Petition for Writ of Certiorari — Blaine Milam, Petitioner v. Texas

Supreme Court briefNov 27, 2020

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No. ________

BLAINE MILAM

Petitioner,

TEXAS

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE TEXAS COURT OF CRIMINAL APPEALS

PETITION FOR A WRIT OF CERTIORARI

Mr. Milam is scheduled to be executed on January 21, 2021,

after 6:00 p.m.

Jason D. Hawkins

Federal Public Defender

Jeremy Schepers

Supervisor, Capital Habeas Unit

jeremy_schepers@fd.org

Northern District of Texas

525 S. Griffin Street, Suite 629

Dallas, TX 75202

214-767-2746

214-767-2286 (fax)

Jennae R. Swiergula*

Texas Defender Service

1023 Springdale Rd. #14E

Austin, TX 78721

512-320-8300

512-477-2153 (fax)

jswiergula@texasdefender.org

*Counsel of Record

Attorneys for Petitioner

CAPITAL CASE

QUESTIONS PRESENTED

Did Moore v. Texas announce a new substantive rule that is retroactive to cases

on collateral review and, if so, did the Texas Court of Criminal Appeals fail to

give retroactive effect to Moore when it refused to adjudicate Mr. Milam’s

intellectual disability allegations anew under that standard?

Did the Texas Court of Criminal Appeals continue to enforce and apply the

same unconstitutional framework to Mr. Milam’s intellectual disability claim

that this Court condemned in Moore v. Texas?

PARTIES TO THE PROCEEDINGS BELOW

Petitioner Blaine Milam is a prisoner under sentence of death in the custody

of Respondent, the State of Texas. There are no corporate parties involved in this

case.

LIST OF RELATED CASES

4th District Court of Rusk County, Texas

State of Texas v. Blaine Milam, No. CR-09-066

Court of Criminal Appeals of Texas

Milam v. State, No. AP-76,379 (direct appeal)

Ex parte Milam, No. WR-79,322-01 (initial state post-conviction proceeding)

Ex parte Milam, No. WR-79,322-02 (second state post-conviction proceeding)

United States District Court for the Eastern District of Texas

Milam v. Director, TDCJ-CID, No. 4;13-cv-545 (federal habeas proceeding)

United States Court of Appeals for the Fifth Circuit

Milam v. Davis, No. 17-70020 (federal habeas appeal)

In re Milam, No. 20-40663 (motion for authorization to file second or

successive proceeding under 28 U.S.C. § 2244)

Supreme Court of the United States

Milam v. Davis, No. 18-5494 (certiorari from federal habeas)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS BELOW ............................................................. ii

LIST OF RELATED CASES ........................................................................................ iii

TABLE OF CONTENTS ............................................................................................... iv

INDEX TO APPENDICES ........................................................................................... vi

TABLE OF AUTHORITIES ........................................................................................ vii

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

OPINIONS BELOW ...................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........................ 2

STATEMENT OF THE CASE ....................................................................................... 2

Introduction .............................................................................................. 2

Allegations Below ..................................................................................... 6

Mr. Milam alleged significant deficits in intellectual

functioning ..................................................................................... 6

Mr. Milam alleged significant deficits in adaptive functioning ... 7

Conceptual Skills ................................................................ 9

ii.

Social Skills....................................................................... 12

iii.

Practical skills................................................................... 14

Mr. Milam alleged his deficits manifested during the

developmental period .................................................................. 16

Mr. Milam alleged exposure to risk factors linked to intellectual

disability ...................................................................................... 16

REASONS FOR GRANTING THE WRIT .................................................................. 17

II.

CERTIORARI SHOULD BE GRANTED TO DETERMINE IF MOORE V.

TEXAS ANNOUNCED A SUBSTANTIVE RULE THAT IS RETROACTIVE

TO CASES ON COLLATERAL REVIEW AND, IF SO, WHETHER THE

COURT OF CRIMINAL APPEALS FAILED TO GIVE RETROACTIVE

EFFECT TO MOORE WHEN IT REFUSED TO ADJUDICATE MR. MILAM’S

INTELLECTUAL DISABILITY ALLEGATIONS ANEW UNDER THAT

STANDARD....................................................................................................... 21

This Court should resolve the question of whether Moore is a new,

substantive rule ...................................................................................... 22

Mr. Milam’s pre-Moore adjudication of his intellectual disability

allegations was made by a jury who was urged by the State to apply lay

stereotypes consistent with the Briseno factors .................................... 26

CERTIORARI SHOULD BE GRANTED TO CORRECT THE TEXAS COURT

OF CRIMINAL APPEALS’S CONTINUED ENFORCEMENT AND

APPLICATION OF THE SAME UNCONSTITUTIONAL FRAMEWORK

CONDEMNED BY THIS COURT IN MOORE V. TEXAS ............................. 32

CONCLUSION............................................................................................................. 36

INDEX TO APPENDICES

APPENDIX 1

Order, Ex parte Milam, No. WR-79,322-02 (Tex. Crim. App. July

1, 2020)

APPENDIX 2

State’s Proposed Findings of Fact, Conclusions of Law, and Order,

No. CR-09-066 (4th Dist. Ct., Rusk Co., Tex., Sept. 11, 2019)

APPENDIX 3

Order, Ex parte Milam, No. CR-09-066 (4th Dist. Ct., Rusk Co.,

Tex., Oct. 16, 2019)

APPENDIX 4

Letter Pronouncement, No. CR-09-066 (4th Dist. Ct., Rusk Co.,

Tex., June 3, 2019)

APPENDIX 5

Order, Ex parte Milam, No. WR-79,322-02 (Tex. Crim. App. Jan.

14, 2019)

Each Appendix is cited below as “App. 1,” “App. 2,” “App. 3,” and “App. 4,” and “App.

5.”

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Trucking Associations, Inc. v. Smith, 496 U.S. 167 (1990) ................................ 25

Atkins v. Virginia, 536 U.S. 304 (2002) ........................................................................ 2

Bobby v. Bies, 556 U.S. 825 (2009) .......................................................................... 2, 31

Ex parte Blue, 230 S.W.3d 151 (Tex. Crim. App. 2007) ....................................... 19, 33

Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004) .................................... passim

Ex parte Brooks, 219 S.W.3d 396 (Tex. Crim. App. 2007) .................................... 19, 25

Ex parte Henderson, No. WR-37,658-03, 2006 WL 167836 (Tex. Crim. App. Jan. 25,

2006) (per curiam) .................................................................................................... 25

Ex parte Lizcano, No. 63,348-03, 2015 WL 2085190 (Tex. Crim. App. Apr. 15, 2015)

(per curiam) .............................................................................................................. 25

Ex parte Lizcano, No. 63,348-03, 2018 WL 2717035 (Tex. Crim. App. June 6, 2018)

(per curiam) .............................................................................................................. 26

Ex parte Lizcano, No. 68,348-03, 2020 WL 5540861 (Tex. Crim. App. Sept. 16, 2020)

(per curiam) .............................................................................................................. 25

Ex parte Moore, 470 S.W.3d 481 (Tex. Crim. App. 2015) ........................................... 34

Fuentes v. Shervin, 407 U.S. 67 (1972) ....................................................................... 33

Griffith v. Kentucky, 479 U.S. 314 (1987) ................................................................... 26

Hall v. Florida, 572 U.S. 701 (2014) ................................................................... passim

In re Milam, No. 20-40663, Slip Op. (5th Cir. Oct. 27, 2020) .................................... 23

In re Payne, 722 F. App’x 534 (6th Cir. Feb. 8, 2018) ................................................ 23

Miller v. City of Ithaca, 758 F. App’x 101 (2d Cir. 2018)............................................ 31

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ........................................................ 25

Moore v. Texas, 137 S. Ct. 1039 (2017) ............................................................... passim

Moore v. Texas, 139 S. Ct. 666 (2019) ............................................................... 4, 19, 25

Panetti v. Quarterman, 551 U.S. 930 (2007)............................................................... 25

Schriro v. Summerlin, 542 U.S. 348 (2004) ................................................................ 23

Shoop v. Hill, 139 S. Ct. 504 (2019) (per curiam) ................................................... 2, 22

Smith v. Comm’r, Alabama Dep’t of Corr., 924 F.3d 1330 (11th Cir. 2019) .............. 23

State v. Jackson, --- N.E.3d ---. 2020 WL 4578597 (Ohio Ct. App. 2020) .................. 23

State v. Thurber, 420 P.3d 389 (Kan. 2018) ................................................................ 31

Thomas v. State, No. AP-77,047, 2018 WL 6332526 (Tex. Crim. App. Dec. 5, 2018) 31

Tran v. Colson, 764 F.3d 594 (6th Cir. 2014) ............................................................. 32

Williams v. Kelley, 858 F.3d 464 (8th Cir. 2017) ........................................................ 22

Statutes

28 U.S.C. § 1257(a) ........................................................................................................ 2

Tex. Code Crim. Proc. art. 11.071 ......................................................... 6, 19, 20, 33, 37

vii

Other Authorities

American Association on Intellectual and Developmental Disabilities, 11th Edition

............................................................................................................. 9, 12, 14, 16, 35

Diagnostic and Statistical Manual of Mental Disorders, 5th Edition ............... 7, 9, 16

Constitutional Provisions

U.S. CONST. amend. VIII ................................................................................... passim

U.S. CONST. amend. XIV ........................................................................................... 32

viii

PETITION FOR A WRIT OF CERTIORARI

Blaine Milam petitions this Court for a writ of certiorari to review the

judgment of the Texas Court of Criminal Appeals in this case.

