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Busby v. Davis

United States Court of Appeals, Fifth Circuit

June 13, 2018

EDWARD LEE BUSBY, 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

          Before OWEN, GRAVES, [*] and HIGGINSON, Circuit Judges.

          PRISCILLA OWEN, CIRCUIT JUDGE.

         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 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 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 successive 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 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 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 to a state court, the TCCA, in a second, successive habeas petition. Busby asserted that he was actually innocent of the death penalty under Article 11.071, section 5.03(a)(3) of the Texas Code of Criminal Procedure. This claim largely mirrored the Atkins claim in his federal habeas petition, though he asserts in federal court that he is entitled to habeas relief based on the miscarriage of justice exception under federal common law, which includes the Sawyer v. Whitley actual-innocence-of-the-death-penalty standard.[35] The federal district court afforded Busby the opportunity to have an evidentiary hearing. Busby declined such a hearing and relied on the evidence attached to his federal habeas petition.

         In the course of the state-court trial that resulted in Busby's conviction and in his pursuit of state and federal habeas relief, Busby has retained at least four mental health experts. None of them 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, successive 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. The fact that Busby has retained at least four mental health experts over the course of his prosecution and post-conviction proceedings, and none of them has opined that Busby is intellectually disabled, is compelling evidence. Busby has failed to show by clear and convincing evidence that "no reasonable juror [or factfinder] would have found him eligible for the death penalty."[36] Stated another way, a reasonable factfinder could conclude from the evidence Busby presented that he is not intellectually disabled.

         The TCCA's disposition of the Atkins claim withstands scrutiny under AEDPA.[37] Busby's contention that, based on Sawyer v. Whitley, he is actually innocent of the death penalty, likewise fails.

         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, successive 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 judgment."[38] 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, successive habeas application said, "we dismiss the application as an abuse of the writ without considering the merits of the claims."[39] 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."[40] "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely."[41]

         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 counsel failed to discover. Busby submitted three broad claims to the TCCA in his second, successive 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 successive state habeas application. It is highly probable that the TCCA denied relief on the ineffective-assistance-of-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.[42] That determination is necessarily dependent on a substantive analysis of the federal question in light of 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-of-the-writ statute, the TCCA is required to dismiss successive habeas petitions[43] 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 . . . .[44]

         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 successive application was resolved under section 5(a)(1). The State cites this court's decision in Rocha v. Thaler[45] 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. The Rocha decision expressly recognized that as to Atkins claims that had been resolved by the TCCA under section 5(a)(1), the TCCA "steps beyond a procedural determination to examine the merits of an Atkins claim."[46] 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."[47] Accordingly, even had the TCCA resolved the Atkins claim under section 5(a)(1), our court has concluded that the denial of an Atkins claim under 5(a)(1) is a merits decision. Our decision in Rocha predated the TCCA's decision in Blue, and it is now clear that the TCCA no longer resolves Atkins claims like Busby's under section 5(a)(1). The TCCA's Blue decision explains that Atkins claims like the one Busby has presented are instead resolved under section 5(a)(3). The dismissal of an Atkins claim would, however, continue to be a merits decisions.

         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."[48] 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."[49] No one contends that section 5(a)(2) is applicable. Unquestionably, Busby's petition 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 successive habeas petition, the TCCA ruled on 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.[50] 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."[51] 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 convincing evidence, that no rational factfinder would fail to find mental retardation."[52]

         The TCCA's decision in Blue examined at length the evidence supporting the claim that Blue came within Atkins's prohibition.[53] The Texas court concluded that the evidence did not meet section 5(a)(3)'s threshold, [54] and the court dismissed the "subsequent writ application as an abuse of the writ."[55]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."[56]

         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."[57] The TCCA deduced that "the Legislature apparently intended to codify, more or less, the doctrine found in Sawyer v. Whitley."[58] 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 of the claim" in a successive federal habeas petition.[59] 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."[60] 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."[61]

         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.[62] 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.[63]

         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. Since Busby first raised an Atkins claim in a successive habeas petition, section 5(a)(3) requires that Busby must ultimately prove by "clear and convincing evidence, that no rational factfinder would fail to find mental retardation."[64]

