Morris v. Dretke , 379 F.3d 199 ( 2005 )

United States Court of Appeals
Fifth Circuit
REVISED JUNE 30, 2005
F I L E D
June 16, 2005
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 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-Appellant Kenneth Wayne Morris (“Morris”) sought a
COA on the issue whether the presentation of a factually stronger
habeas claim in federal court than in the state courts always
mandates a dismissal without prejudice based on the exhaustion
principle. Morris v. Dretke, 379 F.3d 199, 201 (5th Cir. 2004).
We granted Morris a COA on that exhaustion issue and asked the
parties to specifically address the following:
[W]hether 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 [v. Virginia, 536 U.S.
304 (2002)] claim or is unexhausted because it
fundamentally altered his state Atkins claim; and if
Morris’s claim is [thus rendered] unexhausted, whether he
has met any exception to excuse exhaustion.
Id. at 207. For the following reasons, we determine that Morris’s
presentation of new evidence merely supplemented the Atkins claim
he had already presented to the state courts; his Atkins claim
meets exhaustion per 28 U.S.C. § 2254(b)(1)(A); and the district
court erred in dismissing Morris’s Atkins claim for want of
exhaustion. Therefore, we VACATE the order of dismissal without
prejudice and REMAND with instruction to conduct an evidentiary
hearing to determine whether Morris is mentally retarded and thus
categorically ineligible for the death penalty pursuant to Atkins.
See 536 U.S. at 321 (holding the Eighth Amendment “places a
substantive restriction on the State's power to take the life of a
mentally retarded offender”) (internal quotation marks and citation
omitted).
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 (“TCCA”) affirmed
Morris’s conviction and sentence; the Supreme Court of the United
States denied certiorari. The TCCA then denied Morris’s
application for writ of habeas corpus. In April 2000 Morris
initiated federal habeas proceedings. The district court denied
2
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, 536 U.S. at 321. Atkins claims are applicable
to defendants on collateral review. Bell v. Cockrell, 310 F.3d
330, 332 (5th Cir. 2002). Those defendants whose convictions were
already final on direct review, like Morris, had one year to file
their Atkins claims under 28 U.S.C. § 2244(d)(1)(C). On April 10,
2003, within ten months after Atkins was decided, Morris filed a
successive application for writ of habeas corpus in state district
court. The sole legal basis for Morris’s successive state writ was
Atkins’s application to him as a mentally retarded person facing
execution. Morris argued that his application met the subsequent
application requirements of Article 11.071, Section 5, of the Texas
Code of Criminal Procedure because the constitutional legal basis
for his claim, Atkins, was unavailable at the time he filed his
previous state habeas corpus application.
In his successive state application, Morris referenced the
American Association on Mental Retardation (“AAMR”) standard for
determining mental retardation:
Mental retardation refers to substantial limitations in
present functioning. It is characterized by [1]
significantly subaverage intellectual functioning,
existing concurrently with [2] related limitations in two
3
or more of the following applicable adaptive skill areas:
communication, self-care, home living, social skills,
community use, self-direction, health and safety,
functional academics, leisure, and work. [3] Mental
retardation manifests before age 18.
AAMR, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 5
(9th ed. 1992).1 Morris also referenced the nearly identical
definition of mental retardation in the Diagnostic and Statistical
Manual of Mental Disorders:
The essential feature of Mental Retardation is
significantly subaverage general intellectual functioning
(Criterion A) that is accompanied by significant
limitations in adaptive functioning in at least two of
the following skill areas: communication, self-care,
home living, social/interpersonal skills, use of
community resources, self-direction, functional academic
skills, work, leisure, health, and safety (Criterion B).
The onset must occur before age 18 years (Criterion C).
AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 41 (text rev., 4th ed. 2000) (“DSM-IV”).
Morris recognized the lack of Intelligence Quotient (“IQ”)
evidence in his record but noted various school records obtained by
his counsel, including a letter concerning Morris’s official
withdrawal from the Cypress-Fairbanks Public Schools special
1
The current AAMR definition of mental retardation provides:
Mental retardation is a disability characterized by
significant limitations both [1] in intellectual
functioning and [2] in adaptive behavior as expressed in
conceptual, social, and practical adaptive skills. [3]
This disability originates before age 18.
AAMR, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 19
(10th ed. 2002). Morris also provided this definition in his state
habeas petition.
4
assignment campus.2 Morris also supported his claim of retardation
with evidence regarding his adaptive deficits: affidavits from
family members and friends noting he cannot read or write with any
proficiency and had always been very suggestible and easily
influenced; notes from a mental health expert appointed for his
trial, Dr. Jerome Brown, indicating Morris was intellectually
limited and had learning problems; and partial school records
classifying Morris as learning disabled and indicating he dropped
out at age 15 after repeating the eighth grade, having failed the
third, fifth, and eighth grades and most of his special
education/resource classes.
In addition, Morris included an affidavit from psychologist
Dr. Richard Garnett who reviewed the above materials “in an attempt
to determine whether there was sufficient evidence to support a
motion for a hearing to determine whether or not Mr. Morris might
meet the criteria for mental retardation as defined by current
psychological theory.” Dr. Garnett offered his informed,
professional opinion that there were “indeed sufficient indicators
to suggest that Mr. Morris has mental retardation” and “[h]e should
be given the opportunity for a professional assessment and
evaluation as a part of that review, and [] then go before the
court for a determination.” Morris indicated that Dr. Brown had
2
Morris entered the alternative learning center (“ALC”) after
receiving grades of 50 or below in every class at his regular
campus. Morris was subsequently expelled from the ALC.