OPINIONS BELOW

The unpublished July 1, 2020 order of the Court of Criminal Appeals of Texas

(“CCA”) denying the habeas corpus application, Ex parte Milam, No. WR-79,322-02,

2020 WL 3635921 (Tex. Crim. App. July 1, 2020), is attached as Appendix 1. The

findings of fact and conclusions of law proposed by the State, Ex parte Milam, No.

CR-09-066 (4th Dist. Ct. Sept. 11, 2019), are attached as Appendix 2. The trial court’s

order adopting the State’s findings of fact and conclusions of law in full, Ex parte

Milam, No. CR-09-066 (4th Dist. Ct., Rusk Co., Tex., Oct. 16, 2019), is attached as

Appendix 3. The trial court’s “letter pronouncement” denying Mr. Milam’s application

is attached at Appendix 4. The unpublished order of the CCA authorizing the

application to be considered on the merits with respect to Petitioner’s intellectual

disability claim, Ex parte Milam, No. WR-79,322-02, 2019 WL 190209 (Tex. Crim.

App. Jan. 14, 2019), is attached as Appendix 5.

STATEMENT OF JURISDICTION

The Texas Court of Criminal Appeal entered its judgment on July 1, 2020. On

March 19, in response to the COVID-19 pandemic, this Court entered an Order

applicable by its terms to this case and extending the time for petition for certiorari

to 150 dates from the date of the relevant lower court judgment.1 This petition is

timely filed pursuant to the Court’s March 19, 2020 Order.

This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitution provides: “Excessive

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

punishments inflicted.”

STATEMENT OF THE CASE

Introduction

In 2002, this Court announced that the Eighth Amendment “‘places a

substantive restriction on the State’s power to take the life’ of a mentally retarded

offender.” Atkins v. Virginia, 536 U.S. 304, 321 (2002) (quoting Ford v. Wainwright,

477 U.S. 399, 405 (1986)). The Atkins decision “gave no comprehensive definition of

‘mental retardation’ for Eighth Amendment purposes.” Shoop v. Hill, 139 S. Ct. 504,

507 (2019) (per curiam). Instead, it “le[ft] to the States the task of developing

appropriate ways to enforce the constitutional restriction.’” Bobby v. Bies, 556 U.S.

825, 831 (2009) (quoting Atkins, 536 U.S. at 317) (alterations in original).

In 2004, the Texas Court of Criminal Appeals (“CCA”) adopted a substantive

standard for determining which capital defendants possessed “that level and degree

of mental retardation at which a consensus of Texas citizens would agree that a

person should be exempted from the death penalty.” Ex parte Briseno, 135 S.W.3d 1,

1 https://www.supremecourt.gov/orders/courtorders/031920zr_d1o3.pdf.

6 (Tex. Crim. App. 2004). The opinion adopted definitions of intellectual disability

contained in the ninth edition of the American Association on Mental Retardation’s

clinical manual and in the Texas Health and Safety Code, but it also engrafted upon

those definitions seven “evidentiary factors” a factfinder could consider for making

the Texas-specific determination. Id. at 7–9. These factors encompassed various lay

stereotypes about persons with an intellectual disability: (1) did those who knew the

person best during the developmental stage—his family, friends, teachers, employers,

authorities—think he was mentally retarded at that time, and, if so, act in accordance

with that determination; (2) has the person formulated plans and carried them

through or is his conduct impulsive; (3) does his conduct show leadership or does it

show that he is led around by others; (4) is his conduct in response to external stimuli

rational and appropriate, regardless of whether it is socially acceptable; (5) does he

respond coherently, rationally, and on point to oral or written questions or do his

responses wander from subject to subject; (6) can the person hide facts or lie

effectively in his own or others’ interests; (7) putting aside any heinousness or

gruesomeness surrounding the capital offense, did the commission of that offense

require forethought, planning, and complex execution of purpose. Id. at 8–9.

In 2017, this Court struck down Texas’s standard for determining who was

intellectually disabled for Eighth Amendment purposes. It held, inter alia, that

Texas’s injection of lay stereotypes into the adaptive functioning analysis “[b]y design

and in operation . . . ‘creat[ed] an unacceptable risk that persons with intellectual

disability will be executed.’” Moore v. Texas, 137 S. Ct. 1039, 1051 (2017) (“Moore I”)

(quoting Hall v. Florida, 572 U.S. 701, 704 (2014)). Although the Moore I decision was

not unanimous, the Court was unanimous as to the inappropriateness of the injection

of these factors into intellectual disability determinations under the Eighth

Amendment. See Moore I, 137 S. Ct. at 1053 (Roberts, C.J., dissenting) (“I agree with

the Court today that those factors are an unacceptable method of enforcing the

guarantee of Atkins.”). In 2019, this Court had to reverse the CCA again after it

arrived at the same conclusion on remand for “repeat[ing] the analysis we previously

found wanting,” including its continued reliance on lay stereotypes. Moore v. Texas,

139 S. Ct. 666, 670, 672 (2019) (“Moore II”).

Mr. Milam’s capital trial occurred in 2010. The CCA’s Briseno decision

provided the governing legal framework at that time. During sentencing, Mr. Milam

presented evidence from a psychologist who opined that Mr. Milam was intellectually

disabled. The State presented evidence from a different psychologist that Mr. Milam

was not intellectually disabled. The question of Mr. Milam’s intellectual disability

was put to a jury to decide.2 During closing argument, and consistent with the

That jury was given an instruction on intellectual disability comporting with the thenexisting Texas Health and Safety Code, as endorsed by Briseno. The instruction read:

With respect to Special Issue Number Three, you are instructed that “mental

retardation” means significantly sub-average general intellectual functioning that is

concurrent with deficits in adaptive behavior and originates during the developmental

period, onset prior to the age of 18.

“Significantly sub-average general intellectual functioning” refers to measured

intelligence on standardized psychometric instruments of two or more standard

deviations below the age group mean for the tests used.

“Adaptive behavior” means the effectiveness with or degree to which a person meets

standards of personal independence and social responsibility expected of the person’s

age and cultural group.

substantive Briseno framework, the State urged the jury to reject Mr. Milam’s

evidence of intellectual disability by resorting to various lay stereotypes, including

among others that Mr. Milam “could lie to protect himself;” that he “could carry on a

conversation;” that he “used a cell phone;” that he “knew how to use the internet;”

that he could talk about “what music he liked;” and that he “wrote letters from the

jail.” 56 RR 135–36. Under the existing Texas legal framework, defense counsel could

not have objected and did not object to these arguments. After deliberating, the jury

determined that Mr. Milam had not proven his intellectual disability by a

preponderance of the evidence, and he was sentenced to death.

After Moore, Mr. Milam filed a habeas corpus application in state court seeking

an adjudication of his asserted intellectual disability under the appropriate Eighth

Amendment standard. Reflecting its continued tolerance for application of lay

stereotypes to intellectual disability determinations, the CCA declined to adjudicate

the allegations anew. Instead, it concluded that Mr. Milam’s trial adjudication did

not run afoul of the substantive Eighth Amendment rules announced in Moore,

notwithstanding the State’s urging the jury to reject Mr. Milam’s evidence based upon

stereotypes. The question presented by this case are therefore: 1) whether Mr. Milam

has actually obtained the benefit of the new substantive rules announced in Moore to

which he is entitled and; 2) whether the CCA has continued to repeat the errors this

4 CR 980–81. The jury was also instructed that, “[i]n deliberating on Special Issue Number Three you

shall consider all the evidence at the guilt or innocence stage and the punishment stage, including

evidence of the defendant’s background and character and circumstances of the offense.” Id. at 981.

Court corrected in Moore II, including its tolerance for permitting intellectual

disability determinations to be based on lay stereotypes.

Allegations Below

In his habeas application below, Mr. Milam made substantial allegations—

supported by evidentiary proffers and testimony from trial—that he met all three

criteria for an intellectual disability diagnosis.

Mr. Milam alleged significant deficits in intellectual functioning.

IQ testing administered to Mr. Milam pre-trial resulted in scores

demonstrating significantly subaverage intellectual functioning. Before trial, both

Dr. Paul Andrews, a defense expert, and Dr. Timothy Proctor, an expert for the State,

administered the WAIS-IV to Mr. Milam. Mr. Milam scored 71 and 68 on the tests,

respectively.3 Ex. 9, Report of Paul Andrews (“Andrews Report”) at 4;4 53 RR 200; Ex.

3 Dr. Andrews also administered a Stanford-Binet 5 (SB-5), another full-scale IQ (“FSIQ”) test,

to Mr. Milam but miscalculated the score. Dr. Andrews reported that Mr. Milam scored an 80 on the

SB-5. Dr. Dale Watson, who reviewed the raw data of the IQ testing administered pretrial in

connection with Mr. Milam’s state habeas application, discovered a scoring mistake by Dr. Andrews.

