Blue, Ex Parte Carl Henry

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,254

EX PARTE CARL HENRY BLUE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 23293-272 FROM THE

272 ND DISTRICT COURT OF BRAZOS COUNTY

Price, J., delivered the opinion of the Court in which Meyers, Johnson, Keasler,

Hervey, Holcomb and Cochran, JJ., joined. Keller, P.J., filed a concurring opinion.

Johnson, J., filed a concurring opinion. Womack, J., concurred in the result.

O P I N I O N

This is a subsequent application for writ of habeas corpus in a capital case, in which

the applicant claims that he cannot be subjected to the death penalty, consistent with Atkins

v. Virginia , (1) because he is mentally retarded. Although the applicant filed his initial post-conviction application for writ of habeas corpus almost a year after the Supreme Court

decided Atkins , the applicant failed to raise the issue of mental retardation in that initial writ

application. He therefore makes no attempt to argue that we have authority to review his

claim under Article 11.071, Section 5(a)(1) of the Code of Criminal Procedure. (2)

Instead, the applicant makes two alternative arguments. First, he asserts that we may

reach the merits of his claim of mental retardation under Article 11.071, Section (5)(a)(3). (3)

Under this provision, a subsequent capital habeas applicant is entitled to a merits-review of

a claim if he can show by clear and convincing evidence that, 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 under

Article 37.071[.]" (4) Alternatively, the applicant asserts that, because the Eighth Amendment

prohibition against executing the mentally retarded is absolute, we should suspend all notions

of waiver, forfeiture, procedural default, and abuse of the writ, and abandon any otherwise-valid interest the State may have in the finality of the judgment, and permit him to proceed

with his claim, notwithstanding whatever statutory impediments exist to his raising the claim

in a subsequent writ application. We filed and set this subsequent application to consider

whether the applicant should be allowed to proceed on either of these bases.

We hold that, having afforded the applicant one opportunity to raise his Atkins claim

in a post-conviction setting, the Texas Legislature may legitimately limit any second chance

it may afford him to raise it again, notwithstanding the absolute nature of the prohibition

against executing the mentally retarded. We conclude that through Article 11.071, Section

5(a)(3), the Legislature has provided a mechanism whereby a subsequent habeas applicant

may proceed with an Atkins claim if he is able to demonstrate to this Court that there is

evidence that could reasonably show, to a level of confidence by clear and convincing

evidence, that no rational finder of fact would fail to find he is mentally retarded. However,

because we find that the applicant in this case has failed to satisfy this heightened-threshold

burden, we deny him leave to proceed.

I. IS ATKINS SUBJECT TO THE ABUSE-OF-THE-WRIT DOCTRINE?

The applicant argues that the Eighth Amendment prohibition against executing the

mentally retarded is absolute, and for that reason can be raised "at any time." He argues that

the Atkins bar against executing the mentally retarded amounts to what, in Marin v. State , (5)

we characterized as an "absolute systemic . . . prohibition." (6) In a different procedural

context, the Supreme Court has identified a rule barring execution of the mentally retarded

as one "prohibiting a certain category of punishment for a class of defendants because of

their status or offense." (7) To permit the execution of a mentally retarded offender is thus, the

applicant argues, "beyond the power of the criminal law-making authority[.]" (8) But we need

not reach the question whether Atkins has identified a systemic prohibition under Marin . For

even if we were to agree that "implementation" of such a prohibition "is not optional and

cannot, therefore, be waived or forfeited by the parties[,]" (9) this does not necessarily mean,

as the applicant contends, that an allegation that the constitutional prohibition applies can be

made, literally, "at any time" or that otherwise-legitimate state limitations on post-conviction

proceedings must give way to any allegation, however well substantiated, of mental

retardation.

We did not say in Marin that even an absolute requirement or prohibition could

necessarily be raised at any time. The question in Marin was whether a particular claim, not

brought to the trial court's attention, could be raised for the first time on appeal. We

observed during the course of our analysis that:

the right to appeal is not of constitutional magnitude, but is conferred by the

Legislature. * * * And that which the Legislature may withhold altogether,

it may withhold in part. Thus, our lawmakers may deny the right to appeal

entirely or the right to appeal only some things or the right to appeal all things

only under some circumstances. (10)

Accordingly, when we came later to describe the nature of absolute requirements and

prohibitions, we observed:

Finally, absolute requirements and prohibitions, like rights which are waivable

only, are to be observed even without partisan request. But unlike waivable

rights, they can't lawfully be avoided even with partisan consent.

Accordingly, any party entitled to appeal is authorized to complain that an

absolute requirement or prohibition is violated, and the merits of his complaint

on appeal are not affected by the existence of a waiver or a forfeiture at trial. (11)

Thus, the proposition that an absolute prohibition may be raised for the first time on appeal

is subject to the predicate right to appeal in the first place. The existence of an absolute

prohibition, even one that derives from the federal constitution, does not mandate that states

create a right to an appellate forum in which to vindicate it.

As is the case with direct appeal, "[s]tates have no obligation to provide" the post-conviction writ of habeas corpus. (12) Of course, Texas law does provide for such writs. But

what state law may withhold altogether, it may withhold in part.

