Petition for Writ of Certiorari — Edward Lee Busby, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No. ________________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________________

EDWARD LEE BUSBY,

Petitioner,

v.

LORIE DAVIS,

Respondent.

____________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

____________________________

PETITION FOR A WRIT OF CERTIORARI

____________________________

THIS IS A CAPITAL CASE

David R. Dow*

Texas Bar No. 06064900

Jeffrey R. Newberry

Texas Bar No. 24060966

University of Houston Law Center

4604 Calhoun Rd.

Houston, Texas 77204-6060

Tel. (713) 743-2171

Fax 713-743-2131

Counsel for Edward Lee Busby

*Member of the Supreme Court Bar

Capital Case

Questions Presented

1.

When a state habeas court denies a petitioner relief on a federal

constitutional claim his claim by imposing a higher burden than is required

by federal law, should a federal court conduct de novo review on the grounds

that the state court’s decision is not an “adjudicat[ion] on the merits” within

the meaning of 28 U.S.C. § 2254(d)?

2.

When a state habeas court denies a petitioner relief on a federal

constitutional claim his claim by imposing a higher burden than is required

by federal law, is the state court's decision an “unreasonable application of[]

clearly established Federal law” within the meaning of 28 U.S.C. §

2254(d)(1)?

3.

When a death row inmate raises a successive claim in state court that he is

ineligible for execution pursuant to this Court’s decision in Atkins v. Virginia,

536 U.S. 304 (2002), and its progeny, is a state court’s decision denying relief

on the basis the inmate has not presented “clear and convincing evidence” of

intellectual disability a violation of either the Eighth Amendment or the

Fourteenth Amendment’s Due Process Clause?

4.

When state requires that death-sentenced inmates who seek relief on Atkins

claims in successive petitions demonstrate intellectual disability by “clear

and convincing evidence,” is there “an absence of available State corrective

process” within the meaning of 28 U.S.C. 2254(b)(1)(B)(1)?

ii

List of Parties and

Corporate Disclosure Statement

All parties to the proceeding in the court of appeals are listed in the caption.

Petitioner is not a corporate entity.

iii

List of All Directly Related

Proceedings in State and Federal Courts

Trial:

State v. Edward Lee Busby, Jr., No. 0920589A (Crim. Dist. Ct. No. 2, Tarrant

County, Tex. Nov. 17, 2005)

Direct appeal:

Edward Lee Busby, Jr. v. State, No. AP-75,300, 253 S.W.3d 661 (Tex. Crim.

App. 2008)

State habeas proceeding:

Ex parte Edward Lee Busby, Jr., No. WR-70,747-01 (Tex. Crim. App. Feb. 25,

2009)

Subsequent state habeas proceeding:

Ex parte Edward Lee Busby, Jr., No. WR-70,747-02 (Tex. Crim. App. Mar. 6,

2013)

Federal habeas proceeding in district court:

Edward Lee Busby v. William Stephens, No. 4:09-cv-160-O (N.D. Tex. Mar.

10, 2015)

Federal habeas proceeding in court of appeals:

Edward Lee Busby v. Lorie Davis, No. 15-70008, 925 F.3d 699 (5th Cir. 2019)

iv

Table of Contents

Questions Presented...................................................................................................... ii

List of Parties and Corporate Disclosure Statement .................................................. iii

List of All Directly Related Proceedings in State and Federal Courts .......................iv

Table of Contents…. ....................................................................................................... v

Table of Authorities......................................................................................................vii

Table of Appendices.......................................................................................................ix

Introduction…………… .................................................................................................. 1

Opinions and Orders Below ........................................................................................... 4

Statement of Jurisdiction............................................................................................... 4

Constitutional Provisions and Statutes Involved ......................................................... 5

Statement of the Case .................................................................................................... 5

Reasons for Granting the Writ .................................................................................... 13

I.

This Court should grant certiorari to determine whether a state court’s

decision is entitled to deference under section 2254(d) when it imposes a

higher burden for establishing an Atkins claim than is required by federal

law………….. ...................................................................................................... 13

II.

This Court should grant certiorari to resolve whether it violates the Eighth

Amendment of the Fourteenth Amendment’s due process clause when a state

requires a habeas applicant to demonstrate he is intellectually disabled by

clear and convincing evidence. .......................................................................... 17

III.

