Petition for Writ of Certiorari — Victor Saldano, Petitioner v. Texas

Supreme Court briefSep 15, 2025

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No. ______

IN THE

Supreme Court of the United States

___________________________________________________________

VICTOR SALDAÑO,

Petitioner,

STATE OF TEXAS,

Respondent.

____________________________________________________________

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

______________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

THIS IS A CAPITAL CASE

Benjamin Wolff,* Director, TX Bar No. 24091608

Kelsey Peregoy, TX Bar No. 24118493

Guillermina Passa, TX Bar No. 24127072

Office of Capital & Forensic Writs

1700 N. Congress Avenue, Suite 460

Austin, Texas 78701

(512) 463-8600 (phone)

(512) 463-8590 (fax)

benjamin.wolff@ocfw.texas.gov

kelsey.peregoy@ocfw.texas.gov

guillermina.passa@ocfw.texas.gov

* Counsel of Record

CAPITAL CASE

QUESTIONS PRESENTED

In 2017 this Court held that the Briseno factors adopted by Texas Court of

Criminal Appeals (TCCA) for evaluating an Atkins claim were based on superseded

medical standards that created an unacceptable risk that a person with intellectual

disabilities would be executed in violation of the Eighth Amendment. Moore v. Texas,

581 U.S. 1 (2017) (Moore I). On remand, the TCCA determined that Moore was not a

person with intellectual disability, a determination that this Court held was

erroneous in Moore v. Texas, 139 S.Ct. 666 (2019) (Moore II).

Mr. Saldaño has never before raised an Atkins claim and last sought relief in

state courts in 2008. After the evaluation of experts for Mr. Saldaño and the State –

represented here by the Collin County District Attorney’s Office (CCDAO) – all

experts agreed that Mr. Saldaño met the criteria for IDD.

Subsequently, Mr. Saldaño argued to the TCCA that his claim met the

procedural requirements of Texas Criminal Code Article 11.071, Section 5(a)(1) based

on the new legal basis of Moore I and Moore II. The state court did not address any

of his arguments on the merits in its ruling, and upended nearly a decade of precedent

by holding for the first time that Moore I and Moore II were not a new legal basis for

relief in Texas state court. Additionally, the TCCA also held that despite the

unanimous agreement of experts evaluating Mr. Saldaño for Intellectual

Developmental Disorder (IDD), Mr. Saldaño did not meet Article 11.071, Section

5(a)(3)’s requirements of demonstrating that by clear and convincing evidence, no

reasonable jury would have failed to find him IDD.

No court has ever meaningfully considered the merits of Mr. Saldaño’s Atkins

claim, nor has a court meaningfully considered the State’s concession of the

procedural gateway and Mr. Saldaño’s IDD diagnosis. The questions presented are:

Does the TCCA’s creation of a novel and unforeseeable procedural bar in its

interpretation of Article 11.071 Section 5 preclude review of Mr. Saldaño’s

Atkins claim under federal law?

May a state-created procedural rule bar review of an Atkins claim

consistent with due process where the State has conceded, as here, that the

individual meets the criteria for intellectually disability and the procedural

gateway necessary to allow for a merits review?

PARTIES TO THE PROCEEDINGS

Petitioner, Victor Saldaño, a death-sentenced person in Texas, was the

petitioner in the Texas Court of Criminal Appeals.

Respondent, the State of Texas through the Collin County District Attorney’s

Office, was the respondent in the Texas Court of Criminal Appeals.

RULE 29.6 STATEMENT

Petitioner is not a corporate entity.

STATEMENT OF RELATED PROCEEDINGS

Saldaño v. State, No. AP-72,556 (Tex. Crim. App. Sept. 15, 1999)

Ex parte Saldano, No. WR-41,313-01 (Tex. Crim. App. May 5, 1999)

Saldaño v. Texas, 530 U.S. 1212 (2000)

Saldaño v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002)

Saldaño v. Cockrell, 267 F. Supp. 2d 635 (E.D. Tex. 2003)

Saldaño v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007)

Ex parte Saldaño, WR-41,313-04 (Tex. Crim. App. Oct. 29, 2008)

Saldaño v. Davis, Director TDCJ-CID, No. 16-70025 (5th Cir. Feb. 19, 2019)

Ex parte Saldaño, WR-41,313-05 (Tex. Crim. App. April 16, 2025)

Ex parte Saldaño, WR-41,313-05 (Tex. Crim. App. July 2, 2025).

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................................................................................... ii

PARTIES TO THE PROCEEDINGS.........................................................................................iii

RULE 29.6 STATEMENT ..........................................................................................................iii

STATEMENT OF RELATED PROCEEDINGS .......................................................................iii

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

INDEX TO APPENDIX .............................................................................................................. vi

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

DECISION BELOW .................................................................................................................... 1

JURISDICTION .......................................................................................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED ...................................................................... 1

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

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

II.

Factual and Procedural Background .............................................................................. 3

Conviction, Death Sentence, and Direct Appeal ........................................................ 3

First State and Federal Collateral Proceedings......................................................... 4

Second Penalty Phase and Collateral Proceedings .................................................... 5

Mr. Saldaño’s IDD Diagnosis and Atkins Claim ........................................................ 5

The Texas Court of Criminal Appeals’ Decision Below ............................................. 8

REASONS FOR GRANTING THE WRIT................................................................................ 11

The TCCA’s Application of a Novel and Unpredictable Procedural Bar on Mr.

