“Determining whether a petitioner exhausted his claim in state court is a case- and fact-specific inquiry.”
How later courts described this case
- “Determining whether a petitioner exhausted his claim in state court is a case- and fact-specific inquiry.”
- acknowledging that a defendant's IQ score was reduced to account for the Flynn Effect
- noting that the defendant's IQ scores were adjusted to reflect the Flynn Effect
- “Atkins specifically reserved to the states the adoption of procedures to implement its new constitutional rule . . . .” (emphasis added)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals
Fifth Circuit
FOR THE FIFTH CIRCUIT
FILED
March 12, 2008
No. 05-70038
Charles R. Fulbruge III
ERIC LYNN MOORE Clerk
Petitioner-Appellee
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Defendant-Appellant
- - - - -
Appeal from the United States District Court
for the Eastern District of Texas, Tyler Division
- - - - -
ON PETITION FOR REHEARING EN BANC
(Opinion June 29, 2006, 5 Cir., 2006,_____F.3d_____)
(Opinion June 27, 2007, 5 Cir., 2007, _____F.3d_____)
BEFORE: JONES, Chief Judge, KING, JOLLY, DAVIS, SMITH, WIENER,
BARKSDALE, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT,
PRADO, OWEN, ELROD and SOUTHWICK, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested
a poll on the petition for rehearing en banc and a majority of
the judges in active service having voted in favor of granting a
rehearing en banc,
IT IS ORDERED that this cause shall be reheard by the
court en banc with oral argument on a date hereafter to be fixed.
The Clerk will specify a briefing schedule for the filing of en
banc briefs.