This Court should grant certiorari to resolve whether there is an absence of

state corrective process when a state court requires a habeas petitioner to

demonstrate intellectual disability by clear and convincing evidence. ........... 18

Conclusion and Prayer for Relief ................................................................................. 20

Appendix A – Opinion below (as handed down May 20, 2019)............................... a001

v

Appendix B – Order granting certificate of appealability ...................................... a046

Appendix C – 28 U.S.C. § 2254 ................................................................................ a062

Appendix D – 28 U.S.C. § 2244 ................................................................................ a065

vi

Table of Authorities

Cases

Atkins v. Virginia,

536 U.S. 304 (2002)...........................................................................13-14, 16, 17

Batson v. Kentucky,

476 U.S. 79 (1986).............................................................................................. 16

Blue v. Thaler,

665 F.3d 647 (5th Cir. 2011)................................................................................ 8

Busby v. State,

253 S.W.3d 661 (Tex. Crim. App. 2008) .............................................................. 5

Busby v. Texas,

555 U.S. 1050 (2008)............................................................................................ 5

Cooper v. Oklahoma,

517 U.S. 348 (1996).......................................................................................17-18

Ex parte Blue,

230 S.W.3d 151 (Tex. Crim. App. 2007) .............................................................. 7

Ex parte Briseño,

135 S.W.3d 1 (Tex. Crim. App. 2004) ................................................................ 14

Ex parte Busby,

No. WR-70,747-01, 2009 WL 483096 (Tex. Crim. App. Feb. 25, 2009).............. 6

Fernandez v. Roe,

286 F.3d 1073 (9th Cir. 2002)............................................................................ 16

Ford v. Wainwright,

477 U.S. 399 (1986)............................................................................................ 17

Garcia v. Stephens,

757 F.3d 220 (5th Cir. 2014)................................................................................ 9

In re Cathey,

857 F.3d 221 (5th Cir. 2017).............................................................................. 12

vii

In re Johnson,

No. 19-20052, 2019 WL 3814384 (5th Cir. Aug. 14, 2019) ............................... 12

Johnson v. Williams,

568 U.S. 289 (2013).......................................................................................13-15

Ladd v. Stephens,

748 F.3d 637 (5th Cir. 2014)................................................................................ 9

Lewis v. Quarterman,

541 F.3d 280 (5th Cir. 2008).............................................................................. 14

Lucio v. Davis,

No. 16-70027, 2019 WL 3425186 (5th Cir. July 29, 2019) ............................... 15

McQuiggin v. Perkins,

569 U.S. 383 (2013)............................................................................................ 11

Moore v. Quarterman,

342 F. App’x 65 (5th Cir. 2009) ......................................................................... 14

Moore v. Texas,

137 S. Ct. 1039 (2017)........................................................................................ 16

Rivera v. Quarterman,

505 F.3d 349 (5th Cir. 2007)............................................................................ 8, 9

Rose v. Lundy,

455 U.S. 509 (1982)............................................................................................ 19

Young v. Ragen,

337 U.S. 235 (1949)............................................................................................ 19

Rules and Statutes

28 U.S.C. § 2254(d) ................................................................................................. 13, 18

Tex. Code Crim. Proc. art. 11.071, § 5 ................................................................. 7, 8, 14

viii

Table of Appendices

Appendix A

Opinion below (as handed down May 20, 2019)

Appendix B

Order granting certificate of appealability (as issued

January 27, 2017)

Appendix C

28 U.S.C. § 2254

Appendix D

28 U.S.C. § 2244

ix

No. ________________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________________

EDWARD LEE BUSBY,

Petitioner,

v.

LORIE DAVIS,

Respondent.

____________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

____________________________

PETITION FOR A WRIT OF CERTIORARI

____________________________

Introduction

Petitioner Edward Lee Busby is intellectually disabled, having a full-scale IQ

of 74 and significant evidence of adaptive deficits. Undersigned counsel discovered

the evidence of this disability while preparing Busby’s initial federal habeas

petition. Accordingly, Counsel raised a claim pursuant to this Court’s opinion in

Atkins v. Virginia, 536 U.S. 304 (2002), in Busby’s federal habeas petition. The

claim was unexhausted, so, after being ordered to do so by the district court,

Counsel presented Busby’s claim to the Texas Court of Criminal Appeals (“CCA”) in

what was Busby’s second state habeas application.

1

Under state law, the CCA must find that a state habeas petitioner raising an

Atkins claim in a successive application has demonstrated by clear and convincing

evidence he is intellectually disabled before it will authorize the state habeas trial

court to take any action (including granting necessary funds to develop the claim,

holding an evidentiary hearing, or making factual findings) on the claim. After

considering the merits of Busby’s claim, the state court found Busby’s had not

satisfied this high burden and dismissed his habeas application.