Saldaño’s Atkins Claim Should Not Prevent Review........................................................... 12

The Novel Procedural Rule Applied to Bar Section 5(a)(1) Review is Not Adequate

B. The TCCA’s New Section 5(a)(1) Rule Creates a Kafkaesque Scenario Whereby

Atkins-Eligible Individuals Would Have Had to Raise a Losing Claim Under Briseño 18

The Procedural Bar Applied is Not Independent of the Federal Question ........... 21

II. Due Process Requires the Remand for a Merits Consideration of Mr. Saldaño’s

Atkins Claim Because the State and Its Expert Have Agreed that Mr. Saldaño Meets the

Criteria for Intellectual Disability ........................................................................................ 23

CONCLUSION .......................................................................................................................... 25

TABLE OF AUTHORITIES

Federal Cases

Atkins v. Virginia, 536 U.S. 304 (2002) .............. 9, 10, 15, 16, 17, 18, 22, 23, 24, 25, 26, 27, 29

Barr v. City of Columbia, 378 U.S. 146 (1964) ........................................................................ 19

Bouie v. City of Columbia, 378 U.S. 347 (1964) ....................................................................... 20

Glossip v. Oklahoma, 604 U.S. 226 (2025) ............................................................. 28, 29, 30, 31

Connick v. Thompson, 563 U.S. 51 (2011)................................................................................ 30

Cruz v. Arizona, 598 U.S. 17 (2023) ........................................................... 18, 20, 23, 24, 27, 28

Escobar v. Texas, 143 S. Ct. 557 (2023) .................................................................................... 31

Ford v. Wainwright, 477 U.S. 399 (1986)) ..................................................................... 9, 12, 31

Hall v. Florida, 572 U.S. 701 (2014)......................................................................................... 18

Harris v. Reed, 489 U.S. 255 (1989) ................................................................................... 19, 28

Hathorn v. Lovorn, 457 U.S. 255 (1982) ................................................................................... 19

Henry v. Mississippi, 379 U.S. 443 (1965)................................................................................ 19

Herb v. Pitcairn, 324 U.S. 117 (1945) ....................................................................................... 19

Johnson v. Mississippi, 486 U.S. 578 (1988) ...................................................................... 19, 28

Lee v. Kemna, 534 U.S. 362 (2002) ........................................................................................... 20

Lynch v. Arizona, 578 U.S. 613 (2016) ..................................................................................... 24

Moore v. Texas, 581 U.S. 1 (2017) (Moore I) ............. 9, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28

Moore v. Texas, 586 U.S. 133 (2019) (Moore II) ....................................................... 9, 23, 24, 25

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ..................................................... 20

Penry v. Johnson, 532 U.S. 782 (2001) (Penry II) .................................................................... 23

Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I)..................................................................... 23

Simmons v. South Carolina, 512 U.S. 154 (1994) ................................................................... 24

Smith v. Texas, 543 U.S. 37 (2004) ........................................................................................... 23

Tennard v. Dretke, 542 U.S. 274 (2004) ................................................................................... 23

State Cases

Ex parte Blue, 230 S.W.3d (Tex. Crim. App. 2007) ............................................................ 17, 29

Ex parte Briseño, 135 S.W.3d 1 (Tex. Crim. App. 2004) .............................. 9, 16, 22, 25, 26, 27

Ex parte Guevara, WR-63,926-03 (Tex. Crim. App. Sept. 23, 2020 ........................................ 22

Ex parte Guevara, WR-63,926-03, 2018 WL 2717041 (Tex. Crim. App. June 6, 2018) ......... 21

Ex parte Hood, 304 S.W.3d 397 (Tex. Crim. App. 2010) (Hood II) ................................... 21, 23

Ex parte Long, 670 S.W.3d 685 (Mem) (Tex. Crim. App. 2023) .............................................. 22

Ex parte Long, No. WR-76,324-02, 2018 WL 3217506 (Tex. Crim. App. June 27, 2018........ 21

Ex parte Martinez, 233 S.W.3d 319 (Tex. Crim. App. 2007) ................................................... 20

Ex parte Saldano, No. WR-41,313-01 (Tex. Crim. App. May 5, 1999) ................................... 11

Ex parte Saldaño, WR-41,313-04 (Tex. Crim. App. Oct. 29, 2008) ......................................... 12

Ex parte Saldaño, WR-41,313-05 (Tex. Crim. App. Apr. 16, 2025) ........................................ 17

Ex parte Saldaño, WR-41,313-05 (Tex. Crim. App. June 26, 2024) ....................................... 17

Ex parte Segundo, 663 S.W.3d 705 (Tex. Crim. App. 2022) .................................................... 21

Ex parte Williams, WR–71,296–03, 2018 WL 2717039 (Tex. Crim. App. June 5, 2018) ....... 21

Saldaño v. Cockrell, 267 F. Supp. 2d 635 (E.D. Tex. 2003)..................................................... 11

Saldaño v. Davis, Director TDCJ-CID, No. 16-70025 (5th Cir. Feb. 19, 2019)...................... 12

Saldaño v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007) .................................................. 12, 26

Saldaño v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002) ........................................................ 11

Saldaño v. State, No. AP-72,556 (Tex. Crim. App. Sept. 15, 1999) ........................................ 11

Saldaño v. Texas, 530 U.S. 1212 (2000) ................................................................................... 11

U.S. Constitution & Federal Statutes

U.S. Const. amend. VIII ........................................................................................ 1, 2, 12, 18, 25

U.S. Const. amend. XIV ........................................................................................................ 1, 25

28 U.S.C. § 1257 ........................................................................................................................ 1

State Statutes

Texas Code of Criminal Procedure, Article 37.0711 .................................................................. 9

Texas Code of Criminal Procedure, Article 37.072 .................................................................... 9

Texas Code of Criminal Procedure, Article 11.07 ...................................................................... 9

Texas Code of Criminal Procedure, Article 11.071....2, 9, 10, 11, 13, 14, 15, 16, 17, 18, 22, 24

Texas Code of Criminal Procedure, Article 37.071 .................................................................... 9

Other

Adaptive Behavior Assessment System Third Edition (ABAS-3)............................................. 8

WAIS-4, Spanish Version............................................................................................................ 6

INDEX TO APPENDIX

1. Order, Ex parte Saldaño, WR-41,313-05 (Tex. Crim. App. April 16, 2025)....1-4

2. Notice of Denial of Suggestion for Reconsideration, Ex parte Saldaño, WR-

41,313-05 (Tex. Crim. App. July 2, 2025)..............................................................5-13

3. Subsequent Application for Writ of Habeas Corpus, Ex parte Saldaño, WR-41,313-

05 (Tex. Crim. App. June 26, 2024).........................................................................14-83

4. Brief in Support of Remand, Ex parte Saldaño, WR-41,313-05 (Tex. Crim. App.

June 26, 2024).........................................................................................................84-101

5. Unopposed Suggestion for Reconsideration of Dismissal of Subsequent Application,

Ex parte Saldaño, WR-41,313-05 (Tex. Crim. App. June 11, 2025)..............102-128

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully requests that the Court grant a writ of certiorari

summarily reversing the judgment below and remanding.

