IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-70008

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 panel rehearing pursuant to Fifth Circuit Internal Operating Procedures 

under Federal Rule of Appellate Procedure 35. Busby’s petition for rehearing 

is DENIED. The opinion in No. 15-70008, issued June 13, 2018, and reported 

at 892 F.3d 735, is hereby WITHDRAWN, and the following opinion is ISSUED 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

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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) his 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 that 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 tape 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 intended 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 [the 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. 

1050 (2008).

3 Id. at 664-65.

4 Id. at 663-64

5 Id. at 664.

6 Id. 

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supported Busby’s contention that he did not intend to kill his victim, but these 

statements were excluded by the trial court.7 The jury found Busby guilty.8

During the penalty phase of the trial, the 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 sentence 

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 the Supreme Court denied 

Busby’s petition for certiorari.13

In Busby’s first state habeas petition,14 his appointed state habeas 

counsel initially asserted an ineffective-assistance-of-trial-counsel (IATC) 

claim regarding the adequacy of trial counsel’s mitigation investigation.15 The 

TCCA granted state habeas counsel funding to perform an independent 

mitigation investigation.16 Invoices 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. Mar. 

10, 2015).

17 See ROA.3232-33.

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adequate pretrial mitigation was conducted because no significant additional 

mitigating evidence would have been 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 violates the Eighth Amendment

because he suffers from an intellectual disability (the term more recently used 

by the Supreme Court in describing the condition that Atkins denominated

“mental retardation”),21 (2) Busby received ineffective assistance from direct 

appeal counsel due to the failure 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 the TCCA dismissed as 

an abuse-of-the-writ.24 Busby then 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.

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offered only arguments of counsel.26 The district court denied relief.27 The 

court concluded that Busby’s Atkins claim 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 

procedural default 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 answered 

the special issues submitted in the sentencing phase differently.30 We granted 

a certificate 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 psychologist 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).

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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 is intellectually disabled or that any of his counsel 

had been ineffective in failing 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 The 

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 actualinnocence 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); TEX. CODE CRIM.

PRO. ANN. Art. 11.071, § 5(a) (West Supp. 2018).

38 TEX. CODE CRIM. PRO. ANN. Art. 11.071, § 5(a)(3) (West Supp. 2018).

39 505 U.S. 333, 336 (1992).

40 See Ex parte Busby, No. WR-70,747-02, 2013 WL 831550, at *1 (Tex. Crim. App. 

Mar. 6, 2013) (per curiam) (unpublished).

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habeas relief in federal district court following the TCCA’s denial of relief, 

Busby addressed only the factual underpinnings of his Atkins claim.41 He 

affirmatively relied upon the TCCA’s decision in Ex parte Briseño,42 citing it as 

authoritative throughout his briefing on the Atkins claim.43 Though he 

asserted that the TCCA had ruled 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 “unreasonable 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. None of them has diagnosed Busby 

as intellectually disabled or opined that he is intellectually disabled. Only 

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, mental 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 established 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).

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court requires an inmate, convicted after Atkins, who presents 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 not 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 preponderanceof-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. The 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 state] court rests on a state law 

ground that is independent of the federal question and adequate to support the 

 

48 See Sawyer v. Whitley, 505 U.S. 333, 349 (1992) (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”); TEX.

CODE CRIM. PRO. ANN. Art. 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).

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judgment.”51 The federal district court concluded that Busby’s Atkins claim 

was procedurally defaulted. Busby takes issue with this conclusion, 

contending that the TCCA’s ruling was a merits decision. We agree. The 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.

The 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 merits 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, the 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 trial 

 

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.

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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) Busby’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-oftrial-counsel claim regarding mitigation 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.

The TCCA’s seminal decision in Ex parte Blue makes clear that when a 

defendant who was convicted post-Atkins raises an Atkins claim for the first 

time in a successive habeas application, the Texas court must determine

whether the defendant has asserted facts, which if true, would sufficiently 

state an Atkins claim to permit consideration of the successive petition.55 That 

determination is necessarily dependent on a substantive analysis of the Eighth 

and Fourteenth Amendments 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 

the claim by the state courts. His 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).