Having exhausted Busby’s claim, Counsel returned to the district court,

where Busby should only have had to prove by a preponderance of the evidence that

he is intellectually disabled to be entitled to relief. That court erroneously found

Busby’s claim was procedurally defaulted. On appeal to the United States Court of

Appeals for the Fifth Circuit, Counsel argued Busby’s claim was viable in the

federal courts, having been exhausted in Busby’s subsequent state habeas

proceeding. On rehearing, following the Fifth Circuit’s issuance of an opinion

denying relief, Counsel further argued that review on Busby’s claim by the federal

courts should be de novo because the state court did not answer the question that is

relevant in the federal court: whether Busby had demonstrated by a preponderance

of the evidence that he is intellectually disabled.

The court of appeals agreed that Busby’s claim is viable (i.e., that the claim

was not defaulted) because the state court’s decision was a decision about the merits

of his claim. However, the Fifth Circuit also found that the state court’s decision did

not involve an unreasonable application of Federal law. The court of appeals arrived

2

at that decision by relying two decisions from this Court, which the court below

believed to control Busby’s claim; both of those decisions address a federal habeas

petitioner’s burden in a successive federal proceeding. Busby’s claim, however, was

not presented in a successive federal petition. Busby’s claim was raised in his initial

(and only) federal habeas petition.

State court decisions are not entitled to deference unless those decisions

constitute adjudications on the merits of the petitioner’s federal claim. In Johnson

v. Williams, 568 U.S. 289 (2013), this Court analyzed the question of what

constitutes an adjudication on the merits of a federal habeas claim; in its opinion,

this Court expressly identified a state court decision holding a petitioner to a higher

burden than he would have to carry in the federal courts as being one that might

well not be entitled to AEDPA deference. Granting review in Busby’s case would

give this Court an opportunity to resolve this important question left unanswered

by Williams because the CCA held Busby to a higher burden than required by the

federal courts.

Requiring a petitioner to demonstrate that he is intellectually disabled by

clear and convincing evidence, as the CCA did in this case, makes it more likely

than not that a person who is intellectually disabled will be executed. Granting

review in Busby’s case would give this Court an opportunity to decide whether its

due process jurisprudence will allow a state to require a habeas applicant to

demonstrate he is intellectually disabled by clear and convincing evidence.

3

Finally, there exists no state court process through which Busby could obtain

a full and fair adjudication on the merits of his Atkins claim. Granting review in

this case will allow this Court to address whether the exception to the exhaustion

doctrine codified at 28 U.S.C. § 2254 (b)(1)(B)(ii) should operate to allow a federal

court to review a claim de novo when the state court made a decision relevant to the

merits of the petitioner’s federal claim but where there exists no state court process

by which that court will fully adjudicate the merits of that federal claim.

Opinions and Orders Below

The decision of the United States Court of Appeals for the Fifth Circuit was

issued on May 20, 2019. The opinion, which denied Busby’s petition for en banc

rehearing and withdrew the previously-issued panel opinion, is attached as

Appendix A. The court below granted Busby a certificate of appealability on

January 27, 2017. The order is attached as Appendix B. The district court’s order

was issued on March 10, 2015. ROA.3309. 1 The state habeas court dismissed

Busby’s subsequent habeas application on March 6, 2013. ROA.2135.

Statement of Jurisdiction

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

1 Citations to the Record on Appeal in the court of appeals are cited in this

Petition as ROA.[page number], pursuant to that court’s rule.

4

Constitutional Provisions and Statutes Involved

The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishment inflicted.” U.S. Const. amend. VIII.

The Fourteenth Amendment to the United States Constitution provides, in

pertinent part: “…nor shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction

the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

28 U.S.C. § 2254: Appendix C

28 U.S.C. § 2244: Appendix D

Statement of the Case

Edward Lee Busby was arrested, charged, and convicted of the kidnapping

and killing of Laura Lee Crane in January 2004. State v. Busby, No. 0920589A

(Crim. Dist. Ct. No. 2, Tarrant Co., Tex. Nov. 17, 2005). The guilt/innocence phase of

Mr. Busby’s trial commenced on November 9, 2005. Mr. Busby was convicted of

capital murder on November 11, 2005 and was sentenced to death six days later.

