### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 1 5

- 70008

EDWARD LEE BUSBY , Petitioner

– Appellant ,

v.
LORIE DAVIS , DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent

– Appellee

.

Appeal from the United States District Court for the Northern District of Texas

ON PETITION FOR REHEARING EN BANC

Before OWEN, GRAVES, ∗ and HIGGINSON, Circuit Judges. PRISCILLA OWEN, Circuit Judge. We treat Edward Lee Busby’s petition for rehearing en banc as a petition for pa nel rehearing pursuant to Fifth Circuit Internal Operating Procedures under Federal Rule of Appellate Procedure 35. Busby’s petition for rehearing
is DENIED. T he opinion in No. 15

- 70008, issued June 13, 2018, and reported
at 892 F.3d 735, is hereby WITHD RAWN, and the following opinion is ISSUED in its place.

∗ Concurring in the judgment only. United States Court of Appeals Fifth Circuit 

### FILED May 20, 2019 Lyle W. Cayce Clerk Case: 15-70008 Document: 00514963180 Page: 1 Date Filed: 05/20/2019No. 15

- 70008

2 Edward Lee Busby seeks federal habeas corpus relief , asserting three claims: that (1) he is intellectually disabled and therefore ineligible for execution under Atkins v. Virginia , 1 (2) he received ineffective assistance of counsel on direct appeal , and (3) h is trial counsel was ineffective by failing to conduct an adequate sentencing investigation or by failing to present an adequate mitigation case during the penalty phase of trial

. The district court denied relief. We affirm the district court ’s judgment

. I Edward Lee Busby was arrested and charged for the January 2004 kidnapping, robbery, and murder of a seventy

- eight

- year
- old woman, Laura Crane. 2 Evidence at trial reflected th at Busby and a female accomplice , Kathleen “Kitty” Latimer, abducted Crane from a grocery store parking lot in
Texas , placed her in the trunk of her vehicle , and drove to Oklahoma. 3 Busby admitted to authorities that he wrapped twenty

- three feet of duct t ape around Crane’s face . Crane’s death was caused by asphyxiation

. 4 According to a medical examiner, Crane was bound with such force that her nose deviated from its normal position. 5 Though Busby admitted his involvement in the crime, he denied that he inten ded to kill Crane

. 6 At trial, Busby’s counsel twice attempted to introduce statements attributed to Latimer that potentially

1 536 U.S. 304, 321 (2002) (“Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we

. . . conclude that [t he death penalty] is excessive and that the Constitution ‘places a substantive restriction on the State's power to take the life’ of a mentally retarded offender.”).
2 Busby v. State , 253 S.W.3d 661, 663

- 64 (Tex. Crim. App. 2008), cert. denied , 555 U.S. 10 50 (2008).
3 Id. at 664

- 65.
4 Id. at 663

- 64
5 Id. at 664.
6 Id. Case: 15-70008 Document: 00514963180 Page: 2 Date Filed: 05/20/2019No. 15

- 70008

3 supported Busby’s contention that he did not intend to kill his victim , but these
statements were excluded by the trial court

. 7 T he jury found Busby guilty. 8 During the penalty phase of the trial, t he jury determined that Busby posed a future risk of dangerousness to society and that no mitigating factors warranted a life sentence

. 9 These findings required the trial court to s entence Busby to death. 10 Busby appealed, but his appellate counsel did not challenge the exclusion of Latimer’s potentially exculpatory statements. 11 The Texas Court of Criminal Appeals (TCCA) affirmed , 12 and t he Supreme Court denied Busby’s petition for c ertiorari. 13 In Busby’s first state habeas petition, 14 h is appointed state habeas counsel initially asserted an ineffective

- assistance

- of

- trial

- counsel (IATC) claim regard ing the adequacy of trial counsel’s mitigation investigation. 15 The TCCA granted state habeas counsel funding to perform an independent mitigation investigation. 16 I nvoices indicate that state habeas counsel’s mitigation investigator conducted interviews of several people , including Busby’s two sisters and mother

. 17 Six months after the filing of Busby’s petition, his state habeas counsel withdrew the IATC claim , informing the TCCA that he was “convinced that

7 Busby v. Stephens , No. 4:09

- CV

- 160

- O, 2015 WL 1037460, at *11

- 13 (N.D. Tex. Mar. 10, 2015).
8 Busby , 253 S.W.3d at 663.
9 Id. ; ROA.867

- 68.
10 Busby , 253 S.W.3d at 663.
11 See generally id.
12 Id. at 673.
13 Busby v. Texas , 555 U.S. 1050 (2008).
14 See Ex parte Busby , No. WR

- 70,747

- 01, 2009 WL 483096 (Tex. Crim. App. Feb. 25, 2009) (per curiam) (unpublished).
15 ROA.2165.
16 Busby v. Stephens , No. 4:09

- CV

- 160

- O, 2015 WL 1037460, at *14 (N.D. Tex. M ar. 10, 2015).
17 See ROA.3232

- 33. Case: 15-70008 Document: 00514963180 Page: 3 Date Filed: 05/20/2019No. 15

- 70008

4 adequate pretrial mitigation was conducted because no significant additional mitigating evidence would have be en discovered.” 18 The TCCA dismissed the petition

. 19 Busby then filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. 20 This petition alleged seven claims, including for the first time claims that : (1) Busby’s death sentence vio lates the Eigh th Amendment because he suffers from an intellectual disab ility (the term more recently used by the Supreme Court in describing the condition that Atkins denominated “mental retard ation ”) , 21 (2) Busby received ineffective assistance from direct appeal counsel due to the fail ure to challenge the trial court’s exclusion of Latimer’s statements , and (3) Busby received ineffective assistance of trial counsel because of counsel’s alleged failure to conduct a reasonable mitigation investigation. 22 The district court stayed Busby’s federal habeas petition to permit exhaustion of claims that had not previously been presented in state court. 23 Busby filed a subsequent state habeas petition, which t he TCCA dismissed as an abuse

- of

- the

- writ

. 24 Busby th en returned to federal court. 25 The district court afforded Busby the opportunity to present mitigation and other evidence at a hearing , but Busby did not identify any witnesses and

18 ROA.1551.
19 Ex parte Busby , 2009 WL 483096, at *1.
20 ROA.696

- 1369 , 2343

- 3092.
21 See , e

. g ., Hall v. Florida , 134 S. Ct. 1986, 1990 (2014) (“Previous opinions of this Court have employed the term ‘mental retardation.’ This opinion uses the term ‘intellectual disability’ to describe the identical phenomenon.”).
22 ROA.696

- 858; 2343

- 2524.
23 Busby v. Stephens , No. 4:09

- CV

- 160

- O, 2015 WL 1037460, at *2 (N.D. Tex. Mar. 10, 2015); ROA.1877.
24 Ex Parte Busby , No. WR

- 70,747

- 02, 2013 WL 831550, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam) (unpublished); ROA.2323

- 24.
25 See Busby , 2015 WL 1037460, at *2. Case: 15-70008 Document: 00514963180 Page: 4 Date Filed: 05/20/2019No. 15

- 70008

5 offered only arguments of counsel. 26 T he district court denied relief. 27 The court concluded that Busby’s Atkins cl aim was procedurally defaulted and did not satisfy the federal miscarriage

- of

- justice or actual

- innocence exceptions to procedural default. 28 The district court further declined to excuse Busby’s proced ural defau lt of the claim that he received ineffective assistance of counsel in his direct appeal

. 29 The federal district court also concluded that some of the mitigation evidence presented in Busby’s habeas petition was duplicative of evidence presented to the jury during his trial, and that , on balance, had the jury heard all of the mitigation evidence and weighed it against the aggravating evidence, there was no reasonable probability that at least one juror would have struck a different balance and would have ans wered the special issues submitt ed in the sentencing phase differently. 30 We granted

a ce rtificate of appealability on all three claims

. 31
II We first consider Busby’s Atkins claim and begin with an overarching summary of our conclusions regarding that claim

. Busby was convicted in November 2005, three years after the Supreme Court’ s seminal decision in Atkins

. 32 He had retained a psycholo gist and mental health expert , Timothy Proctor, Ph.D. , who was a defense witness at his state

- court trial . Proctor administered two IQ tests , on which Busby scored 77 and 81, respectively

. Proctor testified that the score of 77 placed Busby in approximately the bottom sixth percentile , meaning that 94 % of the population had a higher IQ than

26 See ROA.3366

- 3400.
27 Busby , 2015 WL 1037460, at *28; ROA.3358.
28 Busby , 2015 WL 1037460, at *18

- 21.
29 Id. at *16

- 18.
30 Id. at *12

- 14.
31 Busby v. Davis , 677 F. App’x 884, 893 (5th Cir. 2017) (per curiam) (unpublished).
32 Atkins v. Virginia , 536 U.S. 304 (2002). Case: 15-70008 Document: 00514963180 Page: 5 Date Filed: 05/20/2019No. 15

- 70008

6 Busby, 33 but that Busby was not intellectually disabled

. 34 Busby made no claim before or during that trial, on direct appeal, or in his first state habeas

corpus application that he i s intellectually disabled or that any of his counsel had been ineffective in fail ing to investigate or pursue such a claim

. The Atkins claim was first presented in Busby’s federal habeas petition. Busby argued that the evidence presented in that petition “proves by a preponderance of the evidence that he has mild mental retardation.” 35 T he federal district court stayed proceedings to permit Busby to present the claim
to a state court

. 36 Because the Atkins claim was raised in state court in a second habeas petition and could have been presented in the first state habeas proceeding , Texas law required the TCCA to treat the claim as a successive habeas petition

. 37 Busby asserted that he was actually innocent of the death penalty under article 11.071, section 5(a)(3) of the Texas Code of Criminal Procedure , 38 which essentially embodies the elements of the federal actual

innocence standard as set forth in Sawyer v. Whitley

. 39 The TCCA denied the
Atkins claim without an evidentiary hearing, 40 and Busby has not challenged the lack of a hearing