The correct score on the SB-5 is a 78. Ex. 11, Declaration of Dale Watson (“Watson Dec.”) ¶ 20. When

the Flynn Correction is factored into this score, Mr. Milam’s FSIQ score on the SB-5 is a 75, also in

the range for intellectual disability. Id. ¶ 22; id at ¶ 12 (The Flynn Effect or Flynn Correction “applies

to all major intelligence tests, including the WAIS and the Stanford-Binet. Flynn Corrections are

calculated according to the following formula: obtained score – (.3 x number of years between the midyear norming date and administration.”). However, even if the SB-5 score is not considered, both WAIS

scores are in the range of intellectual disability and this score cannot preclude evaluation of Mr.

Milam’s adaptive functioning. See Hall, 572 U.S. at 707 (court required to evaluate evidence of

adaptive functioning where “Hall had received nine IQ evaluations in 40 years, with scores ranging

from 60 to 80 . . . but the sentencing court excluded the two scores below 70 for evidentiary reasons,

leaving only scores between 71 and 80”) (internal citations omitted).

4 The exhibits referenced in this petition are the exhibits that were attached to Mr. Milam’s

Subsequent State Habeas Application filed in the Fourth Judicial District Court, Rusk County, Texas,

on January 7, 2019. Because it was the second state habeas application Mr. Milam had filed, it was

then transferred to the Court of Criminal Appeals for a determination on whether the application

satisfied the requirements of Texas Code of Criminal Procedure Article 11.071 § 5(a) to be considered

on the merits. Tex. Code Crim. Proc. art. 11.071 § 5(c).

8, Report of Timothy Proctor (“Proctor Report”) at 15; 53 RR 202.5 That both WAIS

scores are within the 65–75 confidence interval indicates that they are reliable. Ex.

11, Declaration of Dr. Jack Fletcher (“Fletcher Dec.”) at 5 (“The most reliable finding

and the one that should be weighted most highly in Mr. Milam’s evaluation is the

close proximity of the two WAIS-IV scores of 70 and 676 and the fact that both are

within the 95% confidence interval of 65–75 established for the WAIS-IV.”).

Moreover, Dr. Gripon, a psychiatric expert retained by the State who evaluated Mr.

Milam before trial, opined that Mr. Milam “clearly has intellectual limitations” and

“does not have normal intellectual potential.” Ex. 1, Report of Edward Gripon

(“Gripon Report”) at 14. Dr. Gripon estimated Mr. Milam’s IQ “to be in the range of

65 to 70.”7 Id.

Mr. Milam alleged significant deficits in adaptive functioning.

The second prong of an intellectual disability diagnosis requires deficits in one

of the three domains of adaptive functioning. DSM-5 at 33. Mr. Milam’s deficits span

all three domains. Dr. Jack Fletcher assessed Mr. Milam’s adaptive functioning. To

do so, Dr. Fletcher reviewed records pertaining to the issue of Mr. Milam’s

5 Dr. Proctor also administered the Reynolds Intellectual Achievement Scales (“RIAS”). 55 RR

141–42. Despite Dr. Proctor’s characterization at trial of the RIAS as an intelligence test, 55 RR 141,

the RIAS does not yield a full-scale IQ score. 53 RR 202. Instead, the RIAS is only a screening measure.

Id. at 203; Ex. 18, Fletcher Aff. at 4 (“The RIAS was not designed to assess the full range of abilities

captured by either the WAIS-IV or the Stanford-Binet-5.”). Regardless, because Mr. Milam had

qualifying scores from the WAIS-IV tests administered to him, like the SB-5, the score on the RIAS

cannot preclude review of his adaptive functioning. Hall, 572 U.S. at 707.

6 The IQ test scores in Dr. Fletcher’s report are adjusted for the Flynn Correction.

7 Dr. Gripon’s report also stated he estimated Mr. Milam’s “intellectual level to be in the ranges

of an IQ of 65 to 75.” Ex. 1, Gripon Report at 14.

functioning, including affidavits and testimony from former teachers, employers,

friends, and his Sunday school teacher, as well as reports by Drs. Andrews, Proctor,

Gripon, Mark Cunningham, and Dale Watson, and other social history records. Dr.

Fletcher also administered the Vineland Scales of Adaptive Behavior–28 to Mr.

Milam’s mother Shirley Milam and his older sister, Teresa Milam Shea. Ex. 10,

Fletcher Dec. at 5.

Dr. Fletcher asked Shirley Milam to focus on the period when Mr. Milam was

between the ages of 17 and 18 in his administration of the instrument to her. The

result yielded “scores of 62 in the Communication domain, 66 in the Daily Living

Skills domain, 74 in the Socialization domain, and an adaptive behavior composite of

65 (first percentile).” Id. at 7. Dr. Fletcher requested that Ms. Shea focus on the period

when Mr. Milam was between 9 and 10 years old. The resulting scores were “67 for

Communication, 68 for Daily Living Skills, and [. . .] 75 for Socialization, with an

adaptive behavior composite of 69 (first percentile).” Ex. 10A, Addendum to

Declaration of Jack Fletcher (“Fletcher Addendum”).9 These scores are consistent

with intellectual disability. Ex. 10, Fletcher Dec at 7. Dr. Fletcher noted that the

scores obtained separately from Mrs. Milam and Ms. Shea are consistent with each

8 The Vineland delivered as a semi-structured interview in order to minimize response bias.

Ex. 10, Fletcher Dec. at 7.

9 Exhibit 10A was attached to Mr. Milam’s Motion for Order Authorizing the District Court to

Consider Second or Successive Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2244 in the

United States Court of Appeals for the Fifth Circuit on October 2, 2020. Mr. Milam includes it here

because it is an addendum to Dr. Fletcher’s report correcting a minor scoring error in his initial report.

The minor scoring error did not alter Dr. Fletcher’s interpretation of the Vineland results or his

“opinion that Mr. Milam meets all three diagnostic criteria for mild intellectual disability.” Ex. 10A,

Fletcher Addendum.

other. Further, he noted priority should be given to the composite scores—65 and 69

respectively—because they are the most reliable. Ex. 10, Fletcher Dec. at 7; Ex. 10A

Fletcher Addendum.

At trial, Dr. Cunningham also conducted a formal assessment of Mr. Milam’s

adaptive functioning and concluded that he exhibited “substantial” deficits across all

domains. 53 RR 262. Dr. Fletcher noted the consistency of the results he obtained

with those obtained by Dr. Cunningham from the only other formal assessment of

Mr. Milam’s adaptive functioning. Ex. 10, Fletcher Dec. at 6. Based on his

administration of the Vineland and his review of social history records and witness

statements, Dr. Fletcher formed the opinion that Mr. Milam had significant

limitations in adaptive functioning during the developmental period. Id. at 7.

Conceptual skills

The conceptual domain includes language, reading, writing, arithmetic,

planning, and time. DSM-5 at 37; AAIDD-11 at 45. Both Dr. Cunningham and Dr.

Fletcher concluded Mr. Milam possessed significant deficits in this domain. See Ex.

10, Fletcher Dec. at 10. Mr. Milam struggled with receptive language—the ability to

understand what was being said—and expressive language—the vocabulary that he

used and being able to pronounce and articulate words. 51 RR 184; 53 RR 213.

At school, Mr. Milam’s “intellectual functioning was the lowest of the class.”

Ex. 4, Affidavit of Carolyn McIlhenny (“McIlhenny Aff.”) ¶ 3 According to Ms.

McIlhenny, who taught second and third grade and had Mr. Milam as a student,

“Blaine struggled with everything he did academically and required significant one-

on-one attention. I had to modify instructions and adapt exercises to his academic

limitations.” Id. Similarly, Juanita Bradford, who taught Mr. Milam in fourth grade

remembered, “Blaine often seemed confused by instructions and required a lot of one

on one attention.” Ex. 3, Affidavit of Juanita Bradford, (“Bradford Aff.”) ¶ 6; see 51

RR 14; 51 RR 32 (elementary school teachers describing Mr. Milam as “slow”).

Mr. Milam similarly needed instructions repeated at work. He often needed to

be shown how to do something, rather than instructed verbally. Even then,

demonstrations sometimes had to be repeated. According to a former employer,

When Blaine was a young teenager, I hired him to help me with small

projects around the land, like raking leaves, hauling trash, and small

building repairs. We worked side by side and I always supervised what

Blaine was doing. When I showed Blaine how to something, he would

not remember how to do it the next time, and I had to show him again.

For example, I had to show Blaine how to read a tape measurer and

make a small mark with a pencil on a board to be cut. However, I would

have to show him how to read the tape measure again the next time I

asked him to do it.

Ex. 6, Affidavit of Milton Bennett (“Bennett Aff.”) ¶ 5.

Jim Wallace supervised Mr. Milam at Nichols Marine, where he was hired to

wash and vacuum boats, check them for marks and scratches, and sweep and empty

the shop. According to Mr. Wallace, “Blaine could not complete a task as instructed.

If he washed the outside of a boat, he would not vacuum the inside. I would have to

check every boat Blaine washed and had to tell him to go back and do something

again.” Ex. 7, Affidavit of James Wallace (“Wallace Aff.”) ¶ 5. “[H]e could not complete

a task independently and required a lot of supervision.” Id. ¶ 6.

Gary Jenkins supervised Mr. Milam at Big 5 Tire. He testified that when Mr.

Milam first started, Mr. Jenkins had to show him what to do, not just tell him, even

though Mr. Milam had been working on cars for years. 54 RR 285–86. Dr. Fletcher

summarizes, “[l]ike Ms. McIllhenney, both Ms. Shea and [] Milam indicated that he

had difficulty following directions, paralleling descriptions from his co-worker and

supervisor, Mr. Wallace . . . .” Ex. 10, Fletcher Dec. at 8.