DECISION BELOW

The decision of the Texas Court of Criminal Appeals (TCCA) is unpublished

and included in the Appendix (App.) at 1.

JURISDICTION

The judgment of the TCCA sought to be reviewed by this petition was entered

on April 16, 2025. App. at 1.

On July 15, 2025, Justice Alito extended the time to file this petition to August

14, 2025. No. 25A53. Justice Alito subsequently granted a second extension of time

to file this petition until September 13, 2025. Id.

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

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment provides, in relevant part:

No State shall . . . deprive any person of life, liberty, or

property, without due process of law.

STATEMENT OF THE CASE

Introduction

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

of intellectually disabled (ID)1 people violated the Eighth Amendment. Although this

Court was clear in its pronouncement of this “categorical rule” in Atkins), 536 U.S. at

320, the Atkins) decision expressly noted it 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

(1986)). Texas attempted to implement the constitutional mandate of Atkins in its

2004 announcement of the Briseño standard, which created the “Briseño factors,”

non-medical and unscientific parameters for raising ID claims. See Ex parte Briseño,

135 S.W.3d 1 (Tex. Crim. App. 2004). The TCCA-created Briseño factors were struck

down by this Court in the 2017 decision in Moore I. Moore v. Texas, 581 U.S. 1 (2017)

(Moore I); see also Moore v. Texas, 586 U.S. 133 (2019) (Moore II). But between the

creation of the Briseño factors and Moore I, those unconstitutional factors barred

individuals like Mr. Saldaño from raising their meritorious Atkins claims. After

Moore I, the TCCA has repeatedly found that Moore was a “new legal basis” for Atkins

claims seeking Article 11.071, Sec. 5(a)(1) authorization.

Every expert who has evaluated Mr. Saldaño agrees that he meets the criteria

for an IDD diagnosis. Among the experts who agree that Mr. Saldaño meets the

diagnostic criteria for IDD is an expert for the State, the Collin County District

Intellectual Disability (ID) is now known as Intellectual Developmental

Disorder (IDD). These terms are used interchangeably in this petition.

Attorney’s Office (CCDAO); indeed, there is no expert who disagrees that Mr. Saldaño

is intellectually disabled. Despite the support of the State’s expert, and the CCDAO’s

Brief in Support of Mr. Saldaño’s successive application, the TCCA denied Mr.

Saldaño authorization to fairly and fully present his Atkins claim through two

separate procedural pathways available to him in Section 5 of the Texas Code of

Criminal Procedure.

The TCCA’s application of a novel and unforeseeable procedural bar to merits

review of Mr. Saldaño’s Atkins claim should not be a barrier to review in this case,

and this Court should grant Mr. Saldaño’s petition for certiorari, vacate the TCCA’s

judgment, and remand his case to the TCCA for full and fair merits treatment. In the

alternative, Mr. Saldano’s case merits a summary reversal.

II.

Factual and Procedural Background

Conviction, Death Sentence, and Direct Appeal

Petitioner Victor Saldaño was born in Cordoba, Argentina and has struggled

with intellectual disability for his entire life. Mr. Saldaño left home when he was a

teenager, relying primarily on the kindness of strangers to survive, and ended up

homeless in the State of Texas in the early 1990s.

Shortly after meeting his co-defendant, Jorge Chavez, Mr. Saldaño was

implicated in a carjacking at a local store and related killing of a man in Plano, Texas.

Mr. Saldaño was charged with and subsequently convicted of capital murder in July

1996, and the trial court set punishment at death pursuant to the jury's answers to

special issues submitted under Texas law. At Mr. Saldaño’s 1996 trial, the State

argued in his penalty phase proceedings that Mr. Saldaño was a future danger –

required for a death sentence in Texas – in part because he is Hispanic. His conviction

and sentence were affirmed by the Texas Court of Criminal Appeals (TCCA) on direct

appeal. Saldaño v. State, No. AP-72,556 (Tex. Crim. App. Sept. 15, 1999) (not

designated for publication).

On petition for a writ of certiorari from Mr. Saldaño’s 1999 death sentence, this

Court granted Mr. Saldaño’s petition, vacated his death sentence, and remanded his

case to the TCCA in light of the then-Attorney General's confession of error (namely,

the Attorney General agreed that it was unconstitutional error for the State's expert

to testify that Mr. Saldaño’s race was a factor as to why Mr. Saldaño is a future

danger). Saldaño v. Texas, 530 U.S. 1212 (2000). Subsequently, the TCCA again

affirmed Mr. Saldaño’s conviction and death sentence. Saldaño v. State, 70 S.W.3d

873 (Tex. Crim. App. 2002).

First State and Federal Collateral Proceedings

Mr. Saldaño’s initial application for habeas corpus in state court was

subsequently denied. Ex parte Saldano, No. WR-41,313-01 (Tex. Crim. App. May 5,

1999) (not designated for publication). In 2003, Mr. Saldaño was granted penalty

phase relief in federal court on a claim challenging the unconstitutional ethnic/race

discrimination of an expert called by the State to support its case for future

dangerousness. Saldaño v. Cockrell, 267 F. Supp. 2d 635, 640-2 (E.D. Tex. 2003).

Second Penalty Phase and Collateral Proceedings

Mr. Saldaño’s second penalty phase proceedings took place in 2004, in a trial

where his lawyers did not present mental health or intellectual disability evidence.

Mr. Saldaño was resentenced to death. Mr. Saldaño’s second death sentence was

affirmed on direct appeal. Saldaño v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007).

Mr. Saldaño then unsuccessfully challenged the constitutionality of his sentence on

state post-conviction and federal habeas corpus proceedings. See generally Ex parte

Saldaño, WR-41,313-04 (Tex. Crim. App. Oct. 29, 2008) (unpublished); Saldaño v.

Davis, Director TDCJ-CID, No. 16-70025 (5th Cir. Feb. 19, 2019).