Article V, Section 5 of the Texas Constitution provides this Court with authority to

entertain post-conviction writs of habeas corpus. (13) Since amendment to this provision in

1977, however, that constitutional authority has been expressly made "[s]ubject to such

regulations as may be prescribed by law," which is to say, the Legislature. In 1995, the

Legislature exercised that constitutional regulatory authority to promulgate Article 11.071,

including the abuse-of-the-writ provisions found in Section 5 of that statute. (14) More than a

year later, in Ex parte Davis , (15) this Court upheld the validity of the Legislature's exercise of

this regulatory authority, and specifically its authority to impose limitations on successive and

abusive state post-conviction writs, (16) against an array of constitutional challenges. Thus,

subject only to the state constitutional mandate that the writ of habeas corpus "shall never be

suspended[,]" (17) it is by now well established that the Legislature may regulate the right to the

writ of habeas corpus, and that such regulation legitimately may include imposing limitations

on the ability of a post-conviction habeas applicant to file multiple writ applications

challenging the same capital murder conviction. (18)

Accordingly, whether an Atkins claim can be recognized for the first time in a second

post-conviction writ application will depend exclusively upon whether it fits the criteria of

Article 11.071, Section 5. (19) For those habeas applicants who filed their initial writs before

Atkins was decided, this has not been an impediment, so long as they can establish a prima

facie case for mental retardation. (20) But for an applicant such as Blue, who filed his initial

writ application after Atkins and nevertheless failed to invoke the absolute constitutional

prohibition against executing the mentally retarded in that initial writ, 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. (21)

Contrary to the applicant's assertion, application of Section 5 does not violate the

federal constitution just because it might deny a particular applicant review of an allegation

of facts that, if true, might impose a fundamental bar to execution. Indeed, current federal

law would deny review on the merits to a similarly situated federal habeas petitioner. The

Antiterrorism and Effective Death Penalty Act (AEDPA), (22) does not, at least on its face,

permit such a claim to be raised in "a second or successive" federal habeas corpus petition. (23)

It is unlikely the Supreme Court would ever hold the federal regime unconstitutional, given

its own development, in extensive case law prior to the AEDPA, of rules governing the

cognizability in federal habeas corpus of successive, abusive, and defaulted claims. (24) In that

case law, the Supreme Court has never identified a constitutional prohibition it regarded as

so absolute that it would wholly nullify the State's otherwise legitimate interest in finality of

its judgments upon the mere allegation that the prohibition applies.

Before the advent of the AEDPA, the federal doctrine of abuse of the writ was "a

complex and evolving body of equitable principles informed and controlled by historical

usage, statutory developments, and judicial decisions." (25) The doctrine ultimately evolved

into a rule that defined whether a federal habeas petitioner could proceed with a successive

or abusive petition along the same lines that the Supreme Court had earlier defined whether

a federal court could entertain a claim that had been procedurally defaulted during state

proceedings. (26) That is to say, in the federal system, a petitioner would be allowed to proceed

to the merits of a claim in a successive or abusive writ if he could demonstrate "cause" for

his failure to raise that claim in his prior writ or writs, and "prejudice" that he would suffer

should the federal courts decline to entertain it. (27) Alternatively, if he could not demonstrate

the requisite "cause and prejudice," the petitioner would still be permitted to proceed with

his successive or abusive claim if he could show that "a fundamental miscarriage of justice

would result from a failure to entertain the claim." (28)

The Supreme Court has construed "fundamental miscarriage of justice" to mean one

of two things: "actual innocence," (29) and "actual innocence of the death penalty." (30)

Demonstrating either of these circumstances would act as a gateway, allowing the subsequent

federal habeas petitioner to proceed on the merits of his underlying federal constitutional

claim. But the Supreme Court has yet to expressly take "actual innocence" beyond this

gateway function. It has never definitively acknowledged that a subsequent federal habeas

petitioner would be allowed to proceed on a bare claim of actual innocence, unaccompanied

by some federal constitutional defect in the trial proceedings. (31) The Supreme Court has

intimated, on more than one occasion, that a federal petitioner attempting to raise such a

claim in a successive or abusive writ would have to satisfy an extraordinarily high threshold

burden to show his innocence. (32) It has never gone so far even as to suggest , however, that

a federal petitioner could raise a bare claim of actual innocence of the death penalty in a

subsequent federal habeas petition. (33)

"The quintessential miscarriage of justice is the execution of a person who is entirely

innocent." (34) And yet, even in that context, the Supreme Court has determined that, before

a federal habeas petitioner may proceed on the merits of a successive or abusive petition, he

must meet an extraordinarily high threshold burden. (35) Surely it would be worse to execute

a man who was unquestionably innocent than it would be to execute a man for whom there

is no question he committed a capital crime, but who is mentally retarded. Still, the Supreme

Court would impose a high threshold burden on the petitioner who would wait to show his

actual innocence until a subsequent writ application. We do not think the Constitution is

more solicitous of the mentally retarded petitioner who files a subsequent petition than it is

of the actually innocent petitioner who files a subsequent petition. Thus, we reject any

assertion that, because the Eighth Amendment erects an absolute bar to executing the

mentally retarded, an applicant must be permitted to proceed with his subsequent writ

application upon no more than a bare allegation of mental retardation, whether or not he

would be allowed to proceed under the express provisions of Article 11.071, Section

5(a)(3). (36)

We turn next, then, to the question whether, and if so, under what conditions, Article

11.071, Section 5(a)(3) does accommodate a claim of mental retardation, raised for the first

time in a subsequent writ after an initial writ, filed post- Atkins , failed to raise it.

II. ARTICLE 11.071, SECTION 5(a)(3)

In its totality, Section 5(a)(3) of Article 11.071 reads:

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:

* * *

(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 under

Article 37.071 or 37.0711.

The Legislature quite obviously intended this provision, at least in some measure, to mimic

the federal doctrine of "fundamental miscarriage of justice."

As we have noted, this federal doctrine operates to excuse procedural default, failure

to exhaust, and failure to fully develop the evidentiary basis for a claim in state court, as well

as successive or abusive federal writs, thus allowing the federal habeas petitioner to proceed

on the merits of his claim where he would otherwise be barred. (37) In the context of capital-punishment proceedings, fundamental miscarriage of justice means "actual innocence of the

death penalty." (38) The Supreme Court has limited the application of innocence in this context

to constitutional error that affects the habeas petitioner's eligibility for the death penalty

under state law. It has expressly rejected the argument that a constitutional error that impacts

only the jury's discretion whether to impose a death sentence upon a defendant who is

unquestionably eligible for it under state law can be considered sufficiently fundamental as

to excuse the failure to raise it timely in prior state and federal proceedings. (39)

Section 5(a)(3) of Article 11.071 represents the Legislature's attempt to codify

something very much like this federal doctrine of "actual innocence of the death penalty" for

purposes of subsequent state writs. (40) By tying the exception to the general prohibition on

subsequent state writs specifically to the statutory special issues in Article 37.071 of the Code

of Criminal Procedure, (41) the Legislature apparently intended to codify, more or less, the

doctrine found in Sawyer v. Whitley . (42) This reading of the exception seems to limit its

applicability to constitutional errors that affect the applicant's eligibility for the death penalty

under state statutory law .