Mr. Milam also had difficulty with reading and writing. See Ex. 1, Gripon

Report at 15 (“his primary adaptive deficit is writing”). Mr. Milam’s vocabulary

development was limited; he used simple words; and it was difficult to understand

what he was attempting to express. 53 RR 213. Mr. Milam struggled with reading

and his spelling was poor. Id. at 214. His mother had to fill out employment

applications for him. 53 RR 207. Dr. Cunningham and Dr. Proctor both tested his

spelling and obtained a score of a 77, which is in the deficient range. 53 RR 214. Dr.

Fletcher reports, “Ms. Shea, who worked with him closely on schoolwork, said his

writing was hard to read and it was difficult for him to write in sentences.” Ex. 10,

Fletcher Dec. at 8. Dr. Gripon concluded, “Blaine Milam has serious limitations in his

ability to read and write. I/We asked him to write a sentence and he did print a short

sentence. It was not grammatically correct and some of the words that should have

ended in ‘ing’ did not.” Ex. 1, Gripon Report at 3 (referring to interview conducted

along with Dr. Proctor).

Similarly, in school, Mr. Milam struggled with reading comprehension and

could not spell. Ex. 3, Bradford Aff. ¶ 6. In the fourth grade, he was referred to

resource, the then-equivalent for special education, to benefit from individualized

academic support in reading and math. Id. Mr. Milam’s poor reading skills were also

apparent in Sunday school, where he struggled to read along. “[H]e did not read as

well as the other children in the class.” Ex. 6, Bennett Aff. ¶ 3; see 53 RR 214 (Mr.

Milam had difficulty reading out loud, would stumble over larger words, would

sometimes get mixed up about sequences and characters in trying to recall what he

had read).

Mr. Milam was referred to special education services for a speech impairment

in second, third, and fourth grade. Ex. 17, TEA Records at 3. He was in a group of

kids who Sherry Brown, a teacher at Tatum Primary School, pulled out of class

because they needed extra help on alphabet and sounds. 54 RR 313.

Additionally, Dr. Gripon observed Mr. Milam had “significant difficulty with

mathematics as it applies to handling money, etc.” Ex. 1, Gripon Report at 15; see Ex.

3, Bennett Aff. ¶ 6 (“At the end of the day, when I told Blaine how many hours he had

worked and his pay per hour, he could not figure out how much I owed him.”); 51 RR

276; 53 RR 224–25.

Mr. Milam also struggled with shopping. He did not look to see if the size of

the clothing he was purchasing was the right size for him. His family members often

had to exchange his clothing purchases for him. 51 RR 274. He could not read the

time correctly on an analog watch. 53 RR 217.

ii.

Social skills

The social domain includes interpersonal skills, self-esteem, gullibility,

naïveté, and social problem solving. AAIDD-11 at 45. Dr. Gripon observed that Mr.

Milam “has very simplistic ideas, is very naïve, extremely gullible, easily led . . . .”

Ex. 1, Gripon Report at 13. Mr. Milam was remembered as a particularly quiet, shy

and self-conscious child. Ex. 3, Bradford Aff. ¶ 3 (“He was shy . . . . If I called on him,

he would stay silent and not give an answer.”); Ex. 6, Bennett Aff. ¶ 3 (“Blaine was

very self-conscious about reading aloud in Sunday School.”). In the classroom, Mr.

Milam was “bashful” and “shy,” “didn’t want to meet your eye too much,” and “h[u]ng

his head.” 51 RR 28; Ex. 4, McIlhenny Aff. ¶ 4 (“He did not make eye contact. . . . He

was often alone in class.”); 51 RR 19 (Mr. Milam had “one or two friends” in school.).

The rest of Mr. Milam’s family was social, but he was “awkward and shy.” Ex.

5, Affidavit of Kimberly Graham (“Graham Aff.) ¶ 3. As a teenager, Mr. Milam was

“desperate” to have a girlfriend but “had a hard time with girls.” Id. Mr. Milam

struggled to maintain friendships as he aged and his emotional immaturity became

more pronounced. He became “socially isolated.” 51 RR 212; Ex. 10, Fletcher Dec. at

8 (“Ms. Shea and Ms. Digby indicated that he was socially isolated and that he didn’t

have age appropriate social skills. Ms. McIlhenny and Ms. Bradford both report that

socially, he was shy and isolated. His employer Jim Wallace indicated that Mr. Milam

did not have many friends.”).

Even as a young teenager, Mr. Milam watched Scooby Doo and played with

cars for hours with his niece Neva, who is ten years younger. 51 RR 233. Coworkers

described him as “like a child.” Ex. 8, Proctor Report at 8. At the age of 16, Mr. Milam

seemed to be closer to the age of 10 emotionally. 52 RR 101. His family members

described his throwing temper tantrums in his mid-to-late teens, as if he were a much

younger child. 53 RR 220. Jim Wallace said, “Blaine appeared to be a follower and

wanted to do what [his older brother] Danny did.” Ex. 7, Wallace Aff. ¶ 8.

iii.

Practical skills

The practical domain captures activities of daily living, occupation skills, use

of money, safety, health care, travel/transportation, and schedules/routines. AAIDD11 at 45. Mr. Milam has never lived independently and required the significant

support of family and peers in all activities of daily living. Dr. Fletcher reports, “[a]t

a younger age, [Mr. Milam’s] self-care skills were under-developed and he needed

many reminders to do simple tasks like brush his teeth.” Ex. 10, Fletcher Dec. at 8.

Dr. Cunningham found that Mr. Milam did not perform household chores and

did not prepare any meals beyond using a microwave. 53 RR 224. Mr. Milam never

had his own bank account and never managed his own finances. Id. at 224–25.

Similarly, Dr. Gripon concluded Mr. Milam could not manage his bank accounts

independently, could not memorize the pin number to his debit card, and was unable

to learn how to use his debit card to purchase. Ex. 1, Gripon Report at 9 (“As an

example, in an area where he would purchase gas, [Mr. Milam] would actually give

the people, whom he knew, his PIN number and they would actually operate the

machine for him.”). Dr. Fletcher concluded, “He needed considerable support for any

form of independent living.” Ex. 10, Fletcher Dec. at 8. And, indeed, Mr. Milam only

ever lived outside his family home for a period of thirteen weeks and never lived

independently.

Mr. Milam’s employment involved repetitive, low-skilled tasks. Ex. 6, Bennett

Aff. ¶ 5; Ex. 7, Wallace Aff. ¶ 4. At the boat marina where he did light janitorial work,

his supervisor recognized that Mr. Milam was unable to learn his duties and could

not complete any task as instructed. Id.; Ex. 8, Proctor Report at 8. Mr. Milam

remained employed there for about one month. Ex. 8, Proctor Report at 8.

Mr. Milam’s mother filled out his application for employment at M&M Lube,

53 RR 207, where Mr. Milam was eventually employed as a lube tech. Ex. 8, Proctor

Report at 6. His duties were limited to changing oil and fuel filters. His employer

reported that he was unable to train Mr. Milam to handle money. Id. at 7. Finally,

Mr. Milam was employed as a “tire buster” at Big 5 Tire to change oil and air filters,

and change and fix flat tires. He did not perform any mechanical or body work. 50 RR

20, 27. Despite reporting good work performance, both Mr. Milam’s manager and

direct supervisor reported incidents involving tardiness and missed work days

resulting in Mr. Milam’s termination after only four months of employment. Ex. 8,

Proctor Report at 8; 50 RR 48. While Mr. Milam was able to learn “tasks that are

repetitious and routine,” he was “not able to progress beyond this point to more

complex mechanical work.” Ex. 10, Fletcher Dec. at 6.

Mr. Milam’s medical records further reflected work-related accidents requiring

medical attention and treatment, including a head injury sustained after being struck

with pipe tongs, Ex. 14, Longview Regional Medical Center at 1, and being knocked

out by an open car door, Ex. 13, UTMB Health Services Archive at 7.

Mr. Milam alleged his deficits manifested during the developmental

period.

The third prong of intellectual disability requires that deficits in intellectual

and adaptive functioning manifested during the developmental period. DSM-5 at 37.

First, Mr. Milam’s IQ test scores date from when he was between the ages of 19 and

20. There is no evidence to suggest that an IQ test performed before the age of 18

would have produced meaningfully different results.

Second, Mr. Milam was 18 at the time of his arrest in the present case.

Consequently, all—or almost all—of the evidence of adaptive deficits necessarily

dates from the developmental period. Indeed, much of it comes from teachers,

employers, and friends who knew him from early childhood through his mid-to-late

teens. Similarly, Dr. Fletcher’s evaluation of Mr. Milam’s adaptive deficits focused on

the ages of 8–9 and 17–18. Ex. 10, Fletcher Dec. at 5. Dr. Fletcher concluded, “[t]he

difficulties described by Ms. Shea and Ms. Milam, and corroborated by others, clearly

occurred early in his development and persisted.” Id. at 7.

Mr. Milam alleged exposure to risk factors linked to intellectual

disability.

Exposure to risk factors is not a diagnostic criterion, but their presence

corroborates evidence reflecting that a person may be intellectually disabled. Risk

factors linked to the development of intellectual disability include maternal illness,

family poverty and chronic illness in the family, social deprivation, lack of formal

education, and inadequate family support. AAIDD-11 at 59. Mr. Milam was exposed

to risk factors associated with intellectual disability.

