United States Court of Appeals

Fifth Circuit

FILED

June 29, 2006

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-70038

_______________

ERIC LYNN MOORE,

Petitioner-Appellee,

VERSUS

NATHANIEL QUARTERMAN,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellant.

____________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_____________________________________

Before SMITH, GARZA, and DENNIS, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Eric Moore was convicted of capital murder and sentenced to death in 1991. In the

wake of Atkins v. Virginia, 536 U.S. 304

(2002), he filed a successive petition for habeas corpus relief in state court, arguing that he

is mentally retarded and thus ineligible for the

death penalty. The petition was dismissed by

the Texas Court of Criminal Appeals

(“TCCA”).

Moore received permission to file a successive federal habeas petition. The district court

ultimately found him to be mentally retarded

and accordingly granted him the requested relief. But because Moore failed to exhaust the

remedies available to him on his Atkins claim

in state court, we vacate and remand with in-
2

struction to dismissthe petition without prejudice.

I.

A.

In December 1990 Moore and three other

men broke into the home of Richard and Elizabeth Ayers, an elderly couple. The men

robbed and shot the couple, killing Elizabeth

Ayers and paralyzing Richard Ayers.

Moore was convicted of capitalmurder and

sentenced to death in June 1991. He appealed

his conviction and sentence, but the TCCA affirmed both in June 1994. Moore v. State, 882

S.W.2d 844 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1114 (1995). Moore then filed

hisfirst petition for habeasreliefin state court,

which was denied by the TCCA in November

1998. Ex parte Moore, No. 38,670-01 (Tex.

Crim. App. Nov. 25, 1998). His first federal

habeas petition likewise was denied in November 2001. Moore v. Cockrell, No. 99-CV-18

(E.D. Tex. Nov. 26 2001). We affirmed the

denial ofthe initial petition in November 2002.

Moore v. Cockrell, No. 01-41489, 54 Fed.

Appx. 591 (5th Cir. 2002), cert. denied, 538

U.S. 965 (2003).1

B.

In Atkins, 536 U.S. at 321, the Court established for the first time that the execution of

mentally retarded defendants violates the

Eighth Amendment. Moore then filed a successive habeas petition in state court under

TEX. CODE CRIM. PROC. art. 11.071 § 5(a),

arguing that he is ineligible for the death penalty because he is mentally retarded and that

this ground for relief was not available to him

when he filed his first habeas petition.2

Moore asserted mental retardation as indicated by his score of 74 on an IQ test taken

when he was in grade school, his placement in

special education throughout his schooling,

and his history of head injuries, at least one of

which occurred when he was nine or ten years

old. To substantiate these claims, he cited to

the trial record but provided no other evidence. He requested an “opportunity to be

evaluated” and an evidentiary hearing, but the

TCCA dismissed the successive petition as an

abuse of the writ, asserting that Moore’s petition “fail[ed] to contain sufficientspecific facts

which would satisfy the requirements” of

article 11.071 § 5(a). Ex Parte Moore, No.

38,670-02 (Tex. Crim. App. Feb. 5, 2003).

C.

Moore then sought permission from this

court to file a second habeas petition in federal

court. We allowed him to do so on the basis

of 28 U.S.C. § 2244(b)(2)(A), finding that he

had made a prima facie showing of entitlement

to relief under Atkins sufficient to warrant

further exploration of his claim. In re Moore,

1 Neither Moore’s initial state petition nor his

initial federal petition requested relief on the basis

of mental retardation.

2 Article 11.071 § 5(a) states, in relevant part,

that

[i]f 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 . . . the current

claims and issues have not been and could not

have been presented previously in a timely initial application or in a previously considered

application filed under this article or Article

11.07 because the factual or legal basis for the

claim was unavailable on the date the applicant

filed the previous application . . . .
3

67 Fed. Appx. 252 (table) (5th Cir. 2003). We

noted, however, that “the facts surrounding

Moore’s alleged retardation have not been

developed, and the parties have presented

scant factual or legal grounds for us to assess

the procedural default issue” that was raised

by the state as a defense. Id. 

We directed the district court to performits

own review of the record to determine whether Moore had met § 2244’s requirements for

filing a successive habeas petition. If the district court was satisfied that those requirements had been met, it was instructed to consider the merits of Moore’s claim and the

state’s defenses. Id.

D.

In hisfederal petition, unlike in hisstate petition, Moore lays out the three criteria used

by the American Association on MentalRetardation (“AAMR”) to diagnose mental retardation and alleges reasons why he satisfies

each.3 As in his state petition, he asserts that

he scored a 74 on an IQ test when he was

seven years old. He argues that this score indicates both subaverage intellectual functioning and an onset of retardation before age

eighteen.4 He also contends that his poor performance in school and other eventsin his personal history that are a part of the trial record

indicate a deficiency in the adaptive skill areas

of functional academics, social skills, selfdirection, and health and safety.5

On receiving Moore’s successive petition,

the district court ordered a stay of execution.