But what if it is the constitution itself that prohibits execution, rather than a

constitutional error that affects the statutory criteria for eligibility for the death penalty? In

other words, what if the applicant is constitutionally ineligible for the death penalty, rather

than statutorily ineligible? At least one judge on the United States Fifth Circuit Court of

Appeals understands the federal doctrine of fundamental miscarriage of justice to include

constitutional as well as statutory ineligibility for the death penalty. (43) The language of

Article 11.071, Section 5(a)(3) is broad enough on its face to accommodate an absolute

constitutional prohibition against, as well as statutory ineligibility for, the death penalty.

A subsequent state habeas applicant may proceed with his claim under Section 5(a)(3)

if he can show to the requisite level of confidence that no rational juror "would" have

answered at least one of the statutory special punishment issues in the State's favor. Thus,

if constitutional error in the case so permeated the State's evidence relevant to one of the

special issues upon which it carries the burden of proof that, absent the error, it is practically

inconceivable that any rational juror would actually answer the special issues in a way that

mandates the death penalty, then the applicant may raise the merits of that error in a

subsequent writ application. It is not hard to imagine that errors of this gravity will likely be

quite rare - as was, no doubt, the legislative intent.

Far less rare, relatively speaking, will be the capital habeas applicant who is

constitutionally ineligible for the death penalty because he is mentally retarded, or was a

juvenile at the time of his offense. (44) Upon satisfactory proof at trial that a capital murder

defendant is mentally retarded or was a juvenile, 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. Because the constitution

absolutely prohibits imposing the death penalty upon a mentally retarded or juvenile

offender, once it has been definitively shown at trial that the offender was in fact retarded or

a juvenile, no jury would even have occasion to answer the statutory special issues. In short,

no rational juror would answer the special issues in favor of execution because no rational

juror could , consistent with the Eighth Amendment.

When it fashioned its "actual innocence of the death penalty" doctrine, the Supreme

Court had not yet decided that the Eighth Amendment absolutely prohibits the execution of

both the mentally retarded and juvenile offenders. Construing Section 5(a)(3) as we do

today, to embrace constitutional as well as statutory ineligibility for the death penalty, is both

consistent with the plain language of the statute, (45) and at the same time accommodates the

Atkins and Roper prohibitions. We hold that a state habeas applicant alleging mental

retardation for the first time in a subsequent writ application will be allowed to proceed to

the merits of his application under the terms of Section 5(a)(3)-at least so long as he alleges

and presents, as a part of his subsequent pleading, evidence of a sufficiently clear and

convincing character that we could ultimately conclude, to that level of confidence, that no

rational factfinder would fail to find he is in fact mentally retarded. (46)

III. CLEAR AND CONVINCING EVIDENCE

The state habeas applicant who alleges that he is mentally retarded in an initial post-conviction writ application must prove it by a preponderance of the evidence in order to

obtain relief on his claim. (47) The subsequent state habeas applicant proceeding under Article

11.071, Section 5(a)(1), who filed an initial writ application before Atkins , and thus could not

have been expected to raise it initially, must make a prima facie showing of mental

retardation in his subsequent pleading, and then, if granted leave to proceed by this Court,

must establish in the subsequent proceedings that he is mentally retarded by a preponderance

of the evidence. (48) The Legislature has determined, however, that the State's interest in the

finality of its judgments justifies the imposition of higher burdens upon the subsequent

applicant who did not avail himself of the opportunity and resources available to him at trial

or in an initial writ to raise his claim of mental retardation. For the post- Atkins applicant who

bypassed the opportunity to raise mental retardation at trial or in an initial writ, Section

5(a)(3) mandates that his subsequent application "contain[ ] sufficient specific facts" that,

if true, would establish "by clear and convincing evidence" that no rational fact finder would

fail to find him mentally retarded.

We do not construe Section 5(a)(3), however, to require that the subsequent applicant

must necessarily convince this Court by clear and convincing evidence, at the threshold , that

no rational factfinder would fail to find he is mentally retarded. Section 5(a)(3) of Article

11.071 does not authorize this Court to grant relief on a subsequent writ application, but only

to review the adequacy of the pleading. The statutory scheme as a whole does not call upon

us to make a determination of the merits of a subsequent writ application at this juncture. (49)

All we can do at this stage of the proceeding is to issue an order, either finding that the

requirements under Subsection 5(a)(3) have been met, and the writ should issue and proceed

in the ordinary course as an initial writ would, or that the requirements have not been met,

and the writ should be dismissed. (50) It would be anomalous to require the applicant to actually

convince us by clear and convincing evidence at this stage. Indeed, if we were to require that

the subsequent application actually convince us to that level of confidence, there would be

no need to return the application to the convicting court for further proceedings.

Instead, we construe Article 11.071, 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. A

threshold showing that would allow the finder of fact to conclude no more than that the

evidence preponderates in favor of a finding of mental retardation will obviously not suffice

at this juncture. But the applicant who can make a threshold presentation of 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 will be allowed to proceed to the merits

of his claim in a subsequent writ application. (51) Of course, during the course of those

proceedings he must, as a predicate to eventually obtaining habeas corpus relief, present a

case for mental retardation that actually does convince this Court by clear and convincing

evidence that no rational factfinder would fail to find him mentally retarded.

