufficient to support, by clear and convincing
    evidence, an ultimate conclusion that no rational factfinder would fail to find
    him intellectually disabled. 79          Because that determination necessarily
    considers the merits of a federal constitutional claim based on Atkins, it is not
    procedurally defaulted, as that concept has been expressed in federal decisions
    such as Walker v. Martin. 80
    
    76 505 U.S. at 335
    .
    77 
    Id. at 336.
           78 Ex parte 
    Blue, 230 S.W.3d at 161
    .
    79 
    Id. at 163.
           80 
    562 U.S. 307
    , 315-16 (2011).
    15
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    B
    Our review of the state court’s disposition of Busby’s Atkins claim is
    governed by AEDPA. 81 The Supreme Court applied AEDPA in Brumfield v.
    Cain to an Atkins claim that was first raised in a state habeas proceeding and
    then pursued in a federal habeas petition. 82 More recently, the Supreme Court
    emphasized that AEDPA demands deference to state court dispositions of
    Atkins claims. 83      We reject Busby’s contention that the TCCA’s decision
    denying his Atkins claim is not entitled to deference under AEDPA and his
    assertion that we must review his Atkins claim de novo. 84
    Busby argues in his petition for rehearing that this court’s decision in
    Rocha held that the TCCA’s denial of an Atkins claim under section 5(a)(3)
    would not be subject to review under AEDPA but must be reviewed de novo.
    This is erroneous. The decision in Rocha involved a Wiggins 85 claim, which is
    an assertion that trial counsel failed to investigate adequately for mitigating
    evidence. 86 The Rocha decision expressly drew a distinction between Atkins
    and Wiggins claims. 87 In any event, had Rocha implied that we do not review
    81 See, e.g., Brumfield v. Cain, 
    135 S. Ct. 2269
    , 2275 (2015).
    82  
    Id. (quoting 28
    U.S.C. §§ 2254(d)(1)) (“After the Louisiana Supreme Court
    summarily denied his application for a supervisory writ to review the trial court's ruling,
    Brumfield filed a petition for habeas corpus in federal court, again pressing his Atkins claim.
    Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Brumfield
    could secure relief only if the state court's rejection of his claim was either ‘contrary to, or
    involved an unreasonable application of, clearly established Federal law, as determined by
    the Supreme Court of the United States,’ or was ‘based on an unreasonable determination of
    the facts in light of the evidence presented in the State court proceeding.’”).
    83 See Shoop v. Hill, 
    139 S. Ct. 504
    , 506-07 (2019).
    84 Petition for Rehearing at iv, 10-11, 12, 15.
    85 Wiggins v. Smith, 
    539 U.S. 510
    (2003).
    86 See Rocha v. Thaler, 
    626 F.3d 815
    , 820 (5th Cir. 2010).
    87 
    Id. at 826-27
    (“There may well be some exceptions to the rule that a decision on the
    gateway innocence claim does not constitute a decision on the underlying constitutional
    claim. As Judge Dennis has previously recognized, an Atkins claim is a claim that the
    petitioner is ineligible for the death penalty. So too is a claim that the petitioner was under
    eighteen at the time of his crime, is insane, or has some other characteristic that the Supreme
    16
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    No. 15-70008
    an Atkins claim like Busby’s under AEDPA, that would have been dicta and
    would be contrary to the Supreme Court’s subsequent decisions in Brumfield
    and Shoop. The Rocha decision would therefore not be binding precedent on
    this issue.
    C
    Under 28 U.S.C. § 2254(d)(1), we must ascertain the clearly established
    federal law, as determined by the Supreme Court of the United States, with
    regard to an Atkins claim that was first raised in state court in a second habeas
    petition. 88 Under state law, this case is in a different procedural posture than
    one in which a defendant first raises a claim that he is intellectually disabled
    at his murder trial or in his first state habeas application. At trial or in an
    initial habeas proceeding, a defendant in Texas state court has the burden of
    establishing an Atkins claim by a preponderance of the evidence. 89 Since
    Busby first raised an Atkins claim in state court in a subsequent habeas
    petition, Texas Code of Criminal Procedure article 11.071, section 5(a)(3)
    requires that Busby must prove by “clear and convincing evidence, that no
    rational factfinder would fail to find mental retardation.” 90 In ruling upon
    Court has held categorically justifies exemption from the death penalty. In such cases, the
    inquiry into the gateway innocence claim will substantially overlap with the inquiry into the
    merits of the underlying constitutional claim. Our panel opinion's holding does not implicate
    this limited class of cases, as Rocha's Wiggins claim is not a claim of categorical ineligibility
    for the death penalty.”).
    88 28 U.S.C. § 2254(d)(1).
    89 See Gallo v. State, 
    239 S.W.3d 757
    , 770 (Tex. Crim. App. 2007) (“[I]n a habeas action,
    a defendant has the burden to prove mental retardation by a preponderance of the evidence.
    Similarly, we now hold that when the issue is presented at trial, a defendant bears the burden
    of proof, by a preponderance of the evidence, to establish that he is mentally retarded.”).
    90 Ex parte Blue, 
    230 S.W.3d 151
    , 163 (Tex. Crim. App. 2007); see also 
    id. at 154
    (“We
    conclude that through Article 11.071, Section 5(a)(3), the Legislature has provided a
    mechanism whereby a subsequent habeas applicant may proceed with an Atkins claim if he
    is able to demonstrate to this Court that there is evidence that could reasonably show, to a
    level of confidence by clear and convincing evidence, that no rational finder of fact would fail
    17
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    Busby’s Atkins claim, the TCCA necessarily held that Busby failed to present
    “evidence that could reasonably show, to a level of confidence by clear and
    convincing evidence, that no rational finder of fact would fail to find he is
    mentally retarded.” 91 The TCCA foreclosed Busby from establishing his claim
    under     the     less-demanding         preponderance-of-the-evidence           standard.
    Accordingly, an initial question is whether the TCCA unreasonably applied
    clearly established federal law in doing so.
    Supreme Court decisions construing AEDPA indicate that the federal
    constitution permits federal courts to deny, as an abuse of the writ, a claim
    that a defendant is innocent of the death penalty, if the actual-innocence claim
    is brought in a successive application under 28 U.S.C. § 2244, and the factual
    predicate for the claim could have been discovered previously through the
    exercise of due diligence. 92 There is no basis for concluding that the federal
    constitution prohibits the States from similarly denying, as an abuse of the
    writ, claims of actual innocence of the death penalty first asserted in a second,
    successive or, to use the language of the Texas statute, “subsequent” state
    habeas petition.
    As discussed above, the Supreme Court’s pre-AEDPA decision in Sawyer
    v. Whitley established that federal courts could employ the miscarriage of
    justice exception even if claims were first raised in successive federal habeas
    petitions. 93 However, in McQuiggin v. Perkins, the Supreme Court explained
    that in enacting AEDPA, Congress “constrained the application of the
    to find he is mentally retarded. However, because we find that the applicant in this case has
    failed to satisfy this heightened-threshold burden, we deny him leave to proceed.”).