Hoping to develop the record in advance of a

hearing on the merits of his claim, Moore then

moved the court to authorize his counsel to

obtain “expert investigatory services,” including a psychologist trained in the field ofmental

retardation and a mitigation investigator.

The district court denied the motion as premature and later denied the state’s motion to

dismiss the petition, agreeing with us that

Moore had met the § 2244(b)(2)(A) requirements for filing a successive habeas petition.

Moore v. Johnson, No. 03-CV-224 (E.D. Tex.

May 15, 2003). Finding fault with the state

court’s application of article 11.071 § 5(a), the

court granted Moore habeas relief, ordering

the state to release him from custody unless,

within 180 days, it reopened his state habeas

petition and conducted a fact-finding hearing

to determine whether he is entitled to relief under Atkins. Moore v. Cockrell, No. 03-CV3 The AAMR states that mental retardation “is

characterized by [1] significantly subaverage intellectual functioning, existing concurrently with

[2] related limitations in two or more of the following applicable adaptive skill areas: communication,self-care, home living,socialskills, community use, self-direction, health and safety, functional academics, leisure, and work. [3] Mental

retardation manifests before age 18.” Mental Retardation: Defiition, Classification, and Systems of

Supports 5 (9th ed. 1992), quoted in Atkins, 536

U.S. at 309 n.3. 

4 Citing a psychiatric textbook, the Atkins

Court, 536 U.S. at 309 n.5, noted that “an IQ between 70 and 75 or lower . . . is typically considered the cutoff score for the intellectual function

prong of the mental retardation definition.”

5

In his state petition, Moore did not contend

that he is limited in two or more adaptive skill

areas. He makes this particular claim for the first

time in his federal petition. In addition, he attaches

portions of his school records to his federal petition, a step he did not take when he filed his state

petition.
4

224 (E.D. Tex. July 28, 2003).

The state appealed, arguing that a district

court can grant habeas relief only if it finds

that a defendant is in custody in violation of

the Constitution or laws or treaties of the

United States. The state contended that the

court’s determination that the state had misapplied its own procedural rule was not sufficient. Moore cross-appealed, arguing that he

is entitled to an evidentiary hearing in federal

court on his claim of mental retardation and

that his claim is not procedurally defaulted.

We agreed with the state and vacated, instructing the court to determine on remand

whether Moore is entitled to an evidentiary

hearing and, regardless of whether it held such

a hearing, whether Moore’s Atkins claim is

procedurally defaulted. On a finding of no default, we directed the court to determine

whether Moore is entitled to relief on the merits of his claim. Moore v. Dretke, 369 F.3d

844, 846 (5th Cir. 2004).

E.

In June 2004, the district court issued an

orderstating it alreadyhad decided, in refusing

to alter or amend the now-vacated writ, that

there was no procedural default. Moore v.

Dretke, No. 03-CV-224 (E.D. Tex. June 8,

2004).6It granted an evidentiary hearing and,

in doing so, rejected the state’s contention that

Moore was not entitled to such a hearing under 28 U.S.C. § 2254(e)(2)(A) because he had

failed factually to develop his Atkins claim in

state court. The court held that § 2254(e)-

(2)(A) did not strip Moore of his entitlement

to an evidentiary hearing, because it determined that Moore was prevented from developing his claim by the state court’s improper

application of article 11.071 § 5(a). Id.

6

“A federal court may not consider a state

prisoner’s constitutional claim if the state courts

based their rejection of that claim on an adequate

and independent state ground.” Emery v. Johnson,

139 F.3d 191, 194-95 (5th Cir. 1998). If a state

court rejects a habeas petition based on a purely

procedural ground, rather than on a consideration

of the merits of the constitutional claim, the dismissal is independent of that claim. As long as the

application of the procedural rule is adequate (i.e.,

(continued...)

6

(...continued)

not arbitrary), it bars federal review of the

constitutional claim. “It is not always easy, however, to determine whether a state court decision is

based on state procedural grounds or, instead, on

the court’s interpretation of federal law.” Id. at

195.

The state court dismissed Moore’s successive

habeas petition for failure to meet the requirements

of article 11.071 § 5(a), the relevant text of which

is laid out supra at note 2. The federal district

court initially determined that the state court’s ruling did not result in a procedural default of

Moore’s Atkins claimfor either one of two possible

reasons: (1) The dismissal under article 11.071 §

5(a) is independent of the Atkins claim because all

that the statute requires is an allegation of specific

facts establishing that the factual or legal basis of

the asserted claim was previously unavailable; the

ruling is inadequate, however, because given that

minimal procedural requirement, the dismissal of

Moore’s petition was arbitrary; or (2) The dismissal is not independent of the Atkins claim,

because the TCCA performs a threshold merits

inquiry under article 11.071 § 5(a). 

