Petition for Writ of Certiorari — Quintin Phillippe Jones, Petitioner v. Texas

Supreme Court briefMay 17, 2021

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No. ______________

(Capital Case)

In the

Supreme Court of the United States

QUINTIN PHILLIPPE JONES, Petitioner,

BOBBY LUMPKIN, Respondent.

On Petition for Writ of Certiorari to the

Texas Court of Criminal Appeals

PETITION FOR WRIT OF CERTIORARI

QUINTIN PHILLIPPE JONES IS SCHEDULED TO BE

EXECUTED ON MAY 19, 2021

Michael Mowla

P.O. Box 868

Cedar Hill, TX 75106

Phone: 972-795-2401

Fax: 972-692-6636

michael@mowlalaw.com

Counsel of Record

Date: May 17, 2021

QUESTIONS PRESENTED

1. Does Moore v. Texas, 137 S.Ct. 1039 (2017) establish a new retroactive rule of

constitutional law that Petitioner is eligible for but could not present in prior

habeas proceedings?

2. Are a defendant’s due process rights under the Fourteenth Amendment violated

when a jury’s decision to impose the death penalty was based on expert testimony

that has since been discredited?

PARTIES TO THE PROCEEDING

Quintin Phillipe Jones, Petitioner

Bobby Lumpkin, Director, TDCJ-ID, Respondent

RULE 29.6 STATEMENT

Petitioner is not a corporate entity.

RELATED CASES

•

Jones v. State, 119 S.W.3d 766 (Tex.Crim.App. 2003) (Texas Court of Criminal

Appeals (“TCCA”) affirmed Jones’s conviction and death sentence)

•

Ex parte Jones, WR-57,299-01, 2005 Tex.Crim.App.Unpub.LEXIS 254

(Tex.Crim.App. Sept. 14, 2005) (TCCA denied the initial state habeas

application)

•

Jones v. Stephens, 2013 U.S.Dist.LEXIS 115325 (N.D.Tex., Aug. 15, 2013)

(District court granted the government’s motion to dismiss the petition as timebarred)

•

Jones v. Stephens, 998 F.Supp.2d 529, 532 (N.D.Tex. Feb. 6, 2014) (District

court vacated the order dismissing the case and reopened it)

•

Jones v. Stephens, 2014 U.S.Dist.LEXIS 84098 (N.D.Tex., June 20, 2014)

(District court denied the motion for funds for investigative services)

•

Jones v. Stephens, 157 F.Supp.3d 623 (N.D.Tex. Jan. 13, 2016) (District court

denied the second § 2254 petition)

•

Jones v. Davis, 922 F.3d 271 (5th Cir. 2019) (Denial of § 2254 petition affirmed)

•

Jones v. Davis, 927 F.3d 365 (5th Cir. 2019) (motion for rehearing denied)

•

Jones v. Davis, 140 S.Ct. 2519 (2020) (petition for writ of certiorari denied)

•

Ex parte Quintin Phillipe Jones, No. WR-57,299-02 (Tex.Crim.App. May 12,

2021) (Order dismissing second state habeas application under Tex. Code

Crim. Proc. Art. 11.071 § 5, see App.001-002)

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING .............................................................................. ii

RULE 29.6 STATEMENT ............................................................................................. ii

RELATED CASES ......................................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF APPENDIX ................................................................................................. v

TABLE OF AUTHORITIES ......................................................................................... vi

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

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

RELEVANT CONSTITUTIONAL PROVISIONS ........................................................ 1

FEDERAL STATUTES AFFECTED ............................................................................ 2

STATEMENT OF THE CASE....................................................................................... 3

Introduction ............................................................................................................... 3

Procedural History .................................................................................................... 4

Facts ....................................................................................................................... 10

Facts regarding the First Question presented ...................................... 10

Facts regarding the Second Question presented .................................. 12

STANDARD OF REVIEW ........................................................................................... 16

REASONS FOR GRANTING THE WRIT .................................................................. 18

This Court should grant certiorari to determine whether

Moore v. Texas presents a new rule of constitutional law

that Jones is eligible for yet could not present in prior

habeas proceedings................................................................................. 18

Moore presents a new rule of constitutional law. ............................. 18

ii.

Moore applies retroactively................................................................ 20

iii.

Jones could not have presented any argument based on

Moore in his prior habeas proceedings. ............................................. 24

iv.

Under Moore, Jones is intellectually disabled and is

ineligible for execution. ...................................................................... 25

Jones has subaverage intellectual functioning,

satisfying Atkins prong 1. .................................................................. 28

vi.

Atkins prong 2. ................................................................................... 31

vii.

Atkins prong 3. ................................................................................... 32

viii.

In the alternative, Atkins presents a new rule of

constitutional law made retroactive by this Court to

cases on collateral review that was previously

unavailable to Jones. ......................................................................... 33

ix.

In the alternative, the proposed petition meets the

requirements of 28 U.S.C. § 2244(b)(2) because the

allegations—if proven true—require review to avoid a

miscarriage of justice. ........................................................................ 34

Jones’s due process rights under the Fourteenth

Amendment were violated because the jury’s decision to

impose the death penalty was based on expert testimony

that has since been discredited. ............................................................. 36

CONCLUSION............................................................................................................. 39

TABLE OF APPENDIX

Order of the Texas Court of Criminal Appeals dated May 12, 2021...........App.001-002

Certified copy of the Indictment...................................................................App.003-005

Certified copy of the Capital Judgment........................................................App.005-007

Certified copy of the Jury Charge (guilt-innocence)....................................App.008-014

Certified copy of the Jury Charge (punishment)..........................................App.015-019

Certified copy of the Order Setting Execution Date....................................App.020-024

Certified copy of the Return of the Order Setting Execution Date.....................App.025

Certified copy of the Death Warrant............................................................App.026-027

Certified copy of the Duplicate Order Setting Execution Date....................App.027-032

Certified copy of the Mandate, Texas Court of Criminal Appeals......................App.033

Affidavit of Dr. John Edens, executed April 19, 2021..................................App.034-059

DeMatteo, D., et al, (2020). Statement of Concerned Experts On the Use

of the Hare Psychopathy Checklist-Revised in Capital Sentencing to Assess

Risk for Institutional Violence. Psychology, Public Policy, and Law...........App.060-072

Excerpts from United States v. Sampson, No. 01-10384-LTS (D.Mass.,

DKT. 2459, Sealed Memorandum and Order on Rule 12.2 Motions,

Sep. 2, 2016) (Order unsealed by DKT. 2979, May 24, 2017)......................App.073-085

Intellectual Summary report of Jones, May 7, 1987, Fort Worth ISD..............App.086

Frank M. Gresham, Interpretation of Intelligence Test Scores in

Atkins Cases: Conceptual and Psychometric Issues, Applied

Neuropsychology, 16: 91-97 (2009)...............................................................App.087-093

Frank M. Gresham & Daniel J. Reschly, Standard of Practice

and Flynn Effect Testimony in Death Penalty Cases, Intellectual

and Development Disabilities, Vol. 49, No. 3: 131-140 (June 2011)............App.094-103

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U.S. 304 (2002) ................................................................ 19, 26

Babbitt v. Woodford, 177 F.3d 744 (9th Cir. 1999) ..................................................... 37

Black v. Bell, 664 F.3d 81 (6th Cir. 2011) ................................................................... 30

Bobby v. Bies, 556 U.S. 825 (2009) .............................................................................. 19

Carey v. Musladin, 549 U.S. 70 (2006) ....................................................................... 17

Cullen v. Pinholster, 131 S.Ct. 1388 (2011) ................................................................ 17

Dept. of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959 (2020) ............................. 36

Ex parte Briseno, 135 S.W.3d 19 (Tex.Crim.App. 2004)............................................. 22

Ex parte Jones, WR-57,299-01, 2005 Tex.Crim.App.Unpub.LEXIS 254

(Tex.Crim.App. Sept. 14, 2005) ...................................................................... ii, 5

Ex parte Milam, No. WR-79,322-02, 2019 Tex.Crim.App.Unpub.LEXIS

10 (Tex.Crim.App., Jan. 14, 2019) (not published) .......................................... 20

Ex parte Quintin Phillipe Jones, No. WR-57,299-02 (Tex.Crim.App. May

12, 2021) .............................................................................................................. 1

Ex parte Siebold, 100 U.S. 371 (1879)......................................................................... 35

Felker v. Turpin, 518 U.S. 651 (1996) ......................................................................... 36

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 19

Graham v. Florida, 560 U.S. 48 (2010)....................................................................... 24

Green v. Johnson, 431 F.Supp.2d 601 (E.D.Va. 2006)................................................ 30

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982) (per curiam)

........................................................................................................................... 24

Hall v. Florida, 572 U.S. 701 (2014) ............................................................... 26, 27, 28

Harrington v. Richter, 131 S.Ct. 770 (2011) ............................................................... 16

Holladay v. Allen, 555 F.3d 1346 (11th Cir. 2009) ..................................................... 30

vii

Holland v. Florida, 560 U.S. 631 (2010) ..................................................................... 34

In re Cathey, 857 F.3d 221 (5th Cir. 2017) ................................................................. 25

In re Johnson 935 F.3d 284 (5th Cir. 2019) ................................................................ 25

In re Sparks, 657 F.3d 258 (5th Cir. 2011) ................................................................. 24

In re Wood, 648 F.Appx. 388 (5th Cir. 2016) .............................................................. 25

INS v. St. Cyr, 533 U.S. 289 (2001)............................................................................. 36

Jones v. Davis, 140 S.Ct. 2519 (2020) ....................................................................... ii, 9

Jones v. Davis, 673 Fed.Appx. 369 (5th Cir. 2016)....................................................... 8

Jones v. Davis, 922 F.3d 271 (5th Cir. 2019) ............................................................ ii, 9

Jones v. Davis, 927 F.3d 365 (5th Cir. 2019) ............................................................ ii, 9