    91 
    Id. at 154.
            92 See 28 U.S.C. § 2244(b)(2)(B); see also McQuiggin v. Perkins, 
    569 U.S. 383
    , 395-96
    (2013).
    93 See 
    505 U.S. 333
    , 335-36, 339 (1992).
    18
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    [miscarriage-of-justice] exception” by the inclusion of § 2244(b)(2)(B). 94 That
    section of AEDPA “limits the exception to cases in which ‘the factual predicate
    for the claim could not have been discovered previously through the exercise of
    due diligence,’ and the petitioner can establish that no reasonable factfinder
    ‘would have found [her] guilty of the underlying offense’ by ‘clear and
    convincing evidence.’” 95 The Supreme Court reasoned that “Congress thus
    required second-or-successive habeas petitioners attempting to benefit from
    the miscarriage of justice exception to meet a higher level of proof (‘clear and
    convincing evidence’) and to satisfy a diligence requirement that did not exist
    prior to AEDPA’s passage.” 96
    Texas law is less demanding than federal law in this regard. A defendant
    asserting an Atkins claim post-Atkins is not required to satisfy a diligence
    requirement but only to establish “by clear and convincing evidence” that “no
    rational juror would have answered in the state’s favor one or more of the
    special issues that were submitted to the jury.” 97 The application of this Texas-
    law standard to Atkins claims by persons convicted post-Atkins is not “contrary
    to . . . clearly established Federal law, as determined by the Supreme Court of
    the United States.” 98
    The Supreme Court’s holdings regarding Ford 99 incompetence-to-be-
    executed claims cannot be imported, wholesale, into the law governing Atkins
    claims. First and foremost, a Ford incompetency-to-be-executed claim is not
    necessarily “successive” even if raised in a second or subsequent habeas
    
    94 569 U.S. at 395
    .
    95 
    Id. at 396.
          96 
    Id. 97 TEX.
    CODE CRIM. PROC. ANN. art. 11.071 § 5(a)(3) (West Supp. 2018).
    98 28 U.S.C. § 2254(d)(1).
    99 Ford v. Wainwright, 
    477 U.S. 399
    (1986).
    19
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    application. 100 A Ford claim can be raised in multiple proceedings and not be
    “successive.” 101 That is because mental incompetence to be executed is not
    categorically a permanent condition. 102 Incompetence may occur at various
    points after conviction, and it may recede and later reoccur. A finding that an
    inmate is incompetent to be executed does not foreclose the possibility that she
    may become competent in the future and would no longer be constitutionally
    ineligible for the death penalty. 103 By contrast, intellectual disability is by
    definition a permanent condition that must have manifested before the age of
    100 See Panetti v. Quarterman, 
    551 U.S. 930
    , 947 (2007) (noting that in Ford the Court
    “remand[ed] the case to the District Court to resolve Ford's incompetency claim, even though
    Ford had brought that claim in a second federal habeas petition”); 
    id. (“The statutory
    bar on
    ‘second or successive’ applications does not apply to a Ford claim brought in an application
    filed when the claim is first ripe. Petitioner's habeas application was properly filed, and the
    District Court had jurisdiction to adjudicate his claim.”); 
    id. (citing Barnard
    v. Collins, 
    13 F.3d 871
    , 878 (5th Cir. 1994) for our court’s observation that “our research indicates no
    reported decision in which a federal circuit court or the Supreme Court has denied relief of a
    petitioner's competency-to-be-executed claim on grounds of abuse of the writ”).
    101 See id.; see also Green v. Thaler, 
    699 F.3d 404
    , 421 (5th Cir. 2012) (OWEN, J.,
    concurring) (“[A] defendant subject to a sentence of death could initiate more than one
    competency proceeding in a state court over time, and habeas petitions separately
    challenging each state-court competency proceeding would not necessarily be considered
    successive under AEDPA. Each proceeding might depend on the facts that obtained at the
    time of the competency hearing, particularly when relatively long periods of time had passed
    between adjudications of competency.”).
    102 See 
    Ford, 477 U.S. at 429
    (O’CONNOR, J., concurring in the result in part and
    dissenting in part) (“Regardless of the number of prior adjudications of the issue, until the
    very moment of execution the prisoner can claim that he has become insane sometime after
    the previous determination to the contrary.”); 
    id. at 435
    (REHNQUIST, J., dissenting) (“A claim
    of insanity may be made at any time before sentence and, once rejected, may be raised again;
    a prisoner found sane two days before execution might claim to have lost his sanity the next
    day, thus necessitating another judicial determination of his sanity and presumably another
    stay of his execution” (citing Nobles v. Georgia, 
    168 U.S. 398
    , 405-06 (1897))); 
    Nobles, 168 U.S. at 405
    (observing that “a finding that insanity did not exist at one time would not be the
    thing adjudged as to its nonexistence at another”).
    103 See 
    Green, 699 F.3d at 421
    (OWEN, J., concurring) (reasoning that “a determination
    that a defendant was incompetent to be executed would not vacate the sentence of death.
    The sentence would remain, but, as a constitutional matter, it could not be enforced unless
    and until the defendant became competent to be executed”).
    20
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    18.    A person who is found to be intellectually disabled is permanently
    ineligible to be executed, and the sentence of death is vacated.
    Busby’s Atkins claim was presented in a successive state application. 104
    A defendant convicted by a federal court who presents an Atkins claim in a
    successive federal application would not be entitled under federal law to de
    novo review of that claim in federal court, or to review under a preponderance-
    of-the-evidence standard. 105 Busby does not contend that the gateway clear-
    and-convincing-evidence standard in Texas Code of Criminal Procedure article
    11.071, section 5(a)(3) is unconstitutional. The clear-and-convincing-evidence
    component of that standard is congruent with federal law, as set forth in 28
    U.S.C. § 2244(b)(2)(B)(ii) and in McQuiggin v. Perkins, 106 when an actual
    innocence-of-the-death-penalty claim is first asserted in a successive habeas
    application.     Accordingly, Texas’s application of the clear-and-convincing
    standard was not an unreasonable application of clearly established federal
    law.
    In his petition for rehearing, Busby asserts that the standard of review
    was not briefed, suggesting that our court should not or could not consider the
    proper standard of review absent briefing. Busby cannot avoid application of
    the correct standard of review by failing to mention or brief it. By the same
    token, even if an opposing party, in this case a state, does not address the
    proper standard of review in its briefing, or failed to file a brief at all, it is
    incumbent on courts to apply AEDPA. 107 We cannot grant habeas relief unless
    104Ex parte Busby, No. WR-70,747-02, 
    2013 WL 831550
    , at *1 (Tex. Crim. App. Mar.
    6, 2013) (per curiam) (unpublished).
    105 See 28 U.S.C. § 2244(b)(2)(B)(ii).
    106 
    569 U.S. 383
    , 396 (2013).