         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."[65]

         B

         Our review of the state court's disposition of Busby's Atkins claim is governed by AEDPA.[66] To the extent that our decision in Rocha v. Thaler could be read as concluding that the TCCA's denial of an Atkins claim under Texas Code of Criminal Procedure article 11.071, section 5(a)(3) would not be subject to review under AEDPA, [67] Rocha would be contrary to the Supreme Court's conclusion in Brumfield v. Cain that "[p]ursuant to [AEDPA], Brumfield could secure relief only if the state court's rejection of his [Atkins] 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.'"[68] Though the substance of Texas Code of Criminal Procedure article 11.071, section 5(a)(3) may model federal common law, it is nevertheless a state law under which the TCCA reached the merits of Busby's Atkins claim. The TCCA's ruling is subject to AEDPA, even though the review under AEDPA may not differ in any material respect from a federal court's application of the federal common-law actual-innocence exception set forth in Sawyer v. Whitley.[69]

         We therefore review the TCCA's denial of Busby's Atkins claim under AEDPA. We must ascertain what established federal law, as determined by the Supreme Court of the United States, provides with regard to an Atkins claim that is first raised in a successive habeas petition.

         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.[70] 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 state habeas petition.

         As discussed above, the pre-AEDPA decision in Sawyer established that federal courts could employ the miscarriage of justice exception even if claims were first raised in successive federal habeas petitions.[71] However, in McQuiggin v. Perkins, the Supreme Court explained that in enacting AEDPA, Congress "constrained the application of the [miscarriage-of-justice] exception" by the inclusion of § 2244(b)(2)(B).[72] 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.'"[73] 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."[74]

         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."[75] 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."[76]

         The Supreme Court's holdings regarding Ford[77] 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 application.[78] A Ford claim can be raised in multiple proceedings and not be "successive."[79] That is because mental incompetence to be executed is not categorically a permanent condition.[80] 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.[81] By contrast, intellectual disability is by definition a permanent condition that must have manifested before the age of 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 is successive. He is not entitled under federal law to de novo review of that claim in state or federal court. 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, [82] when an actual innocence-of-the-death-penalty claim is first asserted in a successive habeas application.

         C

         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."[83] The Supreme Court has held that "[s]ection 2254(d) applies even where there has been a summary denial" of habeas relief.[84] The clearly established federal law to be applied to the facts in the present case is embodied in Atkins and its progeny, and more generally, in McQuiggin v. Perkins.

         Whether Busby is intellectually disabled is a question of fact, [85] and the Supreme Court has said that states have some flexibility, within limits, to define intellectual disability.[86] Though Texas defines intellectual disability by statute or regulation for some purposes, [87] it has not done so with regard to Atkins proceedings.[88] The TCCA undertook to define intellectual disability in Ex parte Briseño.[89] However, the Supreme Court held in Moore v. Texas that the TCCA's definition of intellectual disability is infirm, in part.[90] For purposes of our review today, we will 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 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.[91]

         In addition, we will hew to the Supreme Court's decisions regarding Atkins claims that post-date the TCCA's 2013 denial of Busby's Atkins claim.[92]The State contends that the TCCA's decision should be assessed under Supreme Court precedent as it existed as of the date the TCCA's decision issued. We do not resolve that question because it is not outcome-determinative in this case.

         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."[93] The standard of review that the TCCA applied is not contrary to federal law, for the reasons discussed above. Accordingly, we must 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.

