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Sorto v. Davis

United States Court of Appeals, Fifth Circuit

June 15, 2017

WALTER ALEXANDER SORTO, 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 Southern District of Texas

          Before JOLLY, DENNIS, and PRADO, Circuit Judges.

          EDWARD C. PRADO, Circuit Judge:

         On December 1, 2016, this Court issued a nondispositive opinion denying certificates of appealability ("COAs") with respect to Petitioner-Appellant Walter Alexander Sorto's Miranda and ineffective assistance of counsel claims. Sorto v. Davis, 672 F.App'x 342 (5th Cir. 2016) (per curiam). The opinion reserved judgment on the issue of whether the district court abused its discretion in denying requests for funding that would have enabled Sorto to obtain testing to determine whether he has an intellectual disability.[1] Id. at 344. In connection with this issue, the opinion requested supplemental briefing discussing whether 28 U.S.C. § 2254(b)(1)(B)(ii) applies in the present case. Id. Section 2254(b)(1)(B)(ii) excuses the requirement that a petitioner exhaust state habeas remedies when the available state process is ineffective to protect the petitioner's rights. Supplemental briefs were submitted by Sorto and Respondent-Appellee Lorie Davis, the director of the Texas Department of Criminal Justice, Correctional Institutions Division (the "Director"). We now hold that Texas's corrective process did not effectively protect Sorto's rights under Atkins v. Virginia, 536 U.S. 304 (2002). Therefore, we VACATE the district court's denial of funding and dismissal of Sorto's Atkins claim and REMAND for further proceedings.

         I. BACKGROUND

         In 2003, Sorto was convicted of capital murder and sentenced to death in Texas. During the pendency of his direct appeal, Sorto raised fifteen claims in a state habeas application filed pursuant to Article 11.071 of the Texas Code of Criminal Procedure. Sorto subsequently filed a pro se "Motion to Amend Petition for State Habeas Corpus 11.071, " alleging that intellectual disability barred his execution under Atkins. The Texas Court of Criminal Appeals (the "TCCA") addressed both filings in a single order. Ex parte Sorto, No. WR-71, 381-01, 2009 WL 483147, at *1 (Tex. Crim. App. Feb. 25, 2009) (per curiam). With regard to the 2005 state habeas application, the TCCA adopted the trial judge's findings and conclusions and denied habeas relief. Id. In addition, the TCCA held that Sorto's 2006 pro se motion was a subsequent application and dismissed it as an "abuse of the writ" after concluding that it "fail[ed] to meet any of the exceptions provided for in Article 11.071, § 5."[2] Id.

         Sorto then brought the present case seeking a writ of habeas corpus in federal district court. In December 2009, and again in February 2010, Sorto's counsel asked the district court to authorize funding for psychological testing so that Sorto could develop his Atkins claim. On May 5, 2010, the district court issued an order denying the requested funds and explaining that "Sorto has not shown that he has any reasonable likelihood of meeting the high standards necessary to both overcome the procedural default and state a valid claim of mental retardation." Accordingly, the district court concluded that the "requested funding [was] not reasonably necessary." The district court then issued an order staying the case and ordering Sorto to present his unexhausted Atkins claim in state court.

         On November 8, 2010, Sorto filed a subsequent habeas application with the TCCA, arguing, among other things, that he should be granted relief under Atkins. In support of his Atkins claim, Sorto presented an IQ score of 66 on the Test of Nonverbal Intelligence ("TONI"), which he claimed placed him "well within the range of significantly subaverage intellectual functioning." Sorto also submitted several affidavits from people who had known him since childhood; these affidavits suggested that his intelligence was impaired as a child and that he had difficulty functioning competently as an adult. Finally, Sorto presented a declaration from Dr. Gilbert Martinez, a clinical psychologist, who reviewed the TONI results and the affidavits. Dr. Martinez gave his "professional opinion that Mr. Sorto's history contains significant indications of intellectual and adaptive deficits beginning in the developmental period prior to age 18." Although the declaration acknowledged that a "complete evaluation" was needed "to make an appropriate diagnosis, " Dr. Martinez stated that Sorto's "test scores suggest the presence of intellectual deficits" and that "individuals who have known Mr. Sorto from childhood have provided a view of his life of seriously impaired functioning in a broad spectrum of daily living requirements."