. After the TCCA rejected his Atkins claim, Busby relied on the evidence attached to his federal habeas petition. It largely, but not entirely, mirrored the evidence presented to the TCCA. In his second amended petition for

33 36 RR 55

- 56.
34 36 RR 64; Busby , 2015 WL 1037460, at *10.
35 ROA.820.
36 ROA.1877.
37 See Ex parte Blue , 230 S.W.3d 151, 156 (Tex. Crim. App. 2007) ; T EX

. C ODE C RIM

. P RO

. A NN

. Art. 11.071, § 5(a) (West Supp. 2018).
38 T EX

. C ODE C RIM

. P RO

. A NN

. Art. 11.071, § 5(a)(3) (West Supp. 2018).
39 505 U.S. 333, 336 (1992).
40 See Ex p arte Busby , No. WR

- 70,747

- 02, 2013 WL 831550, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam) (unpublished). Case: 15-70008 Document: 00514963180 Page: 6 Date Filed: 05/20/2019No. 15

- 70008

7 habeas relief in federal district court following the TCCA’s denial of relief, Busby addressed only the factual underpin nings of his Atkins claim. 41 He affirmatively relied upon the TCCA’s decision in Ex parte Brise ñ o , 42 citing it as authoritative throughout his briefing on the Atkins claim. 43 Though he asserted that the TCCA had rule d on the merits in denying the Atkins claim, 44 Busby did not argue in his briefing in the federal district court that the TCCA ’s decision was based on an “ unreas onable application of clearly established Federal law.” 45 Although he has forfeited such a claim by failing to raise it in the federal district court , we review the TCCA’s decision under § 2254(d)(1), out of an abundance of caution. Busby has retained at least four mental health experts during the course of his trial and post

- conviction proceedings

. N one of them has diagnosed Busby

as intellectually disabled or opined that he is intellectually disabled

. O nly counsel has offered that opinion. His expert witness at the trial resulting in his conviction and sentencing testified that Busby is not intellectually disabled. Busby’s second state habeas petition and his federal habeas petition attach reports from three other experts, m ental health literature, and affidavits or declarations containing information about Busby’s childhood and life . The record reflects several IQ scores , one of which resulted in a full

- scale IQ score of 81

. 46 The TCCA’s decision was not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding

. ” 47 Clearly e stablished federal law is not violated or misapplied when a state

41 ROA.2462

- 2493.
42 135 S.W.3d 1 (Tex. Crim. App. 2004).
43 ROA.2462

- 2477.
44 ROA.2492.
45 28 U.S.C. § 2254(d)(1).
46 ROA.2453.
47 28 U.S.C. § 2254(d)(2). Case: 15-70008 Document: 00514963180 Page: 7 Date Filed: 05/20/2019No. 15

- 70008

8 court requires an inmate , convicted after Atkins , who present s an Atkins claim in a second, successive state habeas petition to show by clear and convincing evidence that “no reasonable juror [or factfinder] would have found him eligible for the death penalty.” 48 Stated another way, when a reasonable factfinder
could conclude from the evidence Busby presented that he is not intellectually disabled , a state court has n ot violated clearly established federal law

. Under federal law, if an actual

- innocence claim were presented in a successive federal habeas petition, a clear

- and

- convincing

- evidence standard would be applied. 49 Federal law does not require states to apply a less demanding standard in a successive state habeas proceeding. Alternatively, applying a preponderance

of

- the

- evidence standard, the TCCA’s decision was not based on an unreasonable determination of the facts in light of the evidence presented to
it. No expert has ever opined that Busby is intellectually disabled. The TCCA’s disposition of the Atkins claim withstands scrutiny under AEDPA

. 50 A The only state court to have considered Busby’s Atkins claim was the TCCA. Th e claim was presented to that court in a second application for habeas relief, and the Texas court denied relief in a brief written order. The Supreme Court has held that “ [a] federal habeas court will not review a claim rejected by a state court ‘if the decision of [the stat e] court rests on a state law ground that is independent of the federal question and ade quate to support the

48 S ee Sawyer v. Whitley , 505 U.S. 333, 349 (1 992) (holding that to establish actual innocence, a petitioner must show “by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty”); T EX

. C ODE C RIM

. P RO

. A NN

. A rt. 11.071, § 5.03 (a)(3) (West Supp. 2018).
49 See 28 U.S.C. § 2244(b)(2)(B)(ii); McQuiggin v. Perkins , 569 U.S. 383, 395

- 96 (2013).
50 28 U.S.C. § 2254(d)(1), (2). Case: 15-70008 Document: 00514963180 Page: 8 Date Filed: 05/20/2019No. 15

- 70008

9 judgment. ” 51 The federal district court conclud ed that Busby’s Atkins claim

was p rocedurally defaulted

. Busby takes issue with this conclusion,

co ntending that the TCCA’s ruling was a merits decision. We agree. T he state court’s decision regarding the Atkins claim was not independent of the federal question , and it necessarily entailed an assessment of the facts presented in support of the Atkins claim. It was a decision on the merits within the meaning of AEDPA.
T he TCCA’s order denying relief on the claims set forth in Busby’s second
state habeas application said, “ we dismiss the application as an abuse of the writ without considering the merit s of the claims

. ” 52 Generally, “when a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.” 53 “ The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely. ” 54 On its face, th e TCCA’s order states that is has denied the application as an abuse of the writ without considering the merits of the claims. This would

appear to be sufficient to rebut the presumption that Busby’s federal claims were adjudicated on the merits, with at least one exception

— his Atkins claim. His Atkins claim in the TCCA was just one of his claims . His lead contentions in the TCCA were arguments concerning mitigation evidence that his t rial

51 Walker v. Martin , 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler , 558 U.S. 53, 55 (2009)).
52 Ex Parte Busby , No. WR

- 70,747

- 02, 2013 WL 831550, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam) (unpublished).
53 Johnson v. Williams , 568 U.S. 289, 293 (2013) (citing Harrington v. Richter , 562 U.S. 86, 99 (2011)).
54 Harrington , 562 U.S. at 99

- 100. Case: 15-70008 Document: 00514963180 Page: 9 Date Filed: 05/20/2019No. 15

- 70008

10 counsel failed to discover. Busby submitted three broad claims to the TCCA in his second habeas application : (1) ineffective assistance of trial counsel during the sentencing phase in failing to conduct a reasonable sentencing investigation and failing to seek admittance of Latimer’s hearsay statements , (2) Bu sby’s sentence violates the Eighth Amendment because he is intellectually disabled, and (3) his sentence violates the Eighth and Fourteenth Amendments because he is severely mentally ill

. His ineffective

- assistance

- of

trial

- counsel claim regarding mitigat ion evidence (unrelated to intellectual disability) subsumed large portions (the first 76 pages) of his second state habeas application. It is highly probable that the TCCA denied relief on the ineffective

- assistance

- of

- trial

- counsel claims on the ground that they were procedurally barred since they were not raised in the initial state habeas petition. But the same cannot be said of the Atkins claim.
T he TCCA’s seminal decision in Ex parte Blue makes clear that when a defendant who was convicted post

- Atkins raise s an Atkins claim for the first
time in a s uccessive 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 su ccessive petition. 55 That determination is necessarily dependent on a substantive analysis of the Eighth and Fourteenth Amendment s as applied to the factual allegations

. As noted, Busby first raised his Atkins claim in his federal habeas petition, and the district court stayed that proceeding to permit exhaustion of
th e claim by the state courts

. H is Atkins claim was accordingly presented in a second state habeas petition to the TCCA

. Under section 5 of Texas’s abuse

-

55 230 S.W.3d 151, 162

- 63 (Tex. Crim. App. 2007). Case: 15-70008 Document: 00514963180 Page: 10 Date Filed: 05/20/2019No. 15

- 70008

11 of

- the

- writ statute, the TCCA is required to dismiss subsequent habeas petitions 56 unless sufficient specific facts are set forth : Sec. 5. (a) 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

. . . because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could h ave found the applicant guilty beyond a reasonable doubt; or
(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 sub mitted to the jury in the applicant's trial

. . . . 57
T he State contends that because intellectual disability , by definition , must exist during childhood, and because the Supreme Court’s decision in
Atkins had issued well before Busby filed his first state habeas application, Busby’s second application was resolved under section 5(a)(1). The State cites this court’s decision in Rocha v. Thaler 58 for the proposition that the TCCA’s dismissal did not involve the merits of Busby’s Atkins claim, arguing that Busby’s claim was dismissed under section 5(a)(1), rather than section 5(a)(3)

. The State ’s argument is not well

- taken. It badly misreads th is court’s decision
in Rocha as well as the TCCA’s decision in Ex parte Blue

. 59

56 See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 11.071 § 5(c) (West Supp. 2018)

. 57 Id. § 5(a).
58 626 F.3d 815, 838 (5th Cir. 2010).
59 230 S.W.3d 151. Case: 15-70008 Document: 00514963180 Page: 11 Date Filed: 05/20/2019No. 15

- 70008

12 The Rocha opinion discussed cases that predated the TCCA’s decision in Blue , and Rocha recognized that , though the TCCA addressed Atkins claims under section 5(a)( 1 ) for a period of time , by the time Rocha was decided, the TCCA had begun resolv ing Atkins claims lik e Busby’s under section 5(a)(3). 60
Moreover , t he opinion in Rocha expressly recognized that , during the bygone

era in which the TCCA considered Atkins claims under section 5(a)(1), the TCCA “step [ped] beyond a procedural determination to examine the merits of

an Atkins claim.” 61 The Rocha opinion said,
T his prima

- facie review meant that CCA decisions dismissing Atkins claims for failure to satisfy § 5(a)(1) rested on the merits of those claims. Conse quently, the federal courts were not procedurally barred from considering federal habeas petitions advancing Atkins claims that had been dismissed as abuses of the writ for failure to satisfy § 5(a)(1). We first recognized that this new, Atkins