    107 See, e.g., Winfield v. Dorethy, 
    871 F.3d 555
    , 560-63 (7th Cir. 2017) (citing Worth v.
    Tyer, 
    276 F.3d 249
    , 262 n.4 (7th Cir. 2001)) (explaining “the general principle that waiver
    does not apply to arguments regarding the applicable standard of review”); Gardner v.
    21
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    AEDPA’s requirements have been met. 108 We are obliged to discern how
    AEDPA applies when an Atkins claim is first presented to a state court in a
    successive state habeas proceeding.
    In his petition for rehearing, Busby also argues that we misconstrued his
    federal application as successive in our initial (now-withdrawn) opinion. 109
    Busby misreads that opinion.             It is clear that all references to Busby’s
    “successive petition” were to his second Texas state court habeas application,
    which is subsequent or successive under state law. We did not refer to or treat
    his federal habeas petition as “successive.”
    D
    Only Supreme Court holdings qualify as clearly established federal law
    under AEDPA. 110 “‘[C]learly established Federal law’ . . . is the governing legal
    principle or principles set forth by the Supreme Court at the time the state
    court renders its decision.” 111 The TCCA issued its decision denying relief on
    Busby’s Atkins claim on March 6, 2013. 112 The Supreme Court has recently
    indicated that two of its decisions, Moore v. Texas, 113 decided in 2017, and Hall
    Galetka, 
    568 F.3d 862
    , 879 (10th Cir. 2009) (“[T]he correct standard of review under AEDPA
    is not waivable. It is, unlike exhaustion, an unavoidable legal question we must ask, and
    answer, in every case.”); 
    Worth, 276 F.3d at 262
    n.4. (explaining in the context of a Title VII
    challenge that “the court, not the parties, must determine the standard of review, and
    therefore, it cannot be waived”).
    108 28 U.S.C. § 2254(b).
    109 See Busby v. Davis, 
    892 F.3d 735
    , 746-47 (5th Cir. 2018).
    110 See Carey v. Musladin, 
    549 U.S. 70
    , 74 (2006); Yarborough v. Alvarado, 
    541 U.S. 652
    , 660-61 (2004).
    111 Lockyer v. Andrade, 
    538 U.S. 63
    , 71-72 (2003); see also Greene v. Fisher, 
    565 U.S. 34
    , 38 (2011) (quoting Cullen v. Pinholster, 
    563 U.S. 170
    , 182 (2011)) (stating that federal
    courts “measure state-court decisions ‘against [Supreme Court] precedents as of “the time the
    state court renders its decision.”’”).
    112 Ex parte Busby, No. WR-70,747-02, 
    2013 WL 831550
    , at *1 (Tex. Crim. App. Mar.
    6, 2013) (per curiam) (unpublished).
    113 
    137 S. Ct. 1039
    (2017).
    22
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    v. Florida, 114 decided in 2014, did not become clearly established federal law
    regarding certain aspects of an Atkins claim until the respective dates of their
    issuance. 115 To the extent that Moore and Hall expanded Atkins, they were
    not clearly established federal law when the TCCA denied relief on Busby’s
    Atkins claims.
    The TCCA’s decision was a succinct denial of relief. 116 It did not identify
    the law that it applied. The Supreme Court has held that “[s]ection 2254(d)
    applies even where there has been a summary denial” of habeas relief. 117
    Busby “can satisfy the ‘unreasonable application’ prong of § 2254(d)(1) only by
    showing that ‘there was no reasonable basis’ for the [TCCA’s] decision.” 118
    Because application of the currently prevailing law regarding intellectual
    disability to the facts of this case would not require the grant of habeas relief,
    we will not parse the precise contours of clearly established federal law as of
    March 6, 2013. For the same reason, the argument in Busby’s petition for
    rehearing that Moore invalidated the Briseño factors, and that the TCCA must
    have applied those factors, is unavailing.
    For purposes of our review, we use the definition that the Supreme Court
    said in Moore is the “generally accepted, uncontroversial intellectual-disability
    diagnostic definition” that the Texas state trial court in Moore had applied:
    (1) intellectual-functioning deficits (indicated by an IQ score
    “approximately two standard deviations below the mean”—i.e., a
    score of roughly 70—adjusted for “the standard error of
    measurement,” AAIDD–11, at 27); (2) adaptive deficits (“the
    inability to learn basic skills and adjust behavior to changing
    114 
    572 U.S. 701
    (2014).
    115 Shoop v. Hill, 
    139 S. Ct. 504
    , 507-508 (2019).
    116 Ex parte Busby, 
    2013 WL 831550
    , at *1.
    117 Cullen v. Pinholster, 
    563 U.S. 170
    , 187 (2011) (citing Harrington v. Richter, 
    562 U.S. 86
    , 101-02 (2011)).
    118 
    Id. at 188.
    23
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    circumstances,” Hall v. Florida, 572 U.S. ___, ___, 
    134 S. Ct. 1986
    ,
    1994, 
    188 L. Ed. 2d 1007
    (2014)); and (3) the onset of these deficits
    while still a minor. See App. to Pet. for Cert. 150a (citing AAIDD–
    11, at 1). See also Hall, 572 U.S., at ___, 134 S.Ct., at 1993–1994. 119
    We will also hew to the Supreme Court’s decisions regarding Atkins claims that
    post-date the TCCA’s 2013 denial of Busby’s Atkins claim. 120
    E
    A federal court cannot grant habeas relief under 28 U.S.C. § 2254(d)(2)
    “unless the adjudication of the claim . . . 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.” 121 In denying Busby’s Atkins claim,
    the TCCA necessarily held that he failed to present “evidence that, if true,
    would be sufficient to show by clear and convincing evidence that no rational
    factfinder would fail to find him mentally retarded.” 122 The standard of review
    that the TCCA applied is not contrary to federal law, for the reasons discussed
    above. Accordingly, we assess whether the TCCA unreasonably determined
    that the facts set forth in Busby’s petition, if true, would not establish by clear
    and convincing evidence that no rational factfinder would fail to find Busby
    intellectually disabled.       Alternatively, we also assess whether, applying a
    preponderance-of-the-evidence burden of proof, the TCCA’s decision was based
    on an unreasonable determination of the facts. We conclude that applying
    either burden of proof, § 2254(d)(2)’s requirement has not been met, and
    habeas relief is not warranted.
    119 Moore v. Texas, 
    137 S. Ct. 1039
    , 1045 (2017).
    120 See, e.g., id.; Brumfield v. Cain, 
    135 S. Ct. 2269
    (2015); Hall v. Florida, 
    134 S. Ct. 1986
    (2014).
    121 28 U.S.C. § 2254(d)(2).
    122 Ex parte Blue, 
    230 S.W.3d 151
    , 163 (Tex. Crim. App. 2007).