Jones v. State, 119 S.W.3d 766 (Tex.Crim.App. 2003) ................................................. 4

Jones v. Stephens, 157 F.Supp.3d 623 (N.D.Tex. Jan. 13, 2016) ........................... 8, 24

Jones v. Stephens, 2013 U.S.Dist.LEXIS 115325 (N.D.Tex., Aug. 15,

2013) .................................................................................................................... 7

Jones v. Stephens, 2014 U.S.Dist.LEXIS 84098 (N.D.Tex., June 20,

2014) .................................................................................................................... 7

Jones v. Stephens, 998 F.Supp.2d 529 (N.D.Tex. Feb. 6, 2014) ................................... 7

Jones v. Stephens, No. 4:05-CV-0638-Y (N.D.Tex.) ................................................ 5, 24

Mahone v. Ray, 326 F.3d 1176 (11th Cir. 2003) ......................................................... 25

Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373 (1985) ....................... 25

Martinez v. Ryan, 132 S.Ct. 1309 (2012) .................................................................... 17

McQuiggin v. Perkins, 569 U.S. 383 (2013) ................................................................ 35

Montgomery v. Louisiana, 136 S.Ct. 718 (2016) ......................................................... 35

Moore v. Quarterman, 454 F.3d 484 (5th Cir. 2006) .................................................. 30

Moore v. Texas, 137 S.Ct. 1039 (2017) ............................................................ 19, 28, 32

viii

Moore v. Texas, 139 S.Ct. 666 (2019) .............................................................. 20, 21, 23

Morris v. State, 940 S.W.2d 610 (Tex.Crim.App. 1996) ............................................. 14

Mueller v. Angelone, 181 F.3d 557 (4th Cir. 1999) ..................................................... 36

Napue v. Illinois, 360 U.S. 264 (1959) ........................................................................ 37

Penry v. Lynaugh, 492 U.S. 302 (1989)....................................................................... 21

Pippin v. Dretke, 434 F.3d 782 (5th Cir. 2005) ........................................................... 17

Salazar v. Dretke, 419 F.3d 384 (5th Cir. 2005) ......................................................... 16

Salve Regina College v. Russell, 499 U.S. 225 (1991)................................................. 16

Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013) ............................................................ 30

Schriro v. Summerlin, 542 U.S. 348 (2004) ................................................................ 21

Shoop v. Hill, 139 S.Ct. 504 (2019) ............................................................................. 19

Teague v. Lane, 489 U.S. 288 (1989) (plurality opinion) ................................ 18, 20, 23

Thomas v. Allen, 607 F.3d 749 (11th Cir. 2010) ......................................................... 30

Thomas v. Allen, 614 F.Supp.2d 1257 (N.D.Ala. 2009) .............................................. 30

Thomas v. Capital Sec. Servs., Inc., 812 F.2d 984 (5th Cir. 1987) ............................ 25

Trevino v. Thaler, 133 S.Ct. 1911 (2013) .................................................................... 17

Tyler v. Cain, 533 U.S. 656 (2001) (O’Connor, J., concurring)................................... 24

United States v. Davis, 611 F.Supp.2d 472 (D.Md. 2009) .......................................... 30

United States v. deBerardinis, No. 18-cr-030-01-01, 2021

U.S.Dist.LEXIS 40209 (W.D.La. Jan. 22, 2021) .............................................. 11

United States v. Hardy, 762 F.Supp.2d 849 (E.D.La. 2010) ...................................... 30

United States v. Lewis, No. 1:08-CR-404, 2010 U.S.Dist.LEXIS 138375

(N.D. Ohio 2010)................................................................................................ 31

United States v. O’Keefe, 128 F.3d 885 (5th Cir. 1997) .............................................. 37

United States v. Sampson, No. 01-10384-LTS (D.Mass., DKT. 2459,

Sealed Memorandum and Order on Rule 12.2 Motions, Sep. 2,

2016) (Order unsealed by DKT. 2979, May 24, 2017) ............................... 15, 38

United States v. Smith, 790 F.Supp.2d 482 (E.D.La. 2011) ....................................... 30

United States v. Wilson, 922 F.Supp.2d 334 (E.D. N.Y. Feb. 3, 2013)....................... 31

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010) ............................ 35

Walker v. True, 399 F.3d 315 (4th Cir. 2005) ............................................................. 30

Walton v. Johnson, 407 F.3d 285 (4th Cir. 2005) ....................................................... 30

Webster v. Daniels, 784 F.3d 1123 (7th Cir. 2015) ..................................................... 35

Welch v. United States, 136 S.Ct. 1257 (2016)............................................................ 23

Wiley v. Epps, 668 F.Supp.2d 848 (N.D.Miss. 2009) .................................................. 30

Williams v. Campbell, No. 04-0681-WS-C, 2007 U.S.Dist.LEXIS 27050

(S.D.Ala., April 11, 2007) .................................................................................. 30

Williams v. Taylor, 529 U.S. 362 (2000) ..................................................................... 16

Winston v. Kelly, 592 F.3d 535 (4th Cir. 2010) ........................................................... 30

Woods v. Quarterman, 493 F.3d 580 (5th Cir. 2007) .................................................. 34

Statutes

28 U.S.C. § 1254 ............................................................................................................. 1

28 U.S.C. § 1331 ............................................................................................................. 1

28 U.S.C. § 2244 ................................................................................................. 2, 18, 33

28 U.S.C. § 2254 ....................................................................................................... 2, 18

Tex. Code Crim. Proc. Art. 11.071 § 5 ........................................................... 1, 9, 10, 20

Tex. Penal Code § 19.03 ................................................................................................. 3

Other Authorities

AAIDD, Mental Retardation: Definition, Classification, and Systems of

Supports, 82, Table 3.1 at 42 (10th ed. 2002) .................................................. 32

DeMatteo, D., et al, (2020), Statement of Concerned Experts On the Use

of the Hare Psychopathy Checklist-Revised in Capital Sentencing

to Assess Risk for Institutional Violence. Psychology, Public

Policy, and Law, 26, 133-144 ............................................................................ 13

Diagnostic and Statistical Manual of Mental Disorders, 5th Ed................... 27, 29, 31

Frank M. Gresham & Daniel J. Reschly, Standard of Practice and Flynn

Effect Testimony in Death Penalty Cases, Intellectual and

Development Disabilities, Vol. 49, No. 3: 131-140 (June 2011) ...................... 29

Kaplan & Sadock’s Comprehensive Textbook of Psychiatry, 2952 (B.

Sadock & V. Sadock eds. 7th ed. 2000) ............................................................ 28

Rules

Fed. Rule Civ. Proc. 60(b) .............................................................................................. 6

Constitutional Provisions

U.S. Const. Amend. XIII ................................................................................................ 1

U.S. Const. Amend. XIV ................................................................................................ 2

TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

Petitioner Quintin Jones respectfully petitions for a writ of certiorari to review

the Opinion and Judgment of the Texas Court of Criminal Appeals:

OPINIONS BELOW

The order of the TCCA is Ex parte Quintin Phillipe Jones, No. WR-57,299-02

(Tex.Crim.App. May 12, 2021), Order dismissing second state habeas application

under Tex. Code Crim. Proc. Art. 11.071 § 5, see App.001-002.

STATEMENT OF JURISDICTION

On May 6, 2021, Jones filed an Application for Writ of Habeas Corpus under

Tex. Code Crim. Proc. Art. 11.071 § 5 and moved to withdraw his death warrant in

the convicting court. On May 11, 2021, Jones moved for a stay in the TCCA. On May

12, 2021, the TCCA dismissed Jones’s application without ruling on its merits and

denied the motion to stay the execution. (App.001-002). Thus, the TCCA could not

have resolved either Question Presented on independent state grounds. This Court

has jurisdiction under 28 U.S.C. § 1254 and 28 U.S.C. § 1331.

RELEVANT CONSTITUTIONAL PROVISIONS

The Eight Amendment provides: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.

Amend. XIII.

The Fourteenth Amendment provides in relevant part: “…No State shall make

or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; 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.

FEDERAL STATUTES AFFECTED

28 U.S.C. § 2244(b) provides in relevant part:

(2) A claim presented in a second or successive habeas corpus application under

section 2254 that was not presented in a prior application shall be dismissed

unless:

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered

previously through the exercise of due diligence; and (ii) the facts

underlying the claim, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and convincing evidence

that, but for constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings unless

the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(e) provides:

(1) In a proceeding instituted by an application for a writ of habeas corpus by

a person in custody pursuant to the judgment of a State court, a determination

of a factual issue made by a State court shall be presumed to be correct. The

applicant shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State

court proceedings, the court shall not hold an evidentiary hearing on the claim

unless the applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by

clear and convincing evidence that but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.

STATEMENT OF THE CASE

Introduction

Jones is set to be executed on May 19, 2021. Jones is restrained of his liberty

by Bobby Lumpkin—acting in his capacity as the director of the Texas Department

of Criminal Justice Correctional Institutions Division—under a Judgment of

Conviction by Jury (“Judgment”) and sentence of death entered on February 21, 2001.

Jones was convicted of Capital Murder during a robbery under Tex. Penal Code §

19.03(a). (App.005); (CR.408-410; App.005-007). 1 As set forth below, Jones requests

1 Jones cites from the previous record on appeal in the Fifth Circuit and this Court in Cause No. 16-

70003 as “ROA.” followed by the page number. Because the trial record was not included in that record

on appeal, the reporter’s record from the jury trial is cited as “RR” followed by the volume and page or

exhibit number. The clerk’s record is cited as “CR” followed by the volume and page number. The

Appendix to this motion is cited as “App.” followed by the page number.

that this Court stay his execution and grant certiorari to prevent an execution in

violation of the Eighth and Fourteenth Amendments.