- specific s creening function had robbed § 5(a)(1) dismissals of their independent, state

- law character in our 2005 decision in Morris v. Dretke

. 62 The Rocha opinion concluded that “[t]he new prima

- facie

- showing requirement the [T]CCA had engrafted onto § 5(a)(1) was specific to Atkins claims,” and that “even as we were reaching the merits of Atkins claims that had been dismissed under § 5(a)(1), we continued to treat other kinds of petitions that had been dismissed under § 5(a)(1) as having been dismissed on an indepe ndent and adequate state

- law ground.” 63 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) mean t that

60 Rocha , 626 F.3d at 822, 829

- 841.
61 Id. at 832 (quoting Rivera v. Quarterman , 505 F.3d 349, 359

- 60 (5th Cir. 2007)).
62 Id . at 831.
63 Id . at 832

- 33. Case: 15-70008 Document: 00514963180 Page: 12 Date Filed: 05/20/2019No. 15

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13 the merits of the claim were considered by the TCCA, and the claim was not procedurally default ed.
In Blue , the TCCA held t hat section 5(a)(1) does not govern when a petitioner files “his initial writ application after Atkins and nevertheless failed
to invoke the absolute consti tutional prohibition against executing the mentally retarded in that initial writ .” 64 Instead , “ the decision whether to permit him to proceed will be purely a function of whether he can meet one of the other criteria of Article 11.071, Section 5 .” 65 The TC CA expressly held that such Atkins claims are reviewed under section 5(a)(3). 66 Unquestionably then, Busby’s Atkins claim was resolved under section 5(a)(3 )

. The TCCA’s decision in Blue also compels the conclusion that when the TCCA dismissed Busby’s Atkins claim in his s econd habeas proceeding , the TCCA consider ed the merits of his claim

. The TCCA’s decision in Blue explains that “through Article 11.071, Section 5(a)(3), the [Texas] Legislature has provided a mechanism whereby a subsequent habeas app licant may proceed with an Atkins claim,” even if the petitioner ’s conviction was post

- Atkins , and therefore his first state habeas petition could have raised an Atkins claim but did not do so

. 67 The Atkins claim may be pursued “ if [the defendant] is able to demonstrate to [the TCCA] 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 retarded.” 68 In Blue , t he TCCA “construe[d ]

. . . 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

64 Ex parte Blue , 230 S.W.3d 151, 156 (Tex. Crim. App. 2007)

. 65 Id

. 66 Id . at 162.
67 Id . at 154, 162.
68 Id . at 154. Case: 15-70008 Document: 00514963180 Page: 13 Date Filed: 05/20/2019No. 15

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14 convincing evidence, that no rational factfinder would fail to find mental retardation.” 69
T he TCCA ’s decisi on in Blue examine d at length the evidence supporting the claim that Blue came within Atkins ’s prohibition. 70 The Texas court concluded that the evidence did not meet section 5(a)(3)’s threshold , 71 and the court dismissed the “subsequent writ application as an abuse of the writ.” 72
T his was not a denial of relief on purely state

- law procedural grounds, independent of federal law, because in address ing the Atkins claim, the TCCA necessarily considered federal law in assessi ng the sufficiency of the facts supporting th e claim

. When Blue subsequently sought habeas relief in the federal courts, our court noted that “the state accepts that the [T]CCA decided the merits of Blue’s Atkins claim.” 73 The TCCA has described section 5( a)(3) as “represent[ing] the [Texas] Legislature’s attempt to codify something very much like [the] doctrine of ‘actual innocence of the death penalty’ for purposes of subsequent state writs.” 74 The TCCA deduced that “the Legislature apparently intended to codify, more or less, the doctrine found in Sawyer v. Whitley .” 75 I n Sawyer , a
pre
- AEDPA decision, the United States Supreme C ourt resolved the “standard for determining whether a petitioner bringing a successive, abusive, or defaulted federal habeas claim has shown he is ‘actually innocent’ of the death penalty to which he has been sentenced so that the court may reach the merits

69 Id . at 163.
70 Id . at 164

- 66.
71 Id . at 166.
72 Id . at 168.
73 Blue v. Thaler , 665 F.3d 647, 654 (5th Cir. 2011).
74 Ex parte Blue , 230 S.W.3d 151, 160 (Tex. Crim. App. 2007).
75 Id . (citing Sawyer v. Whitley , 505 U.S. 333 (1992)). Case: 15-70008 Document: 00514963180 Page: 14 Date Filed: 05/20/2019No. 15

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15 of the claim” in a successive federal habeas petition. 76 T he Supreme Court held that “to show ‘actual innocence’ one must s how by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.” 77 In Blue , the TCCA reasoned that because a person who is intelle ctually disabled is constitutionally ineligible for the death penalty, “no rational juror would answer any of the special issues in the State’s favor, if only for the simple reason that the statutory special issues would not be submitted to the jurors
in t he first place.” 78 Texas Code of Criminal Procedure article 11.071 , section 5(a)(3) provide s
a state

- law actual innocence gateway through which a defendant may present

an Atkins claim that would otherwise be procedurally defaulted under state
law. The TCCA ’s denial of Busby’s Atkins claim under section 5(a)(3) is best understood, therefore, as a determination that Busby did not make a threshold showing of evidence that would be sufficient to support , by clear and convincing evidence, an ultimate conclusion that no rational factfinder would fail to find him intellectually disabled

. 79 B ecause t hat determination necessarily considers the merits of a federal constitutional claim based on Atkins , it is not procedural ly defaulted, as that concept has been expresse d in federal decisions such as Walker v. Martin

. 80

76 505 U.S. at 335.
77 Id . at 336.
78 Ex parte Blue , 230 S.W.3d at 161.
79 Id . at 163.
80 562 U.S. 307 , 315

- 16 (2011). Case: 15-70008 Document: 00514963180 Page: 15 Date Filed: 05/20/2019No. 15

- 70008

16 B Our review of the state court’s disposition of Busby’s Atkins claim is governed by AEDPA. 81 The Supreme Court applied AEDPA in Brumfield v. Cain to an Atkins claim that was first raised in a state habeas proceeding and then pursued in a federal habeas petition

. 82 More recently, the Supreme Court emphasized that AEDPA demands deference to state court dispositions of
Atkins claims. 83 We reject Busby’s contention that the TCCA’s decision den ying his Atkins claim is not entitled to deference under AEDPA and his assertion that we must review his Atkins claim de novo. 84 Busby argues in his petition for rehearing that this court’s decision in Rocha held that the TCCA’s denial of an Atkins claim un der section 5(a)(3) would not be subject to review under AEDPA but must be reviewed de novo

. This is erroneous. T he decision in Rocha involved a Wiggins 85 claim, which is

a n assertion that trial counsel failed to investigate adequately for mitigating
evidence. 86 The Rocha decision expressly drew a distinction between Atkins and Wiggins claims. 87 In any event, had Rocha implied that we do not review

81 See , e

. g ., Brumfield v. Cain , 135 S. Ct. 2269, 2275 (2015).
82 Id. (quoting 28 U.S.C. §§ 2254(d)(1)) (“After the Louisiana Supreme Court summarily denied his application for a supervisory writ to review the trial court's ruling, Brumfield filed a petition for habeas corpus in federal court, again pressing his Atkins claim

. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Brumfield could secure relief only if the state court's rejection of his claim was either ‘contrary to, or involved an unreasonable application of, clearly established Federa l law, as determined by the Supreme Court of the United States,’ or was ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’”).
83 See Shoop v. Hill , 139 S. Ct. 504, 506

- 07 (2019).
84 Petitio n for Rehearing at iv, 10

- 11, 12, 15.
85 Wiggins v. Smith , 539 U.S. 510 (2003).
86 See Rocha v. Thaler , 626 F.3d 815, 820 (5th Cir. 2010).
87 Id . at 826

- 27 (“There may well be some exceptions to the rule that a decision on the gateway innocence claim does not constitute a decision on the underlying constitutional claim. As Judge Dennis has previously recognized, an Atkins claim is a claim that the petitioner is ineligible for the death penalty. So too is a claim that the petitioner was under eighteen at the time of his crime, is insane, or has some other characteristic that the Supreme Case: 15-70008 Document: 00514963180 Page: 16 Date Filed: 05/20/2019No. 15

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17 an Atkins claim like Busby’s under AEDPA , that would have been dicta and would be contrary to the Supreme Court’s subsequent decision s in Brumfield and Shoop

. The Rocha decision would therefore not be binding precedent on
this issue. C Under 28 U.S.C. § 2254(d)(1), w e must ascertain the clearly established federal law, as determined by the Supreme Court of the United States, with regard to an Atkins claim that wa s first raised in state court in a second habeas petition. 88 Under state law, this case is in a different procedural posture than one in which a def endant first raises a claim that he is intellectually disabled at his murder trial or in his first state habeas application. At trial or in an initial habeas proceeding, a defendant in Texas state court has the burden of establishing an Atkins claim by a preponderance of the evidence. 89 Since Busby first raised an Atkins claim in state court in a subsequent habeas petition, Texas Code of Criminal Procedure article 11.071 , section 5(a)(3) requires that Busby must prove by “clear and convincing evidence, that no rational factfinder would fail to find mental retardation.” 90 In ruling upon