    24
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    We begin with Busby’s IQ scores. Busby was administered five separate
    IQ tests between 2001 and 2010. 123 He scored 96 on an unknown IQ test in
    2001, 124 and the State offered to “forget about” that test, acknowledging that it
    was unreliable. 125 Because it does not impact our analysis, we do not consider
    that test. Prior to his criminal trial, three more IQ tests were administered to
    Busby. He received a full scale IQ of 77 on the WAIS-III, administered in 2005
    by his expert witness at trial, Dr. Proctor. 126                 The standard error of
    measurement (SEM) 127 for the WAIS-III is approximately “plus or minus five,”
    according to Dr. Proctor’s trial testimony. 128 Busby’s IQ was therefore in a
    range of 72-82, as measured by the WAIS-III. Busby asserted in his second
    state habeas petition that due to the “Flynn Effect,” the score of 77 should be
    adjusted to 73.7.           Weeks after Dr. Proctor’s assessment, the State’s
    psychologist re-administered the WAIS-III, and Busby scored 79. 129 The IQ
    range would be 74-84, based on that test and its SEM.
    Dr. Proctor administered a third IQ test on the eve of trial—the
    Beta-III—on which Busby scored 81. 130                Proctor testified that this score
    “correlates fairly well” with Busby’s WAIS-III score. 131 The SEM for the Beta-
    III is not in the record. Busby argued to the TCCA that “[a] mental retardation
    expert would opine, however, that the Beta IQ test, because of its less
    comprehensive nature, is widely acknowledged to inflate IQ scores generally,
    123   Busby v. Stephens, No. 4:09-CV-160-O, 
    2015 WL 1037460
    , at *20 (N.D. Tex. Mar.
    10, 2015).
    124 
    Id. 125 Id.;
    36 RR 64.
    126 Busby, 
    2015 WL 1037460
    , at *20; 36 RR 40, 53.
    127 See generally Hall v. Florida, 
    134 S. Ct. 1986
    , 1995 (2014).
    128 36 RR 57.
    129 Busby, 
    2015 WL 1037460
    , at *20.
    130 
    Id. 131 36
    RR 48.
    25
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    to be subject to a higher Flynn Effect rate than the Wechsler scales, and to be
    less reliable overall than the Wechsler Scales.” 132 However, no expert did so
    opine in the state-court proceedings, and there was no evidence provided to the
    TCCA as to what the IQ range would be if the SEM were considered or if the
    Flynn Effect were accepted and applied. All that the TCCA had before it
    regarding the Beta-III test was the fact that Busby had scored 81 and the
    arguments of counsel attempting to discredit or explain that score. Even
    assuming that the SEM for the Beta-III test is similar to that for the WAIS-III,
    the IQ range would be 76-86. Such a range would be above the range of 75 or
    below that the Supreme Court has applied in its recent opinions regarding IQ
    scores in the context of an Atkins claim. 133             The Supreme Court said in
    Brumfield that evidence of an IQ score whose range, adjusted by the SEM, was
    above 75 “could render the state court’s determination reasonable.” 134
    Busby provided arguments in his federal habeas petition regarding the
    Beta-III test and his score of 81 that were not presented to the TCCA. He
    asserted in federal court that the Beta-III had been “normed” seven years
    before it was administered to Busby, and that if adjusted for the Flynn Effect,
    the score would be 78.7. 135 He did not point to any expert testimony or other
    evidence in the record that supports these arguments. Nor is there evidence
    as to the SEM of this test or the range of the score when the SEM is considered.
    Again, there was only argument of counsel.                    Busby was provided the
    132  ROA.3525.
    133  See Hall v. Florida, 
    134 S. Ct. 1986
    , 1996 (2014) (“For professionals to diagnose—
    and for the law then to determine—whether an intellectual disability exists once the SEM
    applies and the individual's IQ score is 75 or below the inquiry would consider factors
    indicating whether the person had deficits in adaptive functioning. These include evidence
    of past performance, environment, and upbringing.”).
    134 Brumfield v. Cain, 
    135 S. Ct. 2269
    , 2278 (2015).
    135 ROA.2478.
    26
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    opportunity to present whatever expert testimony he deemed necessary in the
    federal district court proceedings, and he did not present any additional
    evidence regarding this test. The only evidence that the TCCA and federal
    district court had was that Busby’s full score IQ as measured by the Beta-III
    test was 81.
    In 2010, immediately prior to filing his federal habeas petition, Busby
    was administered the WAIS-IV and scored a 74. 136 The report of the clinician
    who administered this test reflects that, adjusted based on a 95% confidence
    interval for the WAIS-IV, Busby’s full scale IQ range is 70-79, which the report
    characterizes as “Borderline.” 137
    Before the trial at which Busby was convicted, Proctor also administered
    the Wide Range Achievement Test, Third Edition, which measured Busby’s
    educational abilities in reading, spelling and math. 138 Busby tested at the
    fourth-grade level in reading, third-grade level in spelling, and sixth-grade
    level in math. 139
    Busby argues that because the federal district court’s analysis of the
    merits of the Atkins claim was based only on IQ scores, it follows that the
    district court also concluded that “the [T]CCA’s analysis must have stopped at
    that point as well.” First, it appears that the federal district court did consider
    Busby’s achievement test scores, which were not IQ test scores. But in any
    event, we cannot assume that the TCCA considered only Busby’s IQ scores and
    ignored other evidence in Busby’s state habeas application. Nor can we assume
    that the TCCA ignored the lack of evidence in Busby’s state habeas application.
    Not a single clinician opined that Busby is intellectually disabled, though there
    136  ROA.4092-96.
    137  ROA.4092.
    138 Busby v. Stephens, No. 4:09-CV-160-O, 
    2015 WL 1037460
    , at *10 (N.D. Tex. Mar.
    10, 2015).
    139 
    Id. 27 Case:
    15-70008       Document: 00514963180    Page: 28    Date Filed: 05/20/2019
    No. 15-70008
    were three reports from mental health experts appended to Busby’s second
    state habeas application. Based on the record presented to the TCCA, no
    clinician examined Busby’s IQ scores, evidence of whether Busby has “adaptive
    deficits (‘the inability to learn basic skills and adjust behavior to changing
    circumstances’)”, or whether there was an onset of adaptive deficits while
    Busby was a minor, and then reached the conclusion that Busby is
    intellectually disabled.
    Busby retained Gilda Kessner, a Doctor of Psychology, and she
    submitted a report dated March 21, 2008. 140 Though Busby did not claim in
    his first state habeas petition that he was intellectually disabled, he filed this
    report as part of the evidence in his first state habeas proceeding. The same
    report was an exhibit to his second state habeas application. Kessner’s report
    reflects that she reviewed an array of Busby’s records and the testimony of Dr.