Procedural History

Indictment, trial, and sentencing: Jones was indicted on December 1, 1999

for Capital Murder during a robbery that occurred on or about September 11, 1999 of

Berthena Bryant, his great-aunt. (App.003-004). The trial on guilt-innocence began

on February 15, 2001. (RR29). On February 21, 2001, Jones was convicted as charged

in the Indictment of Capital Murder under Tex. Penal Code § 19.03(a). (CR.408-410;

App.005-014). On March 5, 2001, the jury answered the special issues under Tex.

Code Crim. Proc. Art. 37.071 and found both that Jones was likely to commit future

acts of violence and that there were insufficient mitigating circumstances to warrant

a life sentence, and sentenced Jones to death. (App.015-019).

Jones’s conviction and death sentence are affirmed on direct appeal:

On November 5, 2003, the Texas Court of Criminal Appeals (“TCCA”) affirmed

Jones’s conviction and death sentence. 2 The appeal raised 16 points of error, all of

which were overruled by the TCCA.

The state-habeas proceedings: State habeas counsel Strickland failed to file

a timely state habeas petition. On September 27, 2004, almost a month after the

deadline, Strickland filed the application (“First Application”), raising eight claims

for relief, two addressing the admission of evidence, four addressing the timeliness of

the appointment of counsel, one addressing newly discovered impeachment evidence,

2 Jones v. State, 119 S.W.3d 766 (Tex.Crim.App. 2003).

and one addressing the effects of serotonin levels on behavior. 3 Six of these claims

were found to be not cognizable or procedurally defaulted because they should have

been—but were not—raised on direct appeal. 4 The remaining two claims were found

by the TCCA to lack evidentiary support. 5

Federal habeas proceedings.

After the TCCA rejected the First

Application, Jones asked to have substitute or additional counsel appointed.

However, the district court appointed Strickland, directing him to timely file the

petition. Yet, Strickland filed the federal petition 149 days–almost five months–late.

In the petition filed on September 14, 2006 (“First Petition”), Strickland asserted two

claims: (1) that the death sentence should be vacated based on punishment evidence

obtained in violation of the Fifth Amendment (Miranda issue); and (2) ineffective

assistance of counsel. 6 Jones repeatedly wrote to Strickland asking for updates on

his case, but Strickland failed to respond. On June 4, 2006, Jones wrote a letter to

the federal district court asking for help. Jones, No. 4:05-CV-0638-Y (N.D.Tex.)

(ROA.838); (DKT. 35-15). The district court forwarded the letter to Strickland with

an ex parte letter, stating that it was “fair for Jones to ask...questions [about the

appeal and what to expect]... [and it] believe[d] that an update to Jones is in order.”

Jones, No. 4:05-CV-0638-Y (N.D.Tex.) (ROA.839); (DKT. 35-16).

3 Ex parte Jones, WR-57,299-01, 2005 Tex.Crim.App.Unpub.LEXIS 254 (Tex.Crim.App. Sept. 14, 2005)

4 Id.; See Jones v. Stephens, No. 4:05-CV-0638-Y (N.D.Tex.) (DKTS. 19-18; 122-3-4).

5 Jones, 2005 Tex.Crim.App.Unpub.LEXIS 254. On September 14, 2005, the TCCA denied the state

habeas application. Jones, 2005 Tex.Crim.App.Unpub.LEXIS 254.

6 Jones, No. 4:05-CV-0638-Y (N.D.Tex.) (DKT. 19) (ROA.84-119).

On November 17, 2006, the government filed a motion to dismiss the federal

habeas petition. Jones, No. 4:05-CV-0638-Y (N.D.Tex.) (ROA.751-762) (DKT. 27).

Strickland did not file a response, and on September 21, 2007, the federal district

court dismissed Jones’s habeas application as untimely. (ROA.763-769); (DKT. 28).

Strickland did not file a notice of appeal or inform Jones that he was not filing the

notice. The federal district court held that equitable tolling, which allows a late filing

in certain circumstances, was not available because Strickland failed to explain the

delay in filing the First Petition. Jones, No. 4:05-CV-0638-Y (N.D.Tex.) (ROA.768);

(DKT. 28, p. 6).

On March 21, 2008, the federal district court removed Strickland as counsel

and appointed Lydia Brandt. Jones, No. 4:05-CV-0638-Y. (ROA.772-773); (DKT. 31).

On May 29, 2008, Ms. Brandt filed a motion for relief from judgment under Fed. Rule

Civ. Proc. 60(b), Jones, No. 4:05-CV-0638-Y (ROA.780-844); (DKT. 35), which the

district court granted, permitting Jones to respond to the government’s motion to

dismiss the petition as time barred. Jones, No. 4:05-CV-0638-Y; (ROA.891-900);

(DKT. 43). On February 5, 2009, Jones responded and argued that equitable tolling

was warranted because Strickland deprived Jones of his statutory right to

representation. Jones, No. 4:05-CV-0638-Y (ROA.988-1102); (DKT. 55). On February

12, 2009, Jones filed a motion for leave to file an amended petition, asking to include

allegations of ineffective assistance of trial counsel. Jones, No. 4:05-CV-0638-Y

(ROA.1105-1209); (DKT. 57). In March 2009, the district court denied leave to amend

and dismissed Jones’s petition, concluding that equitable tolling was not warranted.

Jones, No. 4:05-CV-0638-Y (ROA.1223-1234); (DKT. 59). After the Fifth Circuit

reversed and remanded, on August 15, 2013, the district court granted the

government’s motion to dismiss the petition as time-barred under 28 U.S.C. §

2244(d). 7

The district court ultimately vacated the order dismissing the case and

reopened it, finding that “it is difficult to overlook the fact that Jones’s concerns about

Strickland’s ability to provide ‘competent’ and ‘professional’ representation proved in

retrospect to be justified.” 8 Further, the district court found Jones to be entitled to

equitable tolling. Id.; Jones, No. 4:05-CV-0638-Y (DKT. 113, p. 9) (ROA.1679).

On June 3, 2014, Jones asked the district court to authorize mitigation

investigative services to assist counsel under 18 U.S.C. § 3599(f) because Ms. Brandt

discovered that trial counsel had failed to conduct a thorough background

investigation as required by the Sixth Amendment. There was no social history, no

history about family lineage to aid in identifying grounds for mitigation at the

sentencing phase, nor was there a timeline to show correlations between significant

events in Jones’s life and behaviors. On June 20, 2014, the federal district court

denied the motion for funds for investigative services. 9

On June 22, 2014, Jones filed the amended federal habeas petition (“Second

Petition”), asserting: (1) ineffective assistance of counsel and failure to appoint

7 Jones v. Stephens, 2013 U.S.Dist.LEXIS 115325 (N.D.Tex., Aug. 15, 2013) (ROA.1574-1601).

8 Jones, No. 4:05-CV-0638-Y (DKT. 113, p. 4) (ROA.1671-1674); Jones v. Stephens, 998 F.Supp.2d 529,

532 (N.D.Tex. Feb. 6, 2014).

9 Jones, No. 4:05-CV-0638-Y (DKT. 127) (ROA.1932-1947); Jones v. Stephens, 2014 U.S.Dist.LEXIS

84098 (N.D.Tex., June 20, 2014)

counsel at a critical stage; (2) ineffective assistance of counsel based on Wiggins

(failure to investigate and develop mitigating evidence); (3) ineffective assistance of

counsel based on the failure to investigate and develop condition-of-mind evidence;

(4) ineffective assistance of counsel based on failure to seek timely evaluations of his

mental condition regarding the reliability or voluntariness of his confession and

competency to stand trial; and (5) that the Court should vacate Jones’s death sentence

based on punishment evidence obtained in violation of the Fifth Amendment

(Miranda issue). Jones, No. 4:05-CV-0638-Y (DKT. 129); (ROA.1951-2196).

On January 13, 2016, the district court denied the Second Petition. 10 On

February 8, 2016, Jones filed a motion under Fed. Rule Civ. Proc. 59(e). (DKT. 154)

(ROA.2523-2533). This motion was denied on March 16, 2016. 11

Proceedings before the Fifth Circuit and the Supreme Court. Jones

appealed the denial of the Second Petition and the Rule 59(e) motion, raising two

issues for which a certificate of appealability was granted by the Fifth Circuit: (1)

deprivation of his right under 18 U.S.C. § 3599 to quality representation before the

federal district court; and (2) during the sentencing phase, the admission of a

confession to serious crimes obtained in violation of Miranda can never be harmless

unless the defendant made the same confession to a nonstate actor that was

admitted. 12 On April 15, 2019, the Fifth Circuit affirmed the denials of the petition

10 Jones, No. 4:05-CV-0638-Y (DKT. 152) (ROA.2424-2522); Jones v. Stephens, 157 F.Supp.3d 623

(N.D.Tex. Jan. 13, 2016)

11 Jones, No. 4:05-CV-0638-Y (DKT. 156).

12 Jones v. Davis, 673 Fed.Appx. 369 (5th Cir. 2016)

and Rule 59(e) motion. 13

On April 22, 2019, Jones petitioned for rehearing, which

was denied on June 18, 2019. 14

Jones sought certiorari in this Court on the issue of the deprivation of his rights

under 18 U.S.C. § 3599 to quality representation before the district court. The petition

was denied on March 23, 2020. 15

Jones’s execution is set for May 19, 2021. On November 18, 2020, the

convicting court granted the State’s motion to set Jones’s execution date and set it for

May 19, 2021. (App.028-033).

Jones files the second state habeas application. On May 6, 2021, Jones

filed an Application for Writ of Habeas Corpus under Tex. Code Crim. Proc. Art.

11.071 § 5 (“Second Application), raising three grounds: In Ground 1, Jones argued

that his death sentence is based on based on false and misleading testimony in

violation of the due process clause of the Fourteenth Amendment because a

substantial part of the State’s case during the punishment phase was the testimony

of Dr. Price, who using the Hare Psychopathy Checklist (PCL-R), told the jury that

he had “diagnosed” Jones as a “psychopath.” Price’s testimony has since been

discredited, undermining the foundation upon which the State sought imposition of

the death penalty.