Mr. Saldaño’s IDD Diagnosis and Atkins Claim

Mr. Saldaño has been in the custody of the Texas Department of Criminal

Justice (TDCJ) since his original conviction and death sentence in 1996. Between

1996 and the present, Mr. Saldaño has exhibited severe symptoms of mental illness

and TDCJ has treated him for schizophrenia.

In April 2021, as the State sought an execution date, the convicting court

appointed undersigned counsel, the Office of Capital and Forensic Writs (OCFW), to

represent Mr. Saldaño. On January 31, 2022, OCFW filed a motion arguing Mr.

Saldaño was incompetent to be executed pursuant to Ford v. Wainwright, 477 U.S.

399 (1986), which was supported by voluminous evidence describing Mr. Saldaño’s

psychiatric condition and neuropsychological testing. The Ford motion was

supported, in part, by a neuropsychological evaluation that contained an IQ score in

the range of intellectual disability. After the State received notice of that evaluation

and IQ score, the parties agreed to a pause in the proceedings to investigate Mr.

Saldaño’s intellectual disability.

Mr. Saldaño’s case presents a strong intellectual disability claim; he has been

administered two comprehensive measures of IQ, and two short-form measures, all

of which are consistent with IDD. The first of these comprehensive measures was

administered by Mr. Saldaño’s expert, Dr. Antolin Llorente, on December 6, 2021. Dr.

Llorente’s assessments included the WAIS-4, Spanish Version, and the Test of

Memory Malingering (TOMM), among several other individual measures. The WAIS4 yielded a full-scale score of 73, which, accounting for the standard error of

measurement (SEM), signifies a score in the range of 68-78, plainly within the range

of persons with IDD. Just over a year later, Mr. Saldaño was re-administered the

WAIS-4 by Dr. Gilbert Martinez, an expert retained for the State, which resulted in

a full-scale IQ score of 74. This score obtained by the State’s expert is consistent with

Dr. Llorente’s findings, and likewise within the range of IDD.

An investigation into Mr. Saldaño’s adaptive deficits resulted in 13

declarations from Mr. Saldaño’s family, friends, former classmates, neighbors, and

individuals incarcerated with Mr. Saldaño previously, demonstrating Mr. Saldaño

has had lifelong intellectual and adaptive deficits. These deficits included his

inability to appropriately bathe, clothe, or feed himself at a developmentally

appropriate level. Mr. Saldaño’s limitations created academic struggles, causing him

to fail the sixth grade, and causing Mr. Saldaño’s classmates to remember him as

slow, unable to solve math problems in class, and needing teachers “to explain things

several times” to him, and struggling even when he had such help.

Mr. Saldaño’s limitations also often put him in danger. For example, Mr.

Saldaño was twice hit by a car because, despite the family’s best efforts to explain, he

was unable to understand how to avoid cars in the street. During one such accident,

Mr. Saldaño “went flying through the air, tumbling” was “dazed and disoriented,”

remained confused for some time, and suffered injuries all over his body. His mother

recalled that, after the second time a car hit Mr. Saldaño, his family “could not

understand why Victor could not learn” to watch out for cars, and that it was “very

worrisome for everyone.” Mr. Saldaño was also socially limited. Even when he was

older, Mr. Saldaño would say “hi” to everyone he saw, but never said more than that

because he was only able to “relate[] to people in a very superficial way.” He was

regarded by other neighborhood children as “weird” and, as a result, spent much of

his time alone. When Mr. Saldaño did try to relate to or play games with other

children, his intellectual limitations became apparent. For instance, Mr. Saldaño

tried to play ball with kids from his neighborhood, but he was so bad they stopped

letting him play. He didn’t understand the rules of the game and incorrectly stopped

the ball with his chest—a habit that accounts for the mocking nickname “Pecho”

(“Chest” in Spanish). The nickname was meant as an insult, but Mr. Saldaño’s

limitations prevented him from perceiving the humiliation. Mr. Saldaño’s

impairments also made him a target for violence, with the bullying becoming so bad

that at one point school administrators informed his mother that they did not feel Mr.

Saldaño was safe walking home alone from school.

In addition to these observations, a formal instrument measuring adaptive

behavior deficits, the Adaptive Behavior Assessment System Third Edition (ABAS3), was administered by Argentinian psychiatrist and psychotherapist Dr. Eduardo

Kopelman, and corroborated Mr. Saldaño’s limitations. These kinds of intellectual

limitations were documented as well for other members of Mr. Saldaño’s family; Mr.

Saldaño’s younger brother, Daniel, is intellectually limited, two of Mr. Saldaño’s

maternal cousins live in Argentinian group homes for intellectually disabled adults,

and two more maternal cousins have intellectual limitations that require family to

care for them.

Ultimately, considering all the evidence of his limitations, Mr. Saldaño’s

experts – Drs. Llorente and psychiatrist Dr. Lauro Amezcua-Patino – as well as the

State’s expert, Dr. Martinez, all agree Mr. Saldaño meets the criteria for intellectual

disability. Thus, today there is no factual dispute between the parties about whether

Mr. Saldaño is intellectually disabled.

The Texas Court of Criminal Appeals’ Decision Below

On June 26, 2024, Mr. Saldaño filed a successive postconviction petition

raising an intellectual disability claim under Atkins v. Virginia, 536 U.S. 304 (2002).

App. at 14-83. Mr. Saldaño’s petition was supported by the opinions of four experts,

including the State's expert, all of whom opined that Mr. Saldaño met the criteria for

intellectual disability, and numerous declarations from family, friends, and other

individuals who described his developmental challenges and limitations. See App. at

19 (Exhibit Index). Mr. Saldaño’s successive postconviction petition sought

authorization for review under Texas Code of Criminal Procedure, Article 11.071

Section 5(a)(1) or Section 5(a)(3, which provide that a subsequent application for

habeas corpus relief for death-sentenced persons may be made if sufficient facts

establish 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;

***

(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 that were submitted to the jury

in the applicant's trial under Article 37.071, 37.0711, or 37.072.

Tex. Code Crim. Proc. Art. 11.071 §5(a)(1), §5(a)(3).