         A few months later, the TCCA issued a short order dismissing Sorto's 2010 state habeas application. Ex parte Sorto, No. WR-71381-03, 2011 WL 1533377, at *1 (Tex. Crim. App. Apr. 20, 2011) (per curiam). With respect to Sorto's Atkins claim, the court held that Sorto had "failed to make a threshold presentation of evidence that, if true, is sufficient to show that no rational factfinder would fail to find that he is mentally retarded." Id.

         The case then returned to the federal district court. In October 2013, the district court granted funds for psychological testing. Sorto used the funds to hire Dr. Martinez, who administered several tests, including the Wechsler Adult Intelligence Scale-Third Edition ("WAIS-III"), and reviewed various affidavits by family members describing Sorto's history and development. The testing showed that Sorto had a full-scale IQ score of 63, a score within the "Extremely Low" range of intellectual functioning. In addition, Dr. Martinez observed that "[t]here is information in Mr. Sorto's reported history that is also suggestive of deficits in adaptive functioning throughout his development, including very poor academic functioning, speech and language deficits, procedural learning deficits, and social behavior deficits." Dr. Martinez concluded that Sorto's "overall pattern of cognitive and intellectual functioning is strongly indicative of intellectual disability." Dr. Martinez noted, however, that a "comprehensive adaptive functioning assessment is strongly recommended to confirm this diagnosis of intellectual disability."

         Sorto subsequently filed a motion specifically requesting funds to complete the assessment Dr. Martinez recommended. On September 30, 2015, the district court issued a memorandum and order denying Sorto's request for additional funding and denying habeas relief on all claims. The district court noted that it could only review the record that was presented to the state court and thus was constrained "from considering the results of Dr. Martinez's testing, " even though those results constituted "compelling" evidence of intellectual disability. With respect to the denial of additional funding, the district court explained, "Sorto has not provided any substantive basis to suppose that additional testing would provide any basis to allow federal review of his Atkins claim. Testing is not reasonably necessary when it will only support a claim for which federal review is unavailable." The district court also rejected Sorto's claim that the state court process "was clearly ineffective at safeguarding [his] rights" and thus held that Sorto was not entitled to relief under 28 U.S.C. § 2254(b)(1)(B)(ii). According to the district court, "Sorto's failure to put forth evidence sufficiently calling into doubt his intellectual ability, not the state court's failure to authorize the expenditure of funds, foreclosed state habeas review." Sorto timely appealed.

         II. DISCUSSION

         Under 28 U.S.C. § 2254(b)(1), a writ of habeas corpus cannot be granted unless "(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." Sorto argues that because Texas law only allows him to receive state funds to develop his Atkins claim if he has already made a threshold showing of intellectual disability-a showing that is nearly impossible to make without funding for IQ testing-the state corrective process is ineffective to protect his rights. Therefore, he contends that the exhaustion requirement should have been excused under § 2254(b)(1)(B)(ii). In response, the Director argues that § 2254(b)(1)(B)(ii) cannot apply because Sorto has already exhausted his Atkins claim and that the state corrective process is not so clearly ineffective as to trigger § 2254(b)(1)(B)(ii).

         The § 2254(b)(1)(B)(ii) issue is tied to the question of whether the district court abused its discretion in denying Sorto's requests for federal funds to develop his Atkins claim. "A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence." Ayestas, 817 F.3d at 895 (quoting United States v. Ebron, 683 F.3d 105, 153 (5th Cir. 2012)). Pursuant to 18 U.S.C. § 3599(f), a district court may order that a defendant receive funding for "investigative, expert or other services" if the court finds that such services "are reasonably necessary for the representation of the defendant." In both 2010 and 2015, the district court determined that the requested federal funding was not reasonably necessary because Sorto's Atkins claim was not fully exhausted and any additional evidence obtained would be unexhausted and therefore unreviewable. However, if the exhaustion requirement should have been excused under ยง 2254(b)(1)(B)(ii) due to inadequacies in the state corrective ...


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