In Ground 2, Jones argued that the judgment and death sentence were

obtained in violation of due process under the Fourteenth Amendment because it was

13 Jones v. Davis, 922 F.3d 271 (5th Cir. 2019).

14 Jones v. Davis, 927 F.3d 365 (5th Cir. 2019).

15 Jones v. Davis, 140 S.Ct. 2519 (2020).

based on the false scientific evidence and testimony of Dr. Price concerning his

purported future dangerousness.

In Ground 3, Jones argued that based on the Supreme Court’s 2017 holding in

Moore v. Texas, he may be intellectually disabled, so the imposition of the death

penalty violates his Eighth and Fourteenth Amendment rights under Atkins.

Further, additional investigation should be allowed to explore this claim because the

first state habeas attorney did not address or pursue this claim (and did not even file

the application on time), and Jones was not allowed investigative services by the

district court. Jones also filed in the trial court a motion to withdraw the execution

date and a motion for a stay of execution in the TCCA.

On May 12, 2021, the TCCA dismissed the Second Application, finding that

Jones failed to make a prima facie showing on any of his Grounds, and that the

Grounds asserted therefore failed to satisfy the requirements of Article 11.071 § 5.

(App.001-002). The TCCA dismissed the Second Application as an abuse of the writ

without reviewing the merits of the claim raised per Article 11.071 § 5(c). (App.002).

The TCCA also denied Jones’s motion to stay the execution. (App.002).

Facts

Facts regarding the First Question presented

During trial, Dr. Finn testified that in October 2000, he administered the

Weschler Adult Intelligent Scale, Third Addition (“WAIS-III”) and the Georgia Court

Competency Test (“GCCT”), which is an instrument “specifically designed to test

competency for legal proceedings,” with 70 and above being a “passing score.”

(RR35.142-144); see, e.g., United States v. deBerardinis, No. 18-cr-030-01-01, 2021

U.S.Dist.LEXIS 40209, *15-16 (W.D.La. Jan. 22, 2021) (description of the GCCT). Dr.

Finn assessed Jones’s “overall IQ score” at 79. (RR35.144, 168).

Dr. Finn explained that Jones also scored “80” in 1983 when he was four years

old, and “100” sometime later. (RR35.170-171). This score of “100” was obtained when

Jones was seven years old, when he was administered the WISC-R. (App.084). Thus,

Jones’s known IQ scores were: 80 (age four); 100 (age seven); and 79 (age 21). The 79

was scored through the WAIS-III. Jones’s IQ of 79 was measured when he was 21,

using the WAIS-IIII. The WAIS (III or IV depending on when the test was normed)

is the “gold standard” for assessing intellectual abilities. As set forth below, see infra

at section I(D)(1), considering the Flynn Effect, Jones’s IQ score under the “gold

standard” WAIS-III is 77-78. As explained further below, see infra at section I(D)(1)

when accounting for the standard error of measurement (“SEM”), Jones’s IQ is as low

as 72 and as high as 82-83. Using the nonrigid cutoff score of 70, Jones is barely above

the threshold.

Further, undersigned counsel discovered evidence that Jones suffered from

severe, long-standing, and involuntary alcohol addiction, traumatic, physical, and

sexual childhood abuse, severe, long-standing, and involuntary addiction to

polysubstances beginning at age 12, and dissociative disorder as a result of traumatic,

physical, and sexual childhood abuse. Until he was arrested, Jones engaged in at

least eight years of heavy, constant drug and alcohol abuse, including snorting

cocaine, snorting heroin, using cocaine, crank, and heroin intravenously, and began

also to smoke crack cocaine.

This likely gave rise to subaverage intellectual

functioning and deficits in adaptive functioning. Counsel also learned that at no time

did prior habeas counsel ask Jones about his drug and alcohol abuse. Id.

Facts regarding the Second Question presented

The Hare Psychopathy Checklist (PCL-R) is a 20-item checklist and rating

scale that is intended to be used by trained professionals to measure the personality

disorder of psychopathy. (App.038). The 20 items consist of prototypically

psychopathic traits (e.g., remorselessness, grandiosity, superficial charm), and also

include items that focus on a history of antisocial and criminal acts (e.g., juvenile

delinquency, past revocation of conditional release). The PCL-R is scored based on a

semi-structured interview and review of available collateral information (e.g.,

institutional files, past mental health evaluations). Examinees can be given a score

ranging from 0 (zero) to 40, with higher scores indicating that they are being rated

by an examiner as more psychopathic. (App.038-039).

During the punishment phase, State expert Dr. Price administered the PCL-R

and diagnosed Jones as a “psychopath,” telling the jury, “[a] psychopath is a

personality disorder that is characterized by a set of traits and behaviors that are, in

a nutshell, the person doesn’t have a conscious or has little conscience.” (RR36.58).

Dr. Price related psychopathy to a propensity for future dangerousness within the

context of the first special issue. (RR36.74). Dr. Price provided a PCL-R total score of

31, which would place Jones at approximately the 88th percentile compared to the

PCL-R’s male prisoner normative sample.

Dr. Price’s PCL-R score was starkly divergent from the PCL-R score

determined by another forensic mental health expert, Dr. Finn, who testified for the

defense during the sentencing hearing that his scoring of Jones on the PCL-R was

only 9.5. Dr. Finn’s score placed Jones between the 8th and 9th percentile when

compared to the PCL-R’s normative sample, essentially concluding that Jones would

be one of the least psychopathic individuals housed in a prison environment.

(RR35.164). As Dr. John Edens explains, it is self-evident that two scores ranging

from the 8th or 9th to the 88th percentile in a given case reflect extreme disagreement

on exactly how “psychopathic” Jones actually was at that time. (App.040).

The inherent unreliability of the PCL-R is summarized in a recent paper

published in the Psychology, Public Policy, and Law journal of the American

Psychological Association. 16 One of the authors of this study is Dr. John Edens, PhD.,

Professor of Psychology in the Department of Psychology at Texas A&M University.

(App.034-036). 17 As Dr. Edens explains in his affidavit—and as the published paper

describes—testimony relying upon the PCL-R is unreliable, unscientific, and

misleading in capital cases because the PCL-R/Hare Checklist cannot reliably predict

behavior in prison. Because Dr. Price’s testimony rested primarily on the PCL-R and

Dr. Price testified on the issue of future dangerousness, his testimony was critical.

16 DeMatteo, D., et al, (2020), Statement of Concerned Experts On the Use of the Hare Psychopathy

Checklist-Revised in Capital Sentencing to Assess Risk for Institutional Violence. Psychology, Public

Policy, and Law, 26, 133-144 (App.060-072).

17 Since the 1990s, Dr. Edens has conducted research on psychological assessment and the prediction

of human behavior and has published over 150 related peer-reviewed journal articles, book chapters,

and professional manuals. (App.035). Most of his work is focused on forensic and correctional mental

health assessment issues, including the potential for engaging in future violence and other forms of

socially deviant behavior.

One of the two questions asked of a capital death penalty jury is “[w]hether there is

a probability that the defendant would commit criminal acts of violence that would

constitute a continuing threat to society * * * *” Tex. Code Crim. Proc. Art. 37.071 §

2(b)(1). And in determining whether a defendant poses a continuing threat to society,

the jury considers both free society and prison society. 18

PCL-R evidence provided by examiners in adversarial legal settings is

considered highly unreliable and of no probative value concerning prison violence

risk. (App.041, 050). 19 “It is very difficult if not impossible to argue that labeling a

defendant as psychopathic has any demonstrated probative value in capital cases.”

(App.050) (emphasis added). One of the primary criticisms of the PCL-R is that the

scores in adversarial legal cases are so unreliable across different examiners that

they lack any substantive probative value. (App.039). This is precisely what

happened here during the punishment phase. The unreliability of PCL-R scores is

evidenced by the extreme scoring discrepancies on the PCL-R in the competing

evaluations of Jones, with Dr. Price’s score placing him in the 88th percentile, while

Dr. Finn’s score placed him in the 8th or 9th percentile, indicating that Jones “would

18 See Morris v. State, 940 S.W.2d 610, 613 (Tex.Crim.App. 1996).

19 Dr. Edens is not alone in his criticism of the use of the PCL-R.

As the attached Statement of

Concerned Experts On the Use of the Hare Psychopathy Checklist-Revised in Capital Sentencing to

Assess Risk for Institutional Violence shows, in addition to Dr. Edens—who is also a signatory to this

Statement—eleven other experts have also stated concerns about its use, explaining that (1) the

reliability of PCL-R scores in field settings, and in particular in adversarial contexts, is

“problematically low; and (2) the overall association between PCL-R scores and violence at the group

level is only moderate in terms of effect size, both in absolute terms and relative to the effect size of

other established risk factors for violence; the association between PCL-R scores and violence in

institutional settings is small in terms of effect size; and the association between PCL-R scores and

serious institutional violence is negligible. (App.064-066).

be one of the least psychopathic individuals housed in a prison environment.”

(App.040, 050) (emphasis added). 20

Moreover, PCL-R evidence has the strong potential to stigmatize capital

defendants with an irrelevant and pejorative label and associated set of personality

traits (e.g., remorselessness, conning/manipulative). (App.041, 050). Thus, the jury’s

decision to impose the death penalty was based on testimony that was unreliable,

unscientific, and misleading in relation to the likelihood that Jones would be a future

danger to society if serving a life sentence in prison. (App.050).