    Proctor, who was an expert witness for Busby in his murder trial. Kessner’s
    report concludes that the WAIS-III that Proctor administered to Busby was
    the current test at the time. 141 Her report reflects that Proctor testified at trial
    that Busby scored 77 on that test, and that Proctor testified that Busby was
    not mentally retarded because “the DSM-IV diagnosis of mental retardation
    would be a score below 70.” 142 However, Kessner opined that Proctor had not
    accounted for a phenomenon known as the Flynn Effect, which posits that
    there is a rise or gain in IQ scores over time and that “[r]esearch literature has
    suggested that this figure is .3 per year beginning the year after the test is
    normed.” 143 Importantly, Kessner concluded that the 77 score on the WAIS-III
    “does not rule out a diagnosis of mental retardation,” and that “a thorough
    140 ROA.4103-08.
    141 ROA.4106.
    142 ROA.4106.
    143 ROA.4106.
    28
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    investigation into Mr. Busby’s adaptive behavior history is necessary to make
    a proper determination.” 144 The report continued, “[a]t this time, I do not
    believe that has been accomplished.” 145 Her report said, “I am concerned that
    that the apparent perfunctory reliance on the obtained score truncated the
    investigation into the possibility of the presence of mental retardation in Mr.
    Busby.” 146   Kessner’s report had explained that “the next version of the
    Wechsler series (WAIS-IV) will be available to clinicians in the fall of 2008.” 147
    Her report concluded with this recommendation: “I would recommend a new
    evaluation with the WAIS-IV when it is available this fall so that the issue of
    the Flynn Effect and questions about the validity of the score can be
    avoided.” 148 Kessner’s report addresses only one of the three broad criteria for
    diagnosing intellectual disability. As to that criteria, the most she said was
    that the WAIS-III score of 77 did not “rule out” intellectual disability.
    After Busby filed his federal habeas petition, he retained two other
    experts regarding his mental capacities, and their reports were also appended
    to Busby’s second state habeas petition. The report of Gilbert Martinez reflects
    that he is a Ph.D., licensed psychologist, and clinical neuropsychologist, and
    that Busby      “underwent    standardized assessment of         his intellectual
    functioning on February 11, 2010.” 149 The report is relatively brief and offers
    no opinion as to whether Busby is intellectually disabled. It reflects in a chart
    that Martinez administered the WAIS-IV, that Busby’s full scale IQ score was
    74, and that within a 95% confidence interval, his IQ score was 70-79. 150 Under
    144 ROA.4107.
    145 ROA.4107.
    146 ROA.4107.
    147 ROA.4106.
    148 ROA.4107.
    149 ROA.4091.
    150 ROA.4092.
    29
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    a column in this chart labelled “Qualitative Description,” the word “Borderline”
    appears with regard to Busby’s full scale IQ score. 151 The report also reflects
    that Martinez administered a Test of Memory Malingering, and “[t]here was
    no evidence of misrepresentation of cognitive or intellectual functioning.” 152
    Federal habeas counsel also retained Bekh Bradley-Davino, Ph.D., who
    is a licensed clinical psychologist. 153      Bradley-Davino spent ten hours
    evaluating Busby in person and reviewed a substantial amount of written
    material and records. 154 Bradley-Davino prepared a 20-page report, most of
    which does not pertain to whether Busby is intellectually disabled. But in a
    section titled “Limited Intellectual Abilities and Academic Problems Became
    Apparent in Mr. Busby’s Childhood and Continued into Adulthood,” the report
    states that “[a] number of sources of data including school records, behavioral
    descriptions provided by Mr. Busby as well as his family, teachers, and peers,
    and results of standardized tests, indicate that at a young age Mr. Busby
    demonstrated     significant     signs   of   impaired/limited    academic     and
    intellectual/mental abilities.” 155 The report also recounts the results of the
    WAIS-IV IQ test administered by Martinez and its full scale IQ score of 74,
    and concludes that “[t]his score reflects significant limitations in intellectual
    functioning, approximately two standard deviations below the mean.” 156 The
    report reflects that Busby was placed in special education by at least the
    seventh grade, that he had “significant problems in academic functioning
    beginning early,” and that he could not understand some of the more complex
    151 ROA.4092.
    152 ROA.4091.
    153 ROA.1283.
    154 ROA.1283-84.
    155 ROA.1289.
    156 ROA.1289.
    30
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    plays during high school football practice. 157 But there is no conclusion drawn
    from all of the facts in Bradley-Davino’s report that Busby is intellectually
    disabled. Instead, the report closes with this recommendation: “I additionally
    strongly recommend further evaluation of Mr. Busby by an expert in mental
    retardation in light of his clear history of extensive intellectual and adaptive
    functioning limitations.” 158 From this, a reasonable person could certainly
    conclude that Busby should be further evaluated. But this is not a conclusion
    that Busby is intellectually disabled. To the contrary, it underscores this
    expert’s opinion that further evaluation would be necessary to determine
    whether Busby is intellectually disabled. A reasonable juror or factfinder could
    fail to conclude from this evidence, even “in light of [Busby’s] clear history of
    extensive intellectual and adaptive functioning limitations,” that Busby was
    intellectually disabled.
    If Busby was in fact evaluated by an expert in intellectual disability, as
    Kessner and Bradley-Davino recommended, Busby has not disclosed the
    results of such an evaluation. The district court noted that the entire report
    prepared by Martinez was not included as part of Busby’s evidence. We do not
    know, therefore, what conclusions, if any, Martinez may have drawn in that
    report as to whether Busby is intellectually disabled.
    We cannot say that the TCCA’s denial of the Atkins claim in Busby’s
    successive habeas application “was based on an unreasonable determination of
    the facts in light of the evidence presented in the State court proceeding” 159 or
    an unreasonable application of clearly established federal law to those facts.
    157 ROA.1289-90.
    158 ROA.1302.
    159 28 U.S.C. § 2254(d)(2).
    31
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    F
    In our initial opinion in this case (now withdrawn), we construed Busby’s
    invocation of the federal actual-innocence doctrine as the assertion of an
    independent ground for relief. 160 In his petition for rehearing, Busby insists
    that he raised this claim in the alternative, as an exception to procedural
    default should we have found his Atkins claim procedurally defaulted. We
    accordingly express no opinion as to the viability of a federal actual-innocence
    claim as an independent ground for relief.
    III
    Busby asserts that he received ineffective assistance of counsel in his
    direct appeal. During the guilt phase of Busby’s trial, the state trial court
    refused to admit a written statement from a technician who had administered
    a lie detector test to Kathleen “Kitty” Latimer, who was Busby’s accomplice in
    the kidnapping and murder of Laura Crane. The technician had told Latimer
    that her responses regarding the details of the crime indicated evasion, and
    the technician’s written statement reflects that Latimer then stated that she
    had not been truthful and that she told Busby to tie up Crane or to tape her
    down to keep her from making noise while in the trunk. Busby’s direct appeal
    counsel, who also served as his trial counsel, did not raise the exclusion of this
    testimony as an issue in the direct appeal. Busby was appointed different
    counsel to pursue his initial state habeas application, and that attorney did not
    assert a claim that direct appeal counsel was ineffective in failing to raise the
    exclusion of Latimer’s statements as an issue on direct appeal. Busby concedes
    that the claim is procedurally defaulted since it was not raised in his initial
    state habeas application.