IV. APPLICATION OF ARTICLE 11.071, SECTION 5(a)(3) TO THE FACTS

Since Briseno , we have essentially defined mental retardation in accordance with the

criteria adopted by the American Association on Mental Retardation: 1) significant sub-average general intellectual functioning, usually evidenced by an IQ score below 70, that is

accompanied by, 2) related limitations in adaptive functioning, 3) the onset of which occurs

prior to the age of 18. (52) In his subsequent writ application, the applicant has proffered some

anecdotal evidence from which we could conclude that he does indeed suffer from some

adaptive deficits which manifested before he was 18 years old. He offers sketchy grade

school records that show that he performed poorly in his academic classes, was socially

promoted several times, had to repeat the eighth grade, and eventually left school altogether.

But the only IQ score alleged comes from the applicant's trial, where an expert testified that,

based upon incomplete testing, he estimated the applicant's IQ to fall between 75 and 80.

There is no evidence, or even an allegation, that the applicant's poor academic performance

was necessarily a product of, or that his apparent adaptive deficits were related to,

significantly below average general intellectual functioning. In the absence of such a

connection, we cannot say that the applicant has presented threshold evidence sufficient to

support a firm belief or conviction that he is mentally retarded. Indeed, the only expert

opinion that the applicant offers is that the "paucity of information presented . . . makes it

impossible to conclude whether [the applicant] is mentally retarded[,]" so that the best the

expert can say is that the applicant "might well be mentally retarded and nothing that I have

seen is inconsistent with that determination."

A. School Records

After reviewing the incomplete school records that the applicant has attached to his

subsequent writ application, Dr. James R. Patton, Ed.D., (53) an expert with "29 years of

experience working with individuals with mental retardation[,]" summarized the records in

his attached "Declaration," and assessed them as follows:

Mr. Blue's school records indicate a number of troubling areas. There is a

consistent inability to perform academically. In the fourth grade, he is failing

most of his courses and is placed into the fifth grade, having not successfully

met the academic grade level expectations of fourth grade. In the fifth grade,

he is placed in remedial classes and there is a notation that he is in Special

Education. At the end of the 76-77 school year, he is again placed in the sixth

grade, once again having not successfully met the academic grade level

expectations of fifth grade. This is indicative of "social promotion," a practice

used by some school districts to avoid stigmatizing those students whose

learning skills, for whatever reason, were significantly impaired. It was simply

recognition that holding these types of students back would accomplish little

or nothing; the students were unlikely ever to learn the requisite material to

justify academic promotion. These grades continue throughout Mr. Blues's

school career; by eighth grade, he is still in remedial classes.

Indeed, the applicant was made to repeat the eighth grade, and apparently dropped out mid-way through his second go-round, failing again, and was accepted into the Job Corps. Dr.

Patton's assessment continues:

This inability to achieve in school even modest results is supported by his test

results on the California Comprehensive Test of Basic Skills. Like most such

tests, the CTBS measures acquired knowledge and cannot be used as a

measure of intellectual functioning. Recognizing the intended purposes of the

CTBS, one can use the results as an indicator of impaired learning ability that

may be attributable to mental retardation. The two years of CTBS scores in

1978 and 1979, when he was 13 and 14 years old, indicate that he was

functioning on an acquired knowledge level at the third grade on average.

Some levels were as high as the 4 th grade, others at the 2 nd grade.

That the applicant's academic woes were not necessarily a product of mental retardation is

underscored by Dr. Patton's closing observations with respect to the school records:

Clearly, these deficits in learning ability, may well be attributable to causes

other than mental retardation; for example, learning disabilities and/or an

impoverished family background may well have played a role, even a

determinative one. Mental retardation, however, cannot be ruled out and

additional assessment methods should be authorized and employed to

determine this.

B. Adaptive Deficits

The applicant has attached statements from family members, an older friend who grew

up around the applicant, and one of applicant's former employers. (54) They provide sketchy,

anecdotal evidence and opinions to the effect that the applicant, even from earliest times, was

gullible and susceptible to getting into trouble at the instigation of others, could barely read,

could not follow any but the simplest instructions, could not manage or even count money,

could not fill out job applications on his own, was capable of only the most menial jobs,

which he did not hold for long, and was generally incapable of planning ahead, thinking for

himself, or getting by day-to-day without assistance. The applicant does not include results

from any of the available standardized scales for assessing adaptive deficits. (55)

Dr. Patton concludes that this anecdotal evidence would "support a claim of mental

retardation." Conceding once again that "there are other possible explanations for these

problems," he asserts that "mental retardation certainly cannot be ruled out and indeed, is

strongly suggested by this pattern of adaptive deficits." But, as we have noted, the applicant

has produced little to indicate that his adaptive deficits, if any, are related to significantly

subaverage general intellectual functioning.

C. IQ Score

The only evidence of an IQ score is testimony during the applicant's trial from Dr.

Windell Dickerson, a defense expert who was called to testify with regard to the issue of

future dangerousness. In the course of Dickerson's evaluation of the applicant, he apparently

administered "only a few subtests in the Verbal portion of the original WAIS (Weschler

Adult Intelligence Scale) test." From that limited testing he extrapolated a full scale IQ of

between 75 and 80. In a "Declaration" attached to the applicant's subsequent writ

application, Dickerson explains that at the time of trial he did not think it was important to

administer the full scale test because he "was just trying to get a general sense of [the

applicant's] intelligence level" to facilitate his opinion of future dangerousness. (56) Had he

been aware of the applicant's school records and adaptive deficits, Dickerson "would have

strongly urged trial counsel to utilize a full scale assessment of [the applicant's] intellectual

functioning using an instrument reliable for that purpose."

The applicant argues that short form testing such as that which Dickerson utilized is

not a reliable measure of IQ. Alternatively, he maintains that because the original WAIS was

standardized in 1954, utilizing a phenomenon called the "Flynn Effect," (57) Dickerson's

estimate, if credited at all, ought to be adjusted to reflect an IQ of between 64 and 69. This

Court has never specifically addressed the scientific validity of the Flynn Effect. Nor will

we attempt to do so now. Rather than try to extrapolate an accurate IQ by applying an

unexamined scientific concept to an incomplete test score, we will simply regard the record

as it comes to us as devoid of any reliable IQ score. We hold that the only evidence of an IQ

score that the applicant has tendered fails to present sufficient specific facts that, even if true,

would establish significant sub-average general intellectual functioning by clear and

convincing evidence.