Dr. Edens’s opinion about the PCL-R has been accepted in federal court: In a

federal death penalty case, the District Court of Massachusetts found the PCL-R

checklist to be unreliable and excluded its use from trial based, in part, on testimony

from Dr. Edens. 21 The district court barred PCL-R testimony because of concern that

jurors would consider such testimony as evidence of future dangerousness, which the

district court ruled would be “misleading” given that, as Dr. Edens testified, “a high

PCL-R score does not meaningfully predict aggressive behavior in prison.” (App.077078). Rather, as Dr. Edens testified, the PCL-R is widely used as “a risk assessment

tool” in contexts requiring decisions about whether to release certain offenders from

prison. Thus, the district court found that PCL-R testimony was highly prejudicial

Such discrepancies are not unique to Jones’s case. Dr. Edens was an expert witness in a recent

Texas capital murder trial in which Dr. Price administered the PCL-R to the defendant. As in Jones’s

case, Dr. Price’s score was vastly higher—placing the defendant in the 91st percentile—than the score

(in the 18th percentile) that a TDCJ-employed mental health professional assigned for the same

defendant. (App.040).

21 See United States v. Sampson, No. 01-10384-LTS (D.Mass., DKT. 2459, Sealed Memorandum and

Order on Rule 12.2 Motions, Sep. 2, 2016) (Order unsealed by DKT. 2979, May 24, 2017) (Excerpts

attached as App.073-085).

and precluded its admission because “its probative value is outweighed by the danger

of creating unfair prejudice, confusing the issues, or misleading the jury.” (App.077078).

STANDARD OF REVIEW

Because this petition involves the interpretation of federal constitutional law

and prior holdings of this Court, the standard of review is de novo. Salve Regina

College v. Russell, 499 U.S. 225, 231-232 (1991).

Under 28 U.S.C. § 2254(d), a state prisoner may not obtain relief with respect

to any claim that was adjudicated on the merits in state court proceedings unless the

adjudication of the claim: (1) resulted in a decision that was contrary to, or involved

an unreasonable application of clearly established Federal law as determined by the

Supreme Court; or (2) resulted in a decision that was based on an unreasonable

determination of the facts in light of (i.e., considering) the evidence presented in the

state court proceeding. 28 U.S.C. § 2254(d) (2021); Salazar v. Dretke, 419 F.3d 384,

395 (5th Cir. 2005) (describing standards under 2254(d)).

To determine whether the decision of the state habeas court resulted in a

decision that was contrary to or involved an unreasonable application of clearly

established Federal law as determined by this Court, a court must consider whether

the “state-court decision * * * correctly identifie[d] the governing legal rule * * * [and]

applie[d] it reasonably to the facts of a particular prisoner’s case.” Williams v. Taylor,

529 U.S. 362, 405-408 (2000); see also Harrington v. Richter, 131 S.Ct. 770, 784–786

(2011) (“[u]nder § 2254(d), a (federal) habeas court must determine what arguments

or theories supported or could have supported the state court’s decision; and then it

must ask whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision of this

Court.”). “[A] legal principle is ‘clearly established’ within the meaning of this

provision only when it is embodied in a holding of this Court,” which means the

holdings, as opposed to the dicta, of this Court’s decisions as of the time of the

relevant state-court decision. Carey v. Musladin, 549 U.S. 70, 74, 77 (2006); see also

Pippin v. Dretke, 434 F.3d 782, 792 (5th Cir. 2005) (“A trial court’s credibility

determinations made on the basis of conflicting evidence are entitled to a strong

presumption of correctness and are ‘virtually unreviewable’ by the federal courts.”).

Further, in a court’s assessment of whether the decision was “contrary to, or

involved an unreasonable application of, clearly established federal law” under §

2254(d)(1), “the record under review” is “limited to the record that was before the

state court that adjudicated the claim on the merits”; “[i]f a claim has been

adjudicated on the merits by a state court,” “evidence introduced in federal court has

no bearing on § 2254(d)(1) review.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398, 1401

(2011). 22

A court may grant relief if the state court’s decision resulted in a decision that

was based on an unreasonable determination of the facts considering the evidence

22 Cf. Martinez v. Ryan, 132 S.Ct. 1309, 1318 (2012) (a federal habeas petitioner may establish cause

to excuse a procedural default as to an Ineffective Assistance of Counsel claim by showing: (1) state

habeas counsel was constitutionally deficient in failing to include the claim in his first state habeas

application, and (2) the underlying IAC claim is “substantial,” meaning that it has “some merit.”);

Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013) (applying Martinez to Trevino, a Texas death-penalty

case).

presented in the state court proceeding. A determination of a factual issue made by

the state habeas court shall be presumed to be correct, and the petitioner has the

burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1) (2021); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (In

explaining § 2254(e)(1), the Supreme Court held that “the standard is demanding but

not insatiable,” and “[d]eference does not by definition preclude relief.”); Bell v. Cone,

535 U.S. 685, 693 (2002) (explaining that the provisions of the AEDPA “modified a

federal habeas court’s role in reviewing state prisoner applications in order to prevent

federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to

the extent possible under law.”).

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to determine whether Moore v.

Texas presents a new rule of constitutional law that Jones is eligible

for yet could not present in prior habeas proceedings.

Moore v. Texas set forth a new rule of constitutional law that applies

retroactively. But Jones did not have the chance to raise a Moore claim on habeas

review, as he filed his habeas challenges before this Court ruled in Moore.

Accordingly, this Court should grant certiorari and allow Jones to assert a Moore

claim in a successive habeas petition. See 28 U.S.C. §§ 2244(b), 2254(d)–(e).

Moore presents a new rule of constitutional law.

“[A] case announces a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became final.” Teague v. Lane, 489

U.S. 288, 301 (1989) (plurality opinion) (internal citations and quotations omitted).

Because precedent did not dictate the rule set down in Moore, Moore set forth a new

rule of constitutional law. See Id.

In Atkins v. Virginia, 536 U.S. 304 (2002), this Court prohibited the execution

of intellectually disabled persons. But the Court expressly left “to the State[s] the

task of developing appropriate ways to enforce the constitutional restriction upon

[their] execution of sentences.” Atkins, 536 U.S. at 317, quoting Ford v. Wainwright,

477 U.S. 399, 405, 416-417 (1986) (alterations in original). Atkins “did not seek to

provide ‘definitive procedural or substantive guides for determining when a person

who claims mental retardation will be so impaired as to fall within Atkins’ compass.’”

Moore v. Texas, 137 S.Ct. 1039, 1058 (2017) (Roberts, J., dissenting), quoting Bobby

v. Bies, 556 U.S. 825, 831 (2009) (emphasis added). In other words, “Atkins itself was

on the books, but Atkins gave no comprehensive definition of ‘mental retardation’ for

Eighth Amendment purposes.” Shoop v. Hill, 139 S.Ct. 504, 507 (2019).

In Moore, this Court defined characteristics of those beyond the State’s power

to execute due to intellectual disability and announced a national standard that “[t]he

medical community’s current standards supply one constraint on States’ leeway in

this area.” Moore, 137 S.Ct. at 1053. Though Atkins mentioned that the medical

community’s consensus on intellectual disability was relevant in the death penalty

context, Moore mandated that states must use current medical diagnostic criteria in

evaluating all prongs of an intellectual disability claim. Moore went far beyond what

Atkins held. See Shoop, 139 S.Ct. at 508 (rejecting the conclusion that “the holding

in Moore was merely an application of what was clearly established by Atkins”

(internal citation and quotation marks omitted)). Moore announced for the first time

that (1) persons who are intellectually disabled per clinical standards are

categorically ineligible to receive the death penalty, and (2) states cannot promulgate

or enforce standards that create a narrower class of exempt persons, as Texas did

there. Moore, 139 S.Ct. at 672 (finding that petitioner was intellectually disabled and

could not be executed). This rule could not “be teased out of the Atkins Court’s brief

comments about the meaning of what it termed ‘mental retardation.’” Shoop, 139

S.Ct. at 508. Thus, Moore establishes a new rule of constitutional law.

Other courts have recognized as much. The TCCA recognized Moore as a case

for which its “legal basis was not recognized by or could not have been reasonably

formulated from a final decision of the * * * Supreme Court, a court of appeals of the

United States, or a court of appellate jurisdiction of this state” before its issuance.

See Tex. Code. Crim. Proc. Art. 11.071 § 5(d); Ex parte Milam, No. WR-79,322-02,

2019 Tex.Crim.App.Unpub.LEXIS 10, at *2 (Tex.Crim.App., Jan. 14, 2019) (not

published) (remanding the intellectual disability claim to the convicting court

“[b]ecause of * * * recent changes in the law pertaining to the issue of intellectual

disability.”). Because the Moore decision “was not dictated by precedent existing at

the time the defendant’s conviction became final,” see Teague, 489 U.S. at 301, Moore

establishes a new rule of constitutional law.

ii.

Moore applies retroactively.

New rules of constitutional law apply retroactively if the rules are substantive

rather than procedural. Teague, 489 U.S. at 311; see also Schriro v. Summerlin, 542

U.S. 348, 351 (2004) (“New substantive rules generally apply retroactively.”).

Substantive rules “set forth constitutional guarantees that place certain criminal law

and punishments altogether beyond the State’s power to impose.” Montgomery v.

Louisiana, 136 S.Ct. 718, 729 (2016). 23

Rules that place individuals beyond the State’s power to punish or place

certain punishments beyond the power of the State to inflict “apply retroactively

because they necessarily carry a significant risk that a defendant * * * faces a

punishment that the law cannot impose on him.” Summerlin, 542 U.S. at 352.In two

ways, Moore enacted such a rule. First, Moore struck down the factors that Texas

courts used for evaluating Atkins claims because they “creat[ed] an unacceptable risk

that persons with intellectual disability will be executed.” Moore, 137 S.Ct. at 1044.

In doing so, Moore altered the “essential facts bearing on punishment.” Summerlin,

542 U.S. at 353–354 (where the Supreme Court announces a rule that makes “a

certain fact essential to the death penalty,” that rule is substantive). By requiring

that states adhere to medical standards, Moore directed state courts to use

substantive medical standards when making an intellectual disability determination

in the death penalty context. In effect, this rule creates a new class of people who are

intellectually disabled under substantive medical standards and thus ineligible for

execution under the Eighth Amendment.