         We begin with Busby's IQ scores. Busby was administered five separate IQ tests between 2001 and 2010.[94] He scored 96 on an unknown IQ test in 2001, [95] and the State offered to "forget about" that test, acknowledging that it was unreliable.[96] We do not consider that test is our analysis of the evidence. 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.[97] The standard error of measurement (SEM)[98] for the WAIS-III is approximately "plus or minus five, " according to Dr. Proctor's trial testimony.[99] Busby's IQ was therefore in a range of 72-82, as measured by the WAIS-III. Busby asserted in his successive 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.[100] 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.[101] Proctor testified that this score "correlates fairly well" with Busby's WAIS-III score.[102] 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, to be subject to a higher Flynn Effect rate than the Wechsler scales, and to be less reliable overall than the Wechsler Scales."[103] 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.[104] 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."[105]

         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.[106] 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 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.[107] 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."[108]

         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.[109] Busby tested at the fourth-grade level in reading, third-grade level in spelling, and sixth-grade level in math.[110]

         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 agree that we cannot assume that the TCCA considered only Busby's IQ scores and ignored other evidence in Busby's state habeas application. It follows that we cannot 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 were three reports from mental health experts appended to Busby's successive 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.[111] 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, successive 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.[112] 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."[113] 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."[114] Importantly, Kessner concluded that the 77 score on the WAIS-III "does not rule out a diagnosis of mental retardation, " and that "a thorough investigation into Mr. Busby's adaptive behavior history is necessary to make a proper determination."[115] The report continued, "[a]t this time, I do not believe that has been accomplished."[116] 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."[117] 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."[118] 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."[119] 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, successive 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."[120] 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.[121] Under a column in this chart labelled "Qualitative Description, " the word "Borderline" appears with regard to Busby's full scale IQ score.[122] 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."[123]

         Federal habeas counsel also retained Bekh Bradley-Davino, Ph.D., who is a licensed clinical psychologist.[124] Bradley-Davino spent ten hours evaluating Busby in person and reviewed a substantial amount of written material and records.[125] 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."[126] 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."[127] 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 plays during high school football practice.[128] 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."[129] 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 conclude that Busby's successive petition in state court falls short of presenting clear and convincing evidence that no rational factfinder would fail to find him 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"[130] or an unreasonable application of clearly established federal law to those facts.

         D

         As an independent basis for habeas relief, Busby contends that, as a matter of federal common law, he is actually innocent of the death penalty and ineligible for execution because he is intellectually disabled. He does not base this claim on AEDPA, but instead, on a pre-AEDPA decision, Sawyer v. Whitley.[131]

         The Supreme Court held in House v. Bell that AEDPA does not address the circumstances that another federal common-law actual-innocence standard, the Schlup standard, [132] was crafted by the federal courts to address and therefore that the Schlup standard of review, rather than AEDPA, governed the claim of actual innocence in House.[133] The Sawyer actual-innocence standard of review is similar, though not identical to, the Schlup actual-innocence standard, and they are both part of the miscarriage-of-justice standard defined by the Supreme Court's habeas corpus jurisprudence.[134] The Supreme Court explained that the Schlup standard applies when a "petitioner asserts his actual innocence of the underlying crime, " and it requires that "he must show 'it is more likely than not that no reasonable juror would have convicted him in light of the new evidence' presented in his habeas petition."[135] The Sawyer standard applies when "a capital petitioner challenges his death sentence, in particular, " and then, "he must show 'by clear and convincing evidence' that no reasonable juror would have found him eligible for the death penalty in light of the new evidence."[136]

         Subsequently, the Supreme Court held in McQuiggin v. Perkins that although AEDPA, specifically 28 U.S.C. §§ 2244(b)(2)(B) and 2254(e)(2), "constrained the application of the [miscarriage of justice] exception, " those provisions "reflect Congress' will to modify the miscarriage of justice exception with respect to second-or-successive petitions and the holding of evidentiary hearings in federal court."[137] However, with respect to "a first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA's passage intact and unrestricted."[138] Busby's actual-innocence-of-the-death-penalty claim was first raised in his first federal habeas petition.

         The question, therefore, is whether Busby has shown by clear and convincing evidence that no reasonable juror would have found him eligible for the death penalty in light of the evidence set forth in his federal habeas petition. The evidence in Busby's federal petition was very similar to that presented in his state petition. Busby is not contending in our court that the federal district court should have held an evidentiary hearing on his Atkins claim or erred in failing to do so. In fact, Busby was given the opportunity to present evidence at an evidentiary hearing, but he did not identify any witnesses that he wished to call at such a hearing. He relied on the evidence set forth in his habeas petition in the federal district court. We reach the same conclusion that the federal district reached, which is that "Busby has not shown by clear and convincing evidence that he is mentally retarded."[139]

         The district court's factual findings primarily considered Busby's IQ scores. However, we have considered all of the evidence presented by Busby, and he failed to establish by clear and convincing evidence that he is intellectually disabled, for the same reasons that we reached that conclusion in part II-C above. Our review in part II-C was conducted under AEDPA, but the outcome is the same applying the actual-innocence standard in Sawyer v. Whitley, rather than AEDPA.