D. Expert Opinion

Dr. Patton (who nowhere in his declaration addresses the applicant's IQ score, or lack

thereof) concludes:

Viewed in isolation, none of these factors would be dispositive; taken as an

overall pattern, mental retardation is strongly suspected. Only a full and

thorough assessment, however, can answer that question.

However, without an IQ score that is indicative of significant sub-average intelligence, the

only proof the applicant has offered is his poor school performance, which Patton admits

could be the result of other factors. Without more compelling proof, we cannot readily infer

that the applicant's apparent adaptive deficits are related to significant sub-average general

intellectual functioning. Such evidence, even inasmuch as it may support a strong suspicion,

nevertheless falls short of evidence that could reasonably support a firm belief or conviction

that the applicant is mentally retarded. Even unchallenged by evidence from the State, the

applicant's proof, even if true, is insufficient reasonably to convince us that no rational

factfinder would fail to conclude he was mentally retarded to a level of confidence by clear

and convincing evidence.

E. Inadequate Resources

In his brief and during the oral argument of this case, counsel for the applicant

complains that to require him to satisfy such a predicate level of confidence is too onerous

for the attorneys who are representing death-row inmates in the applicant's position. Both

counsel currently representing the applicant in this subsequent writ application are presently

court-appointed in federal court, but representing the indigent applicant in this proceeding

on a pro bono basis. (58) Article 11.071 does not provide for the appointment of counsel, or for

investigative or expert funding, for the preparation of subsequent writ applications, as it does

for preparation of an initial writ application. (59) Counsel assert that they are not in a financial

position to pay for the kind of full and thorough assessment that Dr. Patton has called for.

Thus, they cannot fairly be expected to make the clear and convincing demonstration of

mental retardation that Article 11.071, Section 5(a)(3) requires as a predicate to proceeding

to the merits of the claim in a subsequent writ application.

We are neither unmindful of, nor unsympathetic to, counsel's plight. An attorney who

is appointed for the first time to prepare a federal habeas corpus petition and in the course

of his investigation develops a good faith suspicion that his client may be mentally retarded

will indeed find himself in a dilemma if the initial state habeas attorney has not raised the

issue, and the record does not already contain (as it almost invariably will not) evidence

sufficient to satisfy the clear and convincing burden imposed by Article 11.071, Section

5(a)(3). We must point out, however, that the attorney who reasonably suspects that his

client might be actually innocent, or actually innocent of the death penalty (other than

because of mental retardation or juvenile status), will face the same dilemma, viz : how to

satisfy a steep burden of proof and persuasion without any resources allocated by the State

to help his indigent client. That is the hurdle the Legislature has deemed appropriate for the

subsequent applicant who has, for whatever reason, bypassed his opportunity to avail himself

of the resources to which he would have been entitled had he raised the issue in an initial writ

application, when it was factually and legally available to him.

This means that pro bono subsequent writ counsel is put in the unfortunate position

of having to choose whether to personally bear the costs of expert and investigative

assistance, raise the costs himself from private charitable sources, file a writ application

without such assistance that will almost surely fall short of the statutory burden, or file no

writ application at all despite his good faith suspicions. This is a regrettable dilemma for any

attorney to have to face who is already giving generously and commendably of his own time.

But it is one we are not at liberty to solve for him, in light of the legitimate legislative

judgment as expressed in the statute. Counsel for the applicant, and others similarly situated,

must present their dilemma for the consideration of the Legislature.

V. CONCLUSION

In summary, we hold: 1) that whether the applicant can proceed with his subsequent

writ application depends upon whether he can satisfy the criteria of Article 11.071, Section

5(a)(3); 2) that an adequate threshold showing of mental retardation would meet the criteria

of that statutory provision; but 3) that the applicant in the instant case has failed to meet his

burden to present sufficient specific facts from which, even if true, we could reasonably

conclude, by clear and convincing evidence, that no rational factfinder would fail to find he

is mentally retarded. We therefore dismiss his subsequent writ application as an abuse of the

writ, as mandated by Article 11.071, Section 5(c).

Delivered: March 7, 2007

Publish

1. 536 U.S. 304 (2002).

2. Tex. Code Crim. Proc. art. 11.071, § 5(a)(1). That provision prohibits consideration of the

merits of a claim raised for the first time in a subsequent writ application unless the subsequent

application shows that the claim could not have been raised in a previous writ "because the factual

or legal basis for the claim was unavailable" at the time the applicant filed his previous writ or writs.

We have allowed a number of subsequent capital habeas writ applications raising

Atkins claims to

proceed under this provision when the applicant's initial writ application was filed before the

Supreme Court's Atkins opinion issued. See note 20, post . But it is obvious that both the factual and

legal bases for Blue's claim of mental retardation were extant at the time he filed his initial writ

application, so this provision does not apply in his case.

3. Tex. Code Crim. Proc. art. 11.071, § 5(a)(3).

4.

Id.

5. 851 S.W.2d 275 (Tex. Crim. App. 1993).

6.

Id . at 279-280.

7.

Penry v. Lynaugh , 492 U.S. 302, 329-330 (1989). See also Bell v. Cockrell , 310 F.3d 330,

332 (5 th Cir. 2002); Hill v. Anderson , 300 F.3d 679, 681 (6 th Cir. 2002); In re: Holladay , 331 F.3d

1169, 1172-73 (11 th Cir. 2003).

8.

Penry , supra , at 329, quoting Teague v. Lane , 489 U.S. 288, 307 (1989).

9.

Marin , supra , at 279.

10.

Id . at 278; see also Rushing v. State , 85 S.W.3d 283, 285-86 (Tex. Crim. App. 2002).

11.

Id . at 280 (emphasis added).

12.