23 See also Summerlin, 542 U.S. at 352 (“A rule is substantive rather than procedural if it alters the

range of conduct or the class of persons that the law punishes.”); Penry v. Lynaugh, 492 U.S. 302, 330

(1989) (“[T]he first exception set forth in Teague should be understood to cover * * * rules prohibiting

a certain category of punishment for a class of defendants because of their status or offense.”),

overruled on other grounds by Atkins, 536 U.S. 304 (2002).

Second, Moore altered the “essential facts bearing on punishment” by

abrogating the previous methods used in Texas to define intellectual disability in

death penalty cases. Before, under the so-called Briseno factors, a capital defendant

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)

could 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; or

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

would not have been considered intellectually disabled. Ex parte Briseno, 135 S.W.3d

1, 8-9 (Tex.Crim.App. 2004).

So, a defendant with any adaptive strengths or

coexisting conditions would have been considered not to be intellectually disabled.

Id.; see also Moore, 137 S.Ct. at 1050–1051.

But under Moore, the same defendant is exempt from execution if the clinical

standards are met. 137 S.Ct. at 1050–1051 (rejecting the Briseno factors). Thus, by

abrogating the Briseno factors, Moore placed a new class of defendants out of the

death penalty’s reach. This class consists of defendants exempt from execution based

on intellectual disability who would not have qualified as intellectually disabled

under Briseno’s interpretation of Atkins. Because such defendants are considered

intellectually disabled under Moore, they are no longer eligible for the death penalty.

See Moore v. Texas, 139 S.Ct. 666, 672 (2019) (Moore II) (finding that Moore is

intellectually disabled). 24

By establishing this class, Moore “changed the substantive reach” of the Eighth

Amendment’s prohibition against the execution of intellectually disabled persons.

Welch v. United States, 136 S.Ct. 1257, 1265 (2016). After Moore, the protected class

includes those who meet the medical community’s diagnostic framework regardless

of lay opinions on intellectual disability. Moore, 137 S.Ct. at 1044. Thus, Moore is a

substantive, retroactive rule because it altered the class of defendants who cannot be

executed under the Eighth Amendment. Moore, 139 S.Ct. at 672 (Moore “has shown

he is a person with intellectual disability.”). Because the Court “applied [the new rule]

to the defendant in the case announcing the new rule, evenhanded justice requires

that it be applied retroactively to all who are similarly situated.” Teague, 489 U.S. at

300.

As this Court noted in Penry, “if [it] held as a substantive matter, that the

Eighth Amendment prohibits the execution of mentally retarded persons * * * such a

rule (falls) under the first exception to the general rule of nonretroactivity and would

24 See also, e.g., Ex parte Henderson, No. WR-37,658-03, 2020 Tex.Crim.App.Unpub.LEXIS 171, at *2

(Tex.Crim.App. Apr. 15, 2020) (per curiam) (not published) (granting relief on a claim of intellectual

disability upon reconsideration under Moore); cf. Ex parte Henderson, No. WR-37,658-03, 2006

Tex.Crim.App.Unpub.LEXIS 743, at *11-13 (Tex.Crim.App. Jan. 25, 2006) (per curiam) (not published)

(denying the intellectual disability claim based on the Briseno factors).

be applicable to defendants on collateral review.” 25 492 U.S. at 329–330. Moore

establishes such a rule and creates a new class of defendants who are ineligible for

the death penalty. Thus, Moore applies retroactively.

iii.

Jones could not have presented any argument based on Moore in

his prior habeas proceedings.

This Court announced Moore on March 28, 2017. 137 S.Ct. at 1039. But on

June 22, 2014, Jones filed the Second Petition. (DKT. 129). On January 13, 2016, the

district court denied the Second Petition. Jones, No. 4:05-CV-0638-Y (DKT. 152);

Jones v. Stephens, 157 F.Supp.3d 623 (N.D.Tex. Jan. 13, 2016).

On February 8, 2016, Jones filed a timely notice of appeal in the district court

to challenge the district court’s order denying the Second Petition. Jones, No. 4:05CV-0638-Y (DKT. 152, 155); Jones, 157 F.Supp.3d 623 (N.D.Tex. Jan. 13, 2016). This

divested the district court of jurisdiction, as generally a case exists only in one court

at a time. A notice of appeal transfers a case to the appellate court until it remands

back

the

district

court:

“The

filing

a notice

appeal * * * confers jurisdiction on the court of appeals and divests the district court

of its control over those aspects of the case involved in the appeal.” Griggs v. Provident

Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam); Marrese v. Am. Acad. of

25 See also Tyler v. Cain, 533 U.S. 656, 668–69 (2001) (O’Connor, J., concurring) (“if we hold in Case

One that a particular type of rule applies retroactively to cases on collateral review and hold in Case

Two that a given rule is of that particular type, then it necessarily follows that the given rule applies

retroactively to cases on collateral review.”); In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011) (“By the

combined effect of the holding of [(Graham v. Florida, 560 U.S. 48 (2010)] * * * and the first Teague

exception, Graham was * * * made retroactive on collateral review by the Supreme Court as a matter

of logical necessity under Tyler.”).

Orthopaedic Surgeons, 470 U.S. 373, 378-379 (1985). Though a few exceptions exist, 26

they do not apply here. Accordingly, Jones could not have “amended” the Second

Petition and added a claim under Moore when it was handed down on March 28, 2017.

Thus, Moore was unavailable to Jones. Other courts that have considered the

issue agree. See In re Johnson 935 F.3d 284 (5th Cir. 2019) (finding that a rule was

not previously available even when it was announced before any federal habeas

application was filed); In re Cathey, 857 F.3d 221 (5th Cir. 2017) (same). Similarly, in

In re Wood, 648 F.Appx. 388, 391 (5th Cir. 2016), the Fifth Circuit held that a new

constitutional rule was available if it were feasible to amend an application pending

in the district court when the new rule is announced, so the petitioner’s Atkins claim

was previously available only after it determined that the petitioner “could have

raised the issue while he was litigating his habeas petition in the district court.”

Applying those cases here, since the district court had already entered the final

judgment on the Second Petition when Moore was decided, Jones did not have an

opportunity to present a Moore claim during the proceeding. Thus, the Moore decision

was previously unavailable to Jones.

iv.

Under Moore, Jones is intellectually disabled and is ineligible for

execution.

26 For example, in criminal cases, exceptions exist under Fed. Rule App. Proc. 4(b)(5) for correcting a

sentence under Fed. Rule Crim. Proc. 35, and under Rule 4(b)(3), which allows action in the district

court under Rules 29, 33, and 34. And a district court may also consider motions on issues collateral

to those on appeal, like a motion for attorney’s fees if the issue of fees is not an issue on appeal. Thomas

v. Capital Sec. Servs., Inc., 812 F.2d 984, 987 (5th Cir. 1987); see also, e.g., Mahone v. Ray, 326 F.3d

1176, 1179 (11th Cir. 2003).

Based on the Supreme Court’s 2017 holding in Moore, Jones is intellectually

disabled because Moore now dictates that the Atkins prongs be evaluated using

contemporary medical standards. Thus, in light of Moore, the imposition of the death

penalty violates Jones’s Eighth and Fourteenth Amendment rights. At minimum,

additional investigation should be allowed to explore this claim. Thus, the state

court’s dismissal of this claim was a decision that is: (i) contrary to or involved an

unreasonable application of clearly established Federal law as determined by the

Supreme Court; and (ii) based on an unreasonable determination of the facts

considering the evidence presented in the state court proceeding.

Jones satisfies the Atkins test of intellectual disability, now that it is both

retroactively available to him and that Moore created a new substantive rule for how

courts must evaluate the Atkins prongs. When evaluating intellectual disability,

courts must consider (1) whether the individual has subaverage intellectual

functioning; (2) whether the individual has significant limitations or deficits in

adaptive behavior in three categories of skills:

conceptual, social, and practical

adaptive skills; and (3) if the individual’s subaverage intellectual functioning and

related adaptive deficits manifested before age eighteen. See Atkins, 536 U.S. at 318.

States have some discretion in the implementation of the categorical bar on

the execution of persons with intellectual disability. Hall v. Florida, 572 U.S. 701,

719 (2014). This discretion “must be ‘informed by the medical community’s diagnostic

framework,’” and, specifically, by “current medical standards.” Moore, 137 S.Ct. at

1049 (“Moore I”), quoting Hall, 572 U.S. at 719. The current medical standards for

intellectual disability as of the time of this petition are governed by the Twelfth

Edition of the American Association on Intellectual and Developmental Disabilities

(the “AAIDD”)’s “Intellectual Disability: Definition, Classification, and Systems of

Support” (the “AAIDD-12”), which was published in January 2021, and the American

Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders, 5th

Ed.” (“DSM-5”). See id. at 1048.

The DSM-5 describes intellectual disability as a developmental disability

characterized by (1) “deficits” in intellectual functioning; (2) “deficits” in adaptive

functioning; and (3) onset during the developmental period. DSM-5 at 31.

The

diagnosis of intellectual disability results from a “conjunctive and interrelated

assessment.” Hall, 572 U.S. at 723, citing DSM-5 at 37. Courts are required to

consider all three prongs as part of a holistic evaluation of the clinical definition of

intellectual disability when determining whether a defendant falls within the class

of persons categorically excluded from the death penalty. Id.

Jones’s known IQ is close to the intellectual disability “cutoff,” and must be

considered in the totality of the other evidence, including the fact that the onset of

subaverage intellectual functioning and deficits in adaptive functioning likely

occurred before the age of eighteen. Current medical standards require that IQ scores

and the Atkins prongs be considered as part of a complete clinical inquiry and not

used as an absolute, stand-alone conclusion to determine intellectual disability. See

Hall, 134 S.Ct. at 1995 and DSM-5, 37. The overall picture based on current medical

trends should consider “deficits in intellectual functions * * * confirmed by both

clinical assessment and individualized, standardized intelligence testing,” such as IQ

scores and standardized neuropsychological testing. DSM-5, 33. Accordingly, it is

clear that the Texas Court of Criminal Appeals failed to consider the evidence in the

record when it denied Jones’s application.