5
made a determination that he was not mentally retarded. However,
Dr. Garnett noted that Dr. Brown “for some reason apparently did
not administer a test of intellectual level.” Morris contended
that Dr. Brown’s testing and methodology rendered his mental
retardation assessment scientifically unreliable, in light of his
not having used any intelligence testing instrument.
Morris argued that together all the evidence he submitted
demonstrated his deficiencies in the following specific adaptive
behavioral skill areas: (1) conceptual, referring to Morris’s
inability to read and write and his failures in functional
academics; (2) social, referring to Morris’s inability to obey the
law and follow rules, and his inability to avoid victimization; and
(3) practical, referring to Morris’s inability to develop
instrumentalities of daily living or occupational skills, and his
inability to maintain a safe environment.
Furthermore, Morris maintained that Gerald Bierbaum, one of
the attorneys signing Morris’s successive application, had
approached the trial court to request that counsel be appointed so
an expert could be obtained to perform intellectual testing and to
request a modification of the execution date. Morris contended
that the trial court would consider such request if the state did
not oppose it and that the attorneys who signed Morris’s successive
writ conferred with the Harris County District Attorney’s office,
which was so opposed. Morris argued that an evidentiary hearing
was necessary to develop and fully present all available evidence
6
supporting his claim of mental retardation under Atkins. Morris
then expressly requested the following: leave to file his
successive state writ, the appointment of counsel, the necessary
resources to establish his claims, and an evidentiary hearing. The
TCCA dismissed Morris’s successive state habeas application as an
abuse of the writ on April 14, 2003.3
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
3
The Respondent-Appellee Doug Dretke (the “Director”) in his
response brief on appeal has “abandon[ed] any perceived reliance of
procedural default” based on abuse of the writ in the state courts
“[t]o the extent any prior pleading by the [state] in this case can
be construed as conceding or arguing procedural default.” The
Director here thus expressly waives this argument on appeal; if
this Court determines such new evidence does not render Morris’s
claim unexhausted, the Director suggests he then will argue that
the TCCA’s adjudication, as a decision on the merits, is subject to
AEDPA deference. As we do not find the Director’s waiver here in
any way “questionable,” see Graham v. Johnson, 94 F.3d 958, 971
(5th Cir. 1996) (rejecting the state’s waiver on exhaustion where
it simply wanted to avoid further politicization of Graham’s case),
and because express waivers are ordinarily to be honored, see id.
at 970, we exercise our discretion to accept the Director’s waiver
of the argument that abuse of the writ acts an a state procedural
bar to federal review in Morris’s case. Thus, this Court does not
engage in an analysis of whether the TCCA’s treatment of Morris’s
successive state habeas application based on Atkins resulted in an
independent and adequate state bar to federal habeas review. See,
e.g., In re Johnson, 334 F.3d 403, 405 (5th Cir. 2003) (Jones, J.,
concurring) (noting in movant’s case, where he sought leave to file
a successive federal habeas petition based on Atkins, there was “no
reason why federal courts are not bound by the procedural bar rule
to deny him federal habeas relief” based on abuse of the writ).
7
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-
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 the requirements under the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 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. This petition raised the sole issue whether
Atkins’s 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 new evidence supporting his retardation claim to the
district court, including an affidavit from clinical psychologist
8
Dr. Susana A. Rosin who recently tested Morris’s IQ and level of
adaptive and conceptual functioning. Morris presented two
affidavits from James R. Patton who holds a doctorate in special
education and disabilities; Dr. Patton reviewed Morris’s IQ results
along with all the materials presented to the state courts.
Morris scored a verbal IQ of 57, a performance IQ of 58, and
a full-scale IQ of 53 on the Wechsler Adult Intelligence Scale-III
tests (“WAIS-III”) administered by Dr. Rosin. The first prong of
the AAMR definition of mental retardation is performance on an
appropriate intellectual assessment instrument that is two standard
deviations below the mean, which is approximately 70 on the WAIS-
III.4 On the Wide Range Achievement Test-3 (“WRAT-3") administered
by Dr. Rosin, Morris scored less than 45 on each conceptual skill
subtest (reading, arithmetic, and spelling). On the Vineland
Adaptive Behavior Scales (“VABS”) tests Dr. Rosin administered,
Morris achieved standard scores of 34 in communication, 44 in
social, and 40 in daily living. The second prong of the AAMR
definition of mental retardation is performance on an appropriate
adaptive behavior instrument that is two standard deviations below
the mean, which is approximately 70 on the VABS and the WRAT-3,
according to Dr. Patton. Dr. Rosin unequivocally diagnosed Morris
with mental retardation. Morris presented a second affidavit from
4
“‘Significantly subaverage intellectual functioning is
defined as an IQ of about 70 or below (approximately 2 standard
deviations below the mean).’” Ex Parte Briseno, 135 S.W.3d 1, 7
n.24 (Tex. Crim. App. 2004)(quoting DSM-IV at 39).
9
Dr. Rosin which refuted Respondent’s claim that Morris was
malingering during the testing. Dr. Patton opined that Morris
functions intellectually and adaptively within the mentally
retarded range and that this condition predated his 18th birthday.
Morris also presented a new affidavit from Dr. Garnett stating
that his review of Dr. Rosin’s findings strengthened his opinion
that Morris is mentally retarded and recommending that a court hold
a full hearing on the retardation issue. Morris presented
affidavits from Morris’s original trial counsel stating that they
never asked their mental health expert to test Morris for mental
retardation, but rather to determine whether Morris posed a threat
of future danger. Finally, Morris presented a document purportedly
signed by Dr. Brown, 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 Director moved to dismiss and for summary judgment.