Court has held categorically justifies exemption from the death penalty. In such cases, the inquiry into the gateway innocence claim will substantially overlap with the inquir y into the merits of the underlying constitutional claim. Our panel opinion's holding does not implicate this limited class of cases, as Rocha's Wiggins claim is not a claim of categorical ineligibility for the death penalty.”).
88 28 U.S.C. § 2254(d)(1).
89 See Gallo v. State , 239 S.W.3d 757, 770 (Tex. Crim. App. 2007) (“[I]n a habeas action, a defendant has the burden to prove mental retardation by a preponderance of the evidence. Similarly, we now hold that when the issue is presented at trial, a defenda nt bears the burden of proof, by a preponderance of the evidence, to establish that he is mentally retarded.”).
90 Ex parte Blue , 230 S.W.3d 151, 163 (Tex. Crim. App. 2007); see also id . at 154 (“We conclude that through Article 11.071, Section 5(a)(3), the Legislature has provided a mechanism whereby a subsequent habeas applicant may proceed with an Atkins claim if he is able to demonstrate to this Court that there is evidence that coul d reasonably show, to a level of confidence by clear and convincing evidence, that no rational finder of fact would fail Case: 15-70008 Document: 00514963180 Page: 17 Date Filed: 05/20/2019No. 15

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18 Busby’s Atkins claim, t he TCCA necessarily held that Busby failed to present “evidence that could reasonably show, to a level of confidence by clear and convincing evidenc e, that no rational finder of fact would fail to find he is mentally retarded.” 91 The TCCA foreclosed Busby from establishing his claim
under the less

- demanding preponderance

- of

- the

- evidence standard. Accordingly, a n initial question is whether the TCCA u nreasonably applied clearly established federal law in doing so. Supreme Court decisions construing AEDPA indicate that the federal constitution permits federal courts to deny, as an abuse of the writ, a claim that a defendant is innocent of the death pena lty, if the actual

- innocence claim is brought in a successive application under 28 U.S.C. § 224 4, and the factual predicate for the claim could have been discovered previously through the exercise of due diligence. 92 There is no basis for conclud ing that t he federal constitution prohibits the States from similarly denying, as an abuse of the writ, claims of actual innocence of the death penalty first asserted in a second , successive or , to use the language of the Texas statute, “subsequent” state habeas pet ition. As discussed above, the Supreme Court’s pre
- AEDPA decision in Sawyer v. Whitley established that federal courts could employ the miscarriage of justice exception even if claims were first raised in successive federal habeas petitions. 93 However, in McQuiggin v. Perkins , the Supreme Court explained that in enacting AEDPA, Congress “constrained the application of the

to find he is mentally retarded. However, because we find that the applicant in this case has failed to satisfy this heightened

- thresh old burden, we deny him leave to proceed.”).
91 Id. at 154.
92 See 28 U.S.C. § 2244(b)(2)(B); see also McQuiggin v. Perkins , 569 U.S. 383, 395

- 96 (2013).
93 See 505 U.S. 333, 335

- 36, 339 (1992). Case: 15-70008 Document: 00514963180 Page: 18 Date Filed: 05/20/2019No. 15

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19 [miscarriage

- of

- justice] exception” by the inclusion of § 2244(b)(2)(B). 94 That section of AEDPA “limits the exception to c ases in which ‘the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,’ and the petitioner can establish that no reasonable factfinder ‘would have found [her] guilty of the underlying offense’ by ‘clear and convincing evidence.’” 95 The Supreme Court reasoned that “Congress thus required second

- or
- successive habeas petitioners attempting to benefit from the miscarriage of justice exception to meet a higher level of proof (‘clear and convincing evid ence’) and to satisfy a diligence requirement that did not exist prior to AEDPA’s passage.” 96 Texas law is less demanding than federal law in this regard . A defendant asserting an Atkins claim post

- Atkins is not required to satisfy a diligence requirement but only to establish “ by clear and convincing evidence ” that “ no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury.” 97 T he application of this Texas

law standard to Atkins claims by p ersons convicted post

- Atkins is not “contrary
to

. . . clearly established Federal law, as determined by the Supreme Court of the United States.” 98 The Supreme Court’s holdings regarding Ford 99 incompetence

- to

- be

executed claims cannot be imported, wholesale, into the law governing Atkins claims. First and foremost, a Ford incompetency

- to

- be

- executed claim is not necessarily “successive” even if raised in a second or subsequent habeas

94 569 U.S. at 395.
95 Id . at 396.
96 Id

. 97 T EX

. C ODE C RIM

. P ROC

. A NN . art. 11.071 § 5(a)(3) (West Supp. 2018)

. 98 28 U.S.C. § 2254(d)(1).
99 Ford v. Wainwright , 477 U.S. 399 (1986). Case: 15-70008 Document: 00514963180 Page: 19 Date Filed: 05/20/2019No. 15

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20 application. 100 A Ford claim can be ra ised in multiple proceedings and not be “successive.” 101 That is because mental incompetence to be executed is not categorical ly a permanent condition. 102 Incompetence may occur at various points after conviction, and it may recede and later reoccur. A find ing that an inmate is incompetent to be executed does not foreclose the possibility that she may become competent in the future and would no longer be constitutionally ineligible for the death penalty. 103 By contrast, intellectual disability is by definitio n a permanent condition that must have manifested before the age of

100 See Panetti v. Quarterman , 551 U.S. 930, 947 (2007) (noting that in Ford the Court “remand[ed] the case to the District Court to resolve Fo rd's incompetency claim, even though Ford had brought that claim in a second federal habeas petition”); id . (“The statutory bar on ‘second or successive’ applications does not apply to a Ford claim brought in an application filed when the claim is first ri pe. Petitioner's habeas application was properly filed, and the District Court had jurisdiction to adjudicate his claim.”); id . (citing Barnard v. Collins , 13 F.3d 871, 878 (5th Cir. 1994) for our court’s observation that “our research indicates no report ed decision in which a federal circuit court or the Supreme Court has denied relief of a petitioner's competency

- to

- be

- executed claim on grounds of abuse of the writ”).
101 See id

. ; see also Green v. Thaler , 699 F.3d 404, 421 (5th Cir. 2012) ( O WEN , J ., concu rring) (“[A] defendant subject to a sentence of death could initiate more than one competency proceeding in a state court over time, and habeas petitions separately challenging each state

- court competency proceeding would not necessarily be considered

succ essive under AEDPA. Each proceeding might depend on the facts that obtained at the time of the competency hearing, particularly when relatively long periods of time had passed between adjudications of competency.”).
102 See Ford , 477 U.S. at 429 ( O’C ONNOR , J ., concurring in the result in part and dissenting in part) (“Regardless of the number of prior adjudications of the issue, until the very moment of execution the prisoner can claim that he has become insane sometime after the previous determination to th e contrary.”); id . at 435 ( R EHNQUIST , J ., dissenting) (“A claim of insanity may be made at any time before sentence and, once rejected, may be raised again; a prisoner found sane two days before execution might claim to have lost his sanity the next day, t hus necessitating another judicial determination of his sanity and presumably another stay of his execution” (citing Nobles v. Georgia , 168 U.S. 398, 405

- 06 (1897))); Nobles , 168 U.S. at 405 (observing that “a finding that insanity did not exist at one tim e would not be the thing adjudged as to its nonexistence at another”).
103 See Green , 699 F.3d at 421 ( O WEN , J ., concurring) (reasoning that “a determination that a defendant was incompetent to be executed would not vacate the sentence of death. The sentenc e would remain, but, as a constitutional matter, it could not be enforced unless and until the defendant became competent to be executed”). Case: 15-70008 Document: 00514963180 Page: 20 Date Filed: 05/20/2019No. 15

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21 18. A person who is found to be intellectually disabled is permanently ineligible to be executed, and the sentence of death is vacated. Busby’s Atkins claim was presented in a successive state application. 104 A defendant convicted by a federal court who present s an Atkins claim in a successive federal application would not be entitled under federal law to de novo review of that claim in federal court, or to review under a preponderance

of

- the

- evidence standard

. 105 Busby does not contend that the gateway clear

and

- convincing

- evidence standard in Texas Code of Criminal Procedure article
11.071 , section 5(a)(3) is unconstitutional

. The c lear

- and

- convincing

- evidence component of that standard is congruent with federal law , as set forth in 28 U.S.C. § 2244(b)(2)(B)(ii) and in McQuiggin v. Perkins , 106 when an actual innocence

- of

- the

- death

- penalty claim is first asserted in a successive habeas application

. Accordingly, Texas’s application of the clear

- and

- convincing standard was not an unreasonable application of clearly established federal law. In his petition for rehearing, Busby asserts that the standard of review was not briefed, suggesting that our court should not or could not consider the proper standard of review absent briefing. Busby cannot avoid application of
the correct standard of review by failing to mention or brief it. By the same token, e ven if an opposing party, in this case a state, does not address the proper standard of review in its briefing, or failed to file a brief at all, it is incumbent on courts to apply AEDPA. 107 We cannot grant habeas relief unless

104 Ex parte Busby , No. WR

- 70,747

- 02, 2013 WL 831550, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam) (unpublished)

. 105 See 28 U.S.C. § 2244(b)(2)(B)(ii).
106 569 U.S. 383, 396 (2013).
107 See , e

. g ., Winfield v. Dorethy , 871 F.3d 555, 560

- 63 (7th Cir. 2017) (citing Worth v. Tyer , 276 F.3d 249, 262 n.4 (7th Cir. 2001)) (explaining “the general principle that waiver does not apply to arguments regarding the applicable standard of review” ); Gardner v. Case: 15-70008 Document: 00514963180 Page: 21 Date Filed: 05/20/2019No. 15

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22 AEDPA’s requirements have been met. 108 We are obliged to discern how AEDPA applies when an Atkins claim is first presented to a state court in a

s uccessive state habeas proceeding. In his petition for rehearing , Busby also argues that we misconstrued his federal application as successive in our initial (now

- withdrawn) opinion

. 109 Busby misreads that opinion. I t is clear that all references to Busby’s “successive petition” were to his second Texas state court habeas application, which is subsequent or successive under state law . We did not re fer to or treat his federal habeas petition as “ successive

. ”
D Only Supreme Court holdings qualify as clearly established federal law under AEDPA. 110 “‘[C]learly established Federal law’

