Long, Steven Lynn ( 2023 )

In the Court of Criminal
Appeals of Texas
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No. WR-76,324-02
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EX PARTE STEVEN LYNN LONG,
Applicant
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On Application for Writ of Habeas Corpus
Cause No. W05-52918-R(B) in the 265th District Court
Dallas County
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YEARY, J., filed dissenting opinion.
Once again, in this subsequent application for post-conviction
writ of habeas corpus, the Court grants yet another applicant relief on a
claim that he may not be executed consistent with Atkins v. Virginia,
536 U.S. 304 (2002). Once again, however, the Court grants such relief
without first resolving a number of indispensable predicate questions.
And for that reason, once again, I respectfully dissent.
LONG – 2
First of all, Applicant’s trial occurred in 2006, four years after
Atkins was decided. Yet Applicant failed to pursue a claim of intellectual
disability at that time. The Court should decide whether that failure
constitutes a procedural default that forecloses Applicant’s ability to
complain in a post-conviction habeas corpus proceeding. Ex parte Jean,
___ S.W.3d ___, No. WR-84,327-01, 2023 WL 2993888, at *1−3 (Tex.
Crim. App. Apr. 19, 2023) (Yeary, J., dissenting). Second, even assuming
that Applicant can raise his Atkins claim for the first time in post-
conviction proceedings, should he nevertheless have to prove his claim
by a higher standard of proof than a preponderance of the evidence? Id.at *3−6; Ex parte Segundo, 663 S.W.3d 705, 707−10 (Tex. Crim. App.
2022) (Keller, P.J., dissenting).
Third, this is not even an initial writ application; it is a
subsequent application, brought under the auspices of Section 5 of
Article 11.071. TEX. CODE CRIM. PROC. art. 11.071, § 5. This Court
permitted Applicant to proceed based upon the new law represented by
the first opinion of the United States Supreme Court in the Moore case.
See Ex parte Long, No. WR-76,324-02, 2018 WL 3217506 (Tex. Crim.
App. June 27, 2018) (citing Moore v. Texas, 581 U.S. 1 (2018)). It is not
clear to me, however, that in assessing the Atkins claim, as it was raised
in Applicant’s initial writ application, any of the mistakes identified by
the Supreme Court in Moore (as well as Moore v. Texas, 139 S. Ct. 666
(2019)) were made. See Segundo, 663 S.W.3d at 715 & n.5 (Yeary, J.,
dissenting).
Allowing Applicant to re-raise his claim in a subsequent writ
application anyway has only permitted some of the experts to change
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their assessments of his condition based upon the most recent revisions
to the professional manuals that define the diagnostic criteria for
intellectual disability. Id. at 712−15 (Yeary, J., dissenting). But changes
in the manuals should not be thought to automatically translate into a
national consensus about the tolerance of the death penalty under the
Eighth Amendment. Id. at 715 (Yeary, J., dissenting). Just because the
professional consensus defining intellectual disability (if that is even
what the manuals reflect) has evolved, that does not necessarily mean
that society’s standard of decency pertaining to the propriety of the
death penalty has evolved to the same extent. Id. It seems to me that
whether society’s standard has also evolved remains to be determined,
either by this Court or by the United States Supreme Court.
Finally, it remains unclear to me whether, even assuming
Applicant has met whatever burden he should shoulder to prove
intellectual disability, the proper disposition for Applicant is for this
Court to reform his death penalty to a life sentence. The Court has yet
to address the question of whether the more appropriate disposition, at
least for capital cases that were tried post-Atkins, might be to remand
the cause to the convicting court to empanel a new jury to determine the
issue of intellectual disability there, in the first instance. Ex parte
Lizcano, 607 S.W.3d 339, 340−41 & n.6 (Tex. Crim. App. 2020) (Yeary,
J., dissenting); Segundo, 663 S.W.3d at 711−12 (Yeary, J., dissenting);
Ex parte Williams, No. WR-71,296-03, 2020 WL 7234532 (Tex. Crim.
App. Dec. 9, 2020) (not designated for publication).
Once again, I respectfully dissent.
FILED: June 28, 2023
PUBLISH