Morris responded to both motions and requested the district court
conduct an evidentiary hearing. In an order entered December 5,
2003, the district court denied the Director’s motion to dismiss
and accepted submission of Morris’s successive federal petition
under 28 U.S.C. § 2244(b); denied the Director’s motion for summary
judgment; and dismissed Morris’s amended petition without
prejudice. In that order the district court determined that
because Morris had not presented his Atkins claim to the state
10
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 Supp. 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, 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. On July 21, 2004, we granted
Morris a COA on the issue of exhaustion. Morris, 379 F.3d at 207.
DISCUSSION
28 U.S.C. § 2254(b)(1)(A) requires that federal habeas
petitioners fully exhaust available state court remedies before
proceeding in federal court.5 The longstanding exhaustion
requirement is not jurisdictional, but reflects the policy of
federal-state comity, which is designed to give state courts the
5
Section 2254(b)(1)(A) provides:
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that–
(A) the applicant has exhausted the remedies available in
the courts of the State . . . .
28 U.S.C.A. § 2254(b)(1)(A) (West Supp. 2004).
11
initial opportunity to consider and correct alleged violations of
their prisoners’ federal rights. Anderson v. Johnson, 338 F.3d
382, 386 (5th Cir. 2003). This Court reviews de novo the legal
question of whether a federal habeas petitioner has exhausted state
court remedies. Id. (citing, in part, Wilder v. Cockrell, 274 F.3d
255, 259 (5th Cir. 2001)).6
“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).
Such presentment can take place via direct appeal or state habeas
proceedings. Orman v. Cain, 228 F.3d 616, 620 (5th Cir. 2000).
“[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, 338 F.3d at 386-87 (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
6
The Director argues that the proper standard for this Court
to review the district court’s dismissal without prejudice here is
abuse of discretion. In Horsley v. Johnson, 197 F.3d 134 (5th Cir.
1999), cited by the Director, this Court decided whether the
district court’s dismissal without prejudice as opposed to with
prejudice was an abuse of discretion, not the legal issue of
whether new evidence rendered the petitioner’s claim unexhausted.
We instead review that discrete question of law de novo. Anderson,
338 F.3d at 386 (citations omitted).
12
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) in his federal habeas
petition, 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 detailed assertions of his
paranoid schizophrenia to the state courts, even though he later
offered additional affidavits by mental health experts opining on
that same diagnosis to the federal court that were not previously
presented to the state courts).
However, “evidence that places the claims in a significantly
different 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
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,
13
38 F.3d at 386, 388 n.24.
Lack of exhaustion may be excused. “A petitioner may overcome
such a procedural default, 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) (discussing whether
an IAC claim not presented to the state courts was procedurally
barred). 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.
The district court’s dismissal without prejudice of Morris’s
successive federal habeas petition was premised entirely on that
court’s legal conclusion that the new evidence presented for the
first time to the federal court rendered Morris’s Atkins claim
unexhausted.
Whether the district court erred in finding that Morris’s
additional evidence presented in federal court rendered his Atkins
claim unexhausted.
Morris contends he argued consistently and identically in
state and federal court that he is mentally retarded and thus his
execution is barred by the Eighth Amendment pursuant to Atkins.
Morris argues that although the evidence he was able to introduce
14
in the district court was greater than that introduced in the state
courts, his underlying, singular Atkins claim was not fundamentally
altered and thus was properly exhausted in the state courts. For
this proposition, Morris primarily relies on Vasquez, Anderson, and
Dowthitt.
In Vasquez, the district court pursuant to Rule 7 of the
federal habeas rules directed the federal habeas petitioner and the
state to provide additional statistical data in order to
“supplement and clarify” the state court record presented for
review. 474 U.S. at 257. The state objected that the additional
evidence drastically altered the petitioner’s equal protection
challenge already presented to the state courts, such that the
claim was rendered “unsuitable for federal habeas review without
prior consideration by the state courts.” Id. The Supreme Court
rejected the state’s argument and held that “the supplemental
evidence presented . . . did not fundamentally alter the legal
claim already considered by the state courts, and, therefore, did
not require that [Hillery] be remitted to state court for
consideration of that evidence.” Id. at 260 (emphasis added).
In Dowthitt, the habeas petitioner argued that he had been
deprived of the effective assistance of counsel because his trial
counsel had failed to present a mitigation defense based on his
mental illness. 230 F.3d at 743. In state court proceedings,
Dowthitt presented his Strickland v. Washington, 466 U.S. 668
15
(1984), claim based on evidence his counsel on habeas located,
including a hospital form and Air Force records indicating Dowthitt
suffered from mental illness. Dowthitt, 230 F.3d at 743-44.
However, on federal habeas, Dowthitt additionally produced
affidavits from two mental health experts whose clinical
impressions were that Dowthitt had paranoid and schizophrenic
features – severe mental problems. Id. at 744. Morris notes this
decision was made pursuant to the exhaustion standards laid out in
Graham, 94 F.3d at 968, and Joyner v. King, 786 F.2d 1317, 1320
(5th Cir. 1986) – whether the claim before the federal court is “in
a significantly different and stronger evidentiary posture than it
was before the state courts.” This Court found that “Dowthitt
[did] not allege ‘new facts’ via the affidavits of the two experts
because ‘all crucial factual allegations were before the state
courts at the time they ruled on the merits’ of Dowthitt’s habeas
petition.” Dowthitt, 230 F.3d at 746. Because Dowthitt had
presented to the state habeas court his assertions that he suffered
from paranoid schizophrenia, this Court determined the expert
affidavits added little to those claims and did not run afoul of
the exhaustion requirement. Id. (finding consideration of the
affidavits not precluded).