The Texas Court of Criminal Appeals (“CCA”) affirmed Mr. Busby’s conviction and

sentence on May 14, 2008. Busby v. State, 253 S.W.3d 661 (Tex. Crim. App. 2008).

The conviction became final on December 1, 2008, when this Court denied Mr.

Busby’s petition for writ of certiorari. Busby v. Texas, 555 U.S. 1050 (2008). On

February 25, 2009, the CCA denied Busby relief in his initial state habeas

proceedings – during which his then-attorney did not raise a claim pursuant to

5

Atkins v. Virginia, 536 U.S. 304 (2002). Ex parte Busby, No. WR-70,747-01, 2009

WL 483096 (Tex. Crim. App. Feb. 25, 2009).

The district court appointed undersigned Counsel to represent Busby on

April 13, 2009. ROA.15. Counsel filed Busby’s initial federal petition for a writ of

habeas corpus in the district court on February 25, 2010. ROA.74. The petition

contained an unexhausted claim pursuant to Atkins v. Virginia alleging Busby is

ineligible for execution because he is intellectually disabled. ROA.173. The claim

was also raised in Busby’s first amended petition filed on May 24, 2010. ROA.809.

Respondent filed her initial answer on October 1, 2010. ROA.1388. Respondent

argued that Busby’s Atkins claim was unexhausted and procedurally defaulted.

ROA.1389-90.

Neither Busby’s original petition nor his first amended petition discussed

whether his Atkins claim was exhausted or procedurally defaulted, so in a reply

filed on March 16, 2011, Counsel acknowledged the claim was, at that time,

unexhausted. Busby therefore asked the district court to issue an interim order

resolving procedural questions related to exhaustion; Busby also asked the district

court to address whether cause and prejudice excuse alleged procedural default so

that, if that court determined Busby’s claims required exhaustion, he could move for

a stay and abeyance of proceedings. ROA.1506; ROA.1542. On August 17, 2012, the

district court entered such an order. ROA.1877. The district court held that a stay

and abeyance was necessary for Busby to exhaust his ineffective assistance of

counsel claim and, for that reason, it was unnecessary for the court to address

6

whether a stay and abeyance would be necessary for any of Busby’s other

unexhausted claims, including his Atkins claim. ROA.1888-89. The court ordered

Counsel to file a state habeas application within forty-five days and strongly

encouraged Counsel to exhaust any potential issue that could be raised in the state

court. ROA.1889.

In adherence to the district court’s order, Counsel filed Busby’s subsequent

state habeas application in the Texas CCA on October 1, 2012. ROA.3438. For the

CCA to authorize any claim raised in Busby’s subsequent state application, that

court had to find that Busby’s claim satisfied one (or more) of the three criteria

contained in section 5 of article 11.071 of the Texas Code of Criminal Procedure. See

Tex. Code Crim. Proc. art. 11.071 § 5(a). With respect to Busby’s Atkins claim,

Counsel argued the claim satisfied section 5(a)(3), which is based upon the federal

fundamental miscarriage of justice doctrine contained in Sawyer v. Whitley, 505

U.S. 333 (1992). ROA.3455. (Because Atkins had already been decided by the time

Busby filed his initial state application, section 5(a)(3) was the only one of the

section 5 criteria through which, pursuant to state law, Busby’s claim could be

authorized. Ex parte Blue, 230 S.W.3d 151, 159 (Tex. Crim. App. 2007).) The CCA

dismissed Busby’s application on March 6, 2013, holding that none of his claims has

satisfied section 5 and claiming the court did so without considering the merits of

his claims. ROA.2135. By dismissing Busby’s claim, the CCA prevented the state

habeas trial court from being able to take any action on the claim, meaning no state

7

court made any factual findings regarding whether Busby is intellectually disabled.

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

The district court reopened Busby’s federal habeas proceedings on August 8,

2013 and ordered the parties to file briefing on the issue of whether this Court’s

opinion in Trevino v. Thaler, 569 U.S. 413 (2013), had any impact on Busby’s

otherwise arguably defaulted claims. ROA.2144. After the parties filed briefing

related to Trevino, the district court, on February 27, 2014, ordered Counsel to file

Busby’s second amended petition within thirty days. ROA.2331. Pursuant to the

February 27 order, Counsel filed Busby’s second amended petition on March 27,

2014. ROA.2343. By that date, the Fifth Circuit had held, in a different case, that a

state court dismissal of an Atkins claim pursuant to section 5(a)(3) involves a

consideration of the merits of the federal constitutional question. Rivera v.