First, Mr. Milam’s mother Shirley was twice hospitalized while she was

pregnant with him. The first time she was diagnosed with pneumonia, which resulted

in a high fever. 51 RR 175. This resulted in a four-day hospitalization. She later

contracted a blood infection, was again hospitalized for two to three days, and was

treated with antibiotics. 51 RR 176. Dr. Cunningham testified that there is “some

possibility that the pregnancy complications contributed to” Mr. Milam’s intellectual

disability. 53 RR 273.

Second, teachers recalled limited involvement from Mr. Milam’s parents in his

educational development. Ex. 3, Bradford Aff. ¶ 8 (“Shirley Milam was quiet and

rarely came to school.”). Mr. Milam was eventually removed from school in the fourth

grade by his parents and was not homeschooled for any significant period of time. 51

RR 239–40. His access to any support services was therefore limited and, after fourth

grade, entirely eliminated. Dr. Cunningham noted that withdrawing from school

“very significantly [] took him out of those social interactions that are an important

part of developing as a person.” 53 RR 301; see Ex. 12, Declaration of John Gregory

Olley (“Olley Dec.”) ¶ 27 (lack of formal education is a risk factor for intellectual

disability). These risk factors corroborate that the deficits and limitations evident in

Mr. Milam’s intellectual functioning and adaptive behavior indicate an intellectual

disability.

REASONS FOR GRANTING THE WRIT

In Moore v. Texas—a case arising out of state collateral review—this Court

struck down Texas’s framework for adjudicating intellectual disability claims because

it “creat[ed] an unacceptable risk” that “persons with intellectual disability will be

executed.” Moore I, 137 S. Ct. at 1044 (quoting Hall, 572 U.S. at 704). This Court

condemned several facets of the CCA’s intellectual disability analysis. With regard to

the first prong of intellectual disability, the CCA improperly “disregard[e]d the lower

end of the standard-error range” when it found that Moore did not establish that he

suffered from significantly impaired intellectual functioning. Id. at 1049. Because the

FSIQ score that CCA relied on, when “adjusted for the test’s standard error, [fell]

within the clinically established range for intellectual functioning,” the CCA was

required to “move on to consider Moore’s adaptive functioning.” Id. at 1049–50.

Additionally, this Court found five primary errors in the CCA’s evaluation of

adaptive deficits. First, the court “overemphasized Moore’s perceived adaptive

strengths.” Id. at 1050. Second, the CCA relied on Moore’s improved functioning while

incarcerated. Id. Third, it “concluded that Moore’s record of academic failure, along

with the childhood abuse and suffering he endured, detracted from a determination

that his intellectual and adaptive deficits were related.” Id. at 1051. Fourth, the court

required Moore to “show that his adaptive deficits were not related to ‘a personality

disorder.’” Id. Finally, the CCA relied on the Briseno factors in assessing the evidence

of Moore’s adaptive function. Id. This Court held that the Briseno factors

impermissibly “advanced lay perceptions of intellectual disability.” Id. Consequently,

consideration of those factors in the adjudication of intellectual disability “creat[es]

an unacceptable risk that persons with intellectual disability will be executed.” Id.

(quoting Hall 572 U.S. at 704); see also Moore II, 139 S. Ct. at 668–70.

Under Texas law, an applicant who has already filed an initial state habeas

application can have an intellectual disability claim raised in a subsequent habeas

application reviewed on the merits via two procedural mechanisms. The first requires

a showing that

the current claims and issues have not been and could not have been

presented previously in a timely initial application or in a previously

considered application filed under this article or Article 11.07 because

the factual or legal basis for the claim was unavailable on the date the

applicant filed the previous application.

Tex. Code Crim. Proc. art. 11.071 § 5(a)(1). While not enumerated in the text, the

CCA has also interpreted this provision to include a requirement that an applicant

must make a prima facie showing that a new legal basis applies to his claim. Ex parte

Brooks, 219 S.W.3d 396, 400 (Tex. Crim. App. 2007).

The second procedural gateway to obtain merits review of an intellectual

disability claim in a subsequent state habeas application requires a showing

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 . . . .

Tex. Code Crim. Proc. art. 11.071 § 5(a)(3); see Ex parte Blue, 230 S.W.3d 151, 160–

61 (Tex. Crim. App. 2007). Mr. Milam sought authorization of his intellectual

disability claim raised in light of Moore on both of these grounds.

The CCA initially authorized Mr. Milam’s intellectual disability claim under

§ 5(a)(1), or the “new law” provision, of Article 11.071. Ex parte Milam, No. WR72,322-02, 2019 WL 190209, at *1 (Tex. Crim. App. Jan. 14, 2019) (due to “recent

changes in the law pertaining to the issue of intellectual disability, we find that

applicant has met the dictates of Article 11.071 § 5(a)(1)”).10 Indeed, in a concurring

opinion, Judge Richardson noted that Mr. Milam’s “claim of intellectual disability has

not been assessed under what the Supreme Court deemed, in 2017, the ‘medical

community's diagnostic framework’” and consequently, Mr. Milam is “legally entitled

to have his claim of intellectual disability evaluated under the proper standard.” Id.

(Richardson, J., concurring) (quoting Moore I, 137 S. Ct. at 1043). The CCA remanded

Mr. Milam’s intellectual disability claim “to the trial court for a review of the merits

. . . .” Id.

Mr. Milam never received that merits review. Instead, the CCA subsequently

adopted findings of fact and conclusions of law, drafted by the State and signed

verbatim by the trial court, which concluded that, despite its earlier authorization,

Mr. Milam was not entitled to merits review on his intellectual disability allegations.

The CCA adopted findings that limited their application of Moore to a determination

of whether “the errors that occurred” in Moore arose “in the jury’s determination of

the intellectual disability special issue during Applicant’s trial.” Ex parte Milam, No.

CR-09-066, State’s Proposed Findings of Fact and Conclusions of Law (“App. 2”),

¶ 185, and Order (“App. 3”). The CCA also adopted a conclusion that its prior order

authorizing Mr. Milam’s intellectual disability claim under Article 11.071 § 5(a)(1)

had “implicitly rejected Applicant’s attempt to challenge the substance of his Atkins

claim pursuant to the actual-innocence of the death penalty provision under Article

11.071 § 5(a)(3).” Id. ¶ 221.

10 The CCA’s authorization order was silent about whether Mr. Milam had met the dictates of

Section 5(a)(3).

The CCA therefore made two rulings. First, it held that Mr. Milam already

obtained the benefit of any new substantive rules of constitutional law announced by

this Court in Moore because his trial adjudication was not incompatible with Moore.

Second, it held that Mr. Milam had failed to allege intellectual disability sufficient to

permit consideration of the merits under Texas’s innocence-of-the-death-penalty

gateway for subsequent habeas applications. In reaching both of these conclusions,

however, the CCA relied on or effectively endorsed the same unconstitutional

framework condemned by this Court in Moore I and Moore II. Consequently, Texas

stands poised to execute a person whom current clinical standards clearly recognize

to be intellectually disabled.

CERTIORARI SHOULD BE GRANTED TO DETERMINE IF MOORE V.

TEXAS

ANNOUNCED

SUBSTANTIVE

RULE

THAT

RETROACTIVE TO CASES ON COLLATERAL REVIEW AND, IF SO,

WHETHER THE COURT OF CRIMINAL APPEALS FAILED TO GIVE

RETROACTIVE EFFECT TO MOORE WHEN IT REFUSED TO

ADJUDICATE

MR.

MILAM’S

INTELLECTUAL

DISABILITY

ALLEGATIONS ANEW UNDER THAT STANDARD.

Mr. Milam does not dispute that the Court of Criminal Appeals purported to

apply Moore when it rejected his subsequent state habeas application. However, the

CCA did not assess whether Mr. Milam, based on the evidence from trial and the

evidentiary proffers attached to his application, is intellectual disabled under the

substantive Eighth Amendment standards announced in Moore. Instead, the CCA

cursorily reviewed the record of a pre-Moore jury adjudication rejecting Mr. Milam’s

intellectual disability defense, concluding that the “jury’s determination, by a

preponderance of the evidence . . . did not run afoul of any Supreme Court precedent,”

including Moore. App. 2 ¶ 180; see id. ¶ 167 (concluding that “the substantive Atkins

claim is not before this Court”). It therefore left the trial adjudication occurring under

the Briseno framework undisturbed.

This Court should resolve the question of whether Moore is a new,

substantive rule.

This Court has not explicitly answered the question of whether Moore is a new,

substantive rule that applies retroactively to cases on collateral review.11 In Shoop v.

Hill, the Court recognized that “Atkins gave no comprehensive definition of “mental

retardation” for Eighth Amendment purposes.” 139 S. Ct. at 507. It held the lower

federal court had erred by treating Moore as having been “clearly established” by

Atkins for purposes of the relitigation bar exception contained in 28 U.S.C.

§ 2254(d)(1). See id. at 508 (lower court “did not explain how the rule [Moore] applied

can be teased out of the Atkins Court’s brief comments about the meaning of what it

termed ‘mental retardation’”).