Specifically, Mr. Saldaño’s subsequent application argued that Mr. Saldaño

was entitled to evidentiary development and a merits review of his Atkins claim

under Section 5(a)(1) because his IDD diagnosis and Atkins claim could not have been

considered under Texas law prior to this Court’s decision in Moore I. App. at 70-75.

This is because between his 2004 trial and Moore I, Texas required Atkins litigants

to meet the criteria found in the now-unconstitutional Briseño factors. Id.

Additionally, Mr. Saldaño argued that he could overcome the separate hurdle in

Section 5(a)(3), which required him to demonstrate that “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 that were

submitted to the jury in the applicant's trial[.]” Tex. Code Crim. Proc. Art. 11.071

§5(a)(3). App. at 75-79.

Importantly, the State of Texas filed a brief in support of Mr. Saldaño’s

petition, asking the Court of Criminal Appeals to remand his petition for an

evidentiary hearing and a merits determination. App. at 84-87; Brief in Support of

Remand, Ex parte Saldaño, WR-41,313-05 (Tex. Crim. App. June 26, 2024). There,

the State conceded Mr. Saldaño’s right to review under Section 5(a)(1) and Section

5(a)(3), the procedural barriers at issue in this case. Id.

On April 16, 2025 the Court of Criminal Appeals of Texas issued an

unpublished per curiam order dismissing Mr. Saldaño’s application for a writ of

habeas corpus. Order, Ex parte Saldaño, WR-41,313-05 (Tex. Crim. App. Apr. 16,

2025); App. at 1-4 In relevant part, the TCCA dismissed Mr. Saldaño’s petition for

the following reasons:

The legal basis for Applicant’s claim is the United States Supreme

Court’s opinion in Atkins v. Virginia, issued in June 2002. See 536 U.S.

at 304. That legal basis was available to Applicant when he filed his

previous 11.071 applications following resentencing. See TEX. CODE

CRIM. PROC. art. 11.071, § 5(d). Therefore, Applicant’s claim may not

proceed under Article 11.071, Section 5(a)(1). Further, Applicant has not

pleaded “sufficient specific facts that, if true, would establish by clear

and convincing evidence that no rational fact finder would fail to find

him” intellectually disabled. See Blue, 230 S.W.3d at 162 (internal

quotation marks omitted). For that reason, Applicant’s claim may not

proceed under Article 11.071, Section 5(a)(3).

App. at 4.

On June 11, 2025, Mr. Saldaño filed an Unopposed Suggestion for

Reconsideration of Dismissal of Subsequent Application (hereinafter, “Suggestion”),

specifically pointing out the TCCA’s incongruous treatment of Mr. Saldaño’s

successor compared with nearly a decade of post-Moore Atkins cases which were

granted review under Article 11.071 Sec. 5(a)(1) and the successive applications of

similarly situated individuals who were granted review under Sec. 5(a)(3) of the same

code section. App. at 102-128. Mr. Saldaño’s Suggestion also argued that the TCCA’s

refusal to allow evidentiary development and merits review of his Atkins claim was

at odds with the Supremacy Clause, which requires that state courts give meaningful

effect to substantive rulings of the United States Supreme Court, including those in

Atkins, Hall v. Florida, 572 U.S. 701 (2014), and Moore. App. at 123-24. Nonetheless,

three weeks later, the TCCA dismissed this Suggestion in an unpublished postcard

notice containing no reasoning. App. at 5-13.

REASONS FOR GRANTING THE WRIT

The threshold question presented in this case is essentially the same question

presented in Cruz v. Arizona, 598 U.S. 17 (2023), namely, whether the procedural

ground cited by the TCCA is both adequate and independent, and therefore sufficient

to bar merits review of Mr. Saldaño’s constitutional claim. Infra Section (I). The

resolution of this question determines whether, as here, the TCCA may create novel

and unforeseeable rules of default to deny a petitioner the ability to fully and fairly

present a claim that would make him ineligible for execution, which necessarily

jeopardizes the supremacy of federal law in Texas. Further, in light of the State’s

concession in this case, due process requires merits consideration of Mr. Saldaño’s

Eighth Amendment claim. Infra Section (II). This Court should grant Mr. Saldaño’s

petition for certiorari, vacate the TCCA’s decision, and remand this case for review

on the merits, and/or grant review and reversal in Mr. Saldaño’s case.

The TCCA’s Application of a Novel and Unpredictable Procedural

Bar on Mr. Saldaño’s Atkins Claim Should Not Prevent Review

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 in compliance with 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 Novel Procedural Rule Applied to Bar Section 5(a)(1)

Review is Not Adequate

“A state procedural ground is not ‘adequate’ unless the procedural rule is

‘strictly or regularly followed.’” Johnson, 486 U.S. at 587 (quoting Barr v. City of

Columbia, 378 U.S. 146, 149 (1964)); Hathorn v. Lovorn, 457 U.S. 255, 262–263

(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, 598 U.S. at 26 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). This

is because “[n]ovelty 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). See also Cruz, 598 U.S. at 25-26; Bouie v. City of

Columbia, 378 U.S. 347, 354 (1964) (“[A]n unforeseeable and unsupported state-court

decision on a question of state procedure does not constitute an adequate ground to

preclude this Court's review of a federal question.”).

The procedural rule applied to deny Mr. Saldaño review by the TCCA was

inadequate, first, because it is novel (i.e., it is not regularly followed), and, second,

regardless of its novelty, the application of the rule is an outlier (i.e., it is in the subset

of ‘exceptional’ cases that do not preclude federal review). See Lee, 534 U.S. at 376.

Mr. Saldaño invoked Texas Code of Criminal Procedure Article 11.071 subsection

5(a)(1) in his subsequent application. The TCCA has previously explained that the

section 5(a)(1) exception is triggered when there is a subsequent, directly applicable

Supreme Court decision that contradicts the TCCA’s law governing the claim at the

time of the previous application. See, e.g., Ex parte Martinez, 233 S.W.3d 319, 322

(Tex. Crim. App. 2007) (authorizing a claim under section 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, 405 n.40−41 (Tex. Crim. App. 2010) (Hood II) (collecting

sources largely relying on Martinez).

The directly applicable Supreme Court decision at issue here is this Court’s

decision in Moore I, which corrected the unconstitutional legal framework for deciding

Atkins claims in Texas articulated in Ex parte Briseño, 135 S.W.3d 1 (Tex. Crim. App.

