Petition for Writ of Certiorari — Arthur Lee Burton, Petitioner v. Texas
Supreme Court briefAug 3, 2024
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No. ___________
ARTHUR LEE BURTON,
Petitioner,
v.
STATE OF TEXAS,
RESPONDENT.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE TEXAS COURT OF CRIMINAL APPEALS
PETITION FOR A WRIT OF CERTIORARI
DORSEY & WHITNEY LLP
STEVEN J. WELLS*
KATHRYN A. JOHNSON
50 South 6th Street, Suite 1500
Minneapolis, MN 55402
(612) 340-2600
*Counsel of Record
Attorneys for Petitioner
CAPITAL CASE
QUESTIONS PRESENTED
1.
Whether the Texas Court of Criminal Appeals (“TCCA”)—in refusing to
authorize plenary review of Mr. Burton’s unrebutted prima facie case that his
intellectual disability measured by current clinical diagnostic criteria rendered
him ineligible for execution—so contravened the Court’s decisions and
directives in Hall v. Florida, Moore I, and Moore II, that this Court’s
intervention is required to eliminate “an unacceptable risk that persons with
intellectual disability will be executed” in Texas.
2.
Whether the TCCA’s dismissal of Mr. Burton’s intellectual disability claim
under Article 11.071, Section 5 of the Texas Code of Criminal Procedure “is an
adequate and independent state-law ground for the judgment,” Glossip v.
Oklahoma, 144 S. Ct. 691 (2024) (Mem.), even though it was necessarily
dependent on a substantive analysis of federal constitutional law as applied to
Mr. Burton’s factual allegations.
i
PARTIES TO THE PROCEEDINGS BELOW
All parties appear on the cover page in the case caption.
LIST OF RELATED CASES
State court
State v. Burton, No. 760321, Harris County District Court for the State of
Texas. Judgment entered June 23, 1998.
Burton v. State, No. 73,204, Texas Court of Criminal Appeals. Judgment
entered March 7, 2001.
State v. Burton, No. 0760321, Harris County District Court for the State of
Texas. Judgment entered September 6, 2002.
Burton v. State, No. 73,204, 2004 WL 3093226 (Tex. Crim. App. May 19,
2004).
Ex parte Burton, No. 760321-B, Harris County District Court for the State of
Texas. Judgment entered August 2, 2007.
Ex parte Burton, No. WR-64-360-02, 2009 WL 1076776 (Tex. Crim. App. Apr.
22, 2009).
Ex parte Burton, No. WR-64,360-03, Texas Court of Criminal Appeals.
Judgment entered August 1, 2024.
Federal Court
Burton v. Thaler, 863 F. Supp. 2d 639 (S.D. Tex. 2012). Judgment entered
May 29, 2012.
ii
Burton v. Stephens, 543 Fed. App’x 451 (5th Cir. 2013). Judgment entered
October 28, 2013.
Burton v. Stephens, No. 13-9591, 573 U.S. 909 (June 9, 2014) (mem.).
In re Burton, No. 24-0340, Fifth Circuit Court of Appeals. Pending as of the
time of filing.
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
PARTIES TO THE PROCEEDINGS BELOW ............................................................. ii
LIST OF RELATED CASES ......................................................................................... ii
INDEX TO APPENDICES ............................................................................................ v
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINIONS BELOW ...................................................................................................... 1
STATEMENT OF JURISDICTION .............................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1
INTRODUCTION .......................................................................................................... 2
STATEMENT OF THE CASE....................................................................................... 6
A.
Procedural history. ................................................................................... 6
B.
Mr. Burton pled an unrebutted Atkins claim supported by an
expert evaluation and corroborating evidence that Mr. Burton
meets the current clinical criteria for an intellectual disability
diagnosis. .................................................................................................. 8
1.
Current medical diagnostic framework for intellectual
disability ........................................................................................ 9
2.
Mr. Burton meets the requirements of the diagnostic
framework for Criterion A: Deficits in Intellectual
Functioning .................................................................................... 9
3.
a.
Clinical Criteria .................................................................. 9
b.
Mr. Burton has deficits in intellectual functioning ......... 10
Mr. Burton meets the requirements of the diagnostic
framework for Criterion B: Deficits in Adaptive
Functioning .................................................................................. 13
a.
Clinical Criteria ................................................................ 13
b.
Mr. Burton has adaptive deficits in all three
domains ............................................................................. 14
iv
4.
C.
Mr. Burton meets the requirements of the diagnostic
framework for Criterion C: Onset of Deficits in the
Developmental Period ................................................................. 18
The TCCA treats Moore I as a new legal basis for subsequent
habeas applications when any prior habeas proceedings
predated Moore I, and allows consideration of Atkins claims
pursuant to Texas’s innocence-of-the-death penalty exception to
the abuse of the writ rule, yet it summarily dismissed Mr.
Burton’s Atkins claim without permitting plenary consideration........ 19
REASONS FOR GRANTING THE WRIT .................................................................. 22
A.
The TCCA’s disregard for Hall and Moore I—by refusing to
authorize plenary review of an Atkins claim supported by an
intellectual disability diagnosis pursuant to current diagnostic
criteria--requires this Court’s intervention. .......................................... 23
B.
The TCCA’s § 5(a) holding was not predicated on an adequate
and independent state court rule; it was a determination of the
merits of Mr. Burton’s prima facie showing of intellectual
disability. ................................................................................................ 27
1.
The TCCA’s 11.071 § 5(a)(1) dismissal was not
independent of federal law. ......................................................... 28
2.
The TCCA’s 11.071 § 5(a)(3) dismissal was not
independent of federal law. ......................................................... 30
3.
Alternatively, if the TCCA’s 11.071 § 5(a)(1) dismissal was
based on a finding that Mr. Burton’s claim was available
before Hall and Moore I, then the state ground is not
adequate to preclude review........................................................ 32
4.
Alternatively, this Court should stay resolution of Mr.
Burton’s case pending a decision in Glossip v. Oklahoma. ........ 33
CONCLUSION............................................................................................................. 34
INDEX TO APPENDICES
APPENDIX
Ex parte Burton, No. WR-64,360-03 (Tex. Crim. App. Aug. 1, 2024)
The Appendix is cited below as “App. X,” with “X” referring to the page number.