Quarterman, 505 F.3d 349, 359 (5th Cir. 2007); see also Blue v. Thaler, 665 F.3d

647, 653-54 (5th Cir. 2011); Appendix A at a010-11. Counsel accordingly argued in

the district court that Busby’s Atkins claim was exhausted. ROA.2492. Before

issuing a decision on the merits of Busby’s claim, the district court convened an

evidentiary hearing, the sole purpose of which was to determine whether Busby’s

ineffective of trial counsel claim was viable pursuant to this Court’s opinion in

Trevino v. Thaler. ROA.3290.

Two weeks after the evidentiary hearing, the district court entered an order

denying Busby relief on all of his claims. ROA.3309. With respect to the Atkins

claim, the district court held Busby’s claim was procedurally barred, finding the

8

CCA’s dismissal did not constitute a decision on the merits. ROA.3342. Having

made that finding, the court then addressed Busby’s alternative argument that any

procedural default should be excused under the miscarriage of justice exception.

The Court found that Busby had failed to show the exception applies to his Atkins

claim. ROA.3345. The Court denied Busby a COA on all of his claims. ROA.3358.

Busby appealed the district court’s decision and asked the court of appeals to

grant him a COA on three claims, including his Atkins claim. On January 27, 2017,

the panel issued an order granting a COA on all three issues. Appendix B at a048.

With respect to the Atkins claim, the panel wrote that reasonable jurists would

disagree with the district court’s decision that Busby’s claim was procedurally

barred because an order from the CCA dismissing an Atkins claim pursuant to

section 5(a)(3) involves a consideration of the claim’s merits. Appendix B at a052-53

& n.18 (citing Garcia v. Stephens, 757 F.3d 220, 225 (5th Cir. 2014); Ladd v.

Stephens, 748 F.3d 637, 641 n.10 (5th Cir. 2014); Rivera, 505 F.3d at 359-360). The

court held reasonable jurists would debate the merits of Busby’s claim. Appendix B

at a055.

On June 13, 2018, the panel issued its now-withdrawn opinion denying

Busby relief on all of his claims. Perplexingly, even though the Atkins claim was

raised in Busby’s initial federal habeas proceedings, the panel wrote that Busby’s

claim is successive. Of course, given that the claim was presented in Busby’s initial

federal habeas application, it is not successive, either as that term is used in

ordinary English or as it is used in 28 U.S.C. § 2244(b). In any event, proceeding

9

under the mistaken premise that Busby’s claim was either successive or viable only

through the fundamental miscarriage of justice exception, the panel then found that

the inquiry decided by the state court – i.e., whether Busby’s claim satisfied the

miscarriage of justice exception – was determinative to Busby’s claim and that

AEDPA requires the federal courts defer to this decision. Once it elected to review

Busby’s claim through the lens of AEDPA deference (rather than de novo), the

Panel reached the conclusion that the state court’s decision was not objectively

unreasonable only by ignoring this Court’s recent decision in Moore v. Texas, 137 S.

Ct. 1039 (2017). In Moore, this Court soundly rejected the CCA’s use of the so-called

Briseño factors to evaluate Atkins claims – the very factors the CCA would have

used in assessing Busby’s claim.

On June 27, 2018, Counsel filed a petition for rehearing en banc in the court

of appeals. On May 20, 2019, the court denied the petition for rehearing en banc;

however, at the same time, the Fifth Circuit withdrew its prior opinion and issued a

new opinion in its place. Appendix A at a002. The new opinion differed only slightly

from the court’s prior opinion. The court held that the district court erred in finding

Busby’s Atkins claim to be procedurally defaulted because the CCA, despite that

court’s statement to the contrary, considered the merits of Busby’s Atkins claim.

Appendix A at a010.

In his motion for rehearing, Counsel argued that because the CCA imposed a

higher burden on Busby than he would have been required to meet to be entitled to

relief in federal court, the district court’s review of Busby’s claim should have been

10

de novo. In rejecting Busby’s argument, the Fifth Circuit held that reviewing the

Atkins claim de novo would be contrary to this Court’s opinions in Brumfield v.

Cain, 135 S. Ct. 2269 (2015), and Shoop v. Hill, 139 S. Ct. 504 (2019). Appendix A at

a017-18. Of course, in neither of those opinions did this Court address an Atkins

claim in which the state court had imposed a higher burden than that required by

the federal courts. It is therefore unclear why the Fifth Circuit cited them or

concluded they dictate denial of Busby’s invitation to review the Atkins claim de

novo.