Pennsylvania v. Finley , 481 U.S. 551, 557 (1987); Murray v. Giarratano , 492 U.S. 1, 10

(1989) (plurality opinion); United States v. MacCollom , 426 U.S. 317, 323 (1976) (plurality

opinion). Cf. Case v. Nebraska , 381 U.S. 336 (1965) (petition for certiorari granted on issue of

whether federal constitution requires states to provide corrective post-conviction process to vindicate

federal constitutional rights, but issue essentially rendered moot when Nebraska Legislature enacted

legislation to provide same).

13. Tex. Const. art. V, § 5.

14.

See Acts 1995, 74 th Leg., ch. 319, § 1, eff. Sept. 1, 1995.

15. 947 S.W.2d 216 (Tex. Crim. App. 1996).

16.

A "successive" writ is a subsequent writ that raises issues already raised in an earlier writ

application. An "abusive" writ is a subsequent writ that raises issues that were available but not

raised in an earlier writ application. Schlup v. Delo , 513 U.S. 298 , 318 n.34 (1995).

17. Tex. Const. art. I, § 12.

See also Tex. Code Crim. Proc. art. 1.08.

18. Similarly, the United States Supreme Court has held that additional restrictions upon

successive or abusive writs imposed by Congress in the Antiterrorism and Effective Death Penalty

Act do not amount to a suspension of the writ in violation of Article I, Section 9 of the United States

Constitution.

Felker v. Turpin , 518 U.S. 651, 664 (1996).

19. "We do not have the authority to judicially create a fourth exception to the statute."

Ex parte

Graves , 70 S.W.3d 103, 115 (Tex. Crim. App. 2002).

20.

See e.g., Ex parte Briseno , 135 S.W.3d 1, 3 (Tex. Crim. App. 2004) (where initial post-conviction writ of habeas corpus filed pre- Atkins , a subsequent writ was allowed to proceed "based

upon applicant's prima facie showing" of mental retardation); Ex parte Rodriguez , 164 S.W.3d 400

(Tex. Crim. App. 2005) (same); Ex parte Staley , 160 S.W.3d 56, 64 (Tex. Crim. App. 2005) ("[A]

death-row inmate may file a subsequent writ application based upon the newly available legal claim

of mental retardation under Atkins v. Virginia , but if his application states that his I.Q. has repeatedly

been tested at 120-130, he has failed to state sufficient specific facts establishing a cognizable claim

under Atkins ."). Thus, subsequent applicants who can make the requisite threshold showing have

been able to rely upon Article 11.071, Section 5(a)(1) for authority to proceed on the merits.

21. This Court has shown that it can be flexible when it comes to

judicial doctrines in order to

accommodate the constitutional prohibition against executing the mentally retarded. For example,

in Ex parte Soffar , 143 S.W.3d 804 (Tex. Crim. App. 2004), we modified our so-called "two-forums" rule in such a way that it should no longer pose a potential statute of limitations problem

for federal habeas applicants raising Atkins claims under the provisions of the Antiterrorism and

Effective Death Penalty Act. See In re Hearn , 376 F.3d 447 (5 th Cir. 2004); In re Wilson , 442 F.3d

872 (5 th Cir. 2006). But it is one thing to revise a judge-made rule, and quite another to revise a

statute. We are ordinarily loathe to "create" law, Ex parte Briseno , supra , at 4, and certainly may

not create law that overrides the legislative prerogative as expressed in statutory law, absent an

identifiable constitutional conflict. In Davis , we found no such conflict. Nor has the applicant

identified any, other than the "absolute" nature of the bar against executing the mentally retarded.

Under these circumstances, "[w]e are not free to judicially disrupt the carefully crafted legislative

scheme." Ex parte Graves , supra , at 117.

22. Pub. L. No. 104-132, 110 Stat. 1214 (1996).

23. 28 U.S.C. § 2244 (b)(2). The Fifth Circuit has allowed

Atkins claims to proceed in

subsequent federal habeas petitions when the initial federal petition was filed pre- Atkins . In keeping

with 28 U.S.C. § 2244 (b)(2)(A), the Fifth Circuit has recognized that such otherwise-abusive writs

may be brought so long as the petitioner can make a preliminary showing that the claim had not been

brought in a previous petition, that it relied upon a new rule of constitutional law made retroactive

to cases on collateral review by the Supreme Court ( Atkins ), and that the petitioner could produce

evidence to make out a prima facie case of mental retardation. See In re Henderson , 462 F.3d 413,

415 (5 th Cir. 2006); In re Salazar , 443 F.3d 430, 431 (5 th Cir. 2006); In re Hearn , 418 F.3d 444,

444-45 (5 th Cir. 2005); In re Johnson , 334 F.3d 403, 404 (5th Cir. 2003); In re Morris , 328 F.3d

739, 740 (5 th Cir. 2003). But we presume that, following the plain language of § 2244(b), the Fifth

Circuit would not permit an identical claim in a subsequent federal petition to proceed if the initial

petition was filed after Atkins . If the initial petition already alleged an Atkins claim, the subsequent

petition would be barred under § 2244(b)(1), which prohibits raising claims in a subsequent petition

that were alleged in a prior petition. If the initial petition failed to allege an Atkins claim, then such

a claim in a subsequent petition would be barred under § 2244(b)(2)(A), because the Atkins claim

was not "previously unavailable[.]" And, because § 2244(b)(2)(B) contains no provision comparable

to our own Article 11.071, Section 5(a)(3), the federal habeas petitioner would be unable to argue

that his Atkins claim is cognizable even in a subsequent petition on the basis that it renders him,

essentially, innocent of the death penalty.

24.

See Felker , supra .

25.

McCleskey v. Zant , 499 U.S. 467, 489 (1991); Felker , supra .

26.

Id . at 493-96.

27.

Ibid . The "cause" aspect of this threshold standard is codified for purposes of "abusive"

state habeas corpus writ applications in our Article 11.071, Sections 5(a)(1), (d), and (e).

28.

Id . at 495. This "fundamental miscarriage of justice" condition for proceeding upon an

otherwise-abusive claim is mirrored in our Article 11.071, Subsections 5(a)(2) and (3).