The few federal courts to have addressed the question of Moore’s retroactivity

have generally held that it either did not announce substantive rules of constitutional

law or that it has not yet been “made” retroactive to cases on collateral review. In

Williams v. Kelley, 858 F.3d 464 (8th Cir. 2017), the Eighth Circuit declined to

authorize a successive habeas corpus application under 28 U.S.C. § 2244(b)(1)(A),

determining that this Court has not yet made any rules announced in Moore

retroactive to cases on collateral review, id. at 474. The court noted, however, that

11 The CCA rejected the trial court’s conclusion that Moore is not retroactive for purposes of

Teague, Milam, 2020 WL 3635921, at *1, but it did not itself expressly address Moore’s retroactivity.

However, as discussed infra, the CCA has been applying Moore retroactively in other cases.

“[t]he observation by Chief Justice Roberts” in Moore “that the Court had crafted ‘a

constitutional holding’ . . . may presage an eventual ruling by the Court that Moore

will be given” retroactive effect. Id. (Moore I, 137 S. Ct. at 1054 (Roberts, C.J.,

dissenting)). The Eleventh Circuit has held that Moore announced a new rule of

constitutional law that was not substantive in nature and was not otherwise

retroactive. Smith v. Comm’r, Alabama Dep’t of Corr., 924 F.3d 1330, 1338–39 (11th

Cir. 2019). The Sixth Circuit, in an unpublished case, held likewise, In re Payne, 722

F. App’x 534, 538 (6th Cir. Feb. 8, 2018), and an intermediate Ohio Court has followed

suit, State v. Jackson, --- N.E.3d ---. 2020 WL 4578597, at *9 (Ohio Ct. App. 2020).

The Fifth Circuit, in a recent decision in Mr. Milam’s own case, held Moore’s

retroactivity to be an open question in the circuit, noting that the court has “not

definitively rejected or supported the contention that Moore is a new retroactive rule

of constitutional law in the context of successive habeas petitions sought under 28

U.S.C. § 2244.”12 In re Milam, No. 20-40663, Slip Op. at *4 (5th Cir. Oct. 27, 2020).

Yet, there are strong arguments that Moore is, in fact, a substantive rule to

which full retroactive effect must be given. “A rule is substantive rather than

procedural if it alters the range of conduct or the class of persons that the law

punishes.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (emphasis added). Moore

unequivocally struck down as too narrow in substance the framework promulgated

by Texas to determine whether persons are included in the protective reach of the

12 The Kentucky Supreme Court has held that a similar decision from this Court, Hall v.

Florida, announced substantive rules of constitutional law that must be applied retroactively. White

v. Commonwealth, 500 S.W.3d 208, 215 (Ky. 2016), abrogated on other grounds, Woodall v.

Commonwealth, 563 S.W.3d 1 (Ky. 2018).

Eighth Amendment. That standard “creat[ed] an unacceptable risk that persons with

intellectual disability [as understood by clinical criteria] will be executed.” Moore, 137

S. Ct. at 1044 (internal quotations omitted). In striking down Texas’s standard, Moore

altered the “essential facts bearing on punishment,” Summerlin, 542 U.S. at 353, and

consequently the class of people exempt from the death penalty because they are

intellectually disabled. That Moore did so is particularly apparent when examining

who is eligible for execution under Texas’s pre-Moore and post-Moore standards. For

example, previously in Texas a person who met current medical diagnostic standards

for intellectual disability but who: 1) was not identified as intellectually disabled by

those who knew them during the developmental period; 2) had the ability to

formulate plans and carry them through; 3) showed leadership; 4) responded

appropriately and rationally to external stimuli; 5) responded coherently, rationally,

and on point to oral or written questions; 6) was able to hide facts or lie; and/or 7)

committed an offense that required forethought, planning, and complex execution,

would not have been included in the class of people considered intellectually disabled

by Texas courts. See Briseno, 135 S.W.3d at 8–9. Similarly, a person with any

adaptive strengths or coexisting conditions would have been deemed outside the

protected class. See Moore I, 137 S. Ct. at 1050–51. Under Moore I, however, that

person would be exempt from execution if clinical standards were otherwise met.13

Id. at 1051–52.

That Moore changed the class of people exempt from execution based on intellectual

disability is further evidenced by the fact that defendants who were found not to be intellectually

disabled under Texas’s standard created in response to Atkins have now been found intellectually

disabled under Moore. Moore, 139 S. Ct. at 672 (finding Moore intellectually disabled); Ex parte

If Moore I is retroactive, Texas was required to give it retroactive effect.

Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016) (“[W]hen a new substantive rule

of constitutional law controls the outcome of a case, the Constitution requires state

collateral review courts to give retroactive effect to that rule.”); see Am. Trucking

Associations, Inc. v. Smith, 496 U.S. 167, 1778 (1990) (“In order to ensure the uniform

application of decisions construing constitutional requirements and to prevent States

from denying or curtailing federally protected rights, we have consistently required

that state courts adhere to our retroactivity decisions.”).

Further, substantive rules must have retroactive effect because “[a] conviction

or sentence imposed in violation of a substantive rule is not just erroneous but

contrary to law and, as a result, void.” Montgomery, 136 S. Ct. at 731. Therefore, “a

court has no authority to leave in place a conviction or sentence that violates a

substantive rule.” Id. When a new, substantive rule is announced, petitioners are

“entitle[d] to an adjudication” that is “governed by the substantive federal baseline.”

Panetti v. Quarterman, 551 U.S. 930, 935 (2007).14 If Moore is retroactive, the

question therefore arises whether the CCA was correct to refrain from re-adjudicating

Mr. Milam’s intellectual disability allegations and to leave undisturbed a pre-Moore

Henderson, No. WR-37,658-03, 2020 WL 1870477 (Tex. Crim. App. Apr. 15, 2020) (per curiam)

(granting relief on a claim of intellectual disability upon reconsideration of the case in the light of

Moore v. Texas); cf. Ex parte Henderson, No. WR-37,658-03, 2006 WL 167836 (Tex. Crim. App. Jan. 25,

2006) (per curiam) (adopting trial court’s recommendation to deny intellectual disability claim); Ex

parte Lizcano, No. 68,348-03, 2020 WL 5540861 (Tex. Crim. App. Sept. 16, 2020) (per curiam) (granting

relief on a claim of intellectual disability upon remand of the case in the light of Moore v. Texas); cf.

Ex parte Lizcano, No. 63,348-03, 2015 WL 2085190 (Tex. Crim. App. Apr. 15, 2015) (per curiam)

(adopting trial court’s recommendation to deny intellectual disability claim).

14 Panetti, of course, also requires a “preliminary showing” of entitlement to relief. 551 U.S. at

934. In authorizing Mr. Milam’s application, the CCA necessarily found that Mr. Milam had made a

prima facie showing of an intellectual disability claim. Brooks, 219 S.W.3d at 400.

jury verdict that Mr. Milam is not intellectually disabled under the circumstances of

his case—circumstances that included the jury being urged to reject his evidence

based in part on lay stereotypes about the intellectually disabled.15

Mr. Milam’s pre-Moore adjudication of his intellectual disability

allegations was made by a jury who was urged by the State to apply lay

stereotypes consistent with the Briseno factors.

As noted above, to determine whether Mr. Milam was entitled to a new

adjudication of his intellectual disability allegations, the CCA purported to scrutinize

Mr. Milam’s trial adjudication to ascertain whether he already received the benefit of

the rules announced in Moore. App. 2 ¶ 168–69. At the penalty phase of trial, the

defense presented testimony by Dr. Mark Cunningham, who evaluated Mr. Milam

pre-trial and determined that Mr. Milam met the diagnostic criteria for intellectual

disability. 53 RR 239. The State presented testimony from Dr. Timothy Proctor, who

disputed Dr. Cunningham’s diagnosis. 55 RR 180. The jury also heard lay witness

testimony about Mr. Milam’s adaptive functioning from family, employers, teachers,

and neighbors. See, e.g., 51 RR 8–9, 27–30, 212–14, 275–78; 52 RR 84–88, 101, 54 RR

15 The CCA’s treatment of Mr. Milam’s claim of intellectual disability violated the retroactivity

principle of “treating similarly situated defendants the same.” Griffith v. Kentucky, 479 U.S. 314, 323

(1987). For example, while the CCA merely reviewed the record from Mr. Milam’s trial to determine if

the jury’s adjudication of Mr. Milam’s claim ran afoul of Moore, the CCA afforded a full readjudication

to Juan Lizcano. Like Mr. Milam, Mr. Lizcano had presented allegations of intellectual disability while

Briseno was the controlling standard in Texas. Ex Parte Lizcano, Trial Court’s Findings of Fact and

Conclusions of Law, No. W05-59563-S(A), at *2 (282nd Dist. Ct. Mar. 29, 2019) (Lizcano presented

evidence of intellectual disability at trial and in initial state habeas application). However, the CCA

did not just examine the previously presented evidence to determine if the prior fact-finders’

intellectual disability determination were valid under Moore. Instead, the CCA remanded Mr.

Lizcano’s subsequent application filed post-Moore to the trial court so that it could “receive evidence

from mental health experts and any witnesses whose evidence the court determines is germane to the

question of intellectual disability.” Ex parte Lizcano, No. WR-68,348-03, 2018 WL 2717035, at *1 (Tex.

Crim. App. June 6, 2018). The CCA also ordered that the trial court “shall then make findings of fact

and conclusions of law regarding the issue of intellectual disability.” Id.