2004). The TCCA’s novel application of a procedural bar in Mr. Saldaño’s case stands

in stark contrast to nearly a decade of decisions under Article 11.071 5(a)(1) explicitly

and unquestionably finding Moore I to be a new legal basis for review. Moore I was

announced in 2017, and the TCCA has repeatedly found Moore was a “new legal basis”

for the purposes of Section 5(a)(1). See, e.g., Ex parte Long, No. WR-76,324-02, 2018

WL 3217506 (Tex. Crim. App. June 27, 2018 (not designated for publication) (“In light

of the Moore decision and the facts presented in applicant’s application, we found that

applicant’s execution should be stayed . . . [and] now find that applicant has satisfied

the requirements of Article 11.071, § 5”); Ex parte Guevara, WR-63,926-03, 2018 WL

2717041 (Tex. Crim. App. June 6, 2018) (not designated for publication) (“We find

that, in light of Moore, applicant has satisfied the requirements of Article 11.071 §

5(a)(1) with regard to his first allegation in the instant subsequent writ

application.”); Ex parte Williams, WR–71,296–03, 2018 WL 2717039 (Tex. Crim. App.

June 5, 2018) (“In light of the Moore decision and the facts presented in applicant’s

application, we find that applicant has satisfied the requirements of Article 11.071 §

5.”); Ex parte Segundo, 663 S.W.3d 705, 705-06 (Tex. Crim. App. 2022) (“This Court

determined that, in light of the Moore decision and the facts presented in Applicant’s

subsequent habeas application, the application satisfied the requirements of Article

11.071, Section 5.”). Indeed, even in its treatment of subsequent applications like Mr.

Saldaño’s, the TCCA has previously noted that the Briseño framework caused other

applications to fail when they were raised prior to Moore – in exactly the time frame

that the TCCA now faults Mr. Saldaño for not previously raising his Atkins claim.

See, e.g., Ex parte Guevara, WR-63,926-03, *2 (Tex. Crim. App. Sept. 23, 2020) (not

designated for publication) (TCCA finding that though Guevara had previously raised

an Atkins claim in a 2006 subsequent habeas application, that the TCCA dismissed

that application as an abuse of the writ because “[a]t the time of our order, Briseno

provided the framework for evaluating an intellectual disability claim,” but another

subsequent application was properly authorized under Moore).2

The TCCA also faulted Mr. Saldaño for not having previously raised his Atkins

claim at his second penalty phase (2004) and in his initial habeas application

thereafter (filed in 2007), see App. at 117-18, but other Atkins claimants who received

Section 5(a)(1) authorization explicitly because of the new legal basis Moore provided

had also not previously raised Atkins at every prior stage. See, e.g., Ex parte Guevara,

WR-63,926-03, *1 (Tex. Crim. App. Sept. 23, 2020) (noting that Guevara had filed his

initial application in December 2002 – after Atkins – but that he did not raise an

Atkins claim in that application, and raised it instead in his first subsequent

application); Ex parte Long, 670 S.W.3d 685 (Mem) (Tex. Crim. App. 2023) (Yeary,

J., dissenting) (“First of all, Applicant's trial occurred in 2006, four years after Atkins

was decided. Yet Applicant failed to pursue a claim of intellectual disability at that

time.”). This demonstrates the inadequacy of the rule, both in its failure to be

regularly followed and in its exceptional application in Mr. Saldaño’s case.

That Moore I is new decisional law rightly allowing for applicants to pass

through the Section 5(a)(1) gateway is hardly surprising – it has long been the

practice of the TCCA to treat Supreme Court decisional law that corrects

unconstitutional application of the death penalty as “new law” for Section 5(a)(1)

purposes. One particularly salient example is the TCCA’s treatment of Penry line of

cases. See Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I); Penry v. Johnson, 532

U.S. 782 (2001) (Penry II). The TCCA found that Penry, Tennard v. Dretke, 542 U.S.

274 (2004), and Smith v. Texas, 543 U.S. 37 (2004), each constituted a “new legal

basis” for Section 5(a)(1) in subsequent 11.071 applications. Ex parte Hood, 304

S.W.3d 397, 409 (Tex. Crim. App. 2010) (“[W]e 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[.]”). Just as it treated both Penry and cases after Penry as “new law”

for Section 5(a)(1), the TCCA has long treated Atkins, as well as Atkins progeny, such

as Moore, “new law” for purposes of authorizing a subsequent application.

Mr. Saldaño’s case deserves this Court’s attention for the same reason as other

instances in which state supreme courts corrupted their own rules of default to

creating new and unforeseen barriers. The relevant procedural facts of this case track

those that grounded reversal in Cruz. This case, like Cruz, challenges “an

unforeseeable and unsupported state-court decision on a question of state procedure.”

Cruz, 598 U.S. at 26. Like Cruz, Mr. Saldaño asks for the enforcement of clear federal

law in Atkins, Moore I, and Moore II. Both cases involve a state statute that permits

successive petitions where the claim raised is based in new law. The Arizona rule at

stake in Cruz permitted a defendant to bring a successive petition if “there has been

a significant change in the law that, if applicable to the defendant’s case, would

probably overturn the defendant's judgment or sentence.” Cruz, 598 U.S. at 20

(internal citation omitted). The applicable Texas statute provides that a court may

consider the merits of a subsequent application when “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 . . .

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

applicant filed the previous application.” Tex. Code Crim. Proc. art. 11.071 §5(a)(1).

Both this case and Cruz involve a decision of this Court overturning a decision

of the very same state court that then brazenly declared that no new law was created

by this Court’s decision. After the Arizona Supreme Court repeatedly held that

Arizona's sentencing and parole scheme did not trigger application of Simmons v.

South Carolina, 512 U.S. 154 (1994), this Court summarily reversed that state court

in Lynch v. Arizona, 578 U.S. 613 (2016) (per curiam), holding that that it was

fundamental error to conclude that Simmons “did not apply” in Arizona. 578 U.S. at

615. Likewise, after the TCCA created and repeatedly applied its “Briseño factors”

instead of applying a medically-accepted definition of intellectual disability, this

Court overturned the TCCA’s deviations from clinical consensus in Moore I and again

in Moore II. And finally, the Arizona Supreme Court denied merits review of Cruz’s

claim after holding that Lynch was “not a significant change in the law,” Cruz, 598

U.S. at 24, and the TCCA denied relief stating that Mr. Saldaño had failed meet

Section 5(a)(1) because the “legal basis” created by Atkins “was available to [Mr.