The court of appeals then addressed the question of what constitutes clearly

established Federal law with respect to Busby’s claim. The court found that this

Court’s opinions in Sawyer v. Whitley, 505 U.S. 333 (1992), and McQuiggin v.

Perkins, 569 U.S. 383 (2013), constitute the clearly established Federal law that

governs Busby’s claim. Appendix A at 8, a018-20. This holding, too, is perplexing

because Sawyer and McQuiggin address under what conditions a federal habeas

petitioner may raise a claim in a successive federal petition. Yet as this Court

specifically recognized, this stricter standard is inapplicable to claims raised in a

petitioner’s initial federal habeas petition. McQuiggin, 569 U.S. at 396 n.1.

Specifically, both Sawyer and McQuiggin address whether a federal petitioner can

raise a new and different claim in a successive petition if he first establishes by

clear and convincing evidence that he is actually innocent. Neither of these opinions

addresses whether a state may impose a higher burden when considering the merits

of an Atkins claim than petitioners are required to carry in the federal courts.

11

Relying on Sawyer and McQuiggin, however, the court below held that the state’s

use of the clear and convincing standard when addressing the merits of Busby’s

Atkins claim “was not an unreasonable application of clearly established federal

law.”

The court then addressed whether the CCA’s decision constituted an

unreasonable determination of the facts under section 2254(d)(2). Focusing largely

on two intelligence tests from Busby’s trial which reported his IQ to be 77 and 79,

the court found that the CCA’s decision was not based on an unreasonable

determination of the facts. Importantly, however, had federal review of Busby’s

Atkins claim been de novo, the Fifth Circuit would almost certainly have arrived at

the conclusion Busby is in fact intellectually disabled. Thus, in both In re Cathey,

857 F.3d 221 (5th Cir. 2017), and In re Johnson, No. 19-20052, 2019 WL 3814384

(5th Cir. Aug. 14, 2019), the court of appeals found Atkins claims to be meritorious

in cases involving petitioners whose IQ scores were similar to Busby’s. Cathey, 857

F.3d at 230 (authorizing a petitioner whose IQ had been reported to be 77 to file a

successive petition); In re Johnson, 2019 WL 3814384, at *9 (authorizing Johnson’s

successive petition); Resp’t’s Answer at 23, Ex parte Johnson, No. WR-73,600-03

(Tex. Crim. App. Aug. 9, 2019), available at

http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c9960d26-323a-467295f8-08b74570cbf5&coa=coscca&DT=BRIEF&MediaID=c4560dc3-d80b-4b49-ab40b634e33e118a (stating Johnson’s trial expert had measured his IQ at 88 and 78).

12

Reasons for Granting the Writ

I.

This Court should grant certiorari to determine whether a state

court’s decision is entitled to deference under section 2254(d) when

it imposes a higher burden for establishing an Atkins claim than is

required by federal law.

If an exhausted claim presented in a federal habeas petition has been

“adjudicated on the merits in State court proceedings,” a federal court cannot grant

habeas relief on the claim unless the state court proceedings “resulted in a decision

that was contrary to, or involved an unreasonable application of clearly established

Federal law” or “resulted in a decision that was based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254(d). In Johnson v. Williams, 568 U.S.

289 (2013), this Court addressed the question of whether a federal claim should be

considered to have been adjudicated on the merits when the claim was presented to

the state court, but the state court “does not expressly address the federal claim in

question.” Williams, 568 U.S. at 292. The Court concluded that in such

circumstances, “a federal habeas court must presume that the federal claim was

adjudicated on the merits—but that presumption can in some limited circumstances

be rebutted.” Id. at 301. Justice Alito, writing for himself and seven other justices

(with only Justice Scalia not joining), then listed examples of when the presumption

might be rebutted, and the first example this Court gave is precisely the first

question presented in this Petition: “what if … the state standard is less protective?”

Id.

In Atkins v. Virginia, this Court left it to the States to “develop[] appropriate

ways to enforce the constitutional restriction upon [their] execution of sentences.”

13

Atkins, 536 U.S. at 317. With respect to Atkins claims presented in initial habeas

petitions, Texas has decided that habeas petitioners alleging their death sentences

are unconstitutional because they are intellectually disabled must demonstrate by a

preponderance of the evidence that they are, in fact, intellectually disabled. Ex parte

Briseño, 135 S.W.3d at 12 (Tex. Crim. App. 2004), overruled on other grounds by

Moore v. Texas, 137 S. Ct. 1039 (2017); see also Lewis v. Quarterman, 541 F.3d 280,

283 (5th Cir. 2008); Moore v. Quarterman, 342 F. App’x 65, 67 (5th Cir. 2009)

(unpublished) (“To succeed on an Atkins claim, a defendant must prove by a

preponderance of the evidence that he is” intellectually disabled).