v
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Amos v. Scott,
61 F.3d 333 (5th Cir. 1995) .................................................................................... 32
Atkins v. Virginia,
536 U.S. 304 (2002) .........................................................................................passim
Barr v. City of Columbia,
378 U.S. 146 (1964) ................................................................................................ 32
Brady v. Maryland,
373 U.S. 83 (1963) .................................................................................................. 33
Brumfield v. Cain,
576 U.S. 305 (2015) ................................................................................................ 25
Buntion v. Lumpkin,
31 F.4th 952 (5th Cir. 2022) ................................................................................... 29
Burton v. Stephens,
543 Fed. App’x 451 (5th Cir. 2013) .......................................................................... 7
Burton v. Stephens,
573 U.S. 909 (2014) .................................................................................................. 7
Burton v. Thaler,
863 F. Supp. 2d 639 (S.D. Tex. 2012)....................................................................... 7
Busby v. Davis,
925 F.3d 699 (5th Cir. 2019) ............................................................................ 29, 31
Cruz v. Arizona,
598 U.S. 17 (2023) ...................................................................................... 27, 32, 33
Ford v. Wainwright,
477 U.S. 399 (1986) .................................................................................................. 8
Glossip v. Oklahoma,
144 S. Ct. 691 (2024) .................................................................................. 28, 33, 34
Glossip v. Oklahoma,
No. 22-7466 ............................................................................................................. 33
vi
Hall v. Florida,
572 U.S. 701 (2014) .........................................................................................passim
Harris v. Reed,
489 U.S. 255 (1989) ................................................................................................ 27
Hathorn v. Lovorn,
457 U.S. 255 (1982) ................................................................................................ 32
Henry v. Mississippi,
379 U.S. 443 (1965) ................................................................................................ 27
Herb v. Pitcairn,
324 U.S. 117 (1945) ................................................................................................ 27
Johnson v. Mississippi,
486 U.S. 578 (1988) .......................................................................................... 27, 31
Lee v. Kemna,
534 U.S. 362 (2002) ................................................................................................ 32
Moore v. Texas,
581 U.S. 1 (2017) .............................................................................................passim
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958) ................................................................................................ 32
Napue v. Illinois,
360 U.S. 264 (1959) ................................................................................................ 33
Rivera v. Quarterman,
505 F.3d 349 (5th Cir. 2007) .................................................................................. 28
State Cases
Ex Parte Bell,
152 S.W.3d 103 (Tex. Crim. App. 2004)................................................................... 3
Ex parte Blue,
230 S.W.3d 151 (Tex. Crim. App. 2007)........................................................... 22, 30
Ex parte Bridgers,
No. WR-45,179-05, 2021 WL 2346539 (Tex. Crim. App. June 9, 2021) ............... 21
Ex parte Briseno,
135 S.W.3d 1 (Tex. Crim. App. 2004), overruled by Moore v. Texas, 581
U.S. 1 (2017) ....................................................................................................... 3, 21
vii
Burton v. State,
No. 73,204, 2004 WL 3093226 (Tex. Crim. App. May 19, 2004) ............................. 7
Burton v. State,
No. 73,204 (Tex.Crim.App. Mar. 7, 2001) ................................................................ 6
Ex parte Burton,
No. WR-64-360-02, 2009 WL 1076776 (Tex. Crim. App. Apr. 22, 2009) ................ 7
Ex parte Butler,
No. WR-41,121-03, 2019 WL 4464270 (Tex. Crim. App. Sept. 18, 2019) ............. 21
Ex parte Campbell,
226 S.W.3d 418 (Tex. Crim. App. 2007)................................................................. 28
Ex parte Davis,
No. WR-40,339-09, 2020 WL 1557291 (Tex. Crim. App. Apr. 1, 2020) ................ 21
Ex parte Escobedo,
No. WR-56,818-03, 2020 WL 3469044 (Tex. Crim. App. Jun. 24, 2020) .............. 21
Ex parte Guevara,
No. WR-63,926-03, 2018 WL 2717041 (Tex. Crim. App. Jun. 6, 2018) ................ 21
Ex parte Gutierrez,
No. WR-70,152-03, 2019 WL 4318678 (Tex. Crim. App. Sept. 11, 2019) ............. 21
Ex parte Hood,
304 S.W.3d 397 (Tex. Crim. App. 2010)................................................................. 20
Ex parte Long,
No. WR-76,324-02, 2018 WL 3217506 (Tex. Crim. App. Jun. 27, 2018) .............. 21
Ex parte Martinez,
233 S.W.3d 319 (Tex. Crim. App. 2007)................................................................. 20
Ex parte Mays,
686 S.W.3d 745 (Tex. Crim. App. 2024)................................................................. 29
Ex Parte Medina,
No. WR-41,274-05, 2017 WL 690960 (Tex. Crim. App. Jan. 25, 2017) ................ 29
Ex parte Milam,
___ S.W.3d ___, 2024 WL 3587974 (Tex. Crim. App. July 31, 2024) ............ 5, 6, 26
Ex parte Milam,
No. WR-79,322-02, 2019 WL 190209 (Tex. Crim. App. Jan. 14, 2019) ................ 21
viii
Ex parte Moore,
548 S.W.3d 552 (Tex. Crim. App. 2018), judgment rev’d sub nom. Moore v.
Texas, 586 U.S. 133 (2019) ............................................................................... 4, 5, 6
Ex parte Preyor,
537 S.W.3d 1 (Tex. Crim. App. 2017)..................................................................... 29
Ex parte Segundo,
2018 WL 4856580 (Tex. Crim. App. Oct. 5, 2018) ................................................. 21
Ex parte Storey,
584 S.W.3d 437 (Tex. Crim. App. 2019)................................................................. 29
Ex parte Buntion,
2022 WL 946264 (Tex. Crim. App. Mar. 30, 2022)................................................ 29
Ex parte Williams,
No. WR-71,296-03, 2018 WL 2717039 (Tex. Crim. App. Jun. 5, 2018) ................ 21
Statutes
28 U.S.C. § 1254 ............................................................................................................. 1
Tex. Crim. Proc. Code art. 11.071, § 5 .................................................................passim
Tex. Crim. Proc. Code art. 11.071 § 5(a) ................................................................. 1, 29
Tex. Crim. Proc. Code art. 11.071 § 5(a)(1) ..........................................................passim
Tex. Crim. Proc. Code art. 11.071 § 5(a)(3) ..........................................................passim
Tex. Crim. Proc. Code art. 11.071, § 5(c) .............................................................. 29, 30
Other Authorities
United States Constitution Eighth Amendment .................................................. 1, 7, 8
United States Constitution Fourteenth Amendment .................................................. 8
ix
_______________
PETITION FOR A WRIT OF CERTIORARI
Arthur Lee Burton 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 Aug. 1, 2024, unpublished opinion of the Texas Court of Criminal Appeals
(“TCCA”) is attached as an appendix.
STATEMENT OF JURISDICTION
The Texas Court of Criminal Appeals entered its judgment on Aug 1, 2024.
This Court has jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves the Eighth Amendment to the United States Constitution,
which provides: “… nor [shall] cruel and unusual punishments [be] inflicted.”
This case also involves Tex. Crim Proc. Code § 11.071 § 5(a), which states, in
relevant parts, as follows:
“If a subsequent application for a writ of habeas corpus is filed after
filing an initial application, a court may not consider the merits of or
grant relief based on the subsequent application unless the application
contains sufficient specific facts establishing that:
(1) 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;
****
1
(3) by clear and convincing evidence, but for a violation of the United
States Constitution no rational juror would have answered in the
state's favor one or more of the special issues.”
INTRODUCTION
In a subsequent application for post-conviction writ of habeas corpus to the
Texas Court of Criminal Appeals (“TCCA”), Mr. Burton presented a prima facie case
that he is a person with an intellectual disability pursuant to current clinical
standards. Mr. Burton’s prima facie case is based on an expert evaluation in which
he was interviewed and administered both the most current available intelligence
test and a standard measure of adaptive functioning. His claim was supported by lay
witness declarations and documentary evidence. The neuropsychologist who
evaluated Mr. Burton applied the current medical standards in the DSM-5, DSM-5TR, and AAIDD-12, and concluded that Mr. Burton is intellectually disabled
pursuant to those standards.
This Court has made clear that Texas may not disregard current medical
standards. But rather than remanding Mr. Burton’s case for a hearing on the merits,
the TCCA summarily denied Mr. Burton’s application as an abuse of the writ, denying
Mr. Burton a hearing on the merits of his claim that he is categorically ineligible for
the death penalty. This dismissal was not procedural, but rather on the merits: the
TCCA has repeatedly recognized that this Court’s precedent in Moore v. Texas, 581
U.S. 1 (2017) (Moore I) constitutes a new legal basis for a subsequent habeas
applications under Texas law in circumstances like Mr. Burton’s; where it is
indisputable that such a legal basis exists, the TCCA’s denial is necessarily on the
merits.
2
While the TCCA offered no explanation for this extraordinary abuse of its
authority, Mr. Burton’s case does not stand alone. From the outset, the TCCA treated
this Court’s decision to ban the execution of intellectually disabled people 1 to a chilly
reception. See, e.g., Ex Parte Bell, 152 S.W.3d 103, 104 (Tex. Crim. App. 2004) (Keller,
P.J., concurring and dissenting, with Meyers, Keasler, Hervey, JJ.) (urging the TCCA
to consider ordering permanent confinement on death row for intellectually disabled
prisoners because “Atkins forces us to intrude upon the will of the people of Texas, as
expressed by our Legislature, and upon the will of the jury. If there is an option that
more closely adheres to those intentions, we should at least consider it.”).
The TCCA responded to Atkins by announcing extra-clinical criteria for
screening Atkins claims. Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004),
overruled by Moore v. Texas, 581 U.S. 1 (2017). This Court eventually held that
Texas’s unique and idiosyncratic test for intellectual disability claims was
an invention of the CCA untied to any acknowledged source. Not aligned
with the medical community’s information, and drawing no strength
from our precedent, the [Texas’s test] “creat[e] an unacceptable risk that
persons with intellectual disability will be executed,”. . . . Accordingly,
they may not be used, as the CCA used them, to restrict qualification of
an individual as intellectually disabled
Moore I, 581 U.S. at 6 (quoting Hall v. Florida, 572 U.S. 701, 704 (2014)). This Court
repeatedly admonished that the ban on executing intellectually disabled prisoners
draws substance from current clinical standards for assessing intellectual disability.
Id. at 13 (“Even if ‘the views of medical experts’ do not ‘dictate’ a court’s intellectual-
1 Atkins v. Virginia, 536 U.S. 304 (2002).
3
disability determination, … we clarified, the determination must be ‘informed by the
medical community’s diagnostic framework’”) (quoting Hall, 572 U.S. at 721, see also
id. (“We relied on the most recent (and still current) versions of the leading diagnostic
manuals—the DSM–5 and AAIDD–11.”). This Court made plain that while “Hall
indicated that being informed by the medical community does not demand adherence
to everything stated in the latest medical guide,” “neither does our precedent license
disregard of current medical standards.” Id.