    160   Busby v. Davis, 
    892 F.3d 735
    , 754-55 (5th Cir. 2018).
    32
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    Busby contends that he has established cause for the default by
    demonstrating that his state habeas counsel was deficient in failing to raise
    the claim, relying upon the Supreme Court’s decisions in Martinez v. Ryan 161
    and Trevino v. Thaler. 162 However, in Davila v. Davis, 163 which issued while
    this case was pending in our court, the Supreme Court held that ineffective
    assistance of state habeas counsel is not sufficient cause to excuse the
    procedural default of a claim for ineffective assistance of direct appeal
    counsel. 164 “Because a prisoner does not have a constitutional right to counsel
    in state postconviction proceedings, ineffective assistance in those proceedings
    does not qualify as cause to excuse a procedural default.” 165
    Busby contends that his claim of ineffective assistance of appellate
    counsel will never be considered unless an exception is made. The Davila
    decision expressly rejected the same argument, 166 reasoning that “the Court in
    Martinez was principally concerned about trial errors—in particular, claims of
    ineffective assistance of trial counsel.” 167 The Court explained that “[t]he
    criminal trial enjoys pride of place in our criminal justice system in a way that
    an appeal from that trial does not,” 168 and the Court “declin[ed] to expand the
    Martinez exception to the distinct context of ineffective assistance of appellate
    counsel.” 169
    161 
    566 U.S. 1
    (2012).
    162 
    569 U.S. 413
    (2013).
    163 
    137 S. Ct. 2058
    (2017).
    164 
    Id. at 2065.
           165 
    Id. at 2062.
           166 
    Id. at 2066
    (citing Coleman v. Thompson, 
    501 U.S. 722
    (1991)) (“Petitioner’s
    primary argument is that his claim of ineffective assistance of appellate counsel might never
    be reviewed by any court, state or federal, without expanding the exception to the rule in
    Coleman.”).
    167 
    Id. 168 Id.
           169 
    Id. at 2067.
    33
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    We note that while Busby asserted in his second state habeas petition
    that trial counsel was ineffective for failing to offer additional grounds as to
    why the hearsay statements were admissible, Busby has abandoned that claim
    in this court. He has not included it in the issues he has raised, and he has not
    argued or briefed such a claim. He now argues that “[t]rial counsel preserved
    error for direct appeal” and that trial counsel’s “argument that Latimer’s
    statements were admissible hearsay is undoubtedly a ‘solid, meritorious
    argument’ that was supported by ‘controlling precedent’ and should have been
    raised.”
    We further note that although Busby was represented by Strickland both
    at trial and on direct appeal, Busby does not contend that there was a conflict
    of interest because of this representation or that Strickland’s failure to contend
    on appeal that it was error to exclude Latimer’s statements was related to any
    conflict of interest arising out of the fact that Strickland also represented
    Busby at trial. Strickland would not have been in a position of arguing on
    direct appeal that he was ineffective in the trial court because he failed to
    assert additional grounds for admitting the hearsay evidence, since Busby now
    asserts that the trial court erred when it excluded the evidence in spite of
    Strickland’s “solid, meritorious” arguments in the trial court.
    There is an additional reason that relief should be denied on this claim.
    There appears to have been an adequate, independent state-law procedural
    rule that supported the TCCA’s denial of this claim. Busby’s second habeas
    application in the TCCA did not adequately brief or argue the ineffective-
    assistance-of-direct-appeal-counsel claim. That claim is mentioned only in
    footnotes 27 and 28 of that application. Footnote 27 says “[d]irect appeal
    34
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    No. 15-70008
    counsel’s failure to raise the denial of admittance of [Latimer’s statements]
    under Texas evidentiary law is a separate claim for relief.” 170 Footnote 28 says:
    Latimer’s statement was also admissible under Texas law as a
    statement against interest. Counsel did seek admission on that
    basis, but the trial court erroneously sustained the State’s
    objection. Although trial counsel preserved the error that the
    admission was not a statement against interest, counsel
    inexplicably did not raise the error as a ground of appeal.
    Counsel’s failure to raise this error on direct appeal is the basis of
    a claim that Mr. Busby was deprived of the effective assistance of
    counsel on appeal. 171
    This issue was not otherwise designated as a claim for relief or otherwise
    briefed or supported by any argument. Under Texas law, it was forfeited. 172
    Even were we not barred from reaching the merits of the defaulted or
    procedurally barred claim, it would fail because Busby cannot establish the
    prejudice prong of review for ineffective-assistance-of-counsel claims.               The
    Strickland analysis requires the petitioner to show “that there is a reasonable
    probability that, but for counsel’s unprofessional errors, the result of the
    proceeding would have been different.” 173 Busby must show that “but for his
    counsel’s” failure to raise the issue on appeal, “he would have prevailed on his
    appeal.” 174 The polygraph technician’s written statement said:
    Following the examination, Ms. Latimer was advised of the
    deceptive nature of her responses to the above noted relevant
    questions. She was asked for an explanation at which time she
    maintained that she did lie to me about encouraging or instructing
    Mr. Busby to tape up Ms. Crane. She stated that at one of the first
    stops where they got gas she could continue to hear Ms. Crane
    170 ROA.3496.
    171 ROA.3497.
    172 See Ex parte Garcia, No. WR-40,214-02, 
    2008 WL 4573962
    , at *1 (Tex. Crim. App.
    2008) (per curiam) (unpublished) (citing Alvarado v. State, 
    912 S.W.2d 199
    , 210 (Tex. Crim.
    App. 1995)); Ex parte Schoolcraft, 
    107 S.W.3d 674
    , 677 (Tex. App.—San Antonio 2003).
    173 Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984).
    174 Smith v. Robbins, 
    528 U.S. 259
    , 285 (2000).
    35
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    banging in the trunk and she stated she realized the music was
    not going to stop the noise from being heard. She stated she told
    [Busby] “You are going to have to tie her up or tape her down
    because she is making too much noise.” She stated at the next
    truck stop where they stopped, she told him again “we need to do
    something.” She stated she told him “I said you need to tie her up
    or do something because she is making too much noise.” During
    the final portion of the post-test interview, she continued to deny
    that she actually saw Ms. Crane taped up in the trunk and denied
    Mr. Busby’s allegations that she helped or participated in tying up
    Ms. Crane in any way. 175
    The federal district court recognized “it is not a defense to murder that
    someone told the defendant to do it,” and that “Latimer’s statement is not
    inconsistent with Busby’s guilt; it inculpates both of them.” 176                   More
    importantly, as the federal district court explained, “[t]here is no question that
    Busby was the individual who taped the victim and ultimately caused her
    death. His fingerprint was lifted from the duct tape.” 177 “Busby admits he
    taped the victim while he was alone with her at Walmart and Latimer was at
    the LaQuinta hotel.” 178
    Had Busby’s appellate counsel pursued on appeal the claim that the trial
    court erred in excluding Latimer’s statements, the TCCA would have applied
    Texas Rule of Appellate Procedure 44.2(b), and it would have examined the
    record as a whole. 179 If the court was fairly assured that the error did not
    influence the jury or had but a slight effect, it would conclude that the error
    175   Busby v. Stephens, No. 4:09-CV-160-O, 
    2015 WL 1037460
    , at *11 (N.D. Tex. Mar.