. . . is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” 111 The TCCA issued its decision denying relief on Busby’s Atkins claim on March 6 , 2013. 112 The S upreme Court has recently
indicated that two of its decisions , Moore v. Texas , 113 decided in 2017, and Hall

Galetka , 568 F.3d 862, 879 (10th Cir. 2009) (“[T]he correct standard of review under AEDPA is not waivable. It is, unlike exhaustion, an unavoidable legal question we must ask, a nd answer, in every case.”) ; Worth , 276 F.3d at 262 n.4. (explaining in the context of a Title VII challenge that “the court, not the parties, must determine the standard of review, and therefore, it cannot be waived”).
108 28 U.S.C. § 2254(b).
109 See Busby v. Davis , 892 F.3d 735, 746

- 47 (5th Cir. 2018).
110 See Carey v. Musladin , 549 U.S. 70, 74 (2006); Yarborough v. Alvarado , 541 U.S. 652, 660

- 61 (2004).
111 Lockyer v. Andrade , 538 U.S. 63, 71

- 72 (2003); see also Greene v. Fisher , 565 U.S. 34, 38 (2011) (quotin g Cullen v. Pinholster , 563 U.S. 170, 182 (2011)) (stating that federal courts “measure state

- court decisions ‘against [Supreme Court] precedents as of “ the time the state court renders its decision .”’” )

. 112 Ex parte Busby , No. WR

- 70,747

- 02, 2013 WL 83155 0, at *1 (Tex. Crim. App. Mar. 6, 2013) (per curiam) (unpublished).
113 137 S. Ct. 1039 (2017). Case: 15-70008 Document: 00514963180 Page: 22 Date Filed: 05/20/2019No. 15

- 70008

23 v. Florida , 114 decided in 2014, did not become clearly established federal law regarding certain aspects of an Atkins claim until the respective dates of their issuance. 115 To the extent that Moore and Hall expanded Atkins , they were not clearly established federal law when the TCCA denied relief on Busby’s
Atkins claims. The TCCA’s decision was a succinct denial of relief

. 116 It did not identify the law that it applied. The Supreme Court has held that “[ s ] ection 2254(d) applies even where there has been a summary denial” of habeas relief. 117 Busby “can satisfy the ‘ unreasonable application ’ prong of § 2254(d)(1) only by showing that ‘ t here was no reasonable basis ’ for the [TCCA’s] decision .” 118
B ecause application of the currently prevailing law regarding intellectual disability to the facts of this case would not require the grant of habeas relief, we will not parse the precise contours of clearly established federal law as of March 6, 2013. For the same reason, the argument in Busby’s petition for rehearing that Moore invalidated the Briseño factors, and that the TCCA must have applied those factors, is unavailing

. For purposes of our review, we use the definition that the Supreme Court
said in Moore is the “generally accepted, uncontroversial intellectual

- disability diagnostic definition” that the Texas state trial court in Moore had applied: (1) intellectual

- functioning defici ts (indicated by an IQ score “approximately two standard deviations below the mean”

— i.e. , a score of roughly 70

— adjusted for “the standard error of measurement,” AAIDD

– 11, at 27); (2) adaptive deficits (“the inability to learn basic skills and adjust behav ior to changing

114 572 U.S. 701 (2014).
115 Shoop v. Hill , 139 S. Ct. 504, 507

- 508 (2019).
116 Ex parte Busby , 2013 WL 831550, at *1.
117 Cullen v. Pinholster , 563 U.S. 170, 187 (2011) (citing Harrington v. Richter , 562 U.S. 86, 101

- 02 (2011)).
118 Id . at 188. Case: 15-70008 Document: 00514963180 Page: 23 Date Filed: 05/20/2019No. 15

- 70008

24 circumstances,” Hall v. Florida , 572 U.S.

___ ,

___ , 134 S.Ct. 1986, 1994, 188 L.Ed.2d 1007 (2014)); and (3) the onset of these deficits while still a minor. See App. to Pet. for Cert. 150a (citing AAIDD

– 11, at 1). See also Hall , 572 U.S., at

___ , 134 S.Ct., at 1993

– 1994. 119
W e will also hew to the Supreme Court ’s decisions regarding Atkins claims that post

- date the TCCA’s 2013 denial of Busby’s Atkins claim. 120
E A federal court cannot grant habeas relief under 28 U.S.C. § 2254(d)(2) “unless the adjudication of the claim

. . . resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 121 In denying Busby’s Atkins claim, the TCCA nece ssarily held that he failed to present “ evidence that, if true, would be sufficient to show by clear and convincing evidence that no rational factfinder would fail to find him mentally retarded.” 122 Th e standard of review that the TCCA applied is not contrary to federal law, for the reasons discussed above. Accordingly, we assess whether the TCCA unreasonably determined that the facts set forth in Busby’s petition, if true, would not establish by clear and convincing evidence that no rational factfind er would fail to find Busby intellectually disabled. Alternatively, we also assess whether, applying a preponderance

- of

- the

- evidence burden of proof , the TCCA’s decision was based on an unreasonable determination of the facts. We conclude that applying

e ither burden of proof, § 2254(d)(2)’s requirement has not been met, and habeas relief is not warranted.

119 Moore v. Texas , 137 S. Ct. 1039, 1045 (2017)

. 120 See , e

. g ., id. ; Brumfield v. Cain , 135 S. Ct. 2269 (2015); Hall v. Florida , 134 S. Ct. 1986 (2014).
121 28 U.S.C. § 2254(d)(2).
122 Ex parte Blue , 230 S.W.3d 151, 163 (Tex. Crim. App. 2007). Case: 15-70008 Document: 00514963180 Page: 24 Date Filed: 05/20/2019No. 15

- 70008

25 We begin with Busby’s IQ scores. Busby was administered five separate IQ tests between 2001 and 2010. 123 He scored 96 on an unknown IQ test in 2001, 124 an d t he S tate offered to “forget about” that test, acknowledging that it was unreliable. 125 Because it does not impact our analysis, w e do not consider that test. Prior to his criminal trial, three more IQ tests were administered to Busby. He received a ful l scale IQ of 77 on the WAIS

- III, administered in 2005 by his expert witness at trial, Dr. Proctor. 126 The standard error of measurement (SEM) 127 for the WAIS

- III is approximately “plus or minus five,” according to Dr

. Proctor’s trial testimony. 128 Busby’s IQ was therefore in a range of 72

- 82, as measured by the WAIS

- III. Busby asserted in his second
state habeas petition that due to the “ Flynn Effect, ” the score of 77 should be adjusted to 73.7. Weeks after Dr. Proctor’s assessment, the S tate’s psychologist re

- administered the WAIS

- III , and Busby scored 79. 129 T he IQ range would be 74

- 84 , based on that test and its SEM

. Dr. Proctor administered a third IQ test on the eve of trial

— the
Beta

- III

— on which Busby scored 81

. 130 Proctor testified that this score “correlates fairly well” with Busby’s WAIS

- III score

. 131 The SEM for the Beta

III is not in the record. Busby argued to the TCCA that “ [a] mental retardation expert would opine, however, that the Beta IQ test, because of its less comprehensive natur e, is widely acknowledged to inflate IQ scores generally,

123 Busby v. Stephens , No. 4:09

- CV

- 160

- O, 2015 WL 1037460, at *20 (N.D. Tex. Mar. 10, 2015).
124 Id.
125 Id. ; 36 RR 64.
126 Busby , 2015 WL 1037460, at *20; 36 RR 40, 53.
127 See genera lly Hall v. Florida , 134 S. Ct. 1986, 1995 (2014).
128 36 RR 57.
129 Busby , 2015 WL 1037460, at *20.
130 Id

. 131 36 RR 48. Case: 15-70008 Document: 00514963180 Page: 25 Date Filed: 05/20/2019No. 15

- 70008

26 to be subject to a higher Flynn Effect rate than the Wechsler scales, and to be less reliable overall than the Wechsler Scales.” 132 However, no e xpert did so opine in the state

- court proceedings , and there was no evidence provided to the TCCA as to what the IQ range would be if the SEM were considered or if the Flynn E ffect were accepted and applied

. All that the TCCA had before it regarding the Beta

- III test was the fact that Busby had scored 81 and the arguments of counsel attempting to discredit or explain that score

. Even

a ssuming that the SEM for the Beta

- III test is similar to that for the WAIS

- I II , the IQ range would be 76

- 86. Such a range would be above the range of 75 or below that t he Supreme Court has applied in its recent opinions regarding IQ scores in the context of an Atkins claim. 133 The Supreme Court said in Brumfield that evidence of an IQ score whose range, adjusted by the SEM, was above 75 “could render the state court’s det ermination reasonable.” 134 Busby provided arguments in his federal habeas petition regarding the
Beta

- III test and his score of 81 that were not presented to the TCCA . He asserted in federal court that the Beta

- III had been “normed” seven years before it wa s administered to Busby, and that if adjusted for the Flynn E ffect, the score would be 78.7. 135 He did not point to any expert testimony or other evidence in the record that supports these arguments. Nor is t here evidence as to the SEM of this test or the range of the score when the SEM is considered. Again, there was only argument of counsel. Busby was provided the

132 ROA.3525.
133 See Hall v. Florida , 134 S. Ct. 1986, 1996 (2014) (“For professionals to diagnose

— and for the law then to determine

— whether an intellectual disability exists once the SEM applies and the individual's IQ score is 75 or below the inquiry would consider factors indicating whether the person had deficits in adaptive functioning. These include evidence of past performance, environmen t, and upbringing.”).
134 Brumfield v. Cain , 135 S. Ct. 2269, 2278 (2015).
135 ROA.2478. Case: 15-70008 Document: 00514963180 Page: 26 Date Filed: 05/20/2019No. 15