Moore I did not end the TCCA’s resistance to Atkins. On remand the TCCA
again denied Atkins relief. Ex parte Moore, 548 S.W.3d 552, 573 (Tex. Crim. App.
2018), judgment rev’d sub nom. Moore v. Texas, 586 U.S. 133 (2019) (Moore II). This
Court subsequently held that the TCCA’s “opinion [on remand contained] too many
instances in which, with small variations, it repeats the analysis we previously found
wanting.” Moore II, 586 U.S. at 139.
Moore I and II overruled a long line of TCCA precedent and thus became a
newly available legal basis for an Atkins claim, see infra. Prior to this week, Mr.
Burton’s most recent state habeas application was filed in 2003; thus, pursuant to
the TCCA’s application of the Texas abuse-of-the-writ rule, Moore I supplied a newly
available legal basis for a claim that his intellectual disability rendered him
constitutionally ineligible for the death penalty.
While considering Mr. Burton’s application, a plurality of the TCCA published
a four-judge concurrence to an unpublished order denying Atkins relief in another
case, making plain that the current clinical standards for assessing intellectual
4
disability are not the touchstone for assessing which intellectually disabled deathsentenced prisoners are constitutionally exempt from execution in Texas. In Ex parte
Milam, ___ S.W.3d ___, 2024 WL 3587974, at *1 (Tex. Crim. App. July 31, 2024)
(Keller, P.J., concurring, joined by Year, Keel, Slaughter, JJ.), the plurality
characterized the current medical standards for intellectual disability as a bridge too
far that “threaten[] to invalidate a valid death sentence contrary to any national
consensus about cruel and unusual punishment.” Id. at *3. Contrary to this Court’s
admonition that “our precedent [does not] license disregard of current medical
standards,” Moore I, 581 U.S. at 13, the plurality announced that, “[a]t some point,
remaining faithful to Atkins requires an acknowledgment that the clinical standards
for intellectual disability do not line up with the national consensus about cruel and
unusual punishment,” id. (emphasis added).
The next day, after it issued its decision in Ex parte Milam, the TCCA
summarily dismissed Mr. Burton’s unrebutted Atkins claim as an “abuse of the writ”
under Article 11.071, Section 5 of the Texas Code of Criminal Procedure—contrary to
this Court’s decisions in Hall, Moore I, and Moore II, which require an intellectual
disability determination informed by the medical community’s diagnostic framework.
The only evidence before the TCCA was that Mr. Burton is intellectually disabled
pursuant to current standards—the same standards this Court endorsed in Moore I.
See Moore, 581 U.S. at 20. The action below may reflect the TCCA’s doubt about
“whether the current standard for intellectual disability is faithful to the
constitutional standard for determining whether punishment is cruel and unusual.”
5
Id. at *1. But the outcome below—in which Mr. Burton was summarily denied any
opportunity to pursue a claim that he is a person with intellectual disability, despite
having presented an unrebutted prima facie case—clearly demonstrates that a chasm
is once again growing between the medical community’s diagnostic framework for
intellectual disability and the TCCA’s idiosyncratic view about who should be deemed
ineligible for execution. Mr. Burton has fallen into that chasm. Thus, once again,
Texas has imposed a test that flouts this Court’s precedents and “create[s] an
unacceptable risk that persons with intellectual disability will be executed.” Moore I,
581 U.S. at 6. This Court’s intervention is necessary to compel Texas’s compliance
with Hall, Moore I, and Moore II and to avoid the unacceptable risk that Mr. Burton
will be executed despite his intellectual disability.
STATEMENT OF THE CASE
A.
Procedural history.
On October 31, 1997, a Harris County, Texas grand jury indicted Mr. Burton
for capital murder. The indictment alleged that Mr. Burton killed Nancy Adelman in
the course of committing or attempting to commit kidnapping and/or aggravated
sexual assault.
On June 23, 1998, the jury answered Texas’s special issues in a manner
requiring imposition of a death sentence. The trial court entered judgment the same
day. Id. The TCCA affirmed the conviction, but vacated the sentence and remanded
for a retrial on punishment only. Burton v. State, No. 73,204 (Tex. Crim. App. Mar.
7, 2001) (not designated for publication).
6
Following the punishment retrial, on September 6, 2002, in accord with the
jury’s answers to the special issues, the trial court once again sentenced Mr. Burton
to death. The judgment was affirmed on May 19, 2004. Burton v. State, No. 73,204,
2004 WL 3093226 (Tex. Crim. App. May 19, 2004) (not designated for publication).
On July 20, 2000, while direct appeal was pending on the first judgment, Mr.
Burton filed an application for writ of habeas corpus in the trial court. The trial court
rejected Mr. Burton’s claims.
On December 1, 2003, Mr. Burton filed a second habeas application,
challenging the validity of the penalty retrial. The TCCA denied relief as to both
habeas applications on April 22, 2009. Ex parte Burton, No. WR-64-360-02, 2009 WL
1076776 (Tex. Crim. App. Apr. 22, 2009) (not designated for publication).
On May 29, 2012, the United States District Court for the Southern District of
Texas denied federal habeas relief. Burton v. Thaler, 863 F. Supp. 2d 639 (S.D. Tex.
2012). The Fifth Circuit denied a Certificate of Appealability on October 28, 2013.
Burton v. Stephens, 543 Fed. App’x 451 (5th Cir. 2013). Cert was denied on June 9,
2014. Burton v. Stephens, 573 U.S. 909 (2014) (mem.).
On July 30, 2024, following the setting of an execution date, Mr. Burton filed
a subsequent application for writ of habeas corpus pursuant to Article 11.071, §5, of
the Texas Code of Criminal Procedure. As relevant to this Petition, Mr. Burton
asserted that the Eighth Amendment prohibits Texas from executing him because he
is a person with intellectual disability.
7
On August 1, 2024, the TCCA dismissed the application, holding without
elaboration, that “the application does not satisfy the requirements of Article 11.071,
Section 5.” App. 3.
B.
Mr. Burton pled an unrebutted Atkins claim supported by an
expert evaluation and corroborating evidence that Mr. Burton
meets the current clinical criteria for an intellectual disability
diagnosis.
The Eighth and Fourteenth Amendments place “‘a substantive restriction on
the State’s power to take the life’ of [an intellectually disabled] offender.” Atkins v.
Virginia, 536 U.S. 304, 321 (2002) (quoting Ford v. Wainwright, 477 U.S. 399, 405
(1986)). While States have some discretion in implementing the categorical ban on
the execution of intellectually disabled persons, that discretion is not unfettered. Hall
v. Florida, 572 U.S. 701, 719 (2014). Rather, states’ determination of intellectual
disability must be “informed by the medical community’s diagnostic framework.” Id.
at 721; Moore v. Texas, 581 U.S. 1, 13 (2017) (Atkins does not “license disregard of
current medical standards.”).
In his application, Mr. Burton pled a prima facie case that he meets the current
clinical criteria for an intellectual disability diagnosis, a claim supported by two
expert reports, school records, and numerous declarations.
The opinion of Dr.
Jonathan DeRight, a licensed clinical psychologist, that Mr. Burton meets the criteria
for mild intellectual disability, is unrebutted.
8
1.
Current medical diagnostic framework for intellectual
disability
The diagnostic criteria for intellectual disability are established in the most
current versions of the American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders, Fifth Edition, Text Revision (“DSM-5-TR”) and the
twelfth edition of the manual by the American Association on Intellectual and
Developmental Disabilities (“AAIDD-12”). Under both the DSM-5-TR and the
AAIDD-12, the diagnostic criteria are: (1) deficits in intellectual functioning
(“Criterion A”); (2) deficits in adaptive functioning (“Criterion B”); and (3) onset of
these deficits during the developmental period (“Criterion C”). DSM-5-TR at 37;
AAIDD-12 at 13. The DSM-5-TR states that “[t]he diagnosis of intellectual
developmental disorder should be made whenever Criteria A, B, and C are met.” Id.
at 45.
2.