Morris argues that this Court in Anderson employed a different
framework for analyzing new evidence not presented to the state
courts on habeas. In state court habeas proceedings, Anderson
16
argued under Strickland that his attorney was ineffective for
failing to investigate and present the testimony of an eyewitness
named Arthur Gray, whose testimony would have excluded Anderson as
the perpetrator. Anderson, 338 F.3d at 385-86. Anderson did not
include any evidence to support this allegation. Id. However, in
federal court, Anderson attached Arthur Gray’s affidavit stating
that Anderson was not present at the scene of the crime. Id.
While the Court conceded that the exhaustion standard in the
situation where new evidence is presented to the federal court
which has not been presented to the state courts was nebulous, id.
at 387, the Court recited: “Although exhaustion inquiries are
fact-specific, as a general rule dismissal is not required when
evidence presented for the first time in a [federal] habeas
proceeding supplements, but does not fundamentally alter, the claim
presented to the state courts.” Id. at 386-87 (internal quotation
marks omitted) (citing Caballero v. Keane, 42 F.3d 738, 741 (2d.
Cir. 1994)). The Court held the exhaustion principle was
satisfied, noting in an “admittedly close case” that several
factors weighed in favor of exhaustion. Anderson, 338 F.3d at 388.
First, as Morris explains, the ineffectiveness portion of
Anderson’s state habeas brief was “remarkably detailed in both fact
and law.” Id. The brief explained Anderson’s counsel’s lack of
investigation into the eyewitness Arthur Gray and what he could
have testified to at trial. Id. Second, Anderson was diligent and
17
consistent in arguing his claim: “The ‘new’ evidence (Gray’s
affidavit) does not ‘fundamentally alter’ Anderson’s state claim;
it merely confirms what he has been asserting all along.” Id. As
such, the additional evidence was a “supplement” to the state court
record but did not place his claim in a “significantly different
legal posture.” Id. Third, the Court noted that Anderson did not
attempt to expedite federal review by withholding essential facts
from the state courts. Id. at 389. Any failure to develop facts
was not the result of a lack of diligence; “if the state court had
held an evidentiary hearing, Gray’s exculpatory testimony likely
would have been elicited, as it was in the federal proceedings.”
Id.
Morris stresses the Court in Anderson considered Joyner and
related Fifth Circuit precedent of limited relevance because such
cases were decided before or without reference to Vasquez. 338
F.3d at 389 n.24. Morris also emphasizes the case- and fact-
specific nature of the inquiry whether new evidence just
supplements or fundamentally alters a claim. See id.
Morris attempts to distinguish his case from those cases in
which courts of appeals have found new evidence presented for the
first time in federal court rendered the petitioner’s claim
unexhausted, arguing unlike in those cases, in his case the
additional evidence did not transform his Atkins claim into an
18
entirely new claim.7 Finally, Morris contends Graham has no import
because it does not mention Vasquez.
In sum, Morris likens his case to particularly that of the
petitioner in Anderson and applies the factors therein. Morris
asserts, first, his state petition was remarkably detailed in fact
and law – not a general, conclusory allegation of mental
retardation. Second, Morris argues he diligently brought forth all
the evidence he had or could obtain before filing and applied all
of the existing law and authorities. Moreover, at the state court
level, Morris requested counsel be appointed and funds be granted
so he could establish his Atkins claim. Last, Morris contends he
did not deliberately withhold any portion of his claim in order to
expedite federal review or to obtain a more favorable forum.
Therefore, Morris insists the district court erred in dismissing
his Atkins claim.
7
For example, Morris contends in Demarest v. Price, 130 F.3d
922, 938-39 (10th Cir. 1997), the petitioner presented for the
first time in federal court such substantial new evidence that his
Strickland claims effectively became new claims attacking new forms
of ineffectiveness. Likewise, in Caballero, 42 F.3d at 739-41, the
Second Circuit found the petitioner’s claim unexhausted because a
new fact concerning trial counsel’s being under the influence of
drugs during the trial cast the Strickland claim in an entirely new
light. See also Cruz v. Warden, 907 F.2d 665 (7th Cir. 1990)
(finding new factual allegations regarding trial counsel’s behavior
rendered petitioner’s Strickland claim unexhausted). In Landano v.
Rafferty, 897 F.2d 661, 669-70 (3d. Cir. 1990), although the
petitioner made his Brady v. Maryland, 373 U.S. 83 (1963), claims
in both state and federal court, only at the federal level did he
indicate what Brady material had been suppressed; so his claim was
unexhausted.
19
The Director responds that the district court was within its
discretion in dismissing Morris’s federal habeas petition without
prejudice8 because Morris’s new evidence fundamentally alters his
claim under established federal law. The Director insists that
Morris’s additional evidence, the newly generated IQ evidence, is
so fundamental to his claim of mental retardation that, standing
alone, it would have warranted successive review in the state
courts.
The Director first points to the significance of the new
evidence as a major factor in determining whether the advanced
claim is exhausted. The Director argues that Kunkle v. Dretke, 352
F.3d 980 (5th Cir. 2003), controls. In state court, the
petitioner, Kunkle, only presented a conclusory affidavit from
trial counsel “contending that there was abundant mitigating
evidence . . . including a troubled home life and a family history
of mental illness” to support his IAC claim. Id. at 987. However,
in federal court, Kunkle presented actual evidentiary support,
including an affidavit from his mother and a detailed psychological
report. Id. The Director notes that this Court emphasized the
significant difference between asserting a conclusory theory and
actually backing up that theory with concrete evidence; this Court
found Kunkle’s claim unexhausted. Id. at 988.
Second, the Director argues that Morris does not meet the
8
See supra n.6.
20
factor of whether the evidence is ascertainable from that extant
record or discoverable from existing data. See Vasquez, 474 U.S.
at 259 (finding computer-generated statistics presented existing
data in a more reliable way); see also Dowthitt, 230 F.3d at 745-46
(noting newly presented affidavits were based on discoverable
medical records).