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27 opportunity to present whatever expert testimony he deemed necessary in the federal district court proceedings , and he did not present any ad ditional evidence regarding this test. The only evidence that the TCCA and federal district court had was that Busby ’s full score IQ as measured by the Beta

- III
test was 81. In 2010, immediately prior to filing his federal habeas petition, Busby was admin istered the WAIS

- IV and scored a 74. 136 The report of the clinician who administered this test reflects that, adjusted based on a 95% confidence interval for the WAIS

- IV, Busby’s full scale IQ range is 70

- 79, which the report characterizes as “Border l ine.” 137 Before the trial at which Busby was convicted, Proctor also administered the Wide Range Achievement Test, Third Edition, which measured Busby’s educational abilities in reading, spelling and math. 138 Busby tested at the fourth

- grade level in reading, third

- grade level in spelling, and sixth

- grade level in math. 139 Busby argues that because the federal district court’s analysis of the merits of the Atkins claim was based only on IQ scores, it follows that the district court also concluded that “the [T]CCA’s an alysis must have stopped at that point as well.” First, it appears that the federal district court did consider Busby’s achievement test scores, which were not IQ test scores. But in any event, we cannot assume that the TCCA considered only Busby’s IQ sc ores and ignored other evidence in Busby’s state habeas application. Nor can we assume that the TCCA ignored the lack of evidence in Busby’s state habeas application. Not a single clinician opined that Busby is intellectually disabled, though there

136 ROA.4092

- 96.
137 ROA.4092.
138 Busby v. Stephens , No. 4:09

- CV

- 160

- O, 2015 WL 1037460, at *10 (N.D. Tex. Mar. 10, 2015).
139 Id. Case: 15-70008 Document: 00514963180 Page: 27 Date Filed: 05/20/2019No. 15

- 70008

28 we re three reports from mental health experts appended to Busby’s second state habeas application. Based on the record presented to the TCCA, no clinician examined Busby’s IQ scores, evidence of whether Busby has “ adaptive deficits ( ‘ the inability to learn bas ic skills and adjust behavior to changing circumstances ’) ” , or whether the re was an onset of adaptive deficits while Busby was a minor, and then reached the conclusion that Busby is intellectually disabled. Busby retained Gilda Kessner, a Doctor of Psychol ogy, and she submitted a report dated March 21 , 2008. 140 Though Busby did not claim in his first state habeas petition that he was intellectually disabled, he filed this report as part of the evidence in his first state habeas proceeding. The same report w as an exhibit to his second state habeas application. Kessner’s report reflects that she reviewed an array of Busby’s records and the testimony of Dr. Proctor, who was an expert witness for Busby in his murder trial. Kessner’s report concludes that the WAIS

- III that Proctor administered to Busby was the current test at the time. 141 Her report reflects that Proctor testified at trial that Busby scored 77 on that test, and that Proctor testif ied that Busby was not mentally retarded because “the DSM

- IV diagnosis of mental retardation would be a score below 70.” 142 However, Kessner opined that Proctor had not accounted for a phenomenon known as the Flynn Effect, which posits that there is a rise or gain in IQ scores over time and that “[r]esearch literatur e has suggested that this figure is .3 per year beginning the year after the test is normed.” 143 Importantly, Kessner concluded that the 77 score on the WAIS

- III “does not rule out a diagnosis of mental retardation,” and that “a thorough

140 ROA.4103

- 08.
141 ROA.4106.
142 ROA.4106.
143 ROA.41 06. Case: 15-70008 Document: 00514963180 Page: 28 Date Filed: 05/20/2019No. 15

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29 investigation into Mr. Busby’s adaptive behavior history is necessary to make a proper determination.” 144 The report continued, “[a]t this time, I do not believe that has been accomplished.” 145 Her report said, “I am concerned that that the apparent perfunctory reliance on the obtained score truncated the investigation into the possibility of the presence of mental retardation in Mr. Busby.” 146 Kessner’s report had explained that “the next version of the Wechsler series (WAIS

- IV) will be available to clinicians in the fall of 20 08.” 147 Her report concl uded with this recommendation: “I would recommend a new evaluation with the WAIS

- IV when it is available this fall so that the issue of the Flynn Effect and questions about the validity of the score can be avoided.” 148 Kessner’s repor t addresses only one of the three broad criteria for diagnosing intellectual disability. As to that criteria, the most she said was that the WAIS

- III score of 77 did not “rule out” intellectual disability. After Busby filed his federal habeas petition, he retained two other experts regarding his mental capacities, and their reports were also appended to Busby’s second state habeas petition. The report of Gilbert Martinez reflects that he is a Ph.D., licensed psychologist, and clinical neuro psycho logist, a nd that Busby “underwent standardized assessment of his intellectual functioning on February 11, 2010.” 149 The report is relatively brief and offers no opinion as to whether Busby is intellectually disabled. It reflects in a chart that Martinez administere d the WAIS

- IV, that Busby’s full scale IQ score was 74, and that within a 95% confidence interval, his IQ score was 70

- 79. 150 Under

144 ROA.4107.
145 ROA.4107.
146 ROA.4107.
147 ROA.4106.
148 ROA.4107.
149 ROA.4091.
150 ROA.4092. Case: 15-70008 Document: 00514963180 Page: 29 Date Filed: 05/20/2019No. 15

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30 a column in this chart labelled “ Qualitative Description,” the word “Borderline” appears with regard to Busby’s full scale IQ score. 151 The report also reflects that Martinez ad ministered a Test of Memory Mal ingering, and “[t]here was no evidence of misrepresentation of cognitive or intellectual functioning.” 152 Federal habeas counsel also retained Bekh Bradley

- Davino, Ph.D., who
i s a licensed clinical psychologist. 153 Bradley

- Davino spent ten hours evaluating Busby in person and reviewed a substantial amount of written
material and records. 154 Bradley

- Davino prepared a 20

- page report, most of which does not pertain to whether Busby i s intellectually disabled. But in a section titled “Limited Intellectual Abilities and Academic Problems Became Apparent in Mr. Busby’s Childhood and Continued into Adulthood,” the report states that “[a] number of sources of data including school records , behavioral descriptions provided by Mr. Busby as well as his family, teachers, and peers, and results of standardized tests, indicate that at a young age Mr. Busby demonstrated significant signs of impaired/limited academic and
intellectual/mental abilit ies.” 155 The report also recounts the results of the WAIS

- IV IQ test administered by Martinez and its full scale IQ score of 74, and concludes that “[t]his score reflects significant limitations in intellectual functioning , approximately two standard deviat ions below the mean.” 156 The report reflects that Busby was placed in special education by at least the seventh grade, that he had “significant problems in academic functioning beginning early,” and that he could not understand some of the more complex

151 ROA.4092.
152 ROA.4091.
153 ROA.1283.
154 ROA.1283

- 84.
155 ROA.1289.
156 ROA.1289. Case: 15-70008 Document: 00514963180 Page: 30 Date Filed: 05/20/2019No. 15

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31 play s during high school football practice. 157 But there is no conclusion drawn from all of the facts in Bradley

- Davino’s report that Busby is intellectually disabled. Instead, the report closes with this recommendation: “I additionally strongly recommend furt her evaluation of Mr. Busby by an expert in mental retardation in light of his clear history of extensive intellectual and adaptive functioning limitations.” 158 From this, a reasonable person could certainly conclude that Busby should be further evaluated. But this is not a conclusion that Busby is intellectually disabled. To the contrary, it underscores this expert’s opinion that further evaluation would be necessary to determine whether Bu sby is intellectually disabled. A reasonable juror or factfinder could fail to conclude from this evidence , even “in ligh t of [Busby’s] clear history of extensive intellectual and adaptive functioning limitations,” that Busby was intellectually disabled. If Busby was in fact evaluated by an expert in intellectual disabi lity , as Kessner and Bradley

- Davino recommended, Busby has not disclosed the results of such an evaluation. The district court noted that the entire report prepared by Martinez was not included as part of Busby’s evidence. We do not know, therefore, what conclusions, if any, Martinez may have drawn in that report as to whether Busby is intellectually disabled. We cannot say that the TCCA’s denial of the Atkins claim in Busby’s successive habeas application “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” 159 or an unreasonable application of clearly established federal law to those facts.

157 ROA.1289

- 90.
158 ROA.1302.
159 28 U.S.C. § 2254(d)(2). Case: 15-70008 Document: 00514963180 Page: 31 Date Filed: 05/20/2019No. 15

- 70008

32 F In our initial opinion in this case (now withdrawn), we construed Busby’s invocation of the federal actual

- innocence doctrine as the assertion of an independent ground for relief. 160 In his petition for rehearing, Busby insists that he raised this claim in the alternative, as an exc eption to procedural default should we have found his Atkins claim procedurally defaulted. We accordingly express no opinion as to the viability of a federal actual

- innocence claim as an independent ground for relief

. I II Busby asserts that he received ineffective assistance of counsel in his direct appeal. During the guilt phase of Busby’s trial, t he state trial court refus ed to admit a written statement from a technician who had administered
a lie detector test to Kathle en “Kitty” Latimer, who was Busby’s accomplice in the kidnapping and murder of Laura Crane. The technician had told Latimer that her responses regarding the details of the crime indicat ed evasion, and the technician’s written statement reflects that Latim er then stated that she had not been truthful and that she told Busby to tie up Crane or to tape her down to keep her from making noise while in the trunk. Busby ’s direct appeal counsel, who also served as his trial counsel, did not raise the exclusion of this testimony as an issue in the direct appeal. Busby was appointed different counsel to pursue his initial state habeas application , and that attorney did not assert a claim that direct appeal counsel was ineffective in failing to raise the exclusion o f Latimer’s statements as an issue on direct appeal. Busby concedes that the claim is procedurally defaulted since it was not raised in his initial state habeas application.