Saldaño ] when he filed his previous 11.071 applications following resentencing.” App.

at 4.

The TCCA’s New Section 5(a)(1) Rule Creates a Kafkaesque

Scenario Whereby Atkins-Eligible Individuals Would Have Had

to Raise a Losing Claim Under Briseño

Without this Court’s review and correction, Mr. Saldaño and other similarly

situated individuals are left in a Kafkaesque scenario in which they would have been

clearly ineligible to raise an Atkins claim under Briseño, but then later faulted for not

bringing their Atkins claim before Moore was decided. The new rule Texas applied in

Mr. Saldaño’s case creates a subset of ID individuals/Atkins claimants who will be

eligible for execution in spite of this Court’s opinion in Moore I and II, as the TCCA

refuses to apply Moore’s correction to their cases. This Court should not tolerate the

creation of such rules that threatens the supremacy of federal law and unreasonably

risks the execution of the intellectually disabled in violation of the Eighth

Amendment.

The difference between a reasonable application of Atkins and what Texas was

doing with the Briseño factors between 2004 and until this Court’s 2017 in Moore is

significant. The Briseño factors were summarized in seven questions:

(1) Did those who knew the person best during the developmental stage think

he was mentally retarded at that time, and, if so, act in accordance with

that determination?

(2) Has the person formulated plans and carried them through or is his conduct

impulsive?

(3) Does his conduct show leadership or does it show that he is led around by

others?

(4) Is his conduct in response to external stimuli rational and appropriate,

regardless of whether it is socially acceptable?

(5) Does he respond coherently, rationally, and on point to oral or written

questions or do his responses wander from subject to subject?

(6) Can the person hide facts or lie effectively in his own or other’s interests?

(7) Putting aside any heinousness or gruesomeness surrounding the capital

offense, did the commission of that offense require forethought, planning,

and complex execution of purpose?

See Ex parte Briseño, 135 S.W.3d 1, 8-9 (Tex. Crim. App. 2004).

Tex. Code Crim. Proc. sec. 5(a)(1) required that Mr. Saldaño’s claim had “not

been and could not have been presented previously in a timely initial application . . .

because the factual or legal basis for the claim was unavailable” on the date(s) of any

prior applications. Even a brief consideration of the application of the Briseño factors

to Mr. Saldaño makes it obvious why he could not have raised an Atkins claim– i.e.,

such a claim was unavailable to him – prior to Moore: He satisfies none of them. As

Mr. Saldaño pleaded in the underlying litigation, and particularly in his Suggestion,

App. at 107-116, Mr. Saldaño was not known as intellectually disabled in his youth

in Argentina (factor one). The TCCA had previously found in Mr. Saldaño’s direct

appeal that he and his co-defendant, Jorge Chavez, had formulated a plan that was

not impulsive (failing the second factor), and which arguably required forethought

and planning (failing the seventh factor). See Saldaño v. State, 232 S.W.3d 77, 100

(Tex. Crim. App. 2007). Mr. Saldaño was characterized as the leader of the robbery

and murder in his case, therefore failing the third factor. Id. The TCCA’s prior opinion

also demonstrated that Mr. Saldaño could respond to stimuli and questions without

wandering from subject to subject (factors four and five). Saldaño, 232 S.W.3d at 100.

Mr. Saldaño would not have been able to meet the sixth Briseño factor – whether he

could hide facts or lie in furtherance of his own interests – because when law

enforcement encountered him, Mr. Saldaño first claimed that he was a Mexican man

named Victor Rodriguez, rather than an Argentine man named Victor Saldaño, his

true identity. Thus, this clearly would have demonstrated that Mr. Saldaño was

capable of lying for his own interest (i.e., evading prosecution), and is demonstrative

of the kind of nonmedical issue that would have defeated his Atkins claim. For these

failures to meet the arbitrary Briseño factors, Mr. Saldaño’s Atkins claim, regardless

of strength or merit, then, falls clearly into the situation that Moore I was intended

to rectify were it not for the newly created rule at issue here.

This is why cases like Mr. Saldaño’s – where Moore I would have made the

difference between a doomed Atkins claim and a successful one – were routinely

reviewable through the Section 5(a)(1) gateway until Mr. Saldaño’s case in 2025. In

both Cruz and Mr. Saldaño’s case, contrary to their state court’s reasoning, “[i]t is

hard to imagine a clearer break from the past.” Cruz, 598 U.S. at 27. Mr. Saldaño

pleaded at length in his underlying subsequent writ of habeas corpus as well as in

his Suggestion to the TCCA’s first dismissal that not only is it undisputed that he

meets the criteria for an intellectual disability, but that the TCCA’s unconstitutional

framework for handling Atkins claims – namely, the application of the Briseno factors

– would have prevented him from presenting his ID previously. This is not a unique

position, and is why time and time again, the TCCA has authorized successive

litigation of ID claims and recognized that Moore was new law. Now, the TCCA seeks

to evade a full and fair presentation and adjudication of a first-time ID claim in Mr.

Saldaño’s case by suddenly reversing course and declaring that Moore was not new

law. TCCA should not be permitted to do so.

The Procedural Bar Applied is Not Independent of the Federal

Question

“A state ground of decision is independent only when it does not depend on a

federal holding . . . and also is not intertwined with questions of federal law.” Glossip,

604 U.S. at 242 (internal citations omitted). As discussed above, because the

purported state procedural barrier is patently inadequate, it cannot bar this Court’s

merits review of the federal question. See Cruz, 598 U.S. at 29. But that purported

bar cannot bar relief for a second reason: it was not independent of the merits of the

federal claim. To preclude review, the TCCA’s judgment must rest on a ground that

is both adequate and independent; one or the other is not enough. See Harris v. Reed,

489 U.S. 255, 260 (1989). Whether or not a rule is independent is itself also a federal

question. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988).