The Director next maintains that by applying the above factors
to Morris’s case, his new IQ evidence fundamentally alters his
Atkins claim. The Director argues that in the state courts, Morris
presented no IQ data at all, much less an IQ score below 70. With
the new evidence, stresses the Director, Morris’s Atkins claim
turned around 180 degrees because his IQ test scores alone could
withstand a summary dismissal, regardless of any additional data
supporting the other prongs of mental retardation. See Ex parte
Williams, No. 43,907-02, 2003 WL 1787634, at *2-3 (Tex. Crim. App.
Feb. 26, 2003) (Cochran, J., joined by Meyers, J., concurring in
dismissal) (unpublished opinion). In addition, the Director
contends, unlike Vasquez, Morris’s missing IQ data could never have
been educed from the existing record; Morris’s alleged diagnosis of
mental retardation depends on the five IQ tests administered on
successive federal habeas review and interpretation of those
results. Also, the Director notes that Morris’s IQ evidence was
not requested, as in Vasquez, as an interpretive aid for meaningful
review. The Director maintains Morris’s new evidence sheds new
21
light on his claim that the state courts should be given the
opportunity to review.
The Director also suggests that, although not intentionally,
Morris is attempting state court bypass to achieve a more favorable
forum and cannot demonstrate he acted diligently in state court.
Finally, the Director argues that in light of ongoing development
of state court procedures implementing Atkins, justice would be
better served by insisting on exhaustion. That is, the federal
court’s premature adjudication of Morris’s stronger Atkins claim
would deprive the state court of the potential opportunity to make
important law on successively presented and facially stronger
Atkins claims in the context of Article 11.071, Section 5.
In reply, Morris distinguishes his case from that of Kunkle.
Morris notes the Court there concluded “Kunkle had not exhausted
this ineffective assistance claim because Kunkle possessed this
additional information at the time he filed his second state
petition, yet failed to present these significant additional
facts.” 352 F.3d at 988. Unlike Kunkle, Morris did not possess
the IQ scores and affidavits concerning those scores when he filed
his second state habeas petition. Morris instead presented all the
concrete evidence he did have to support his Atkins claim and
requested resources to develop further evidence; he argues he did
not possess the evidence and deliberately bypass state court.
Moreover, Morris argues Kunkle has little import here because the
22
decision relied not on Anderson, but rather on Graham, which did
not mention Vasquez. Morris also discounts any reliance on the
unpublished Williams as to any supposed threshold evidentiary
requirement for Atkins claims because Williams has no precedential
value.
The district court here found that Morris supported his
successive state application “with little more than speculation.”
The court primarily cited Joyner, 786 F.2d at 1320, for the
proposition that comity and federalism require “new factual
allegations in support of a previously asserted legal theory” first
be presented to the state courts. The court then concluded that
the expanded nature of Morris’s Atkins claim rendered his
successive petition unexhausted. We disagree.
After thorough case- and fact-specific review of Morris’s
situation, this Court concludes that the new IQ evidence presented
for the first time in federal court, although it indeed factually
bolstered his sole Atkins claim, did not render Morris’s Atkins
claim – which same legal Eighth Amendment claim he presented to the
state courts and supported with pertinent, if not conclusive,
evidence of low intellectual functioning and adaptive deficits,
from childhood on – as fundamentally altered and thus unexhausted.
We find Morris’s case falls much closer on the spectrum to the
cases where this Court has found new evidence merely supplemented
the petitioner’s claims. Therefore, the district court erred in
23
finding that the new evidence rendered Morris’s Atkins claim
unexhausted in the state courts.
Similar to the petitioner in Dowthitt, Morris has produced on
federal habeas additional evidentiary support indicating, beyond
what the evidence he produced in the state habeas courts
indicated, that he is mentally retarded. The same crucial
intellectual and adaptive deficiencies alleged by Morris in the
state courts – which led Dr. Garnett to conclude Morris indeed
sufficiently possessed the required indicators for mental
retardation to merit further professional assessment and court
review – have been affirmed by such additional professional
assessment evidence presented to the federal court. See Dowthitt,
230 F.3d at 746 (noting the crucial facts of Dowthitt’s mental
illness of the paranoid, schizophrenic type had already been
presented to the state courts and thus finding the expert
affidavits further supporting that mental illness exhausted).
As were the petitioner’s claims in Anderson, Morris’s “claim[]
[is] unquestionably in a comparatively stronger evidentiary posture
than [it was] in state court,” 338 F.3d at 388 (internal quotation
marks and citation omitted). But, similarly, “several facts
militate in favor of exhaustion in this admittedly close case.”
Id. First, thorough review of Morris’s successive state habeas
brief reveals that his Atkins claim was “remarkably detailed in
both fact and law.” Anderson, 338 F.3d at 388. Morris
24
unquestionably brought his Eighth Amendment claim pursuant to
Atkins. He also properly outlined the AAMR’s definition for mental
retardation, since adopted by the TCCA as one of Texas’s current
standards for determining mental retardation, Briseno, 135 S.W.3d
at 7-8, and noted the necessity to meet all three essential prongs
of the definition. See id. Morris also clearly acknowledged that
IQ evidence was lacking in his particular case but still insisted
“[t]here is good reason to believe that [Morris is retarded] . . .
because of the documented history of adaptive deficits,” including
Morris’s “inability to read and write and his failure in functional
academics,” “inability to obey the law and follow rules,”
“inability to avoid victimization,” “inability to develop
instrumentalities of daily living [and] occupational skills,” and
“inability to maintain a safe environment,” all of which were
attested to by the sworn affidavits and school records presented to
the state courts.