Mr. Burton meets the requirements of the diagnostic
framework for Criterion A: Deficits in Intellectual Functioning
a. Clinical Criteria
The first criterion that an individual must meet for an intellectual disability
diagnosis is deficits in intellectual functioning. While the DSM-5-TR and the AAIDD12 call for the use of full-scale IQ scores, both manuals recognize that further insight
into
a
person’s
intellectual
functioning
can
be
gleaned
from
additional
neuropsychological testing. DSM-5-TR at 35; AAIDD-12 at 29. Consequently,
“[i]ndividual cognitive profiles based on neuropsychological testing as well as crossbattery intellectual assessment (using multiple IQ or other cognitive tests to create a
9
profile) are more useful for understanding intellectual abilities than a single IQ
score.” DSM-5-TR at 38.
Under current clinical criteria, there is no firm cut-off for a qualifying IQ score.
While a full-scale IQ score in the approximate range of 65-75 typically qualifies, best
practices require clinicians to take into account factors that “may affect test scores.”
DSM-5-TR at 38; AAIDD-12 at 29. These factors include the practice effect and the
“‘Flynn effect’ (i.e. overly high scores due to out-of-date test norms).” Id. Moreover,
clinical judgment is important in the interpretation of IQ scores because “a person
with deficits in intellectual functioning whose IQ score is somewhat above 65–75 may
nevertheless have such substantial adaptive behavior problems in social judgment or
other areas of adaptive functioning that the person’s actual functioning is clinically
comparable to that of individuals with a lower IQ score.” Id. at 42. Consequently,
“[w]hen an individual has an IQ score above 70 but still within a range that may
indicate deficits in intellectual functioning, the task then is to determine whether
additional evidence of intellectual disability regarding adaptive deficits qualifies the
individual for a diagnosis.” Id. at 5.
b. Mr. Burton has deficits in intellectual functioning
Recent neuropsychological testing administered to Mr. Burton demonstrates
significantly subaverage intellectual functioning consistent with a diagnosis of
intellectual disability. In July 2024, Dr. Jonathan DeRight administered a full
neuropsychological battery on Burton. This included the administration of the WAIS-
10
IV on which Burton obtained a full-scale IQ (“FSIQ”) of 77. 2 Numerically adjusted
for the Flynn Effect, that score becomes 71.5. 3
However, even without relying on recalculation for Flynn Effect, in Dr.
DeRight’s clinical judgment based on several clinically relevant factors, Burton’s
FSIQ of 77 score meets the first diagnostic criterion for intellectual disability. 4,
considering the outdated norms on the WAIS-IV more generally and information
obtained from the other neuropsychological testing administered to Mr. Burton, in
Dr. DeRight’s clinical judgment, the FSIQ score of 77 is likely an overestimation of
Burton’s true IQ. In Dr. DeRight’s opinion, “the lower-end of the range of Arthur’s
score on the WAIS-IV falls below 70.” 5 A second licensed clinical psychologist, Dr.
Sara Boyd, reviewed the results of Dr. DeRight’s neuropsychological testing and
concluded that “[t]hese findings clearly document the presence of significantly
subaverage intellectual ability in Mr. Burton….” 6
2 Forensic Neuropsychological Evaluation of Arthur Lee Burton by Dr. Jonathan DeRight
(“DeRight Report”) at 1. Dr. DeRight’s report, along with the other materials cited herein,
were attached to Mr. Burton’s subsequent application for writ of habeas corpus.
3 Id. at 22.
4 Id. Dr. DeRight also considered the results of a WAIS-R IQ test administered in July 2000
by neuropsychologist Dr. Edward Friedman, on which Mr. Burton purportedly obtained a
full-scale IQ score of 84. Dr. DeRight concluded that (1) Dr. Friedman’s methodology was
unsound for multiple reasons; and (2) Dr. Friedman erred in administering the WAIS-R in
2000, because the norms were extremely outdated and a more recent test, the WAIS-III,
had been released in 1997, substantially undermining the results of Dr. Friedman’s testing.
Id. at 12. Dr. Boyd further opined that, taking into account the Flynn Effect and research
that has criticized the WAIS-R for overinflating IQ scores for people at the lower end of the
measurement range, Mr. Burton’s true IQ score on the WAIS-R administered by Dr.
Friedman was in the mid-70s before taking into account the standard error of measurement
– i.e., consistent with a diagnosis of intellectual disability. Expert Report of Dr. Sara Boyd
(“Boyd Report”) at 5.
4 DeRight Report at 24.
11
Additional neuropsychological testing consistent with the requisite deficits in
intellectual functioning necessary for an intellectual disability diagnosis includes Mr.
Burton’s scores on the NAB Daily Living Module, the Test of Practical Judgment, and
the Gudjonsson Suggestibility Scales (“GSS”)—all of which were “exceptionally low”
and “worse than over 98% of his peers.” 7 These tests measure components of
intellectual functioning including “problems with social problem solving/decisionmaking, problems with language comprehension, suggestibility, and a desire to
please authority figures.” 8 On the GSS, “Arthur’s scores on measures of suggestibility
were often significantly higher (worse) than the general population and highly
consistent with the intellectual disabled population.” 9 Based on the additional
cognitive testing he administered, Dr. DeRight concluded that Mr. Burton “exhibited
low scores on tests of learning, reasoning, comprehending complex ideas, problem
solving, and suggestibility, all of which are examples of significant limitations in
intellectual functioning in the AAIDD manual.” 10 See also DSM-5-TR at 38 (crossbattery intellectual assessment more useful to understanding intellectual abilities
than single IQ score).
Dr. DeRight’s conclusion is also supported by Mr. Burton’s significant
academic struggles. See DSM-5-TR at 42 (IQ scores are approximation of conceptual
functioning). As discussed in further detail below, see § A(3)(b)(1) supra, Mr. Burton
repeated both the second and eighth grade; scored significantly below grade-level on
7 DeRight Report at 16.
8 Id.
9 Id. at 18.
10 Id. at 22.
12
standardized testing administered in the fourth grade; was in special education; and
performed poorly in the majority of his special education classes.
Substantial unrebutted evidence and the opinions of two qualified clinical
psychologists establish that Mr. Burton has pled a prima facie case that he meets the
diagnostic criteria for Criterion A.
3.
Mr. Burton meets the requirements of the diagnostic
framework for Criterion B: Deficits in Adaptive Functioning
a. Clinical Criteria
Adaptive functioning is “the collection of conceptual, social and practical skills
that have been learned and are performed by people in their everyday lives.” AAIDD12 at 29. Adaptive deficits “result in the failure to meet developmental and
sociocultural standards for personal independence and social responsibility.” DSM-5TR at 37. When evaluating for intellectual disability, examiners assess whether, in
the absence of on-going support, an individual has deficits that “limit functioning in
one or more activities of daily life, such as communication, social participation, and
independent living, across multiple environments, such as home, school, work, and
community.” Id. Under both the DSM-5-TR and the AAIDD-12, “equal or more weight
is placed on the individual’s adaptive functioning [than] IQ score when considering
impairment.” Id. at 21.
Both the DSM-5-TR and the AAIDD-12 identify three
domains of adaptive functioning: conceptual, social, and practical. DSM-5-TR at 42;
AAIDD-12 at 29. The presence of deficits in one domain meets the diagnostic criteria
for deficits in adaptive functioning under the DSM-5-TR. DSM-5-TR at 42; AAIDD12 at 31. Moreover, all people with intellectual disability have areas of strengths, and
13
thus the inquiry into adaptive functioning is singularly focused on the presence of
adaptive deficits. AAIDD-12 at 40.
b. Mr. Burton has adaptive deficits in all three domains
Dr. DeRight evaluated Mr. Burton’s adaptive functioning based upon Mr.
Burton’s social history as relayed by Mr. Burton and multiple declarants, school
records, Mr. Burton’s scores on neuropsychological testing, and a Vineland 3
Comprehensive Interview administered by Dr. DeRight to Mr. Burton’s mother. 11 Dr.
DeRight opined that Mr. Burton has “impairment in abstract thinking, short-term
memory, poor social judgment, gullibility, and needing support for most complex daily
living tests.” 12 On the Vineland, Mr. Burton’s “adaptive functioning composite score
of 54 is worse than over 99% of his peers.” 13 Based on multiple sources, Dr. DeRight
identified deficits in all three domains.
(1)
Conceptual Domain
The conceptual domain involves functional academics, such as reading,
writing, and math, as well as executive functioning, abstract thinking, self-direction,
working memory, and problem solving. DSM-5-TR at 42; AAIDD-12 at 30.