However, because Busby’s Atkins claim was presented to the CCA in his

second state habeas application, Texas law required the CCA to determine whether

he had demonstrated by clear and convincing evidence that he is intellectually

disabled. Tex. Code Crim. Proc. art. 11.071, § 5(a)(3). Precisely because the CCA

imposed a higher burden than is required by federal law, the state court process

was less protective of Busby’s Eighth Amendment rights than the Constitution

requires; it follows, therefore, that whatever claim the CCA was addressing, it was

not adjudicating the merits of Busby’s federal claim, because an adjudication of that

federal claim would have triggered a different burden of proof.

Justice Alito’s opinion in Williams is instructive. He suggested that where

the state court imposes a different (and higher) standard that is appropriate under

federal law, the state court’s decision may well fail to constitute an adjudication on

the merits within the meaning of § 2254(d). In such a scenario, the federal court

14

would be required to review the claim de novo. Notably, the court below, in an

opinion handed down two months after it issued its opinion in Busby’s case,

acknowledged this idea from Williams and held that a decision from the CCA did

not constitute an adjudication on the merits of a habeas petitioner’s federal claim

because the standards for the federal and state claims were “quite different,” and

the federal court therefore applied de novo review. Lucio v. Davis, No. 16-70027,

2019 WL 3425186, at *6-7 (5th Cir. July 29, 2019) (unpblished). Busby’s case should

be decided under the same standard.

A state court decision that applies the wrong burden of proof to a habeas

applicant’s assertion of a federal claim is not a decision that, within the meaning of

2254(d), adjudicates the federal claim.

The issue of “whether a federal claim was ‘adjudicated on the merits in State

court’” is an important one, and granting certiorari in Busby’s case would give the

Court an opportunity to resolve the matters left unresolved by Williams. Williams,

568 U.S. at 292.

Moreover, even if a state court decision imposing a heavier burden on a

habeas petitioner is somehow deemed to be an adjudication of the merits of the

federal claim, that decision would perforce involve an unreasonable application of

federal law. In Fernandez v. Roe, 286 F.3d 1073 (9th Cir. 2002). for example,

the Court of Appeals for the Ninth Circuit addressed a Batson claim. While this

Court’s opinion in Batson requires an inference that race was a factor in a

prosecutor’s decision to strike a potential juror, under California law, a defendant

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must show a strong likelihood of discrimination in order to prevail on a Batson

claim. E.g., Fernandez, 286 F.3d at 1077; cf. Batson v. Kentucky, 476 U.S. 79, 96

(1986) (“the defendant must show that these facts and any other relevant

circumstances raise an inference that the prosecutor used that practice to exclude

the verniremen from the petit jury on account of their race”) (emphasis added).

Because the state court in Fernandez followed the less protective state rule, the

Ninth Circuit held the state court “applied an incorrect legal standard, contrary to

federal law as pronounced in Batson” and held the claim should be reviewed de

novo. Fernandez, 286 F.3d at 1077.

Of course, Atkins claims differ in certain respects from Batson claims,

including in that this Court left it to the states to determine how to implement this

Court’s holding in Atkins. Atkins, 536 U.S. at 317. Nevertheless, as this Court

recently reaffirmed in Moore, the leeway allowed to the states for implementing

Atkins is not a license to eviscerate that holding. Moore v. Texas, 137 S. Ct. 1039,

1052-53 (2017) (“States have some flexibility, but not ‘unfettered discretion,’ in

enforcing Atkins’ holding”). Demanding a habeas applicant satisfy an especially

demanding burden of proof is yet another attempt by the State of Texas to avoid the

command of Atkins. By requiring Busby to satisfy a higher burden than the one

established in the federal courts for claims arising from Texas, the CCA’s decision

involves an unreasonable application of federal law.

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II.

This Court should grant certiorari to resolve whether it violates the

Eighth Amendment or the Fourteenth Amendment’s due process

clause when a state requires a habeas applicant to demonstrate he is

intellectually disabled by clear and convincing evidence.

In Atkins, this Court established that the Eighth Amendment will not permit

the execution of a defendant who is intellectually disabled. As it had done for Ford

claims, the Court left it to the states to determine how to implement the decision.