160 Busby v. Davis , 892 F.3d 735, 754

- 55 (5th Cir. 2018). Case: 15-70008 Document: 00514963180 Page: 32 Date Filed: 05/20/2019No. 15

- 70008

33 Busby contend s that he has established cause for the default by demonstrating th at his state habeas counsel was deficient in failing to raise the claim , relying upon the Supreme Court’s decisions in Martinez v. Ryan 161 and Trevino v. Thaler

. 162 However, in Davila v. Davis , 163 which issued while this case was pending in our court, the Supre me Court held that ineffective assistance of state habeas counsel is not sufficient cause to excuse the procedural default of a claim for ineffective assistance of direct appeal counsel. 164 “Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default.” 165 Busby contends that his claim of ineffective assistance of appellate counsel will never be considered unless an e xception is made. The Davila decision expressly rejected the same argument , 166 reasoning that “the Court in
Martinez was principally concerned about trial errors

— in particular, claims of ineffective assistance of trial counsel.” 167 The Court explained that “[t]he criminal trial enjoys pride of place in our criminal justice system in a way that an appeal from that trial does not , ” 168 and the Court “declin[ed] to expand the
Martinez exception to the distinct context of ineffective assistance of appellate counsel .” 169

161 566 U.S. 1 (2012).
162 569 U.S. 413 (2013).
163 137 S. Ct. 2058 (2017).
164 Id. at 2065.
165 Id . at 2062.
166 Id . at 2066 (citing Coleman v. Thompson , 501 U.S. 722 (1991)) (“Petitioner’s primary argument is that his claim of ineffective assistance of appellate counsel might never be reviewed by any court, state or federal, without expanding the exception to the rule in Coleman .” )

. 167 Id

. 168 Id

. 169 Id . at 2067. Case: 15-70008 Document: 00514963180 Page: 33 Date Filed: 05/20/2019No. 15

- 70008

34 We note that while Busby asserted in his s econd state habeas petition that trial counsel was ineffective for failing to offer additional grounds as to why the hearsay statements were admissible, Busby has abandoned that claim in this court. He has no t included it in the issues he has raised, and he has not argued or briefed such a claim. He now argues that “[t]rial counsel preserved error for direct appeal” and that trial counsel’s “argument that Latimer’s statements were admissible hearsay is undoub tedly a ‘solid, meritorious argument’ that was supported by ‘controlling precedent’ and should have been raised.” We further note that although Busby was represented by Strickland both
at tr ial and on direct appeal, Busby does not contend that there was a conflict of interest because of this representation or that Strickland’s failure to contend on appeal that it was error to exclu de Latimer’s statements was related to any conflict of interest arising out of the fact that Strickland also represented Busby at trial. Strickland would not have been in a position of arguing on direct appeal that he was ineffective in the trial court because he failed to assert additional grounds for admitting the hearsay evidence, since Busby now asserts that the trial court e rred when it excluded the evidence in spite of Strickland ’s “solid, meritorious” arguments in the trial court. There is an additional reason that relief should be denied on this claim. There appears to have been an adequate, independent state

- law procedural rule that supported the TCCA’s denial of this claim. Busby’s second habeas application in the TCCA did not adequately brief or argue the ineffective

assistance

- of

- direct

- appeal

- counsel claim

. That claim is me ntioned only in footnote s 27 and 28 of that application . Footnote 27 s ays “[d]irect appeal Case: 15-70008 Document: 00514963180 Page: 34 Date Filed: 05/20/2019No. 15

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35 counsel’s failure to raise the denial of admittance of [Latimer’s statements] under Texas evidentiary law is a separate claim for relief.” 170 Footnote 28 says : Latim er’s statement was also admissible under Texas law as a statement against interest. Counsel did seek admission on that basis, but the trial court erroneously sustained the State’s objection. Although trial counsel preserved the error that the admission w as not a statement against interest, counsel inexplicably did not raise the error as a ground of appeal. Counsel’s failure to raise this error on direct appeal is the basis of a claim that Mr. Busby was deprived of the effective assistance of counsel on a ppeal. 171 This issue was not otherwise designated as a claim for relief or otherwise briefed or supported by any argument. Under Texas law, it was forfeited. 172
Even were we not barred from reaching the merits of the defaulted or procedurally barred claim, i t would fail because Busby cannot establish the prejudice prong of review for ineffective

- assistance

- of

- counsel claims . The Strickland analysis requires the petitioner to show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 173 Busby must show that “but for his counsel’s” failure to raise the issue on appeal, “he would have prevailed on his appeal.” 174 The polygraph technician’s written statement said : Following th e examination, Ms. Latimer was advised of the deceptive nature of her responses to the above noted relevant questions. She was asked for an explanation at which time she maintained that she did lie to me about encouraging or instructing Mr. Busby to tape up Ms. Crane. She stated that at one of the first stops where they got gas she could continue to hear Ms. Crane

170 ROA.3496.
171 RO A.3497.
172 See Ex parte Garcia , No. WR

- 40,214

- 02, 2008 WL 4573962, at *1 (Tex. Crim. App. 2008) (per curiam) (unpublished) (citing Alvarado v. State , 912 S.W.2d 199, 210 (Tex. Crim. App. 1995)); Ex parte Schoolcraft , 107 S.W.3d 674, 677 (Tex. App.

— San Antonio 2003).
173 Strickland v. Washington , 466 U.S. 668, 694 (1984).
174 Smith v. Robbins , 528 U.S. 259, 285 (2000). Case: 15-70008 Document: 00514963180 Page: 35 Date Filed: 05/20/2019No. 15

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36 banging in the trunk and she stated she realized the music was not going to stop the noise from being heard. She stated she told [Busby] “You are going to have to tie her up or tape her down because she is making too much noise.” She stated at the next truck stop where they stopped, she told him again “we need to do something.” She stated she told him “I said you need to tie her up or do something because she is making too much noise.” During the final portion of the post

- test interview, she continued to deny that she actually saw Ms. Crane taped up in the trunk and denied Mr. B usby’s allegations that she helped or participated in tying up Ms. Crane in any way. 175 The federal district court recognized “it is not a defense to murder that someone told the defendant to do it,” and that “Latimer’s statement is not
inconsistent with Bus by’s guilt; it inculpates both of them.” 176 More importantly, as the federal district court explained, “[t]here is no question that Busby was the individual who taped the victim and ultimately caused her death. His fingerprint was lifted from the duct tape .” 177 “Busby admits he taped the victim while he was alone with her at Walmart and Latimer was at the LaQ u inta hotel.” 178 Had Busby’s appellate counsel pursued on appeal the claim that the trial court erred in excluding Latimer’s statements , the TCCA would ha ve applied Texas Rule of Appellate Procedure 44.2(b), and it would have examined the record as a whole

. 179 If the court was fairly assured that the error did not influence the jury or had but a slight effect, it would conclude that the error

175 Busby v. Stephens , No. 4:09

- CV

- 160

- O, 2015 WL 1037460, at *11 (N.D. Tex. Mar. 10, 2015).
176 Id. at *13.
177 Id. at * 14 n.10.
178 Id

. 179 See Ray v . State , 178 S.W.3d 833, 836 (Tex. Crim. App. 2005) (citing Morales v. State , 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). Case: 15-70008 Document: 00514963180 Page: 36 Date Filed: 05/20/2019No. 15

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37 was harmless. 180 T here is no reasonable probability that the TCCA would have reversed and granted Busby a new trial because it is highly likely that the TCCA would have concluded that any error in excluding Latimer’s statements was harmless

. Latimer’s statements would ha ve had only a slight effect , if any,

on the jury’s finding of guilt and the jury’ s findings at the penalty phase. The evidence is clear that Busby wrapped 23 feet of tape around his victim’s head and used such force that her nose was dislocated. He did t his when alone, while Latimer was at a motel.
I V Busby contends that his trial counsel, Strickland, was ineffective in failing “to uncover a wealth of readily available mitigating evidence that was necessary to both developing an accurate mental health diagnosis and presenting a persuasive mitigation case to the jury.” The district court pretermitted the question of whether trial counsel was ineffective and proceeded directly to an analysis of whether, assuming trial counsel was ineffective, Busby was p rejudiced. 181 The district court carefully considered all of the evidence presented at trial, both mitigating and aggravating evidence.
It then considered evidence that Busby says should have been presented, and concluded that Busby had failed to satisfy t he prejudice prong of the ineffective

- assistance

- of trial

- counsel claim. 182 To establish ineffective assistance of trial counsel under Strickland , a petitioner must show that “counsel’s representation fell below an objective

180 Id . (“When evaluating harm from non

- constitutional error flowing from the exclusion of relevant evidence, we examine the record as a whole, and if we are fairly assured that the error did not influence the jury or had but a slight effect, we conclude that the error was harmless.”).
181 Busby , 2015 WL 1037460, at *12.
182 Id. at *16. Case: 15-70008 Document: 00514963180 Page: 37 Date Filed: 05/20/2019No. 15

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38 standard of reasonableness” 183 and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 184 When a Strickland claim is based on an allegedly deficient sentencing investigation, the petitioner may establ ish prejudice by showing that “the totality of the available mitig ation evidence

. . . reweigh [ ed] .