Within the conceptual domain, Mr. Burton’s poor performance in school
demonstrates the presence of deficits. He was held back in both the second and eighth
grades and, even when he repeated eighth grade, he obtained mostly Ds, only
11 DeRight Report at 19, 23.
12 Id. at 23.
13 Id. at 19.
14
performing well in remedial reading. 14 He did poorly in the majority of his classes
throughout the remainder of his schooling, 15 despite the fact that the courses he took
were not academically rigorous. Mr. Burton’s 10th grade math teacher, Marcia
Alexander, taught from a consumer math textbook that focused on teaching “simple
addition, subtraction, multiplication and division,” and how “to apply these functions
to activities of daily living.” 16 Ms. Alexander also taught basic biology, and recalled
teaching students in her high school biology class from a fourth grade textbook and
having the class complete projects like “count[ing] beans and then glu[ing] them to a
paper plate.” 17
Mr. Burton’s deficits in the conceptual domain also manifested in his daily life:
for example, he was unable to follow a multi-step recipe, 18 was poor at giving
directions, 19 and struggled to communicate effectively. 20 Mr. Burton’s mother recalled
that he preferred comic books to chapter books, and that “he enjoyed looking at the
pictures for a long time before being able to actually read the content of the comic
books.” 21
Dr. DeRight relied on clinical interviews, standardized testing, and detailed
declarations from individuals who knew Burton during the developmental period to
14 Crossett School District Records at 1; Declaration of Scott Sasser (“Sasser Dec.”) ¶ 4.
15 Crossett School District Records.
16 Declaration of Marcia Alexander (“Alexander Dec.”) ¶¶ 3-4.
17 Id. ¶ 5.
18 2024 Declaration of Fannie Burton (“2024 F. Burton Dec.”) ¶ 15; 2024 Declaration of
Michael Burton (“2024 M. Burton Dec.”) ¶ 14,
19 2024 F. Burton Dec. ¶ 17.
20 Declaration of Cheryl Douglas (“Douglas Dec”) at ¶ 7.
21 2024 F. Burton Dec. ¶ 17.
15
support his conclusion that Burton has significant deficits within the conceptual
domain. 22
(2)
Practical Domain
The practical domain involves learning and self-management across life
settings, including personal care, money management, occupational skills, and school
and work tasks. DSM-5-TR at 42; AAIDD-12 at 30.
Mr. Burton’s deficits within the practical domain are apparent both from the
accounts of people who knew Mr. Burton during the developmental period and the
testing performed by Dr. DeRight. Mr. Burton never lived by himself. 23 He did not
have a bank account, 24 and was not responsible household bills. 25 He could only cook
very simple foods, and was eventually prohibited from using the stove or oven at his
mother’s house because he forgot to turn it off. 26 He did not independently perform
household chores. 27
If Mr. Burton was sick, he “did not know to take his own temperature or take
a medication such as Tylenol.” 28 He could not be trusted to wash his hands before
touching food and “he would not think to rinse off produce before consuming it.” 29 His
mother stopped allowing him to put away dishes because he accidentally broke too
22 DeRight Report at 23-24.
23 2024 F. Burton Dec. ¶ 19.
24 2024 F. Burton Dec. ¶ 16; 2024 M. Burton Dec. ¶ 19
25 2024 M. Burton Dec. ¶ 19-20.
26 2024 F. Burton Dec. ¶ 15; DeRight Report at 12.
27 2024 Fannie Dec. ¶14; 2024 M. Burton Dec at ¶31 (recalling that, when he lived with a
girlfriend, Mr. Burton’s “house was always dirty and looked like a hoarder’s home” but Mr.
Burton was not able to handle cleaning it up).
28 DeRight Report at 12 (relaying interview with F. Burton).
29 Id.
16
many. 30 On the NAB Daily Living Module, Mr. Burton scored “exceptionally low” on
his ability to write a check to pay a bill and follow instructions by reading a map. 31
Dr. DeRight relied on clinical interviews, standardized testing, and detailed
declarations from individuals who knew Mr. Burton during the developmental period
to support his conclusion that Mr. Burton has significant deficits within the practical
domain. 32
(3)
Social Domain
The social domain involves: an impaired ability in social skills, social
judgment,
and
interpersonal
communication
skills;
increased
vulnerability
concerning who can be trusted, whom to follow, and what circumstances are safe; a
strong desire to please authority figures based on a limited understanding of a
situation; and the extent to which a person is naïve, gullible, easily tricked, or
manipulated. DSM-5-TR at 42; AAIDD-12 at 30.
Mr. Burton’s “social history reveals evidence of deficits in the social domain,
including gullibility and being easily lead.” 33 His classmate Cassandra Green
remembered that Mr. Burton was “quiet and not very talkative. He wasn’t a loud
person who drew attention to himself. He was just there. He was often around but
didn’t try to stand out.” 34
30 Id.
31 Id. at 16.
32 Id. at 23-24.
33 Id. at 10.
34 Declaration of Cassandra Green (“Green Dec.”) ¶ 4; see also DeRight Report at 11
((“Arthur’s former classmate, Cassandra Green, recalled that Arthur was quiet, withdrawn,
and often did not have facial expressions that matched his actions. She provided an
example of him cracking a joke but still having a sad expression on his face.”).
17
His mother remembered that “[i]f his brothers would try to pick a fight with
him, he would leave the room or avoid fighting with them.” 35 This passivity was
accompanied by poor problem-solving skills. 36 See AAIDD-12 at 30 (social deficits
include “inadequate social responding” and difficulty with problem solving). Both Mr.
Burton’s mother and brother described Mr. Burton’s father as manipulative; however,
“[a]ll the children knew better except Arthur.” 37 The record reflects numerous other
examples of deficits within the social domain.
Dr. DeRight relied on clinical interviews and detailed declarations from
individuals who knew Burton during the developmental period to support his
conclusion that Burton has significant deficits within the social domain. 38
Although deficits in only one domain are required for diagnosis, substantial
unrebutted evidence and the opinion of a qualified clinical psychologist establishes
that Mr. Burton has pled a prima facie case that he meets the diagnostic criteria for
Criterion B with respect to all three adaptive domains.
4.
Mr. Burton meets the requirements of the diagnostic
framework for Criterion C: Onset of Deficits in the
Developmental Period
Under both the DSM-5-TR and the AAIDD-12, the onset of deficits in
intellectual and adaptive functioning must occur in the developmental period. DSM5-TR at 42; AAIDD-12 at 32. The DSM-5-TR does not specify a precise age for the
35 2000 Affidavit of Fannie Burton (“2000 F. Burton Aff.”) ¶ 4.
36 Douglas Dec. ¶ 8; (“Instead of dealing directly with hard things, he would shut down and
keep it to himself.”); 2024 M. Burton Dec. ¶ 8 (“He was timid and would get so upset he
would just start crying, even as an adult.”).
37 2024 F. Burton Dec. ¶ 23.
38 DeRight Report at 23-24.
18
developmental period but instead defines it as “childhood and adolescence.” DSM-5TR at 42. The DSM-5-TR does not require an individual to have been diagnosed or
identified as intellectually disabled in the developmental period. See DSM-5-TR at
42.
Information from multiple sources, including Mr. Burton’s school records and
individuals who knew him from the developmental period, “indicate that Arthur’s
intellectual and adaptive deficits have been longstanding and present throughout his
life.” 39 Indeed, Mr. Burton failed both the second and eighth grade and was in special
education throughout all four high school years. 40. Reports from multiple individuals
who knew Burton well during his childhood evidence deficits in all three domains of
adaptive behavior during the developmental period. Furthermore, “[t]here is no
identifiable condition that would be expected to have led to otherwise explained
Arthur’s history and test scores.” 41 Based on the entirety of the information available
to him, Dr. DeRight concluded that Mr. Burton’s “intellectual and adaptive
functioning deficits are known to have begun during the developmental period and
persisted throughout his life.” 42
C.
The TCCA treats Moore I as a new legal basis for subsequent
habeas applications when any prior habeas proceedings
predated Moore I, and allows consideration of Atkins claims
pursuant to Texas’s innocence-of-the-death penalty exception to
the abuse of the writ rule, yet it summarily dismissed Mr.
Burton’s
Atkins
claim
without
permitting
plenary
consideration.
39 DeRight Report at 24.
40 Sasser Dec. ¶ 3; Crosset School District Records.
41 DeRight Report at 24.
42 Id.
19
Texas’s abuse-of-the-writ rule contains several exceptions; Mr. Burton pled
that he satisfied two of them by showing that: (1) his Atkins claim was not “and could
not have been presented previously in a timely initial application or in a previously
considered application … because the … legal basis for the claim was unavailable on
the date the applicant filed the previous application”; or, (2) “by clear and convincing
evidence, but for a violation of the United States Constitution no rational juror would
have answered in the state's favor one or more of the special issues.” Tex. Code Crim.