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of-the-writ statute, the TCCA is required to dismiss subsequent habeas 

petitions56 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 have 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 submitted to the jury in the applicant's trial . . . .57

The 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. Thaler58 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 this court’s decision 

in Rocha as well as the TCCA’s decision in Ex parte Blue.59 

 

56 See TEX. CODE CRIM. PROC. ANN. 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.

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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 resolving Atkins claims like Busby’s under section 5(a)(3).60 

Moreover, the 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,

This prima-facie review meant that CCA decisions dismissing 

Atkins claims for failure to satisfy § 5(a)(1) rested on the merits of 

those claims. Consequently, 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 screening 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 independent 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) meant 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.

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the merits of the claim were considered by the TCCA, and the claim was not

procedurally defaulted.

In Blue, the TCCA held that section 5(a)(1) does not govern when a 

petitioner files “his initial writ application after Atkins and nevertheless failed 

to invoke the absolute constitutional 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 TCCA 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 second habeas proceeding, the 

TCCA considered 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 applicant 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, the 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.

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convincing evidence, that no rational factfinder would fail to find mental 

retardation.”69

The TCCA’s decision in Blue examined 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 

This was not a denial of relief on purely state-law procedural grounds,

independent of federal law, because in addressing the Atkins claim, the TCCA 

necessarily considered federal law in assessing the sufficiency of the facts 

supporting the claim. 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 In Sawyer, a 

pre-AEDPA decision, the United States Supreme Court 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)).

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of the claim” in a successive federal habeas petition.76 The Supreme Court held 

that “to show ‘actual innocence’ one must show 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 intellectually 

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 the first place.”78

Texas Code of Criminal Procedure article 11.071, section 5(a)(3) provides 

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 Because that determination necessarily 

considers the merits of a federal constitutional claim based on Atkins, it is not 

procedurally defaulted, as that concept has been expressed 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).

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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

denying 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 under section 5(a)(3) 

would not be subject to review under AEDPA but must be reviewed de novo. 

This is erroneous. The decision in Rocha involved a Wiggins85 claim, which is 

an 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 Federal 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 Petition 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 

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an Atkins claim like Busby’s under AEDPA, that would have been dicta and 

would be contrary to the Supreme Court’s subsequent decisions 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), we must ascertain the clearly established 

federal law, as determined by the Supreme Court of the United States, with 

regard to an Atkins claim that was 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 defendant 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 inquiry 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 defendant 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 could reasonably show, to a 

level of confidence by clear and convincing evidence, that no rational finder of fact would fail 

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Busby’s Atkins claim, the TCCA necessarily held that Busby failed to present 

“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.”91 The TCCA foreclosed Busby from establishing his claim 

under the less-demanding preponderance-of-the-evidence standard. 

Accordingly, an initial question is whether the TCCA unreasonably 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 penalty, if the actual-innocence claim 

is brought in a successive application under 28 U.S.C. § 2244, and the factual 

predicate for the claim could have been discovered previously through the 

exercise of due diligence.92 There is no basis for concluding that the 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 petition. 

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-threshold 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).

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[miscarriage-of-justice] exception” by the inclusion of § 2244(b)(2)(B).94 That 

section of AEDPA “limits the exception to cases 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 evidence’) 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 The application of this Texaslaw standard to Atkins claims by persons 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 Ford99 incompetence-to-beexecuted 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 TEX. CODE CRIM. PROC. ANN. 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).

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application.100 A Ford claim can be raised in multiple proceedings and not be 

“successive.”101 That is because mental incompetence to be executed is not 

categorically a permanent condition.102 Incompetence may occur at various 

points after conviction, and it may recede and later reoccur. A finding 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 

definition 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 Ford'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 ripe. 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 

reported 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) (OWEN, J., 

concurring) (“[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 

successive 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’CONNOR, 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 the contrary.”); id. at 435 (REHNQUIST, 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, thus 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 time would not be the 

thing adjudged as to its nonexistence at another”).

103 See Green, 699 F.3d at 421 (OWEN, J., concurring) (reasoning that “a determination 

that a defendant was incompetent to be executed would not vacate the sentence of death. 

The sentence would remain, but, as a constitutional matter, it could not be enforced unless 

and until the defendant became competent to be executed”).

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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 presents 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 preponderanceof-the-evidence standard.105 Busby does not contend that the gateway clearand-convincing-evidence standard in Texas Code of Criminal Procedure article

11.071, section 5(a)(3) is unconstitutional. The clear-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, even 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. 

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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 

successive 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. It 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 refer 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 Supreme 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, and 

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) (quoting 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 831550, at *1 (Tex. Crim. App. Mar. 

6, 2013) (per curiam) (unpublished).