285–86. The State then argued that the jury should not find Mr. Milam intellectually

disabled based on lay stereotypes about intellectual disability. 56 RR 134–36. The

jury was instructed that it was required to “consider all the evidence at the guilt or

innocence stage and the punishment stage, including evidence of the defendant’s

background and character and the circumstances of the offense” in answering the

intellectual disability special issue. 4 CR 967.

The CCA concluded that “the jury’s determination, by a preponderance of the

evidence, that Applicant was not a person with an intellectual disability . . . , did not

run afoul of any Supreme Court precedent.” App. 2 ¶ 180. In doing so, the court

ignored that the jury had heard testimony that would be impermissible for it to

consider in making an intellectual disability determination under the current

constitutional standard, which defense counsel could not exclude from the jury’s

consideration under the prevailing law at the time. The court also disregarded the

fact that the State encouraged the jury apply the same stereotypes that would later

be denounced by this Court—and that, because of the existing framework in place at

the time of trial that had endorsed those stereotypes, defense counsel were legally

powerless to object to it. Thus, the CCA’s adoption of State-authored findings in this

case purporting to conclude that the jury’s verdict on the intellectual disability

allegations was not affected by Moore reflects the CCA’s continued tolerance of lay

stereotypes about the intellectually disabled and aclinical standards to decide

questions of intellectual disability under the Eighth Amendment. This is

demonstrated in several ways.

First, the State questioned numerous lay witnesses about whether they

believed Mr. Milam was intellectually disabled. See 49 RR 76 (Texas Ranger stating

that he did not believe he was speaking to “a person that was mentally retarded”

when interviewing Mr. Milam after offense); 54 RR 293 (prior employer had never

heard words “mentally retarded” associated with Mr. Milam); 54 RR 314 (Mr. Milam’s

teacher did not refer him for an evaluation for intellectual disability); 55 RR 85 (Mr.

Milam’s cousin never heard of any indication that Mr. Milam was intellectually

disabled); 55 RR 114 (neighbor did not believe Mr. Milam was intellectually disabled).

See Moore, 137 S. Ct. at 1051–52 (rejecting Briseno factor that asked if “those who

knew the person best during the developmental stage—his friends, family, teachers,

employers, authorities—think he was mentally retarded at that time”).

Second, the jury determination left in place by the CCA was rendered at the

conclusion of a capital sentencing trial in which the jury heard evidence the State

presented, inter alia, about Mr. Milam’s alleged future dangerousness. The jury was

directed in its charge that when considering whether Mr. Milam is intellectually

disabled, it “shall consider all the evidence at the guilt or innocence stage and the

punishment stage, including evidence of the defendant’s background and character

and circumstances of the offense.” 4 CR 981. Mr. Milam’s defense counsel objected to

the inclusion of this language, specifically that the jury “shall” consider the

circumstance of the offense when deliberating on his intellectual disability. 55 RR

282. The State disagreed, because “under Briseno, the Court of Criminal Appeals has

said the circumstances of the offense are relevant to the issue of mental retardation.”

55 RR 285. The State then argued that, in determining whether Mr. Milam had met

prong two, the jury could rely on its assertion that he “knew not to hurt Amora [the

decedent] when Danny [his brother] and his mom were around.” 56 RR 136.

Third, and most critically, the State’s closing arguments encouraged the jury

to rely heavily on stereotypes only relevant to an “intellectual disability”

determination under the Briseno factors rejected by this Court in Moore. For example:

And the fact of the matter is, from the evidence, what you heard where

the adaptive functioning is concerned is a whole lot of things that tell

you that this prong is not met, this second prong . . .

You know that he could lie to protect himself. I mean, you heard that

interview with [Texas Ranger] Kenny Ray. He didn’t budge . . . .

He could carry on a conversation, as you yourself have heard on several

and multiple occasions. And he could hang out with kids of his own age

and play with them appropriately. Those are all things, when you look at

that, you should consider.

56 RR 134–36 (emphasis added). See Briseno, 135 S.W.3d at 8; cf. Moore, 137 S. Ct.

at 1051 (“By design and in operation, the Briseno factors ‘creat[e] an unacceptable

risk that persons with intellectual disability will be executed.’”) (quoting Hall, 572

U.S. at 704).

Much of the rest of the State’s argument regarding Mr. Milam’s adaptive

functioning encouraged the jury to focus on Mr. Milam’s perceived strengths and

propagated “lay stereotypes” of intellectual disability. The State encouraged the jury

to reject that Mr. Milam had met his burden of proving that he had significant

adaptive deficits because:

You heard that he kept his shop area clean and neat. That he used his

cell phone, that he had a cell phone, that he had a MySpace account,

that he used computers. He knew how to use the internet. He knew his

D.L. He knew his social security number. He could rap on about. . . what

music he liked, about fixing cars . . . . [H]e could arrange to buy drugs,

because he did so. You knew that he could pay for drugs. You know that

he could execute trades for drugs. You know that he could hide his drug

transactions from the police, from his family, from Jesseca.16

56 RR 135; see id. at 134 (encouraging the jury to reject prong two because “He drove

a car. He wrote letters from the jail. He read books in the jail. He changed people’s

oil.); id. at 136 (encouraging the jury to reject prong two because “He replaced spark

plugs. He tended to the Ag. Project animals. He played board games. He could do

schoolwork.”). Moreover, the State urged the jury to disregard the standard

psychological instrument given by the defense expert used to objectively measure Mr.

Milam’s adaptive functioning, telling the jury, “You know, it is just not appropriate

for you to make a decision based upon that test.” 56 RR 137. Mr. Milam’s counsel did

not object—and could not have objected—to these arguments because the Briseno

framework under which the trial occurred embraced those very stereotypes and

aclinical standards generally. It was the governing law.

Whether Mr. Milam was intellectually disabled was the most contested issue

at sentencing. The State itself anticipated the sentence—life or death—would be

determined based on the jury’s answer to the intellectual disability special issue,

telling the jury during its opening statement, “I anticipate that there will be evidence

before you to suggest that this defendant is mentally retarded. I anticipate that that

may very well be where you go.” 49 RR 11. In rendering that verdict, the jury was not

asked to express conclusions about any particular prong of intellectual disability. It

16 Jesseca Carson was Mr. Milam’s fiancée and his co-defendant.

was asked only to answer “yes” or “no” to the question, “Do you find, by a

preponderance of the evidence, that the defendant, Blaine Keith Milam, is a person

with mental retardation?” 4 CR 987. As the jury was instructed that it must consider

every piece of evidence introduced at both phases of the trial in deciding its answer

to this question, it is unknown what information and evidence the jury actually relied

upon when answering it negatively. But there is no reason to believe the jury did not

take the State up on its offer to reject Mr. Milam’s allegations because he “could lie

to protect himself,” 56 RR 135, or because he “could carry on a conversation,” 56 RR

136, two Briseno factors deemed unacceptable in Moore.

Under the law at the time, there was no legal basis for Mr. Milam’s counsel to

object to the above testimony and argument. Nor was there a basis to request limiting

instructions with respect to certain evidence irrelevant to the jury’s intellectual

disability determination or to request jury instructions in the charge that would have

adequately guided the jury’s factual determination of intellectual disability and

preclude any reliance on stereotype.17 Cf. Thomas v. State, No. AP-77,047, 2018 WL

17 Indeed, for the reasons articulated here, readjudication is critical where the substantive law

has changed because that change in law will necessarily shape the evidence the parties introduce,

what they object to, and what jury instructions or legal standard they request. Consequently, this

Court and lower courts have found that where there is an intervening change in substantive law, a

“full and fair opportunity” to readjudicate a claim under the correct legal standard is required. For

example, the Kansas Supreme Court, when remanding the case back to the trial court for

redetermination of an intellectual disability issue in light of Moore and Hall, stated, “We are also

cognizant the parties may need to revise their previous arguments based on the changes to the

statutes, developments in the caselaw, and this court’s decision. . . . The district court may need to

consider whether additional evidence is required or made relevant by the present federal

constitutional standards and state statutory revisions as we have interpreted them.” State v. Thurber,

420 P.3d 389, 452–53 (Kan. 2018); see also Bobby v. Bies, 556 U.S. 825, 836–37 (2009) (State entitled

to a “full and fair opportunity to contest” claim of intellectual disability where it previously conceded

intellectual disability as a mitigating factor but not as a categorical bar to death penalty at petitioner’s

trial); Miller, v. City of Ithaca, 758 F. App’x 101, 104 (2d Cir. 2018) (remanding for new trial where

courts were required to give “full retroactive effect” to new law that changed causation standard); Van

6332526, at *2, 18–19 (Tex. Crim. App. Dec. 5, 2018) (reversing death sentence where

defense expert testified to current clinical standards used to evaluate intellectual

disability but State’s expert testified about Briseno and court’s instructions did not

guide jury’s discretion). Nonetheless, the CCA ignored the now-wholly improper

evidence and argument introduced at Mr. Milam’s trial and instead concluded that

the errors identified by this Court in Moore did not occur at Mr. Milam’s trial. App. 2

¶ 184. Based on that finding, it held that Texas did not need to reassess whether the

Eighth and Fourteenth Amendments prohibited it from executing Mr. Milam because

is a person with intellectual disability. This Court should grant certiorari, hold that

Moore announced substantive rules of constitutional law that are retroactive to cases

on collateral review, and hold that Mr. Milam has yet to receive the benefit of those

rules.