Jones has subaverage intellectual functioning, satisfying Atkins

prong 1.

In Moore, this Court emphasized “the reality that an individual’s intellectual

functioning cannot be reduced to a single numerical score,” and a standard error of

measurement shows that there is “inherent imprecision of the test itself.” Moore, 137

S.Ct. at 1049. The first prong in Atkins, as informed by Moore, is whether an

individual has “significantly subaverage general intellectual functioning.” Atkins,

536 U.S. at 318. Deficits in intellectual functioning can, to some degree, be measured

through the administration of intellectual functioning testing and involve a score of

approximately two standard deviations below the mean. DSM-5 at 37. Courts should

consider the standard error of measurement (“SEM”), which is plus-or-minus five

points from the score. Hall, 134 S.Ct. at 2000. After applying the SEM, “[A]n IQ

between 70 and 75 or lower is typically considered the cutoff IQ score for the

intellectual function prong of the mental retardation definition.” Atkins, 536 U.S. at

309 fn.5, citing Kaplan & Sadock’s Comprehensive Textbook of Psychiatry, 2952 (B.

Sadock & V. Sadock eds. 7th ed. 2000).

This Court has thus determined that while an IQ score is an important factor

in determining an individual’s subaverage intellectual functioning, the IQ score is not

the only factor. See Moore, 137 S.Ct. at 1049; Hall, 134 S.Ct. at 1994; Atkins, 536

U.S. at 318. This is consistent with the current medical standards that require IQ

scores and the Atkins prongs be considered as part of a complete clinical inquiry and

not used as an absolute, stand-alone conclusion to determine intellectual disability.

As explained in the DSM-5 at 37:

IQ test scores are approximations of conceptual functioning but may be

insufficient to assess reasoning in real-life situations and mastery of

practical tasks. For example, a person with an IQ score above 70 may

have such severe adaptive behavior problems in social judgment, social

understanding, and other areas of adaptive functioning that the person’s

actual functioning is comparable to that of individuals with a lower

score. Thus, clinical judgment is needed in interpreting the results of IQ

tests.

When applying the current medical standards to Jones’s IQ score, he is close

to the intellectual disability threshold. Jones’s IQ score is 77-78, when applying the

“Flynn Effect,” which accounts for the substantial increases in measured intelligence

test performance over time. Frank M. Gresham & Daniel J. Reschly, Standard of

Practice and Flynn Effect Testimony in Death Penalty Cases, Intellectual and

Development Disabilities, Vol. 49, No. 3: 131-140 (June 2011) (App.094-103). Because

the WAIS-III was normed in 1996, Jones was administered the test in 2000, and 0.311

IQ points per year (times four years) must be accounted for due to the Flynn Effect.

The Flynn Effect is a well-established psychometric fact documenting substantial

increases in measured intelligence test performance over time. Id. These increases

are not “gains” in the construct of intelligence but are creeping obsolesce of test

norms. Flynn’s 1984 review of the literature established that Americans gain an

average of approximately 0.311 IQ points per year or about three points per decade

in measured intelligence.

A similar increase exists in measured intelligence

worldwide. An intelligence test normed in 1977 that is used in 2007 today has a

population mean of 112 (0.311 X 30 years = 12 points). An IQ score on this test of 75

using the obsolete norms from 1977 is 2.47 standard deviations below the population

mean and is comparable to an IQ score of 63 if the actual population mean of 100 with

a standard deviation of 15 is applied.

The Flynn Effect is widely accepted by scholars, measurement experts, and

researchers in intellectual measurement, and is critically important in clinical

assessment practice. (App.094). When applied to Atkins cases, it may reflect a lifeor-death decision regarding a convicted capital defendant’s eligibility for the death

penalty. If the population mean changes systematically with the degree of obsolesce

of test norms, then IQ scores over time become more inaccurate. Test scores on

measure of intellectual functioning only become meaningful through comparisons to

population means, meaning that they are norm-referenced measures.

The Flynn Effect was first recognized by the Fifth Circuit in Moore v.

Quarterman, 454 F.3d 484 (5th Cir. 2006). It should apply to Jones because of its

near “unchallenged existence” in the courts. 27

27 See, e.g., Thomas v. Allen, 614 F.Supp.2d 1257, 1276-1278, 1281 (N.D.Ala. 2009); Walker v. True,

399 F.3d 315, 322-323 (4th Cir. 2005); Walton v. Johnson, 407 F.3d 285, 296-297 (4th Cir. 2005);

Winston v. Kelly, 592 F.3d 535, 557 (4th Cir. 2010); Black v. Bell, 664 F.3d 81, 96 (6th Cir. 2011); Sasser

v. Hobbs, 735 F.3d 833, 847 (8th Cir. 2013); Holladay v. Allen, 555 F.3d 1346, 1350 fn.4, 1358 (11th

Cir. 2009); Thomas v. Allen, 607 F.3d 749, 757 (11th Cir. 2010); Wiley v. Epps, 668 F.Supp.2d 848, 894898 (N.D.Miss. 2009); United States v. Hardy, 762 F.Supp.2d 849, 866-868 (E.D.La. 2010); United

States v. Smith, 790 F.Supp.2d 482, 491 & fn.43 (E.D.La. 2011);Thomas v. Allen, 614 F.Supp.2d 1257,

1276-1278, 1281 (N.D.Ala. 2009); Green v. Johnson, 431 F.Supp.2d 601, 615-616 (E.D.Va. 2006);

Williams v. Campbell, No. 04-0681-WS-C, 2007 U.S.Dist.LEXIS 27050, *145-146 (S.D.Ala., April 11,

2007); United States v. Davis, 611 F.Supp.2d 472, 485-488 (D.Md. 2009); United States v. Lewis, No.

Thus, when considering the Flynn Effect, Jones’s IQ score under the “gold

standard” WAIS-III is 77-78. When accounting for the SEM, Jones’s IQ is as low as

72-73.

Using the nonrigid cutoff score of 70, Jones’s score is barely above the

threshold and is approximately at the cutoff.

It is important to consider that the clinical standard does not “require” an IQ

of 75 or below. The standard is that it is approximately two standard deviations below

the mean, or approximately 75 as measured by reliable IQ tests like the WAIS-III or

WAIS-IV. 77 is approximately 75. Beyond Jones’s “gold standard” IQ score, adjusted

to approximately 72 when considering the SEM and the Flynn Effect, current medical

standards require that IQ scores and the Atkins prongs be considered as part of a

complete clinical inquiry and not used as an absolute, stand-alone conclusion to

determine intellectual disability.

vi.

Atkins prong 2.

The second Atkins prong considers whether the individual has significant

limitations or deficits in adaptive behavior in any one of three categories of skills:

conceptual, social, or practical adaptive skills.

Atkins, 536 U.S. at 318; Hall, 572

U.S. at 724; Moore I, 137 S.Ct. at 1050; DSM-5 at 33. An applicant need show deficits

in only one domain of adaptive functioning to satisfy the second Atkins prong. DSM5 at 38. Examples of conceptual skills include reading and writing, math reasoning,

and competence in language; social skills include interpersonal skills, responsibility,

1:08-CR-404, 2010 U.S.Dist.LEXIS 138375, at *11-15 (N.D. Ohio 2010); United States v. Wilson, 922

F.Supp.2d 334, 349-351, 357-358 (E.D. N.Y. Feb. 3, 2013); United States v. Williams, 1 F.Supp.3d 1124,

1142-1145 (D.Haw. 2014).

and self-esteem; and practical skills include personal care, money management, and

school and work task organization. AAIDD, Mental Retardation:

Definition,

Classification, and Systems of Supports, 82, Table 3.1 at 42 (10th ed. 2002).

The AAIDD-12 cautions that persons with intellectual disability may display

some pockets of adaptive strength. These strengths do not negate the presence of

adaptive deficits. AAIDD-12 at 1. The focus of the second prong rests on the presence

of deficits. Moore I, 137 S.Ct. at 1050, citing AAIDD-11 at 47 (“significant limitations

in conceptual social, or practical skills [are] not outweighed by the potential strengths

in some adaptive skills”); see also DSM-5 at 33, 38 (explaining that the inquiry should

focus on “[d]eficits in adaptive functioning”).

Jones’s adaptive deficiencies are

discussed infra in section I(D)(3).

vii.

Atkins prong 3.

The third consideration under Atkins is whether the onset of subaverage

intellectual functioning and deficits in adaptive functioning occur before the age of

eighteen. Atkins, 536 U.S. at 318. It does not require that intellectual disability have

been diagnosed or identified during the developmental period. Rather, intellectual

disability may be diagnosed retrospectively. AAIDD-12 at 41-42. The presence of

risk factors for intellectual disability, although not necessary to diagnosis intellectual

disability, can corroborate the diagnosis. Moore I, 137 S.Ct. at 1051.

There is evidence of multiple deficits in adaptive behavior for Jones before the

age of eighteen. Jones was treated for several incidents of self-inflicted gunshot

wounds to his body as a child, demonstrating severe low self-esteem. The trial record

also raises the likelihood that Jones was addicted to drugs and alcohol at a very early

age. See Jones, No. 4:05-CV-0638-Y (DKT. 124).

Undersigned counsel has also discovered multiple aspects of Jones’s childhood

that likely gave rise to subaverage intellectual functioning and deficits in adaptive

functioning that Jones’s prior state habeas counsel should have investigated. 28 Jones

was subjected to traumatic physical and sexual childhood abuse from close family

members.

He also suffered from severe, long-standing, and involuntary alcohol

addiction. Until he was arrested, Jones engaged in at least eight years of heavy,

constant drug and alcohol abuse, including snorting cocaine, snorting heroin, using

cocaine, crank, and heroin intravenously, and also began to smoke crack cocaine.

viii.