    10, 2015).
    176  
    Id. at *13.
           177  
    Id. at *14
    n.10.
    178 
    Id. 179 See
    Ray v. State, 
    178 S.W.3d 833
    , 836 (Tex. Crim. App. 2005) (citing Morales v.
    State, 
    32 S.W.3d 862
    , 867 (Tex. Crim. App. 2000)).
    36
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    was harmless. 180 There is no reasonable probability that the TCCA would have
    reversed and granted Busby a new trial because it is highly likely that the
    TCCA would have concluded that any error in excluding Latimer’s statements
    was harmless. Latimer’s statements would have had only a slight effect, if any,
    on the jury’s finding of guilt and the jury’s findings at the penalty phase. The
    evidence is clear that Busby wrapped 23 feet of tape around his victim’s head
    and used such force that her nose was dislocated. He did this when alone,
    while Latimer was at a motel.
    IV
    Busby contends that his trial counsel, Strickland, was ineffective in
    failing “to uncover a wealth of readily available mitigating evidence that was
    necessary to both developing an accurate mental health diagnosis and
    presenting a persuasive mitigation case to the jury.”                   The district court
    pretermitted the question of whether trial counsel was ineffective and
    proceeded directly to an analysis of whether, assuming trial counsel was
    ineffective, Busby was prejudiced. 181 The district court carefully considered all
    of the evidence presented at trial, both mitigating and aggravating evidence.
    It then considered evidence that Busby says should have been presented, and
    concluded that Busby had failed to satisfy the prejudice prong of the
    ineffective-assistance-of trial-counsel claim. 182
    To establish ineffective assistance of trial counsel under Strickland, a
    petitioner must show that “counsel’s representation fell below an objective
    180  
    Id. (“When evaluating
    harm from non-constitutional error flowing from the
    exclusion of relevant evidence, we examine the record as a whole, and if we are fairly assured
    that the error did not influence the jury or had but a slight effect, we conclude that the error
    was harmless.”).
    181 Busby, 
    2015 WL 1037460
    , at *12.
    182 
    Id. at *16.
    37
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    standard of reasonableness” 183 and “that there is a reasonable probability that,
    but for counsel’s unprofessional errors, the result of the proceeding would have
    been different.” 184 When a Strickland claim is based on an allegedly deficient
    sentencing investigation, the petitioner may establish prejudice by showing
    that “the totality of the available mitigation evidence . . . reweigh[ed] . . .
    against the evidence in aggravation” 185 creates “a reasonable probability that
    at least one juror would have struck a different balance” and recommended a
    life sentence instead of death. 186 We agree with the district court that this
    latter standard has not been met.
    With regard to the available mitigation evidence and the evidence in
    aggravation, we will not set forth that evidence in minute detail, because the
    district court has done so thoroughly and accurately. 187 We agree with the
    conclusions that the district court reached regarding the weight of the
    aggravating evidence as measured against the “new” mitigating evidence. 188
    We will only briefly, and generally, recount the evidence. At Busby’s
    trial, custodians of his school records testified that he had a mixed academic
    record, 189 was required to repeat two grades, 190 was frequently absent from
    school, and ultimately dropped out of school. 191 They also noted that he was
    enrolled in special education classes for students with IQ’s lower than average,
    183 Strickland v. Washington, 
    466 U.S. 668
    , 687-88 (1984).
    184 
    Id. at 694.
          185 Sears v. Upton, 
    561 U.S. 945
    , 955-56 (2010) (per curiam) (quoting Porter v.
    McCollum, 
    558 U.S. 30
    , 41 (2009)).
    186 Wiggins v. Smith, 
    539 U.S. 510
    , 537 (2003).
    187 See Busby v. Stephens, No. 4:09-CV-160-O, 
    2015 WL 1037460
    , at *4-12 (N.D. Tex.
    Mar. 10, 2015).
    188 
    Id. at *13.
          189 35 RR 17-24.
    190 35 RR 16, 24.
    191 35 RR 16.
    38
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    but above 70. 192 His special education teacher spoke to Busby’s lack of support
    at home, his life as a “follower” in a segregated neighborhood, 193 and her
    observation that he was a difficult student. 194 The fact that Busby attempted
    to commit suicide on four occasions and was hospitalized on each occasion was
    presented to the jury. 195 Busby’s expert witness advised the jury that he had
    found “documented evidence of long-standing chronic alcohol abuse” and
    “longstanding and chronic” abuse of “essentially illegal drugs,” meaning
    “[s]treet drugs.” 196
    The state introduced aggravation evidence at trial showing that Busby
    had an extensive criminal history and a violent nature. 197 Busby previously
    pled guilty to a robbery in which he attacked the victim with a box cutter,
    causing the victim to be covered in blood from his waste up, then stole the
    victim’s truck and other personal property 198 Busby pleaded guilty to stealing
    donations from the Salvation Army. 199 During his time in prison for these
    offenses, Busby was a violent and aggressive inmate. 200 A Kmart employee
    testified that Busby once attempted to steal batteries and when he was
    confronted, he threatened the employee and his family. 201 The State also
    showed that Busby committed acts of violence while acting as a “pimp” for
    Latimer and others, that he was a long-standing gang member, 202 that he had
    violently assaulted and injured Latimer, and that he had been arrested
    192 35 RR 27.
    193 35 RR 36-38.
    194 35 RR 47.
    195 See, e.g., 36 RR 58.
    196 36 RR 57.
    197 See generally 33-34 RR.
    198 33 RR 13-19, 192.
    199 33 RR 72-80.
    200 33 RR 86-89, 142-150, 154-58, 164-68, 174-78.
    201 34 RR 35-38.
    202 34 RR 5-143.