         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.

         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[140]and Trevino v. Thaler.[141] However, in Davila v. Davis, [142] 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.[143] "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."[144]

         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, [145] reasoning that "the Court in Martinez was principally concerned about trial errors-in particular, claims of ineffective assistance of trial counsel."[146] 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, "[147] and the Court "declin[ed] to expand the Martinez exception to the distinct context of ineffective assistance of appellate counsel."[148]

         We note that while Busby asserted in his successive 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 successive 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 counsel's failure to raise the denial of admittance of [Latimer's statements] under Texas evidentiary law is a separate claim for relief."[149] 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.[150]

         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.[151]

         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."[152] Busby must show that "but for his counsel's" failure to raise the issue on appeal, "he would have prevailed on his appeal."[153] 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 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.[154]

         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."[155] 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."[156] "Busby admits he taped the victim while he was alone with her at Walmart and Latimer was at the LaQuinta hotel."[157]

         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.[158] 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 was harmless.[159] 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.[160] 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.[161]

         To establish ineffective assistance of trial counsel under Strickland, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness"[162] and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."[163] 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"[164] creates "a reasonable probability that at least one juror would have struck a different balance" and recommended a life sentence instead of death.[165] 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.[166] We agree with the conclusions that the district court reached regarding the weight of the aggravating evidence as measured against the "new" mitigating evidence.[167]

         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, [168] was required to repeat two grades, [169] was frequently absent from school, and ultimately dropped out of school.[170] They also noted that he was enrolled in special education classes for students with IQ's lower than average, but above 70.[171] His special education teacher spoke to Busby's lack of support at home, his life as a "follower" in a segregated neighborhood, [172] and her observation that he was a difficult student.[173] The fact that Busby attempted to commit suicide on four occasions and was hospitalized on each occasion was presented to the jury.[174] 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."[175]

         The state introduced aggravation evidence at trial showing that Busby had an extensive criminal history and a violent nature.[176] 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[177] Busby pleaded guilty to stealing donations from the Salvation Army.[178] During his time in prison for these offenses, Busby was a violent and aggressive inmate.[179] A Kmart employee testified that Busby once attempted to steal batteries and when he was confronted, he threatened the employee and his family.[180] 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, [181] that he had violently assaulted and injured Latimer, and that he had been arrested multiple times on drug and weapons charges.[182] The jury found that Busby posed a future risk of dangerousness to society and that no mitigating factors warranted a life sentence.[183]

         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.[184]

         Busby asserted that his mother did not obtain prenatal healthcare when pregnant with him.[185] 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.[186] 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.[187] One sister claimed that Busby's mother did not love Busby and would tell him that he was "just like [his] sorry-ass daddy."[188] They also described Busby's father as a "drunk" and stated that Busby's "dad would hit him with anything" when he was inebriated.[189] 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."[190] Both sisters described Busby as slow, irresponsible, and unhygienic.[191]

         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.[192] They also commented upon Busby's "mood swings" and mental health issues, including his attempt to commit suicide in his teenage years.[193]Several noted that Busby was a follower when it came to women, especially Latimer, who was described as his girlfriend.[194]

         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."[195] 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."[196] He did, however, diagnose Busby with bipolar disorder, anxiety disorder, and polysubstance dependence in remission.[197]

         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.[198] We concluded in Parr v. Quarterman[199] 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."[200] 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[201] 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.[202] Indeed, when "the evidence of [] future dangerousness was overwhelming . . . . it is virtually impossible to establish prejudice."[203]

         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 sentence.[204] He was therefore not prejudiced by his trial counsel's ...


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