Both Section 5 subsections require the TCCA to complete an analysis of the

factual sufficiency of a claim, and in ID claims like Mr. Saldaño’s, it includes a

minimal analysis of whether the applicant’s facts, if true, would establish relief (i.e.,

that Mr. Saldaño is intellectually disabled). Although the holding of the TCCA with

respect to Mr. Saldaño’s Section 5(a)(1) determination rested on its wrong

determination that Moore was not “new law,” in defiance of its own precedent, the

Section 5(a)(3) determination involved an inquiry into whether there is “a violation

of the United States Constitution.” Tex. Code Crim. Proc. Art. 11.071 sec. 5(a)(3). This

required that the TCCA review the “adequacy of the pleading” for the factual

sufficiency of the underlying claim to pass through the Section 5(a)(3) gateway. Ex

parte Blue, 230 S.W.3d 151, 163 & n.51 (Tex. Crim. App. 2007).

The TCCA was explicit that it had analyzed the facts of Mr. Saldaño’s case and

determined that those facts did not make out a colorable claim for Atkins relief; the

opinion states that Mr. Saldaño had “not pleaded ‘sufficient specific facts that, if true,

would establish by clear and convincing evidence that no rational fact finder would

fail to find him’ intellectually disabled.” App. at 4 (citating Blue, 230 S.W.3d at 162).

The Court found that “[f]or that reason, [Mr. Saldaño’s] claim may not proceed under

Article 11.071, Section 5(a)(3).” Id. Because the parties agreed that Mr. Saldaño

meets the criteria for intellectual disability, the TCCA’s analysis should have

involved an application of those agreed upon and conceded facts (though it is silent

on the concession). It is difficult to discern how in those agreed upon circumstances

that the TCCA could find a pleading burden not met, as it apparently did.

Regardless, because the TCCA purportedly conducted an analysis of the merits

of the federal claim (albeit at the threshold pleading level) to reach its decision, its

decision is not independent of federal law (namely, Atkins and progeny). Cf. Glossip

v. Oklahoma, 604 U.S. 226, 257 (2025) (explaining that where a state’s reliance on a

“procedural rule whose application turned on the merits of a federal claim” did not

preclude review); see also Glossip, 604 U.S. at 259 (Barrett, J., concurring in part and

dissenting in part) (“[W]hen a state-law ground of decision is intertwined with

analysis of a federal question, we will treat the decision as independent only if the

state court ‘make[s] clear by a plain statement’ that its resolution of the state-law

question does not depend on its resolution of the federal question.”) (citing Michigan

v. Long, 463 U.S. 1032, 1041 (1983)) (emphasis added). In the absence of clarity in a

state court’s option, however, this Court has been clear that “a state court decision

fairly appears to rest primarily on federal law, or to be interwoven with the federal

law, and when the adequacy and independence of any possible state law ground is

not clear from the face of the opinion, we will accept as the most reasonable

explanation that the state court decided the case the way it did because it believed that

federal law required it to do so.” Long, 463 U.S. at 1040-41 (emphasis added). Here,

the TCCA’s judgment in Mr. Saldaño’s case relied on federal law, and review should

not be precluded on this basis.

II.

Due Process Requires the Remand for a Merits Consideration of Mr.

Saldaño’s Atkins Claim Because the State and Its Expert Have

Agreed that Mr. Saldaño Meets the Criteria for Intellectual

Disability

Here, as in every case, “[p]rosecutors have a special ‘duty to seek justice, not

merely to convict.’” Connick v. Thompson, 563 U.S. 51, 65-66 (2011) (citation omitted).

Mr. Saldaño’s case, just as in Glossip v. Oklahoma, 604 U.S. 226 (2025), presents the

question of whether due process requires the reversal of a judgment because the

“State no longer seeks to defend it.” See p. i, Petition for Certiorari, Glossip v.

Oklahoma, No. 22-7466 (U.S.).

It was not a simple path to the current posture of Mr. Saldaño’s case, in which

both parties and their experts unanimously agree that: 1) Mr. Saldaño meets the

criteria for intellectual disability; and 2) the Texas courts should review his claim

through either the Article 11.071 Section 5(a)(1) or Section 5(a)(3) gateway. Mr.

Saldaño’s counsel was appointed to his case because the State was seeking an

execution date for Mr. Saldaño and there were significant concerns about Mr.

Saldaño’s competency to be executed. The State fought vigorously against Mr.

Saldaño, before and after current counsel was appointed, and through Mr. Saldaño’s

competency (Ford) proceedings. It was only after Mr. Saldaño was evaluated in the

context of those adversarial proceedings, which included an appropriate Spanishlanguage IQ test, that the State was alerted of Mr. Saldaño’s ID-qualifying IQ score.

The State’s own expert, and then the State, subsequently conceded that Mr.

Saldaño meets the criteria for intellectual disability, agreeing with multiple experts

for Mr. Saldaño. There is no factual dispute between the parties on Mr. Saldaño’s

diagnosis. In addition, the State conceded in its brief to the TCCA not only that Mr.

Saldaño meets this criterion, but that he meets the criteria for review under Article

11.071 Section 5(a)(1) and 5(a)(3). The TCCA’s order denying Mr. Saldaño’s

application barely mentioned the State’s concession, and did not meaningfully

consider how that concession on the facts (i.e., Mr. Saldaño’s ID diagnosis), should

factor into its analysis of the factual sufficiency of the claim. These concessions are

meaningful and should be respected in the rare circumstances in which they occur.

This Court has reversed cases in similar postures, see Escobar v. Texas, 143 S. Ct.

557 (2023) (mem.), separate and apart from this Court’s opinion in Glossip. The

TCCA’s decision completely ignores the import of this concession and the lack of

factual dispute between the parties and their experts. In doing so, it violated Mr.

Saldano’s rights under the due process clause. As such, like it has done in the past,

this Court should reverse Mr. Saldaño’s case in light of these facts and consistent

with the Due Process clause of the Fourteenth Amendment and the Eighth

Amendment to the United States Constitution.

CONCLUSION

This Court should grant a writ of certiorari to review the decision below.

Respectfully submitted,

/s/ Benjamin Wolff_____________________________