113 137 S. Ct. 1039 (2017).

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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 ‘there was no reasonable basis’ for the [TCCA’s] decision.”118 

Because 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 deficits (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 behavior 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.

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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

We 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 necessarily 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 The 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 factfinder 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 

either 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).

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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 and the State offered to “forget about” that test, acknowledging that it 

was unreliable.125 Because it does not impact our analysis, we do not consider 

that test. Prior to his criminal trial, three more IQ tests were administered to 

Busby. He received a full 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 State’s 

psychologist re-administered the WAIS-III, and Busby scored 79.129 The 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 BetaIII 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 nature, 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 generally 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.

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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 expert 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 Effect 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 

assuming that the SEM for the Beta-III test is similar to that for the WAIS-III, 

the IQ range would be 76-86. Such a range would be above the range of 75 or 

below that the 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 determination 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 was administered to Busby, and that if adjusted for the Flynn Effect, 

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 there 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, environment, and upbringing.”).

134 Brumfield v. Cain, 135 S. Ct. 2269, 2278 (2015).

135 ROA.2478.

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opportunity to present whatever expert testimony he deemed necessary in the 

federal district court proceedings, and he did not present any additional 

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 administered 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 “Borderline.”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 analysis 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 scores 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.

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were 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 basic skills and adjust behavior to changing 

circumstances’)”, or whether there 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 Psychology, 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 was 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 testified 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 literature 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.4106.

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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 2008.”147 

Her report concluded 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 report 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 neuropsychologist, and 

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 administered 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.

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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 administered a Test of Memory Malingering, 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 

is 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 is 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 abilities.”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 deviations 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.

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plays 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 further 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 Busby is intellectually disabled. A reasonable juror or factfinder could 

fail to conclude from this evidence, even “in light 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 disability, 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).

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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 exception 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.

III

Busby asserts that he received ineffective assistance of counsel in his 

direct appeal. During the guilt phase of Busby’s trial, the state trial court 

refused to admit a written statement from a technician who had administered 

a lie detector test to Kathleen “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 indicated evasion, and 

the technician’s written statement reflects that Latimer 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 of 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).

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Busby contends that he has established cause for the default by 

demonstrating that his state habeas counsel was deficient in failing to raise 

the claim, relying upon the Supreme Court’s decisions in Martinez v. Ryan161

and Trevino v. Thaler.162 However, in Davila v. Davis,163 which issued while 

this case was pending in our court, the Supreme 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 exception 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.

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We note that while Busby asserted in his second 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 not 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 undoubtedly 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 trial 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 exclude 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 erred 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 ineffectiveassistance-of-direct-appeal-counsel claim. That claim is mentioned only in 

footnotes 27 and 28 of that application. Footnote 27 says “[d]irect appeal 

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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:

Latimer’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 was 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 appeal.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, it 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 the 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 ROA.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).

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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. Busby’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 Busby’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 LaQuinta 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 have 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)).

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was harmless.180 There 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 have 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 this when alone, 

while Latimer was at a motel.

IV

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 prejudiced.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 the 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.

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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 establish prejudice by showing

that “the totality of the available mitigation evidence . . . reweigh[ed] . . .

against 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 that 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 generally, 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 that 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.

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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 that 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-standing 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 Busby 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 property198 Busby pleaded guilty to stealing 

donations from 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 family.201 The State also 

showed that Busby committed acts of violence 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.

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multiple times on drug and weapons charges.203 The 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 abandoned by his mother the first two years of his life and 

instead lived 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) Busby grew up in extreme 

poverty; (5) Busby was “slow” and suffered from intellectual disability and 

mental 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 Busby’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.

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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

Other declarations said that Busby exhibited low intelligence, his 

family’s income was low, his mother neglected him, and noted the absence of a 

father figure.213 They also 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 declaration 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 “described emotional and behavioral problems 

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.

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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. Quarterman220 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 Similarly, 

Busby repeats much of the testimony elicited at trial regarding his childhood, 

intellectual acuity, and predispositions towards women and substance abuse. 

His sisters testified at trial, and while the additional, post-conviction

statements from his sisters “undoubtedly provide[d] more details” of Busby’s 

childhood, we held in Newbury v. Stephens222 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 Indeed, 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 such 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.3d 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)).

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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 the two IQ tests 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 evidence 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 professionalism 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. 

Accordingly, assuming, 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 (2003).

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.

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For the foregoing reasons, we AFFIRM the judgment of the district court.

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