Moreover, Morris saw fit to present an expert affidavit,
which, albeit preliminarily, provided a psychologist’s
acknowledgment of and support for Morris’s mental retardation
claim. Morris has consistently asserted that he is mentally
retarded and that, given the opportunity and resources,
intellectual tests would confirm that. As in Anderson, the new
evidence the district court allowed Morris to develop here does not
fundamentally alter his state claim; it functions as a “supplement
25
to the record presented to the state court, but does not place the
claim[] in a significantly different legal posture.” 338 F.3d at
388 (internal quotation marks and citation omitted).
As we also noted in Anderson in reaching our conclusion,
despite what the Director argues here, we see nothing in this
record that shows Morris “attempted to expedite federal review by
deliberately withholding essential facts from the state courts.”
Id. at 389 (citing Vasquez, 474 U.S. at 260). There is no evidence
that Morris intentionally withheld any previous IQ testing results
or chose to forego any provided opportunity for the proper IQ
testing.
Morris’s case is distinguishable from the petitioner in Graham
because it was ascertainable what further evidence Morris would be
providing to the federal court if he could develop it – IQ scores
indicative of low intelligence and evaluation of those results. In
contrast, Graham presented an abundance of new evidence to the
federal court that had not been presented, even abstractly, to the
state courts – including several affidavits from eyewitnesses and
alibi witnesses, who had not previously been mentioned in Graham’s
state habeas proceedings; a psychologist’s report regarding the
unreliability of the identification testimony by the state’s main
witness; and a police ballistics report showing a weapons
discrepancy. 94 F.3d at 965. Moreover, this Court also took into
consideration Graham’s freedom to pursue his actual innocence claim
26
in a post-conviction evidentiary hearing, see id. at 969 (citing
Graham v. Texas Board of Pardons and Paroles, 913 S.W.2d 745, 751
(Tex. Ct. App.–Austin 1996)), and that his IAC claim had been
dismissed without prejudice by the TCCA, see 94 F.3d at 969 (citing
Ex Parte Graham, 853 S.W.2d 565, 571 & n.1 (Tex. Crim. App. 1993)).
In contrast, Morris’s Atkins claim was dismissed by the TCCA as an
abuse of the writ.9
Morris’s case is also distinguishable from Kunkle, the chief
case the Director relies on, because there Kunkle only presented to
the state courts “a conclusory affidavit from trial counsel”
regarding mitigation evidence of Kunkle’s troubled home life and
his family’s history of mental illness. 352 F.3d at 987. Only at
the federal level did Kunkle produce an affidavit from his mother
and a psychological report. Id. Here, Morris presented school
records and multiple affidavits from his family members with
personal knowledge of his learning and adaptive issues. Plus,
Kunkle had a second procedural opportunity to present such new
evidence to the state courts; his federal habeas petition had been
dismissed as “mixed” because it contained exhausted and unexhausted
claims. Id. at 987-88. This Court noted that Kunkle provided no
9
In addition, Morris is correct that Graham did not cite
Vasquez but instead cited Joyner and Brown v. Estelle, 701 F.2d 494
(5th Cir. 1983). In Anderson, we noted that such “decisions . . .
issued prior to (or soon after and without reference to) the
Supreme Court’s decision in Vasquez v. Hillery . . . are of limited
relevance here.” 338 F.3d at 388 n.24.
27
explanation of “why he did not present to the state court the same
materials he had prepared and submitted to the federal court.” Id.
at 990. Here, Morris presented his single Atkins claim to both the
federal and state courts; he also explicitly acknowledged what
particular evidence he lacked and requested a chance to acquire
it.10
Moreover, we note the Director points to no binding authority
that requires an IQ test specifically, that is, entirely alone, at
the core, or as any singular threshold, to provide the basis for a
finding of mental retardation. Instead, the AAMR definition of
mental retardation adopted by the TCCA in Briseno requires a
showing of three interdependent prongs. 135 S.W.3d at 7-8.
Likewise, the Texas Health and Safety Code section 591.003(13),
also adopted by the TCCA as an alternative standard to the AAMR
definition for a petitioner to show his mental retardation, defines
mental retardation as “significantly subaverage general
intellectual functioning that is concurrent with deficits in
adaptive behavior and originates during the developmental period.”
TEX. HEALTH & SAFETY CODE ANN. § 591.003(13) (Vernon 2003); Briseno, 135
S.W.3d at 7. Thus, IQ evidence standing completely on its own
cannot provide the 180-degree turn the Director insists it does to
withstand summary dismissal. See, e.g., Briseno, 135 S.W.3d at 7
10
Kunkle relied on Graham and Brown but did not cite either
Vasquez or Anderson. See supra n.9.
28
n.24 (“Psychologists and other mental health professionals are
flexible in their assessment of mental retardation; thus, sometimes
a person whose IQ has tested above 70 may be diagnosed as mentally
retarded while a person whose IQ tests below 70 may not be mentally
retarded.”); Stevenson v. State, 73 S.W.3d 914, 917 (Tex. Crim.
App. 2002) (“A low IQ score by itself, however, does not support a
finding of mental retardation.”). Finally, the unpublished
concurrence in Williams suggesting otherwise, 2003 WL 1787634, at
*2-3, fails to establish any threshold factual burden based on IQ
alone for Atkins claims.