    39
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    multiple times on drug and weapons charges. 203 The jury found that Busby
    posed a future risk of dangerousness to society and that no mitigating factors
    warranted a life sentence. 204
    Busby alleges that his new mitigation evidence generally tends to show
    that (1) Busby was abandoned by his mother the first two years of his life and
    instead lived with his grandmother; (2) Busby and his sisters were abused by
    their mother and father and grew up in a violent household; (3) Busby’s
    hometown was segregated and racially-biased; (4) Busby grew up in extreme
    poverty; (5) Busby was “slow” and suffered from intellectual disability and
    mental illness; (6) Busby was easily manipulated by women; and (7) Busby was
    addicted to crack, marijuana, and alcohol. 205
    Busby asserted that his mother did not obtain prenatal healthcare when
    pregnant with him. 206      According to Busby’s sisters, Busby’s mother was
    physically violent with her children. She would “whoop” them with a “belt,
    switch, shoe or extension cord.” His mother also physically attacked Busby’s
    father and another male with whom she lived after Busby’s father left. Her
    children often witnessed the altercations. In one incident, Busby’s mother
    attempted to run over the man with whom she lived while Busby was in the
    vehicle with her. 207 Busby’s mother also stabbed a man with whom she lived
    in his hands with a butcher knife when he was attempting to deflect her
    attacks. 208 One sister claimed that Busby’s mother did not love Busby and
    would tell him that he was “just like [his] sorry-ass daddy.” 209 They also
    203 34 RR 21-30, 48-60, 156-58.
    204 Busby v. State, 
    253 S.W.3d 661
    , 663 (Tex. Crim. App. 2008).
    205 See ROA.2451-58.
    206 ROA.2236.
    207 ROA.2566-67, 2575-76.
    208 ROA.2567.
    209 ROA.2566.
    40
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    described Busby’s father as a “drunk” and stated that Busby’s “dad would hit
    him with anything” when he was inebriated. 210 One sister said that they were
    poor, Busby and his siblings were “hungry sometimes,” and the water was once
    “cut off for about a week.” 211         Both sisters described Busby as slow,
    irresponsible, and unhygienic. 212
    Other declarations said that Busby exhibited low intelligence, his
    family’s income was low, his mother neglected him, and noted the absence of a
    father figure. 213 They also commented upon Busby’s “mood swings” and mental
    health issues, including his attempt to commit suicide in his teenage years. 214
    Several noted that Busby was a follower when it came to women, especially
    Latimer, who was described as his girlfriend. 215
    A declaration from a clinical psychologist opined that Busby experienced
    “repeated physical and emotional abuse and neglect,” when he was a child and
    also “witnessed violent actions committed by his mother.” 216 His declaration
    noted that while much of the “described emotional and behavioral problems
    are consistent” with post-traumatic stress disorder (PTSD), “it is impossible to
    determine if Mr. Busby would have met the criteria for [PTSD] in
    adolescence.” 217    He did, however, diagnose Busby with bipolar disorder,
    anxiety disorder, and polysubstance dependence in remission. 218
    210 ROA.2567, 2574.
    211 ROA.2576-77.
    212 ROA.2568-70, 2578.
    213 ROA.2581-83, 2584-85, 2586, 2588-89, 2945-46, 2947-48, 2949, 2950-51.
    214 ROA.2582, 2585-86, 2946, 2947.
    215 ROA.2946-51.
    216 ROA.2953.
    217 ROA.2961.
    218 ROA.2963.
    41
    Case: 15-70008         Document: 00514963180       Page: 42    Date Filed: 05/20/2019
    No. 15-70008
    Some of Busby’s “new” evidence is not in fact new. It is cumulative of
    the evidence adduced at trial, as the federal district court found. 219               We
    concluded in Parr v. Quarterman 220 that though mitigation evidence may not
    have been presented “as effectively as it might have been,” a petitioner could
    not show prejudice when the jury heard evidence regarding an unstable
    childhood and the “State’s case on punishment was strong.” 221 Similarly,
    Busby repeats much of the testimony elicited at trial regarding his childhood,
    intellectual acuity, and predispositions towards women and substance abuse.
    His sisters testified at trial, and while the additional, post-conviction
    statements from his sisters “undoubtedly provide[d] more details” of Busby’s
    childhood, we held in Newbury v. Stephens 222 that evidence “of the same genre
    as that presented to the jury at trial” could not outweigh the state’s
    “overwhelming” evidence of future dangerousness. 223                Indeed, when “the
    evidence of [] future dangerousness was overwhelming . . . . it is virtually
    impossible to establish prejudice.” 224
    Busby’s new mitigation evidence, considered with that adduced at trial,
    does not outweigh the State’s aggravation evidence such that “there is a
    reasonable probability that at least one juror” would have recommended a life
    219   Busby v. Stephens, No. 4:09-CV-160-O, 
    2015 WL 1037460
    , at *12 (N.D. Tex. Mar.
    10, 2015).
    
    220472 F.3d 245
    (5th Cir. 2006).
    221Id. at 258.
    222 
    756 F.3d 850
    (5th Cir. 2014) (per curiam).
    223 
    Id. at 873-74.
          224 Ladd v. Cockrell, 
    311 F.3d 349
    , 360 (5th Cir. 2002) (citing Strickland v.
    Washington, 
    466 U.S. 668
    , 698 (1984)).
    42
    Case: 15-70008        Document: 00514963180          Page: 43      Date Filed: 05/20/2019
    No. 15-70008
    sentence. 225 He was therefore not prejudiced by his trial counsel’s allegedly
    deficient mitigation investigation, and his IATC claim fails. 226
    The district court did not directly address Busby’s contention that trial
    counsel was ineffective in discovering and presenting evidence that Busby is
    intellectually disabled. However, trial counsel retained an expert to evaluate
    Busby. It was that expert’s opinion that the two IQ tests that he administered
    to Busby reflected that he was not intellectually disabled. Trial counsel did
    not have the benefit of the Supreme Court’s decisions, issued long after the
    trial, regarding IQ evidence. 227 Busby has not offered any evidence that trial
    “counsel’s representation fell below an objective standard of reasonableness”
    with regard to his investigation of Busby’s intellectual functioning or
    presentation of evidence of Busby’s intellectual functioning based on the
    standards of professionalism prevailing at the time. 228 Additionally, even with
    the benefit of the assistance of three additional mental health experts during
    habeas proceedings, Busby has not been diagnosed as intellectually disabled.
    Accordingly, assuming, without deciding, that Busby raised and adequately
    briefed in our court and in the federal district court a claim that trial counsel
    was ineffective in failing to contend before or during the state trial court
    conviction proceedings that Busby is intellectually disabled, the claim fails for
    lack of evidence that trial counsel should have disregarded the retained
    expert’s opinion that Busby was not intellectually disabled.
    *        *        *
    225  Wiggins v. Smith, 
    539 U.S. 510
    , 537 (2003).
    226  
    Strickland, 466 U.S. at 697
    (“[Courts] need not determine whether counsel’s
    performance was deficient before examining the prejudice suffered by the defendant as a
    result of the alleged deficiencies.”).
    227 See, e.g., Moore v. Texas, 
    137 S. Ct. 1039
    (2017); Brumfield v. Cain, 
    135 S. Ct. 2269
    (2015); Hall v. Florida, 
    134 S. Ct. 1986
    (2014).
    228 
    Strickland, 466 U.S. at 687-88
    .
    43
    Case: 15-70008   Document: 00514963180     Page: 44   Date Filed: 05/20/2019
    No. 15-70008
    For the foregoing reasons, we AFFIRM the judgment of the district court.
    44