Proc. art. 11.071 § 5(a)(1); § 5(a)(3).
The TCCA has explained that the § 5(a)(1) exception is triggered when there
is a subsequent, directly applicable Supreme Court decision that contradicts the
TCCA’s law at the time of the previous application. Ex parte Martinez, 233 S.W.3d
319, 322 (Tex. Crim. App. 2007) (authorizing a claim under § 5(a)(1) when a
“subsequent writ is based on binding and directly relevant United States Supreme
Court precedent decided after applicant had exhausted [his] claim at trial and on
direct appeal and after applicant had filed his first state habeas application”); see also
Ex parte Hood, 304 S.W.3d 397, 409 (Tex. Crim. App. 2010) (“we have already held,
in numerous subsequent habeas applications since 2007, that Tennard, Smith, et al.
did announce new law and that those death-row inmates were entitled to have the
merits of their Penry claims addressed.”).
The TCCA has explicitly recognized that Moore I constitutes “a new legal basis”
for a claim under Article 11.071 § 5(a)(1), including in cases in which the court
20
previously rejected an Atkins claim in the Briseno era. 43 Mr. Burton’s most recent
application predated not only Moore I, but also Hall. Thus, Mr. Burton’s Atkins claim
satisfied the newly-available-legal-basis gateway under 11.071 § 5(a)(1), because the
“legal basis for the claim was unavailable on the date” Mr. Burton filed his most
recent previous application.
In the alternative, Mr. Burton argued that his claim should be authorized for
plenary review under 11.071 § 5(a)(3). Pursuant to § 5(a)(3), an applicant “may
proceed with an Atkins claim” in successive habeas proceedings, though it was legally
available in a previous habeas proceeding, “if he is able to demonstrate … that there
is evidence that could reasonably show, to a level of confidence by clear and
convincing evidence, that no rational finder of fact would fail to find he is mentally
43 See, e.g., Ex parte Bridgers, No. WR-45,179-05, 2021 WL 2346539 (Tex. Crim. App. June 9,
2021) (unpub.) (“in light of Moore, Applicant has satisfied the requirements of Article 11.071,
§ 5(a)(1)”); Ex parte Guevara, No. WR-63,926-03, 2018 WL 2717041 (Tex. Crim. App. Jun. 6,
2018) (unpub.) (agreeing with applicant that Moore I “constitutes a new legal basis for relief
that was not available when he originally raised his Atkins claim” in prior habeas
application, and authorizing further proceedings in light of Moore I when claim was reasserted in subsequent habeas application); Ex parte Davis, No. WR-40,339-09, 2020 WL
1557291 (Tex. Crim. App. Apr. 1, 2020) (unpub.), at *3 (“We have previously found Moore I
to constitute a new legal basis under Article 11.071, § 5.”); Ex parte Gutierrez, No. WR-70,15203, 2019 WL 4318678 (Tex. Crim. App. Sept. 11, 2019) (unpub.) (authorizing subsequent
application under Article 11.071, § 5(a)(1) where “[Gutierrez] allege[d] that the Supreme
Court’s Moore decision constitutes a new legal basis for relief that was not available when he
originally raised his Atkins claim”); Ex parte Williams, No. WR-71,296-03, 2018 WL 2717039
(Tex. Crim. App. Jun. 5, 2018) (unpub.) (finding intellectual disability claim asserted in
second subsequent habeas application satisfied art., 1.071, § 5 on basis of Moore I, where
claim was originally raised at trial and on direct appeal); Ex parte Escobedo, No. WR-56,81803, 2020 WL 3469044 (Tex. Crim. App. Jun. 24, 2020) (unpub.); Ex parte Butler, No. WR41,121-03, 2019 WL 4464270 (Tex. Crim. App. Sept. 18, 2019) (unpub.); Ex parte Milam, No.
WR-79,322-02, 2019 WL 190209 (Tex. Crim. App. Jan. 14, 2019) (unpub.); Ex parte Long, No.
WR-76,324-02, 2018 WL 3217506 (Tex. Crim. App. Jun. 27, 2018) (unpub.); Ex parte Segundo,
2018 WL 4856580 (Tex. Crim. App. Oct. 5, 2018) (unpub.).
21
retarded.” 44 Ex parte Blue, 230 S.W.3d 151, 154 (Tex. Crim. App. 2007). The TCCA
“construe[s] Article 11.071, Section 5(a)(3) to require a threshold showing of evidence
that would be at least sufficient to support an ultimate conclusion, by clear and
convincing evidence, that no rational factfinder would fail to find mental retardation.”
Id. at 163.
The TCCA, however, “conclude[d] that the application does not satisfy the
requirements of Article 11.071, Section 5” and “dismiss[ed] the application as an
abuse of the writ.” App. 1 at 3. In so doing, the TCCA did not state that its dismissal
of Mr. Burton’s claims was “without considering the merits,” its standard language
for procedural dismissals, thus indicating that the court assessed the merits of the
federal constitutional claim. This petition follows.
REASONS FOR GRANTING THE WRIT
This Court has already expended considerable time and resources correcting
the TCCA’s recalcitrant approach to Atkins claims, including clear guidance on the
centrality of current clinical diagnostic standards. Yet, the TCCA continues to flout
this explicit guidance, and is reverting instead to the same non-clinical approach this
Court specifically rejected in Moore I. It is critically important that this Court review
the TCCA’s decision for two interrelated reasons.
First, at a minimum, the Court should prevent a lower court from repeatedly
ignoring its explicit direction regarding the proper application of this Court’s
precedents. Second, this Court should grant review to vindicate its objectives in Hall,
44 Although the currently-accepted terminology is “intellectually disabled,” Mr. Burton uses
“mentally retarded” where it appears directly in the quoted materials.
22
Moore I, and Moore II: to ensure that Atkins retains meaning and a reasonable degree
of uniformity by tethering intellectual disability determinations to accepted medical
criteria. The TCCA’s recent decisions, including the one below, unfortunately reflect
that despite the Court’s painstakingly clear and thorough guidance, the TCCA is
unwilling to accept as a prima facie Atkins claim an unrebutted diagnosis of
intellectual disability pursuant to the DSM-5-TR and allow such a claim to proceed
for further factual development and hearing.
This case provides an effective vehicle for enforcing the Court’s decisions
because the record contains an unrebutted diagnosis of intellectual disability
pursuant to current clinical standards.
A.
The TCCA’s disregard for Hall and Moore I—by refusing to
authorize plenary review of an Atkins claim supported by an
intellectual disability diagnosis pursuant to current diagnostic
criteria--requires this Court’s intervention.
Under current diagnostic criteria Mr. Burton is intellectually disabled. As
described supra, he presented a report in which a neuropsychologist—based on
testing, an in-person clinical interview, documentary evidence, and input from those
who have known Mr. Burton throughout his life—applied his clinical judgment and
diagnosed him with intellectual disability pursuant to the DSM-5-TR and AAIDD-12.
The expert noted that “the lower-end of the range of Arthur’s score on the WAIS-IV
falls
below
70,” 45,
which
is
corroborated
by
his
performance
on
other
neuropsychological testing. Combined with his constant academic struggles—
45 DeRight Report at 24.
23
including repeating two grades and placement in special education classes—this
uniform evidence confirms that Burton’s “deficits are consistent with those described
in the AAIDD and DSM-5-TR criteria.” 46 The expert found that Mr. Burton has
“clinically significant adaptive deficits” in all three areas—practical, social, and
conceptual—though a deficit in just one domain is sufficient for an intellectual
disability diagnosis. 47 And third, “Arthur’s intellectual and adaptive functioning
deficits are known to have begun during the developmental period and persisted
throughout his life.” 48
The State of Texas did not submit any contravening
evidence. Thus, the TCCA’s assessment was predicated solely on Mr. Burton’s
threshold showing of an intellectual disability. Based on this record, the TCCA’s
summary dismissal was in direct contravention of this Court’s precedent in at least
two respects.
First, after reviewing Mr. Burton’s prima facie showing of intellectual
disability, the TCCA unreasonably deprived Mr. Burton of the ability to be heard and
to present additional evidence of intellectual disability in a hearing on the merits.
Even before Moore I, Hall cast doubt on Texas’s deviation from the clinical standards
governing intellectual disability. Hall made clear that while states may craft their
own procedures governing the intellectual disability determination, states do not
enjoy “unfettered discretion to define the full scope of the constitutional protection.”