. . agai nst the evidence in aggravation ” 185 creates “a reasonable probability that at least one juror would have struck a different balance ” and recommended a life sentence instead of death. 186 We agree with the district court that this latter standard has not been met. With regard to the available mitigation evidence and the evidence in aggravation, we will not set forth th at evidence in minute detail , because the district court has done so thoroughly and accurately. 187 We agree with the conclusions that the district court reached regarding the weight of the aggravating evidence as measured against the “new” mitigating evidence. 188 We will only briefly , and genera lly , recount the evidence. At Busby’s trial, custodians of his school records testified that he had a mixed academic record, 189 was required to repeat two grades, 190 was frequently absent from school, and ultimately dropped out of school. 191 They also noted th at he was enrolled in special education classes for students with IQ’s lower than average,

183 Strickland v. Washington , 466 U.S. 668, 687

- 88 (1984).
184 Id. at 694.
185 Sears v. Upton , 561 U.S. 945, 955

- 56 (2010) (per curiam) (quoting Porter v. McCollum , 558 U.S. 30, 41 (2009)).
186 Wiggins v. Smith , 539 U.S. 510, 537 (2003).
187 See Busby v. Stephens , No. 4:09

- CV

- 160

- O, 2015 WL 1037460, at *4

- 12 (N.D. Tex. Mar. 10, 2015).
188 Id . at *13.
189 35 RR 17

- 24.
190 35 RR 16, 24.
191 35 RR 16. Case: 15-70008 Document: 00514963180 Page: 38 Date Filed: 05/20/2019No. 15

- 70008

39 but above 70. 192 His special education teacher spoke to Busby’s lack of support at home, his life as a “follower” in a segregated neighborhood, 193 and her observation t hat he was a difficult student. 194 The fact that Busby attempted to commit suicide on four occasions and was hospitalized on each occasion was presented to the jury. 195 Busby’s expert witness advised the jury that he had found “documented evidence of long

- st anding chronic alcohol abuse” and “longstanding and chronic” abuse of “essentially illegal drugs,” meaning “[s]treet drugs.” 196 The state introduced aggravation evidence at trial showing that Busby had an extensive criminal history and a violent nature. 197 B usby previously pled guilty to a robbery in which he attacked the victim with a box cutter, causing the victim to be covered in blood from his waste up, then stole the victim’s truck and other personal property 198 Busby pleaded guilty to st ealing donations f rom the Salvation Army. 199 During his time in prison for these offenses, Busby was a violent and aggressive inmate. 200 A Kmart employee testified that Busby once attempted to steal batteries and when he was confronted, he threatened the employee and his fami ly. 201 The State also showed that Busby committed acts of violen ce while acting as a “pimp” for
Latimer and others, that he was a long

- standing gang member, 202 that he had violently assaulted and injured Latimer, and that he had been arrested

192 35 RR 27.
193 35 RR 36

- 38.
194 35 RR 47.
195 See , e

. g ., 36 RR 58.
196 36 RR 57.
197 See generally 33

- 34 RR.
198 33 RR 13

- 19, 192.
199 33 RR 72

- 80.
200 33 RR 86

- 89, 142

- 150, 154

- 58, 164

- 68, 174

- 78.
201 34 RR 35

- 38.
202 34 RR 5

- 143. Case: 15-70008 Document: 00514963180 Page: 39 Date Filed: 05/20/2019No. 15

- 70008

40 multiple times on drug and weapons charges. 203 T he jury found that Busby posed a future risk of dangerousness to society and that no mitigating factors warranted a life sentence. 204 Busby alleges that his new mitigation evidence generally tends to show that (1) Busby was ab andoned by his mother the first two years of his life and instead liv ed with his grandmother ; (2) Busby and his sisters were abused by their mother and father and grew up in a violent household; (3) Busby’s
hometown was segregated and racially

- biased; (4) B usby grew up in extreme poverty; (5) Busby was “slow” and suffered from intellectual disability and

me ntal illness; (6) Busby was easily manipulated by women; and (7) Busby was addicted to crack, marijuana, and alcohol. 205 Busby asserted that his mother did not obtain prenatal healthcare when pregnant with him

. 206 According to Busby’s sisters, Busby’s mother was physically violent with her children. She would “whoop” them with a “belt, switch, shoe or extension cord

. ” His mother also physically attacked Bus by’s father and another male with whom she lived after Busby’s father left. Her children often witnessed the altercations. In one incident, Busby’s mother attempted to run over the man with whom she lived while Busby was in the vehicle with her

. 207 Busby’ s mother also stabbed a man with whom she lived in his hands with a butcher knife when he was attempting to deflect her attacks. 208 One sister claimed that Busby’s mother did not love Busby and would tell him that he was “just like [his] sorry

- ass daddy.” 209 They also

203 34 RR 21

- 30, 48

- 60, 156

- 58.
204 Busby v. State , 253 S.W.3d 661, 663 (Tex. Crim. App. 2008).
205 See ROA.2451

- 58.
206 ROA.2236.
207 ROA.2566

- 67, 2575

- 76.
208 ROA.2567.
209 ROA.2566. Case: 15-70008 Document: 00514963180 Page: 40 Date Filed: 05/20/2019No. 15

- 70008

41 described Busby’s father as a “ drunk ” and stated that Busby’s “dad would hit him with anything ” when he was inebriated. 210 One sister said that they were poor, Busby and his siblings were “hungry sometimes , ” and the water was once “cut off for about a week.” 211 Both sisters described Busby as slow, irresponsible, and unhygienic. 212 Ot her declarations said that Busby exhibited low intelligence, his family ’s income was low, his mother neglect ed him , and noted the absence of a father figure. 213 They al so commented upon Busby’s “mood swings” and mental health issues, including his attempt to commit suicide in his teenage years. 214 Several noted that Busby was a follower when it came to women, especially Latimer, who was described as his girlfriend

. 215 A dec laration from a clinical psychologist opined that Busby experienced “repeated physical and emotional abuse and neglect,” when he was a child and also “witnessed violent actions committed by his mother

. ” 216 His declaration noted that while much of the “descr ibed emotional and behavioral pro blems are consistent” with post

- traumatic stress disorder (PTSD) , “it is impossible to determine if Mr. Busby would have met the criteria for [PTSD] in adolescence.” 217 He did, however, diagnose Busby with bipolar disorder, anxiety disorder, and polysubstance dependence in remission. 218

210 ROA.2567, 2574.
211 ROA.2576

- 77.
212 ROA.2568

- 70, 2578.
213 ROA.2581

- 83 , 2584

- 85 , 2586 , 2588

- 89 , 2945

- 46 , 2947

- 48 , 2949 , 2950

- 51.
214 ROA.2582, 2585

- 86, 2946, 2947.
215 ROA.2946

- 51.
216 ROA.2953.
217 ROA.2961.
218 ROA.2963. Case: 15-70008 Document: 00514963180 Page: 41 Date Filed: 05/20/2019No. 15

- 70008

42 Some of Busby’s “new” evidence is not in fact new. It is cumulative of
the evidence adduced at trial , as the federal district court found

. 219 We concluded in Parr v. Quarterman 220 that though mitigation evidence may not have been presented “as effectively as it might have been,” a petitioner could not show prejudice when the jury heard evidence regarding an unstable childhood and the “State’s case on punishment was strong.” 221 Simil arly, Busby repeats much of the testimony elicited at trial regarding his childhood, intellectual acuity, and predispositions towa rds women and substance abuse. His sisters testified at trial, and w hile the additional , post

- conviction statements from his sisters “undo ubtedly provide[d] more details ” of Busby’s childhood, we held in Newbury v. Stephens 222 that evidence “of the same genre as that presented to the jury at trial” could not outweigh the state’s “overwhelming” evidence of future dangerousness. 223 I ndeed, when “the evidence of [] future dangerousness was overwhelming

. . . . it is virtually impossible to establish prejudice.” 224 Busby’s new mitigation evidence , considered with that adduced at trial, does not outweigh the State’s aggravation evidence su ch that “ there is a reasonable probability that at least one juror” would have recommended a life

219 Busby v. Stephens , No. 4:09

- CV

- 160

- O, 2015 WL 1037460, at *12 (N.D. Tex. Mar. 10, 2015).
220 472 F.3 d 245 (5th Cir. 2006).
221 Id. at 258.
222 756 F.3d 850 (5th Cir. 2014) (per curiam).
223 Id. at 873

- 74.
224 Ladd v. Cockrell , 311 F.3d 349, 360 (5th Cir. 2002) (citing Strickland v. Washington , 466 U.S. 668, 698 (1984)). Case: 15-70008 Document: 00514963180 Page: 42 Date Filed: 05/20/2019No. 15

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43 sentence. 225 He was therefore not prejudiced by his trial counsel’s allegedly deficient mitigation investigation, and his IATC claim fails. 226 The district court did not directly address Busby’s contention that trial counsel was ineffective in discovering and presenting evidence that Busby is intellectually disabled. However, trial counsel retained an expert to evaluate Busby. It was that expert’s opinion that t he two IQ test s that he administered to Busby reflected that he was not intellectually disabled. Trial counsel did not have the benefit of the Supreme Court’s decisions, issued long after the trial, regarding IQ evidence. 227 Busby has not offered any evide nce that trial “counsel’s representation fell below an objective standard of reasonableness” with regard to his investigation of Busby’s intellectual functioning or presentation of evidence of Busby’s intellectual functioning based on the standards of prof essionalism prevailing at the time

. 228 Additionally, even with the benefit of the assistance of three additional mental health experts during habeas proceedings, Busby has not been diagnosed as intellectually disabled.
A ccordingly, a ssuming, without deciding, that Busby raised and adequately briefed in our court and in the federal district court a claim that trial counsel was ineffective in failing to contend before or during the state trial court conviction proceedings that Busby is intellectually disabled, the claim fails for lack of evidence that trial counsel should have disregarded the retained expert’s opinion that Busby was not intellectually disabled. * * *

225 Wiggins v. Smith , 539 U.S. 510, 537 (200 3).
226 Strickland , 466 U.S. at 697 (“[Courts] need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”).
227 See , e

. g ., Moore v. Texas , 137 S. Ct. 1039 (2017); Brumfield v. Cain , 135 S. Ct. 2269 (2015); Hall v. Florida , 134 S. Ct. 1986 (2014).
228 Strickland , 466 U.S. at 687

- 88. Case: 15-70008 Document: 00514963180 Page: 43 Date Filed: 05/20/2019No. 15

- 70008

44 For the foregoing reasons, we AFFIRM the judgment of the district court. Case: 15-70008 Document: 00514963180 Page: 44 Date Filed: 05/20/2019