29.

See Murray v. Carrier , 477 U.S. 478, 495-96 (1986); McCleskey , supra , at 493-96. In

Schlup v. Delo , supra , at 327, the Supreme Court solidified the standard for proving "actual

innocence" in this context, holding that in order to proceed with a subsequent federal petition under

the "fundamental miscarriage of justice" exception, the petitioner must show "that it is more likely

than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."

30.

See Smith v. Murray , 477 U.S. 527, 537-538 (1986); McCleskey , supra , at 493-96. In

Sawyer v. Whitley , 505 U.S. 333, 348 (1992), the Supreme Court defined the standard for proving

"actual innocence of the death penalty," holding that in order to proceed with a subsequent federal

petition raising a claim of error at the punishment phase of a capital trial, the petitioner must show

"by clear and convincing evidence that but for constitutional error, no reasonable juror would have

found him eligible for the death penalty under [state] law."

31.

See Herrera v. Collins , 506 U.S. 390, 417-19 (1993); Schlup , supra , at 314-16; House v.

Bell , 126 S.Ct. 2064, 2086-87 (2006).

32.

Herrera , supra , at 417; Schlup , supra , at 315-16; House , supra , at 2086-87.

33. In

Schlup v. Delo , the Supreme Court justified the higher level of confidence required of a

showing of "actual innocence of the death penalty" (clear and convincing) than is required for a

showing of "actual innocence" (more likely than not), thus: "Claims of actual innocence pose less

of a threat to scarce judicial resources and to principles of finality and comity than do claims that

focus solely on the erroneous imposition of the death penalty." 513 U.S. at 324 . It is possible that

the Supreme Court, were it to recognize a bare claim of "actual innocence of the death penalty,"

would find it appropriate to impose a burden on the petitioner even more "extraordinarily high" than

the petitioner who brings a bare claim of actual innocence.

34.

Id . at 324-25.

35.

Herrera , supra , at 417; Schlup , supra , at 315-16; House , supra , at 2086-87.

36. One federal circuit court of appeals has recently noted "grave constitutional concerns" in

the event that the statute of limitations enacted by the AEDPA were to operate to deny habeas corpus

access to an initial federal petitioner who had a claim of actual innocence but who missed his filing

deadline.

See 28 U.S.C. § 2244 (d). The Sixth Circuit held that, to avoid these concerns, it would

apply the court-made doctrine of equitable tolling, whereby the limitations requirement, which is not

considered jurisdictional anyway, would be ignored in any case in which the petitioner could meet

the Schlup test for actual innocence-that is to say, that it was more likely than not that no reasonable

juror would have convicted him. See Souter v. Jones , 395 F.3d 577 (6 th Cir. 2005), and cases cited

at 601. Note, however, that the Sixth Circuit did not find these "grave constitutional concerns" to

justify equitable tolling in the absence of the substantial threshold showing of actual innocence that

is embodied in the Schlup standard. There is no suggestion that a bare and unsubstantiated claim of

actual innocence would suffice to equitably toll the federal statute of limitations. Thus, even if

"grave concerns" about the constitutionality of executing a state habeas applicant who was mentally

retarded meant that some provision must be made to allow him to raise it in a subsequent writ, even

if Article 11.071, Section 5 would not , we would still require him to satisfy a substantial threshold

burden of proof. The "grave constitutional concerns" recognized by the Sixth Circuit do not dictate

that we entertain an unsubstantiated claim of mental retardation in a subsequent writ application.

Ultimately, even the applicant seems to acknowledge that some threshold proof of mental

retardation is appropriate, when he argues that "[i]n the face of an adequate threshold showing that

a petitioner is a person who is mentally retarded, the doctrine or application of waiver has no place

or purchase." Applicant's Brief, at 20.

37.

See , respectively: Murray , supra , at 496; Coleman v. Thompson , 501 U.S. 722, 750 (1991);

Keeney v. Tamayo-Reyes , 504 U.S. 1, 11-12 (1992); McCleskey , supra , at 495.

38.

Smith , supra , at 537-38; Sawyer , supra , at 348.

39.

Sawyer , supra , at 343-48.

40.

Cf. Ex parte Torres , 943 S.W.2d 469 , 473 & n.3 (Tex. Crim. App. 1997) (observing that

legislative intent in adopting the comparable provisions of Article 11.07, § 4 of the Code of Criminal

Procedure, governing subsequent applications for non-capital post-conviction writs of habeas corpus,

and which was promulgated in the same legislative enactment as Article 11.071, Section 5, see Acts

1995, 74 th Leg., ch. 319, §§ 1 & 5, eff. Sept. 1, 1995, was to adopt abuse-of-the-writ doctrine then

current in federal practice); Ex parte Kerr , 64 S.W.3d 414, 418 (Tex. Crim. App. 2002) (Habeas

Corpus Reform Act of 1995 adopted abuse-of-the-writ doctrine currently used in federal court) Our

examination of the legislative history of S.B. 440, through which Article 11.071 was originally

promulgated, provides no more specific insight than this into the intended scope of the exceptions

to the abuse of the writ doctrine as embodied in Section 5 .

41. Tex. Code Crim. Proc. art. 37.071, §§ 2(b) & (e).

42. 505 U.S. 333 (1992). We hesitate to declare that Article 11.071, Section 5(a)(3)

wholly

codifies the Supreme Court's doctrine of "actual innocence of the death penalty," even inasmuch as

it has tied the exception to the bar on subsequent writs to the statutory criteria for the death penalty

under Article 37.071. Since 1991, one of the special issues that determine whether capital

punishment will be imposed is the so-called "mitigation" special issue, embodied in Article 37.071,

Section 2(e). See Acts 1991, 72 nd Leg., ch. 838, § 1, eff. Sept. 1, 1991. Article 11.071 was originally

promulgated in 1995, after this amendment to Article 37.071. See Acts 1995, 74 th Leg., ch 319, §

1, eff. Sept. 1, 1995. Therefore it is arguable that, in theory at least, a subsequent habeas applicant

could demonstrate by clear and convincing evidence that, but for some constitutional error, no

rational juror would have answered the mitigation special issue in the State's favor. On its face this

would seem to meet the criteria of Article 11.071, Section 5(a)(3). But it would also permit a

subsequent state habeas applicant to proceed under circumstances that would not excuse a federal

petitioner under Sawyer v. Whitley . We need express no ultimate opinion on this question here.