Hall v. Florida, 572 U.S. at 719 (emphasis added).
46 Id. at 23.
47 Id. at 24.
48 Id.
24
Hall had “scores between 71 and 80.” 49 Id. at 707. The Court invalidated a
Florida rule declaring that a person with an IQ test score above 70 “does not have an
intellectual disability and is barred from presenting other evidence that would show
his faculties are limited.” Id. at 711–12. The Court emphasized that “clinical
definitions of intellectual disability … were a fundamental premise of Atkins,” id. at
720, and therefore a state court’s intellectual-disability determination must be
“informed by the medical community’s diagnostic framework.” Id. at 721. But
“Florida’s rule disregard[ed] established medical practice in two interrelated ways,”
and was thus unconstitutional. Id. at 712.
First, the Florida rule was unconstitutional because it departed from
established clinical practice by using a single IQ score as a “cut-off” even though
experts in the field would consider the standard error of measurement and other
evidence. 572 U.S. at 722.
Second, assessing an individual’s intellectual and adaptive functioning
involves “conjunctive and interrelated” inquiries that cannot be reduced to the “single
factor” of an IQ score—especially when the medical community, which “design[s] and
use[s] the tests,” recognizes “that the IQ test is imprecise.” Id. at 723. Therefore, the
Court held that “when a defendant’s IQ test score falls within the test’s acknowledged
and inherent margin of error, the defendant must be able to present additional
evidence of intellectual disability, including testimony regarding adaptive deficits.”
49 Hall presented other scores below 70 but they were excluded for evidentiary reasons.
Hall, 572 U.S. at 707.
25
Id. (emphasis added). The TCCA’s summary rejection of Mr. Burton’s application
defied Hall’s clear command. See also Brumfield v. Cain, 576 U.S. 305, 315–17 (2015)
(holding that a state court’s refusal to allow fact development of an Atkins claim was
unreasonable when “Brumfield’s reported IQ test result of 75 was squarely in the
range of potential intellectual disability” and “record before the state court contained
sufficient evidence to raise a question as to whether Brumfield met” the adaptive
deficits criteria).
Second, because the only evidence before the TCCA demonstrated that Mr.
Burton meets current clinical criterial for an intellectual disability diagnosis, the
TCCA’s summary rejection of his claim necessarily rejects the medical community’s
diagnostic framework, including the DSM-5-TR and the AAIDD-12. As noted supra,
the TCCA has already signaled its view that the DSM-5-TR is a departure from Atkins
rather than criteria relevant to applying it. Ex parte Milam, supra. at *3. But the only
evidence before the TCCA satisfied a prima facie claim pursuant to current medical
criteria. Given the comprehensiveness of Mr. Burton’s threshold showing with respect
to each element of an intellectual disability diagnosis, the TCCA’s dismissal was
necessarily based on the Texas court’s hostility to Atkins and, more specifically, its
open refusal to adhere to this Court’s direction to consider changes to the intellectual
disability diagnostic criteria.
This Court’s directions could not be more explicit: “criteria [n]ot aligned with
the medical community’s information, and drawing no strength from our precedent
… may not be used.” Moore I, 581 U.S. at 6. See also id. at 13 (“our precedent [does
26
not] license disregard of current medical standards.”). The TCCA’s refusal to accept
and apply current medical standards represents a substantial departure from
adherence to this Court’s precedents. This Court should grant certiorari, vacate the
lower Court’s decision, and direct the TCCA to adhere to this Court’s precedents.
B.
The TCCA’s § 5(a) holding was not predicated on an adequate
and independent state court rule; it was a determination of the
merits of Mr. Burton’s prima facie showing of intellectual
disability.
Mr. Burton anticipates that the State of Texas will argue that the decision
below is unreviewable because the TCCA couched its order as a dismissal pursuant
to Texas’s abuse-of-the-writ rule rather than a denial on the merits. This Court will
not consider an issue of federal law on direct review from a judgment of a state court
if that judgment rests on a state-law ground that is both “independent” of the merits
of the federal claim and an “adequate” basis for the court’s decision.” Harris v. Reed,
489 U.S. 255, 260 (1989); see also Herb v. Pitcairn, 324 U.S. 117 (1945) (stating that
the prohibition on reviewing judgments of state courts that rest on “adequate and
independent state grounds” is based in part on limitations on this Court’s
jurisdiction). Although this doctrine “has been applied routinely to state decisions
forfeiting federal claims for violation of state procedural rules,” Harris, 489 U.S. at
260-61, the question of when and how defaults of state procedural rules can preclude
this Court’s consideration of a federal question is itself a federal question. Johnson v.
Mississippi, 486 U.S. 578, 587 (1988); Henry v. Mississippi, 379 U.S. 443, 447 (1965).
The TCCA’s application of Texas’s procedural rule here was not, however,
independent of federal law; rather, it was necessarily predicated on an assessment of
27
Mr. Burton’s prima facie case for Atkins relief. And, even if the extent the decision
below were to be construed as procedural, the application of the procedural rule would
be “novel … [in] the way in which it disregards the effect of [Moore I] on the law in
[Texas]” and thus inadequate to bar review. Cruz v. Arizona, 598 U.S. 17, 28 (2023).
Should this Court doubt that the TCCA’s decision was merits-based, Mr. Burton
respectfully suggests that the Court hold his case pending the resolution of Glossip v.
Oklahoma, 144 S. Ct. 691, 692 (2024).
1.
The TCCA’s 11.071 § 5(a)(1) dismissal was not independent
of federal law.
Texas’s unavailability exception to the abuse-of-the-writ rule requires a twopart showing: “1) the factual or legal basis for an applicant’s current claims must
have been unavailable as to all of his previous applications; and 2) the specific facts
alleged, if established, would constitute a constitutional violation that would likely
require relief from either the conviction or sentence.” Ex parte Campbell, 226 S.W.3d
418, 421 (Tex. Crim. App. 2007). Thus, in addition to demonstrating the factual or
legal unavailability of the claim, the “[a]pplicant also must jump over the rest of the
section 5(a)(1) bar” by “alleg[ing] sufficient specific facts that, if proven, establish a
federal constitutional violation sufficiently serious as to likely require relief from his
conviction or sentence.” Id. at 422.For two reasons, it is plain here that the TCCA’s
dismissal was on the merits.
First, as described supra, the TCCA has repeatedly held that Moore I supplies
a new legal basis for an Atkins claim for petitioners, like Mr. Burton, whose previous
habeas application pre-dated it. When the legal basis for an Atkins claim was
28
indisputably unavailable at the time of the applicant’s previous filing, then a TCCA
dismissal is a merits ruling. See, e.g., Rivera v. Quarterman, 505 F.3d 349, 355 (5th
Cir. 2007) (“In granting Rivera’s motion to file a successive petition after the CCA
denied his second petition, this court explained that ‘characterizing the failure to
meet the threshold requirement as an abuse of the writ does not foot the ruling on an
independent state ground.’”); see also Busby v. Davis, 925 F.3d 699, 709 (5th Cir.
2019) (“Accordingly, even had the TCCA resolved Busby’s Atkins claim under section
5(a)(1), our court has concluded that the denial of an Atkins claim under section
5(a)(1) meant that the merits of the claim were considered by the TCCA, and the
claim was not procedurally defaulted.”).
Second, when the TCCA dismisses a claim without reaching the second, meritsbased prong of the § 5(a)(1) showing, it says so:
Thus, a Texas court may dismiss a claim on the first ground—that the
claim’s “factual or legal basis” was not “unavailable”—without ever
reaching the constitutional issue…. That is exactly what the CCA did in
this case when it “dismiss[ed] the subsequent application as an abuse of
the writ without considering the claims’ merits.” Ex parte Carl Wayne
Buntion, 2022 WL 946264, at *1 (emphasis added).
Buntion v. Lumpkin, 31 F.4th 952, 962–63 (5th Cir. 2022). Indeed, the TCCA
frequently dismisses claims under § 5(a)(1) with an explicit notation that it has not
considered the merits. 50 The TCCA omitted this language from the order dismissing
50 Ex parte Mays, 686 S.W.3d 745, 748 (Tex. Crim. App. 2024) (“…Applicant has failed to
satisfy the requirements of Article 11.071, Section 5. Accordingly, we dismiss these claims as
an abuse of the writ without reviewing the merits.”) (emphasis added); Ex parte Storey, 584
S.W.3d 437, 439–40 (Tex. Crim. App. 2019) (“Applicant has also failed to satisfy the
requirements of Article 11.071, § 5. Accordingly, we dismiss all of Applicant’s claims as an
abuse of the writ without reviewing the merits.”) (emphasis added); Ex parte Preyor, 537
S.W.3d 1 (Tex. Crim. App. 2017) (“After reviewing applicant’s writ application, we find that
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Mr. Burton’s case: “we conclude that the application does not satisfy the requirements
of Article 11.071, Section 5. Therefore, we dismiss the application as an abuse of the
writ. See Art. 11.071, § 5(c).” App. at 3. If the dismissal was based on the
unavailability prong of the § 5(a)(1) test, the TCCA would have adhered to its routine
practice of noting it was “without considering the merits.”