Morris specifically presented to the state courts a sworn
affidavit from a psychologist who, after reviewing all the other
testimonial and school record evidence likewise presented to the
state courts, made the crucial preliminary factual allegation that
there was a probability Morris indeed suffered from mental
retardation. Although in federal court Morris has additionally
presented IQ scores and expert assessment of those scores, the
crucial fact that Morris possessed sufficient indicators for a
diagnosis of mental retardation had already been presented to the
state courts. The substance of Morris’s Atkins claim was fairly
presented to the highest state court, the TCCA. Thus, we find as
a matter of law on this record that Morris’s Atkins claim was not
presented to the federal court in a significantly different legal
posture than in the state courts and that the new evidence
29
presented did not fundamentally alter his Atkins claim. Because we
find that Morris’s new evidence has met the exhaustion requirement
of § 2254(b)(1)(A) for his Atkins claim to continue in federal
court, this Court need not reach any argument concerning any
exception to exhaustion.
In his prayer for relief, Morris requests that we remand his
case to the district court for an evidentiary hearing. We agree to
so remand and note the following. In cases where the legal
question is whether the new evidence a petitioner puts forth for
the first time on federal habeas on a particular claim already
asserted on state habeas is exhausted under § 2254(b), subparts (d)
and (e) of § 2254 concerning “factual development” are not
implicated. Dowthitt, 230 F.3d at 745 & nn.11-12. In Dowthitt, we
specifically considered that although both the Director and the
petitioner “argue[d] this issue as one of ‘factual development’
under § 2254(d) and (e), it is more accurately analyzed under the
‘exhaustion’ rubric of § 2254(b).” Id. at 745. We explained that
if new evidence on the particular claim is determined to be
exhausted under § 2254(b)(1)(A), such evidence is not precluded
from review and can properly be considered by the federal court.
See id. at 745-46. We thus rejected the approach whereby a
petitioner would have to meet the factual development requirements
of § 2254(e)(2) to be entitled to have his new evidence on the
particular claim be reviewed in federal court. See id. at 745 &
30
nn. 11-12.
Instead, this Circuit classifies these specific cases as
presenting the question whether the new evidence, not previously
presented to the state courts but presented for the first time to
the federal court, has met the exhaustion requirement of §
2254(b)(1)(A), see id. We do not in this case ask the question
whether the petitioner has “failed to develop the factual basis of
a claim in State court proceedings.” 28 U.S.C. § 2254(e)(2).
Here, Morris, having met the § 2254(b)(1)(A) exhaustion requirement
on the IQ evidence presented for the first time on federal habeas,
need not additionally overcome the obstacles of § 2254(e)(2). See
Dowthitt, 230 F.3d at 745 & nn.11-12. Thus, because there is, and
can be, no lingering concern about “factual development” in
Morris’s case, under Rule 8(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the federal court here
retains full discretion to grant Morris an evidentiary hearing.
See, e.g., Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000);
Clark v. Johnson, 202 F.3d 760, 765 (5th Cir. 2000).
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and arguments, for the reasons set
forth above, we conclude the district court erred in finding that
Morris’s presentment of new evidence to the federal court rendered
his Atkins claim unexhausted per 28 U.S.C. § 2254(b)(1)(A).
31
Therefore, on this record and in light of our holding, we VACATE
the district court’s order dismissing Morris’s claim without
prejudice and REMAND with instruction to conduct an evidentiary
hearing on the merits of Morris’s Atkins claim.
VACATED and REMANDED with instruction.
32
PATRICK E. HIGGINBOTHAM, Circuit Judge, Concurring:
While I join in the judgment vacating the district court’s
order dismissing Morris’ petition, I write separately to explain my
rejection of the State’s argument that Morris is not entitled to an
evidentiary hearing because he failed to develop the factual basis
of his Atkins claim before the Court of Criminal Appeals.
If a habeas applicant has “failed to develop the factual basis
of a claim in State court proceedings,” a federal habeas court may
not hold an evidentiary hearing on the claim unless certain
conditions are met.11 It is undisputed that Morris did not present
IQ evidence during his state habeas proceedings for the simple
reason that it did not yet exist. Lack of presentation, however,
is not the same as “failure to develop.” In Williams v. Taylor,12
the Supreme Court addressed the meaning of the word “failed” in
§ 2254(e)(2). The Court rejected a “no-fault” reading of the
statute, and found that “[u]nder the opening clause of § 2254(e)(2),
a failure to develop the factual basis of a claim is not established
11
28 U.S.C. § 2254(e)(2). An applicant may receive an evidentiary hearing
despite failure to develop the factual basis of a claim when:
(A) the claim relies on–
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that
was previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable fact-finder would have
found the applicant guilty of the underlying offense.
Id. Morris does not argue that he meets these conditions.
12
529 U.S. 420 (2000).
unless there is lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner’s counsel.”13
The State argues that Morris failed to exercise diligence in
developing his Atkins claim, and therefore should be barred from
receiving an evidentiary hearing. The State observes that although
Atkins had been decided ten months before Morris’ execution date,
he waited until five days before his execution date to file
affidavits in support of his claim. In addition, the State contends
that Morris failed to make an “on-the-record” request for funds to
develop his IQ evidence, and that his condition was previously
discoverable in any event since he was greater than eighteen years
of age.
The State’s argument ignores the fact that in his successive
habeas application before the Court of Criminal Appeals, Morris
requested that the Court “appoint him counsel and provide him with
the necessary resources to establish his claims.” As part of the
evidence he wished to further develop, Morris cited the need for
“intellectual testing.” The Court denied this request by dismissing
Morris’ application as an abuse of the writ. This was a rejection
of the merits of the petition, not a finding of procedural default
constituting an independent bar to federal review.14
13
Id. at 432.
14
A dismissal under article 11.071(5)(a) normally constitutes an adequate
and independent procedural bar to federal review. See TEX. CRIM. PROC. CODE ANN.
art. 11.071, § 5 (Vernon 2005); Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir.