43.

See Moore v. Quarterman , 454 F.3d 484, 498 (5 th Cir. 2006) (Dennis, J., dissenting)

(defining innocence of the death penalty in terms of ineligibility for the death penalty "because some

constitutional or state statutory prerequisite for the imposition of a death sentence could not have

been satisfied.") (quoting Randy Hertz & James S. Liebman, Federal habeas Corpus Practice

and Procedure, § 26.4, at 1369-71 (5 th ed. 2005)).

44.

Roper v. Simmons , 543 U.S. 551 (2005).

45.

Boykin v. State , 818 S.W.2d 782 (Tex. Crim. App. 1991) (in construing statutory language,

we give effect to plain meaning unless statutory language is ambiguous or would lead to absurd

results).

46. In

Ex parte Elizondo , 947 S.W.2d 202 , at 209 (Tex. Crim. App. 1996), we first articulated

the standard for a bare claim of actual innocence in post-conviction habeas proceedings. We held

that the applicant must show by clear and convincing evidence that no reasonable juror would have

convicted him in light of new evidence of innocence. Section 5(a)(3) of Article 11.071 modifies this

actual-innocence standard for purposes of applying it in the death penalty context by requiring the

applicant to show that "no rational juror would have answered in the state's favor one or more of the

special issues" set out in Article 37.071, Section 2(b). See Tex. Code Crim. Proc. art. 37.071, §

2(b). The Texas Legislature has not yet spoken to assign a burden of proof at trial in a capital case

on the issue of mental retardation. See Ex parte Briseno , supra , at 4-5. In the absence of any express

legislative guidance, we assume the burden would be placed upon the defendant to prove mental

retardation, rather than upon the State to discount it. That being the case, we think the proper way

to articulate a standard for actual innocence of the death penalty predicated on a claim of mental

retardation is as we have stated it in the text. That is to say, the applicant in a subsequent writ

application who wishes to clear the hurdle of Article 11.071, Section 5(a)(3) must demonstrate to

this Court that there is evidence that would be sufficient to show, to a level of confidence by clear

and convincing evidence, that no rational finder of fact would fail to find him mentally retarded .

47.

Ex parte Briseno , supra , at 12.

48.

Ibid .

49. Indeed, on its face, the statutory scheme does not even contemplate that the State should

respond to a subsequent writ, at least until this Court has authorized the applicant to go forward.

50.

See Tex. Code Crim. Proc. art. 11.071, §§ 5(c) & 6(b).

51. This is a reasonable construction of the language of the Section 5(a)(3), inasmuch as it

expressly requires "

sufficient specific facts" to establish mental retardation "by clear and convincing

evidence[.]" (Emphasis added.) As noted in the text, to construe the statutory language to require

that this Court actually be convinced by clear and convincing evidence at this juncture of the

proceedings would be inconsistent with the balance of the statutory scheme.

52. 135 S.W.3d at 7 ;

Howard v. State , 153 S.W.3d 382, 386 (Tex. Crim. App. 2004).

53. The Fifth Circuit has found Dr. Patton to be a qualified expert for assessing and diagnosing

mental retardation.

In re: Hearn , 418 F.3d 444, 445-46 (5 th Cir. 2005). See also Ex parte Lewis , ___

S.W.3d ___ (Tex. Crim. App., No. WR-38,355-03, delivered December 6, 2006) (Cochran, J.,

concurring) (slip op. at 9) (expert witness regarding mental retardation "is not limited to one who

is a state-licensed physician or psychologist"); id . (Womack, J., dissenting) (Slip op. at 18).

54. All of these statements are signed, but none is notarized, all merely purporting to be "signed

under penalty or perjury . . .." Indeed, even Dr. Patton's "Declaration" is not notarized.

55. In

Briseno we recognized that adaptive deficits are "determined by clinical assessment and,

usually, standardized scales." 135 S.W.3d at 7, n. 25 . One such scale that has been identified in the

case law is the Vineland Adaptive Behavior Test. In re Henderson , 462 F.3d 413, 416 (5 th Cir.

2006); In re: Salazar , 443 F.3d 430, 433-44 (5 th Cir. 2006); United States v. Webster , 421 F.3d 308,

313 (5 th Cir. 2005). See American Psychiatric Association Diagnostic and Statistical

Manual of Mental Disorders (Text Revision, 4 th ed. 2000), at 42. The applicant neither tenders

any such test results, nor offers any explanation why he does not, aside from a general complaint

about a lack of resources provided under the statute for subsequent applicants in preparing their writ

applications - a complaint we address post .

56. Dickerson's declaration, like most of the others, is not notarized.

57.

See In re: Salazar , supra , at 433 ("This theory attributes the general rise of I.Q. scores of a

population over time to the use of outdated testing procedures, emphasizing the need for the repeated

renormalization of I.Q.-test standard deviations over time.")

58. The Fifth Circuit has held that federal habeas counsel are not entitled to federal funds,

pursuant to 21 U.S.C. § 848 (q)(9), for expert and investigative assistance to pursue unexhausted

claims for purposes of raising those claims in subsequent state post-conviction habeas corpus

proceedings.

In re: Joiner , 58 F.3d 143 (5 th Cir. 1995); Sterling v. Scott , 57 F.3d 451 (5 th Cir. 1995).

See also Riley v. Dretke , 362 F.3d 302, 307-308 (5 th Cir. 2004) (federal petitioner was not entitled

to federal funds to develop unexhausted evidence of mental retardation in support of ineffective

assistance of counsel claim).

59. Tex. Code Crim. Proc. art. 11.071, §§ 2A & 3.