Atkins, 536 U.S. at 317; Ford v. Wainwright, 477 U.S. 399, 416-17 (1986). However,

as this Court made clear in Ford, the procedures developed by the state courts must

comport with the dictates of due process. Ford, 477 U.S. at 413-17.

This Court’s analysis of the question of competency to stand trial is

instructive. In Cooper v. Oklahoma, 517 U.S. 348 (1996), this Court confronted

Oklahoma’s requirement that a defendant demonstrate he was not competent to

stand trial by clear and convincing evidence. This Court held that the burden of

proof demanded by Oklahoma law failed to adequately protect the fundamental

constitutional right to be tried only if competent. The Court arrived at this

conclusion after employing a three-step inquiry. First, the Court looked to history

and found there to be no historical support for the heightened requirement. Cooper,

517 U.S. at 356. The Court then looked to how other states considered the issue and

found only four states employed the clear and convincing standard. Id. at 360-61.

Finally, the Court determined Oklahoma’s rule did not operate fairly because it

imposed a significant risk that an incompetent defendant would be forced to stand

trial. Id. at 363.

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This same analysis should lead to a finding that requiring a habeas petitioner

raising an Atkins claim to prove he is intellectually disabled by clear and convincing

evidence runs afoul of the due process clause. Regarding historical support, as this

Court found in Cooper, courts have consistently used the standard of preponderance

of the evidence when determining the mental capacity or fitness of a criminal

defendant beginning in the late 18th century. Id. at 356-60. Similarly, of the

twenty-nine states that have not abolished capital punishment, only five require a

petitioner to demonstrate he is intellectually disabled by something greater than a

preponderance of the evidence in all cases. (These states include Arizona, Colorado,

Florida, North Carolina, and Georgia.) Counsel is unaware of any states besides

Texas that impose a preponderance standard if the claim is presented in an initial

habeas application but impose a higher standard for claims raised in subsequent

applications. Finally, there can be no doubt that employing a standard greater than

preponderance increases the risk that a person who is intellectually disabled will be

executed.

Granting review in Busby’s case will afford this Court the opportunity to

address whether its holding in Cooper is applicable to Atkins claims.

III.

This Court should grant certiorari to resolve whether there is an

absence of state corrective process when a state court requires a

habeas petitioner to demonstrate intellectual disability by clear and

convincing evidence.

Pursuant to 28 U.S.C. § 2254(b)(1)(B)(ii), a federal court can consider an

unexhausted claim if “circumstances exist that render [the state court] process

ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(ii). If, as

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the court below found (and Busby believes to be correct), Busby’s claim was

exhausted in state court; and if the state court decision denying that claim will

trigger AEDPA deference even though it imposes a more onerous burden of proof

than is dictated by federal law (or that is triggered when the issue is addressed de

novo in federal court), there exists no state court process available to Busby which

will result in a decision that constitutes an adjudication of the merits of his federal

claim. In other words, if the state can impose a heavier burden than is required

under federal law, and if that heavier burden will then preclude a federal court from

granting relief on the claim, there is no process – federal, state, or otherwise – that

adequately protects the right of an intellectually disabled individual from being

executed. Under this scenario, the exception to the exhaustion doctrine codified in

28 U.S.C. § 2254(b)(1)(B)(ii) should permit a federal court to engage in de novo

review. See Young v. Ragen, 337 U.S. 235, 239 (1949); see also Rose v. Lundy, 455

U.S. 509, 516 n.7 (1982) (“the exhaustion doctrine does not bar relief where the

state remedies are inadequate or fail to ‘afford a full and fair adjudication of the

federal contentions raised’”). This very provision of federal law which would entitle

Busby to de novo review had the state court not made a decision relevant to the

merits of his claim should afford him no less protection simply because the state

court’s decision did involve the merits of his federal claim when that decision did

not afford him a full and fair adjudication of the federal claim.

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Conclusion and Prayer for Relief

Petitioner requests this Court grant certiorari and schedule the case for

briefing and oral argument.

DATE: August 19, 2019

Respectfully submitted,

/s/ David R. Dow

__________________________________________

David R. Dow*

Texas Bar No. 06064900

Jeffrey R. Newberry

Texas Bar No. 24060966

University of Houston Law Center

4604 Calhoun Rd.

Houston, Texas 77204-6060

Tel. (713) 743-2171

Fax (713) 743-2131

Counsel for Edward Lee Busby

*Member of the Supreme Court Bar

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