In the alternative, Atkins presents a new rule of constitutional law

made retroactive by this Court to cases on collateral review that

was previously unavailable to Jones.

If this Court determines that Moore is not a new, retroactively applied rule of

constitutional law, then Jones should be deemed to meet the requirements of 28

U.S.C. § 2244(b)(2)(A) because an Atkins claim was not available to him until this

Court’s decision in Moore. When he filed both the First and Second Petitions, under

then-binding Fifth Circuit and Texas law, evidence of low IQ, evidence of adaptive

deficits, and evidence that these deficits appeared during the developmental period,

were insufficient to establish that the Eighth Amendment prohibited his execution.

28 Jones’s prior state habeas counsel failed to investigate any of these issues, so if the Court determines

that insufficient evidence is available on this Ground, then it should remand for further investigation.

Until Moore, the Fifth Circuit found “nothing in Briseno that is inconsistent with

Atkins.” Woods v. Quarterman, 493 F.3d 580, 587 fn.6 (5th Cir. 2007).

When the First and Second Petitions (September 14, 2006 and June 22, 2014,

respectively) were filed, to prevail on an Atkins claim, Jones had to prove that: (1) his

adaptive deficits were not outweighed by perceived adaptive strengths; (2) his

adaptive deficits were not contradicted by perceived adaptive gains in prison; (3) risk

factors for intellectual disability did not detract from a determination that his

intellectual and adaptive deficits were related; (4) his adaptive deficits were not

attributable to a personality disorder; and (5) he satisfied the Briseno factors. Moore,

139 S.Ct. at 668–669. Moore removed this standard. Jones must show only that he

satisfies the “three core elements” of the clinical definition of intellectual disability to

qualify. Moore, 137 S.Ct. at 1045. Only after Moore was decided does the Eighth

Amendment protect mildly intellectually disabled persons in Texas from execution.

ix.

In the alternative, the proposed petition meets the requirements of

28 U.S.C. § 2244(b)(2) because the allegations—if proven true—

require review to avoid a miscarriage of justice.

Federal courts may authorize consideration of a second or successive habeas

corpus petition if it is necessary to prevent a miscarriage of justice per 28 U.S.C. §

2244(b)(2), which here is the execution of a person the State is categorically forbidden

by the Eighth Amendment from executing. See Holland v. Florida, 560 U.S. 631, 646

(2010) (“[E]quitable principles have traditionally governed the substantive law of

habeas corpus,” and federal courts will “not construe a statute to displace courts’

traditional equitable authority absent the clearest command.”). In Holland, this

Court concluded that the traditional equitable tolling exception to a limitations

period defense survived the passage of 28 U.S.C. § 2244(d) despite the statutory

tolling provision for habeas corpus proceedings that did not include equitable tolling.

Holland, 560 U.S. at 645; see also McQuiggin v. Perkins, 569 U.S. 383, 393 (2013) (the

miscarriage of justice exception may be applied as an equitable exception to a

limitations period defense despite its absence in the AEDPA as an exception).

Further, “[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 v.

Louisiana, 136 S.Ct. 718, 731 (2016) (emphasis added). Habeas corpus addresses

whether the government has the power to inflict a certain punishment. See, e.g.,

Webster v. Daniels, 784 F.3d 1123, 1139 (7th Cir. 2015) (“[A] core purpose of habeas

corpus is to prevent a custodian from inflicting an unconstitutional sentence.”).

The judgment sentencing Jones to death was obtained in violation of the

constitution and is void. The State has no power to impose it or carry it out because

“[a] void judgment is a legal nullity.” United Student Aid Funds, Inc. v. Espinosa,

559 U.S. 260, 270 (2010); see also Ex parte Siebold, 100 U.S. 371, 377 (1879) (“[I]f the

laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the

causes.”). Thus, federal courts have “no authority to leave in place a conviction or

sentence that violates a substantive rule, regardless of whether the conviction or

sentence became final before the rule was announced.” Id. Correcting void judgments

imposing unconstitutional sentences is what habeas corpus addresses. This invokes

the suspension clause, which precludes Congress from preventing federal courts from

granting writs of habeas corpus. Congress may effect a suspension of the writ by

“work[ing] an unconstitutional limitation upon the jurisdiction of federal habeas

courts.” Mueller v. Angelone, 181 F.3d 557, 573 (4th Cir. 1999). The suspension

clause, “at a minimum, ‘protects the writ as it existed in 1789,’ when the Constitution

was adopted.” Dept. of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959, 1969 (2020),

quoting INS v. St. Cyr, 533 U.S. 289, 301 (2001). In Felker v. Turpin, 518 U.S. 651,

664 (1996), this Court held that § 2254(b)’s limitations on the consideration of second

or successive habeas corpus applications did not on its face run afoul of the suspension

clause. Like the holding in Webster, this Court should recognize that Congress did

not intend to retract the equitable authority of the federal court to hear second or

successive habeas corpus applications that present allegations of void judgments and

substantively unconstitutional punishments under the Eighth Amendment. 29

Jones’s due process rights under the Fourteenth Amendment were

violated because the jury’s decision to impose the death penalty was

based on expert testimony that has since been discredited.

A substantial part of the State’s case during the punishment phase was based

on the testimony of Dr. Price, who, using the Hare Psychopathy Checklist (PCL-R),

told the jury that he had diagnosed Jones as a “psychopath.” Price’s testimony has

since been discredited, undermining the foundation upon which the State sought

imposition of the death penalty. As the affidavit of Dr. John Edens (App.034-059)—

29 Jones notes that in In re Sparks, 939 F.3d 630 (5th Cir. 2019), this Court denied a request for an

order authorizing district court review of a second or successive habeas corpus application because the

petitioner did not allege actual innocence of the crime. However, it did not decide whether to recognize

an innocence of the death penalty exception in the statute, noting only that “even if ‘actual innocence

of the death penalty’ suffices,” the movant in that case had not qualified for it. Id. at 633.

executed April 19, 2021—and the other facts and arguments below show, this was

false and misleading testimony that affected the outcome of the sentence.

28 U.S.C. § 2244(b)(2)(B)(ii) applies here, as at least one court has held that §

2254(b)(2)(B)(ii) “permit[s] a petitioner to establish by clear and convincing evidence

that, but for constitutional error, no reasonable juror would have found the petitioner

eligible for the death penalty under the applicable state law.” Babbitt v. Woodford,

177 F.3d 744, 745-746 (9th Cir. 1999) (internal quotation marks omitted).

A defendant’s due process rights under the Fourteenth Amendment are

violated if the State unknowingly presents false or perjured evidence. Napue v.

Illinois, 360 U.S. 264, 269 (1959). The principle that the State may not knowingly use

false evidence—including false testimony—to obtain a tainted conviction, implicit in

any concept of ordered liberty, “does not cease to apply merely because the false

testimony goes only to the credibility of the witness. The jury’s estimate of the

truthfulness and reliability of a * * * witness may well be determinative of guilt or

innocence, and it is upon such subtle factors as the possible interest of the witness in

testifying falsely that a defendant's life or liberty may depend.” Id. 30

Here, the false and misleading testimony was presented during the State’s

rebuttal and elicited by the State. The jury’s decision to impose the death penalty

was based on this false and misleading testimony that there was scientific proof that

Jones was a “psychopath.” As Dr. Edens explains, the PCL-R evidence upon which

the jury relied was inaccurate, meaning that a significant basis of the imposition of

30 See also United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997).

Jones’s death sentence was based on flawed and unreliable evidence that misled the

jury into believing that Jones was a psychopath who posed a grave danger to others

for which the death penalty was necessary.

Dr. Price’s testimony was critical since an inmate’s behavior in prison and

propensity for violence in prison is a central component of “future dangerousness.” If

the testimony provided by a State witness on this issue is false or lacking in probative

value, then the defendant did not receive a fair trial on this question, and his death

sentence is not valid. For these reasons, it is imperative to consider whether an

appropriate risk assessment was done, and it was not.

Instead, Dr. Price administered the PCL-R and diagnosed Jones as a

“psychopath,” and directly linked his purported PCL-R score to Jones’s psychopathy

and his propensity for future dangerousness within the context of the first special

issue. (RR36.58, RR36.74). And the fact that Dr. Price’s PCL-R score was starkly

divergent from the PCL-R score determined by Dr. Finn underscores its inherent

unreliability and lack of probative value concerning prison violence risk. (App.041,

050). As Dr. Edens explains, “it is very difficult if not impossible to argue that

labeling a defendant as psychopathic has any demonstrated probative value in capital

cases.” (App.050) (emphasis added).

It is also critical that PCL-R evidence has the strong potential to stigmatize

capital defendants with an irrelevant and pejorative label and associated set of

personality traits (e.g., remorselessness, conning/manipulative). (App.041, 050). As

the district court determined in United States v. Sampson, see supra at 15 n. 22, PCL-

R testimony is unreliable and should be barred because of the risk that jurors would

consider such testimony as evidence of future dangerousness, which the district court

ruled would be “misleading” given that, as Dr. Edens testified, “a high PCL-R score

does not meaningfully predict aggressive behavior in prison.” (App.077-078). The

finding of the federal judge corroborates Dr. Edens’s testimony that Dr. Price’s

testimony and the use of the PCL-R was materially misleading to the jury and

contributed to the death sentence.

In sum, because Jones has also shown that, but-for this Fourteenth

Amendment violation, a reasonable jury would not have found him to be a future

danger and would not have sentenced him to death, this Court should grant certiorari

and grant a temporary stay of execution, as set forth in the accompanying application.

CONCLUSION

For the reasons stated here and in the Motion for a Stay, this Court should

stay Jones’s execution and grant certiorari.

Respectfully submitted,

Michael Mowla

P.O. Box 868

Cedar Hill, TX 75106

Phone: 972-795-2401

Fax: 972-692-6636

michael@mowlalaw.com

Texas Bar No. 24048680

Attorney for Jones

Counsel of Record

/s/ Michael Mowla

Michael Mowla

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.