II.

CERTIORARI SHOULD BE GRANTED TO CORRECT THE TEXAS

COURT OF CRIMINAL APPEALS’S CONTINUED ENFORCEMENT

AND APPLICATION OF THE SAME UNCONSTITUTIONAL

FRAMEWORK CONDEMNED BY THIS COURT IN MOORE V. TEXAS.

Even if this Court declines to answer the question of whether Moore is a new,

substantive rule retroactively applicable to cases on collateral review and whether

the CCA failed to give adequate effect to that rule, it still should grant certiorari to

correct the CCA’s continued misapplication the principles announced by Moore. The

CCA relied on factors rejected by this Court in Moore when it determined Mr. Milam

Tran v. Colson, 764 F.3d 594, 605 (6th Cir. 2014) (where “the constitutional protection depends on the

content of state law that has changed retroactively since the relevant state court ruled, and the

relevant state court ruled unreasonably in light of the change,” petitioner should be granted a

conditional writ of habeas corpus to permit the state court to re-adjudicate the intellectual disability

allegations “under the now-governing legal standard”).

did not meet his pleading burden of alleging clear and convincing evidence of

intellectual disability under the state “innocence of the death penalty” gateway for

obtaining review in successive habeas corpus applications under Texas Code of

Criminal Procedure Article 11.071.18 With regard to prong one, it discounted the lowend of the standard error of measurement of Mr. Milam’s qualifying IQ scores, at

least in part based on factors disavowed by this Court, and ignored Mr. Milam’s

evidentiary proffer that another IQ score was miscalculated at trial. The court relied

heavily on existing evidence of Mr. Milam’s perceived adaptive strengths in the trial

record to reject Mr. Milam’s claim on prong two. Finally, the CCA concluded that Mr.

Milam could not meet his pleading burden under prong three because he was never

diagnosed with intellectual disability before the age of 18—a requirement found

nowhere in current medical standards or the law.

First, the CCA found that Mr. Milam could not meet his burden of establishing

that he had significant intellectual deficits. In doing so, the court relied, inter alia, on

reasoning that Drs. Proctor and Andrews, who administered the WAIS-IV tests that

returned FSIQ scores of 68 and 71, respectively, believed that Mr. Milam may have

18 The State-authored findings make credibility determinations about Dr. Jack Fletcher, one

of Mr. Milam’s experts, whose declaration was never submitted into evidence and who never testified.

App. 2 ¶ 235. The findings also conclude that, “in the alternative, relief on this claim should be denied

on the merits.” App. 2 ¶ 239. However, as noted above, the trial court issued a “letter pronouncement”

denying Mr. Milam’s application in one sentence. App. 4. Mr. Milam was never afforded any

opportunity to present evidence and prove his claim of intellectual disability and, to the extent that

the CCA denied Mr. Milam’s claims on the merits, that decision creates significant due process

concerns. Fuentes v. Shervin, 407 U.S. 67, 80 (1972). However, the State-authored findings are

inconsistent and unclear and because they dispose of Mr. Milam’s intellectual disability claim under

Section 5(a)(3) without it ever having been authorized under that mechanism, Mr. Milam reads the

findings to ultimately conclude that he failed to meet his pleading burden. See Blue, 230 S.W.3d at 163

(“The statutory scheme as a whole does not call upon us to make a determination of the merits of a

subsequent writ application at [the pleading stage].”).

been distracted. App. 2 ¶ 125. Similarly, the court relied on a finding that

psychologists “agreed that a lack of education can affect IQ testing; Dr. Proctor also

suggested anxiety, depression, emotional upset, and drug abuse could impact

testing.” Id. The court relied on Dr. Proctor’s opinion that, “given the SEM, Applicant

was someone with below average intellectual functioning, in the borderline range,

but he did not believed Applicant showed significantly sub-average intellectual

functioning.” Id.

However, “the presence of other sources of imprecision in administering the

test to a particular individual . . . cannot narrow the test-specific standard-error

range.” Moore, 137 S. Ct. at 1049; compare Ex parte Moore, 470 S.W.3d 481, 517–18

(Tex. Crim. App. 2015) (State’s expert testified that “childhood trauma can cause low

IQ scores because the stressful environment makes it difficult for the child to get

enough rest, focus, and learn,” that “many inmates are depressed and that depression

can lower IQ scores,” and that “applicant’s affect was flat during her evaluation and

he seemed a little depressed”), and id. at 519 (relying, inter alia, on fact “[a]pplicant

also took the WAIS–R under adverse circumstances; he was on death row and facing

the prospect of execution, and he had exhibited withdrawn and depressive behavior”

to conclude that Moore’s “actual IQ” might be “in a somewhat higher portion of that

69 to 79 range”).19

19 Additionally, the CCA entirely omitted additional supporting facts attached to Mr. Milam’s

application that the SB-5, administered before trial, was miscalculated by Dr. Andrews. Dr. Andrews

reported that Mr. Milam scored an 80 on the SB-5. Dr. Dale Watson recalculated the score and the

correct score is a 78. Ex. 19, Watson Dec. ¶ 20. If calculated using the Flynn correction, the score on

the SB-5 is a 75 and, consequently, a third qualifying score for intellectual disability. Id. at ¶ 22.

Second, in concluding that Mr. Milam had failed to meet his pleading burden,

the CCA’s relied on a recitation of Mr. Milam’s perceived strengths in evaluating Mr.

Milam’s adaptive functioning. It omitted any mention of the substantial evidence of

adaptive deficits presented both at trial, as well as included in the additional

supporting facts attached to Mr. Milam’s habeas application. See App. 2 ¶ 133

(discussing Mr. Milam’s work history as an employee at oil change shops); id. at App.

¶ 135 (“Applicant could use a computer;” “Applicant took care of Amora—he gave her

a bottle, put her to bed, and watched cartoons . . . ;” “Applicant could take care of cars

and hold a job.”).

The CCA also relied heavily on testimony from Mr. Milam’s teachers that they

were not aware of him being diagnosed with intellectual disability before he was

withdrawn from school in the fourth grade. App. 2 ¶ 134; id. ¶ 137 (noting that Mr.

Milam’s school records did not reflect an intellectual disability diagnosis). These

findings are problematic in several ways. First, there is no requirement that an

individual be diagnosed with an intellectual disability prior to age 18—the

requirement is that the symptoms manifest during the developmental period.

AAIDD-11 at 27; Moore II, 139 S. Ct. at 668. Moreover, the CCA’s reliance on this

testimony echoes one of the Briseno factors. Briseno, 135 S.W.3d at 8 (“Did those who

knew the person best during the developmental stage—his family, friends, teachers,

employers, authorities—think he was mentally retarded at that time, and, if so, act

in accordance with that determination?”). And indeed, the CCA also cited to

testimony from Mr. Milam’s friend, cousin, and neighbor as additional evidence that

Mr. Milam’s intellectual deficits were due to lack of education, not intellectual

disability. App. 2 ¶ 134.

In its findings and conclusions, the CCA entirely ignored the trial testimony,

as well substantial allegations and evidentiary proffers attached to Mr. Milam’s

application, supporting Mr. Milam’s adaptive deficits. The court summarily referred

to the testimony regarding Mr. Milam’s adaptive deficits in one paragraph which

states that Dr. Cunningham, Mr. Milam’s expert at trial, testified that Mr. Milam

“suffered concurrent deficits in adaptive behaviors in all eleven of the categories listed

in the DSM-IV . . . .” App. 2 ¶ 126. With regard to the evidentiary proffers attached

to Mr. Milam’s habeas application, the court merely stated that it “concludes that

Applicant’s new experts essentially reexamined the same evidence admitted at trial,

in addition to new expert and lay-witness affidavits which conveyed information

similar to that admitted at trial.”20 Id. ¶ 234. However, the court engaged in no actual

analysis of Mr. Milam’s alleged deficits. In doing so, the CCA engaged in the same

improper analysis struck down by this Court in Moore. 137 S. Ct. at 1050 (“[T]he CCA

overemphasized Moore’s perceived adaptive strengths” but “the medical community

focuses the adaptive-functioning inquiry on adaptive deficits.” (emphasis in original)).

20 The court also relied on a finding that the State’s expert, Dr. Proctor, was more credible than

the defense expert, Dr. Cunningham, in part because Dr. Cunningham relied on information from Mr.

Milam’s mother and his sister Teresa. App. 2 ¶ 235. It dismissed the new report by Dr. Jack Fletcher

out of hand because he relied “on the testimony of Applicant’s mother and sister.” App. 2 ¶ 235. This

bare analysis ignores the fact that Dr. Fletcher reinterviewed Mr. Milam’s mother and sister, obtained

very similar results to the results reported by Dr. Cunningham, and that he corroborated the

information provided by Mr. Milam’s family members with lay witness affidavits, trial testimony, and

social history records.

The errors committed by the CCA in Moore pervaded its analysis of whether

Mr. Milam met the dictates of Article 11.071 § 5(a)(3). For all the reasons identified

above, the CCA also necessarily misapplied Moore when it held that Mr. Milam's trial

was not affected by it, given the State's injection of lay stereotypes the Court

unanimously rejected in Moore. See App. 2 ~ 195 ("The Court next concludes that, in

the jury's consideration of the adaptive-functioning factor, the Briseno factors had no

place in Applicant's trial."). Consequently, this Court should grant certiorari.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully Submitted,