Given that (1) Moore I was not available in 2003—when Mr. Burton filed his
previous application; that (2) the TCCA has repeatedly held that Moore I (a clear
overruling of Texas’s Atkins screening test) is a new legal basis for § 5(a)(1); and that
(3) the TCCA omitted the frequently-invoked phrase “without reviewing the merits”
from dismissal, the order below can only be understood as a determination that Mr.
Burton’s prima facie case, even if proven, did not entitle him to Atkins relief.
2.
The TCCA’s 11.071 § 5(a)(3) dismissal was not independent
of federal law.
Likewise, the TCCA’s dismissal under 11.071 § 5(a)(3) is inextricably linked
with the merits of Mr. Burton’s constitutional claim. The TCCA has expressly
recognized that in assessing whether an Atkins claim satisfies § 5(a)(3), it must
necessarily determine whether the applicant has made “a threshold showing of
he has failed to satisfy the requirements of Article 11.071 § 5. Accordingly, we dismiss his
writ application without reviewing the merits of his claims….”) (emphasis added); Ex Parte
Medina, No. WR-41,274-05, 2017 WL 690960, at *1 (Tex. Crim. App. Jan. 25, 2017) (“We have
reviewed this subsequent application and find that the allegations fail to satisfy the
requirements of Article 11.071, § 5(a). Therefore, we dismiss this application as an abuse of
the writ without considering the merits of the claims. Art. 11.071, § 5(c).”) (emphasis added).
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evidence that would be at least sufficient to support an ultimate conclusion, by clear
and convincing evidence, that no rational factfinder would fail to find mental
retardation.” Ex parte Blue, 230 S.W.3d at 163. As the Fifth Circuit has explained:
The TCCA’s seminal decision in Ex parte Blue makes clear that when a
defendant who was convicted post-Atkins raises an Atkins claim for the
first time in a successive habeas application, the Texas court must
determine whether the defendant has asserted facts, which if true,
would sufficiently state an Atkins claim to permit consideration of the
successive petition. That determination is necessarily dependent on a
substantive analysis of the Eighth and Fourteenth Amendments as
applied to the factual allegations.
Busby v. Davis, 925 F.3d 699, 707 (5th Cir. 2019) (emphasis added).
That the TCCA’s dismissal under § 5(a)(3) rested on an assessment of the
merits of Mr. Burton’s claim is clear from its order, which indicates that the court
reviewed both the application and supporting exhibits, before concluding “the
application does not satisfy the requirements of Article 11.071, Section 5.” App. 1 at
3. The court’s review thus “necessarily entailed an assessment of the facts presented
in support of the Atkins claim.” Busby, at 706-707. Furthermore, as previously noted,
the order omits standard language that the dismissal was “without considering the
merits.” Accordingly, the TCCA order “was not a denial of relief on purely state-law
procedural grounds, independent of federal law, because in addressing the Atkins
claim, the TCCA necessarily considered federal law in assessing the sufficiency of the
facts supporting the claim.” Id., at 709.
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3.
Alternatively, if the TCCA’s 11.071 § 5(a)(1) dismissal was
based on a finding that Mr. Burton’s claim was available before
Hall and Moore I, then the state ground is not adequate to
preclude review.
Even if the TCCA’s dismissal under § 5(a)(1) could be construed as independent
from federal law, it surely is not adequate, because it squarely contradicts the court’s
treatment of cases that are materially indistinguishable from Mr. Burton’s case, in
which it found Moore I constituted a new legal basis for relief.
“A state procedural ground is not ‘adequate’ unless the procedural rule is
‘strictly or regularly followed.’” Johnson v. Mississippi, 486 U.S. 578, 587 (1988)
(quoting Barr v. City of Columbia, 378 U.S. 146, 149 (1964)); Hathorn v. Lovorn, 457
U.S. 255, 262-63 (1982). Ordinarily, violation of a state procedural rule that is “firmly
established and regularly followed” constitutes a state ground “adequate” to foreclose
merits review of a federal claim, but in “exceptional cases,” a generally sound rule
may be applied in a way that “renders the state ground inadequate to stop
consideration of a federal question.” Cruz v. Arizona, 598 U.S. 17, 25–26 (2023); Lee
v. Kemna, 534 U.S. 362, 376 (2002). This is because “novelty in procedural
requirements cannot be permitted to thwart review. . . by those who, in justified
reliance upon prior decisions, seek vindication in state courts of their federal
constitutional rights,” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457, (1958).
Thus, to be “adequate,” the application of a procedural rule may not be “novel” and
“unforeseeable.” Cruz, 598 U.S. at 31. Rather, it must be “strictly or regularly applied
evenhandedly to the vast majority of similar claims.” Amos v. Scott, 61 F.3d 333, 339
(5th Cir. 1995) (emphasis in original).
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The TCCA found Moore I constituted a new legal basis for an Atkins claim
under § 5(a)(1) in at least ten cases that are materially indistinguishable from Mr.
Burton’s case. See supra, at footnote 2 (listing cases in which the TCCA authorized
post-Moore Atkins claims under § 5(a)(1)). Just like those cases, Moore I was not
available to Mr. Burton when he filed his previous application in 2003. If the TCCA’s
dismissal could be construed as a procedural bar under § 5(a)(1) to Mr. Burton’s case,
then it would be“entirely new and in conflict with prior [Texas] case law.” Cruz, 598
U.S. 27. As such, it is so novel, unforeseeable, and unsupported, that it is inadequate
to preclude federal review. Id.
4.
Alternatively, this Court should stay resolution of Mr.
Burton’s case pending a decision in Glossip v. Oklahoma.
Mr. Burton believes that the TCCA’s resolution of his claim does not rest on an
independent and adequate state-law ground. However, should this Court harbor any
doubt about its ability to review the TCCA order, it should stay Mr. Burton’s
execution and hold a decision in his case pending Glossip v. Oklahoma, No. 22-7466.
In Glossip, this Court directed the parties to brief “[w]hether the Oklahoma Court of
Criminal Appeals’ holding that the Oklahoma Post-Conviction Procedure Act
precluded post-conviction relief is an adequate and independent state-law ground for
the judgment.” Glossip v. Oklahoma, 144 S. Ct. 691 (2024) (Mem.). In his brief,
Glossip argued that the Oklahoma Court of Criminal Appeals’ (“OCCA”) resolution of
his Brady 51 and Napue 52 claims “depended entirely” on the application of relevant
51 Brady v. Maryland, 373 U.S. 83 (1963).
52 Napue v. Illinois, 360 U.S. 264 (1959).
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federal constitutional rulings. Glossip v. Oklahoma, No. 22-7466, Brief for Petitioner
at 41–43. He further argued that the OCCA’s application of a state procedural bar to
his claims was “novel and unforeseeable,” because it contravened the TCCA’s own
precedents. Id. at 46.
Similar to Glossip, Mr. Burton argues that the TCCA’s dismissal under Article
11.071 §§ 5(a)(1) and 5(a)(3) is not independent of federal law because, in accordance
with its own caselaw, the TCCA necessarily assessed the merits of Mr. Burton’s
federal constitutional claim. And to the extent the TCCA’s resolution could be
construed as independent from federal law (despite contrary caselaw), the application
of any state procedural bar was novel and unforeseeable, and thus inadequate to
preclude this Court’s review. As such, should there be any uncertainty as to whether
this Court has jurisdiction to reach Mr. Burton’s claims, it should stay the execution
and hold this case for resolution of the similar issue in Glossip.
CONCLUSION
For the foregoing reasons, the petition for writ of certiorari should be granted.
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Respectfully submitted,
Dated: August 3, 2024
By /s/ Steven J. Wells
Steven J. Wells
Counsel of Record
Member, Supreme Court Bar
DORSEY & WHITNEY LLP
Steven J. Wells
wells.steve@dorsey.com
Kathryn A. Johnson
johnson.kate@dorsey.com
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
Telephone: (612) 340-2600
Facsimile: (612) 340-2868
35
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.