1998). However, in the Atkins context, Texas courts have imported an antecedent
34
Because Morris requested resources to further develop his
Atkins claim, and specifically referenced the need for intellectual
testing, he did not fail to develop diligently the factual basis of
his claim at the state level such that he should be denied an
evidentiary hearing before the federal habeas court. While it is
true that Morris could have sought testing earlier, the harsh
reality is that such testing is costly, and death row inmates
typically lack independent financial means, as did Morris. Further,
Morris had no incentive to obtain such testing prior to the Court’s
decision in Atkins given the Court’s position in Penry v. Lynaugh.15
Finally, the record indicates that Morris, with the assistance of
volunteer counsel, diligently sought to gather evidence of mental
retardation during the time period after Atkins was decided, and
prior to Morris’ scheduled execution date.16
showing of “sufficient specific facts” to merit further review, rendering
dismissal of such claims under article 11.071(5)(a) a decision on the merits.
See Steward v. Smith, 536 U.S. 856, 860 (2002) (“Our cases make clear that when
resolution of [a] state procedural law question depends on a federal
constitutional ruling, the state-law prong of the court’s holding is not
independent of federal law, and our [direct review] jurisdiction is not
precluded.’” (quoting Ake v. Oklahoma, 470 U.S. 68, 75 (1985)).
15
492 U.S. 302, 335 (1989), overruled by Atkins v. Virginia, 536 U.S. 304
(2002) (“[A]t present, there is insufficient evidence of a national consensus
against executing mentally retarded people convicted of capital offenses for us
to conclude that it is categorically prohibited by the Eighth Amendment.”)
16
In this time period, counsel was able to obtain the record from Morris’
original trial, the records of Morris’ examining physician at trial (which did
not include intellectual testing data), the records remaining from Morris’
attendance in school (many of the records had been destroyed), Morris’ adult
probation records from Harris County, and affidavits from Dr. Richard Garnett,
Jimmie Morris, Ayanna Shauntay Sweatt, Craig Morris, and Darrel Morris. Further,
Morris indicates in his successive state application for writ of habeas corpus
that he asked the state trial court in which his application was filed for
appointment of counsel for the purpose of obtaining psychological testing. This
request was apparently denied after it was opposed by the Harris County District
35
It is not a matter of an obligation to pay for intellectual
testing of a prisoner raising a colorable Atkins claim warranting
further development. It is rather that there was a barrier placed
before the petitioner through no fault of his own--indigence. When
a prisoner diligently seeks to develop a colorable Atkins claim by
requesting funding for intellectual testing and his request is
rejected by the state court, § 2254(e)(2) will not bar him from
developing such evidence in federal court.17 A petitioner “is not
at fault when his diligent efforts to perform an act are thwarted,
for example, by the conduct of another or by happenstance. Fault
lies, in those circumstances, either with the person who interfered
with the accomplishment of the act or with no one at all.”18
The State is correct to argue that our review of the Court of
Criminal Appeals’ judgment must be conducted under a deferential
standard. The AEDPA provides that a habeas application filed by a
Attorney’s office.
17
The Supreme Court reached a similar conclusion in Williams:
We do not suggest the State has an obligation to pay for
investigation of as yet undeveloped claims; but if the prisoner has
made a reasonable effort to discovery the claims to commence or
continue state proceedings, § 2254(e)(2) will not bar him from
developing them in federal court.
529 U.S. at 443; see also United States ex rel. Hampton v. Leibach, 347 F.3d 219,
233-34 (7th Cir. 2003) (evidentiary hearing allowed to consider affidavit that
was not presented to the state court when the state court had denied petitioner’s
request for an evidentiary hearing at the state level for the purpose of
developing the testimony contained in the affidavit); Greer v. Ohio, 264 F.3d
663, 681 (6th Cir. 2001) (evidentiary hearing allowed when petitioner diligently
pursued his ineffective assistance claim in state habeas proceedings, had twice
requested hearings to develop evidence, and both requests were refused by the
state courts).
18
Williams, 529 U.S. at 432.
36
state prisoner
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings
unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.19
While demanding deference, however, this rule does not require that
we confine our review of Morris’ Atkins claim to the record before
the state court. The Supreme Court explained in Williams:
Interpreting § 2254(e)(2) so that “failed” requires lack
of diligence or some other fault avoids putting it in
needless tension with § 2254(d). . . . If the opening
clause of § 2254(e)(2) covers a request for an
evidentiary hearing on a claim which was pursued with
diligence but remained undeveloped in state court
because, for instance, the prosecution concealed the
facts, a prisoner lacking clear and convincing evidence
of innocence could be barred from a hearing on the claim
even if he could satisfy § 2254(d).20
Limiting a federal court’s review to the record before the state
habeas court would undermine the Court’s intention in Williams of
providing state habeas petitioners who did not “fail” to develop
their claims with a vehicle to do so at the federal level.
In short, the State’s contention that Morris should not be
allowed an evidentiary hearing is without merit because Morris
19
28 U.S.C. § 2254(d)(1)-(2).
20
529 U.S. at 434.
37
diligently sought to develop his Atkins claim at the state level.
The wisdom of it aside, the State was within its rights to deny
Morris assistance in obtaining intellectual testing; however, it
cannot deny him the ability to continue his diligent pursuit of such
testing before the federal habeas court.
38
DENNIS, Circuit Judge, concurring:
I join fully in Judge DeMoss’s opinion. Moreover, I heartily
endorse Judge Higginbotham’s analysis of the state’s failure to
develop argument and applaud the passion and eloquence with which
he argues. Further, I believe that Judge Higginbotham’s reasoning,
and that of the Supreme Court in Williams v. Taylor, 529 U.S. 420
(2000), should inform this court’s application of the exhaustion
rubric.
39