When it later ruled on the merits of Moore’s

Atkins claim, the court adopted only holding (1).

See infra. The district court never ruled on whether, as the state contends on appeal, Moore’s claim

is procedurally defaulted under 28 U.S.C. § 2254-

(b)(1)(A) for failure to exhaust state court remedies.
5

During the three-day hearing, Moore introduced the testimony of Dr. Antolin Llorente, a

licensed psychologist who attested to Moore’s

substandard intelligence and limitations in

adaptive skills. He opinedSSbased on his own

interaction with Moore (including his administration of an additional IQ test) and his interviews of family members, friends, teachers,

and employersSSthat Moore is mentally retarded. Moore proffered the direct testimony of

various family members and friends, most of

whom indicated that Moore had been “slow”

and incapable of handling some of the basic

requirements of daily living from an early age.

The state countered with the testimony of

Dr. GaryMears, a licensed and board-certified

psychologist who had examinedMoore. Mears

asserted that Moore has good communication

and interpersonal skills and was capable of

recalling with clarity his early childhood experiences, his academic and work histories, and

his criminalrecord. Mears examined Moore’s

school and psychological testing records and

concluded that although Moore is arguably of

substandard intelligence, he is not deficient in

any of the AAMR’s enumerated adaptive skill

areas. Mears noted that Moore had in fact

made a reasonable effort to succeed in life. 

The state also challenged the validity of

Moore’s IQ scores and emphasized that he

had not in fact been in special education

throughout his schooling. The state introduced the testimony of some of Moore’s

teachers, who believed that his poor performance in an academic setting was not on account ofsubstandard ability, but because of his

disinterest and his refusal to apply himself. 

The state also proffered the testimony of

four correctional officers who had interacted

with Moore on a daily basis. All of them indicated that Moore communicates well and

successfully socializes with others. 

Following the hearing, the district court

again granted Moore habeas relief, holding

that he is mentally retarded and thus ineligible

for the death penalty pursuant to Atkins.

Moore v. Dretke, No. 03-CV-224 (E.D. Tex.

July 1, 2005).7 The court found that the state

court’s dismissal of Moore’s petition was not

a ruling on the merits, but rather was an independent, though inadequate, application of

article 11.071 § 5(a). The court therefore

employed a de novo standard of review in assessing the merits of Moore’s claim, determining that no deference was owed to the state

court’s ruling under the Anti-Terrorism and

Effective Death Penalty Act (“AEDPA”), 28

U.S.C. § 2254.

The state appeals, advancing three main arguments in the alternative: (1) Moore’s claim

is procedurally defaulted under 28 U.S.C.

§ 2254(b)(1)(A) because he failed to exhaust

his state court remedies before proceeding to

federal court; the petition he filed with the

TCCA amounted to a mere conclusional allegation of mental retardation that deprived the

state court of the opportunity to rule on the

substance of his claim; (2) the state court’s

dismissal of Moore’s successive petition was

merits-based and accordinglyshould be upheld

given the deference it is owed under AEDPA;

and (3) even if the district court was correct in

employing a de novo standard, the district

court’sfactualfindingswithregard to Moore’s

intellectual and adaptive functioning are clearly

erroneous, and itslegal conclusion that Moore

falls under the protection of Atkins is incor7 The court directed the state to release Moore

from custody unless, within 180 days, it permanently stayed his execution or reformed his sentence to life imprisonment.
6

rect.8

II.

A.

In the district court, the state opposed

Moore’s request for an evidentiary hearing on

the basis of 28 U.S.C. § 2254(e)(2), arguing

that Moore had failed factually to develop his

Atkins claim in state court and thus should not

be allowed such a hearing in federal court. On

appeal the state contends that Moore’s presentation of new factual allegations, along with

supporting evidence, in federal court that he

did not include in his state petition implicates

the exhaustion requirement of 28 U.S.C.

§ 2254(b)(1)(A). We have at least twice held

that any problems presented by allegations and

evidence introduced for the first time on federal review are “more accurately analyzed

under the ‘exhaustion’ rubric . . . .” Dowthitt

v. Johnson, 230 F.3d 733, 745 (5thCir. 2000);

see also Morris, 413 F.3d at 498.

B.

Under § 2254(b)(1)(A), “[a]n application

for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appearsthat the applicant has exhausted the remedies available in the courts of the State.” The

exhaustion requirement “is not jurisdictional,

but reflects a policy offederal-state comity designed to give the State an initial opportunity

to pass upon and correct alleged violations of

its prisoners’ federal rights.” Anderson v.

Johnson, 338 F.3d 382, 386 (5th Cir. 2003)

(internal citations and quotations omitted).

Whether a federal habeas petitioner has satisfied the exhaustion requirement is a question

of law that we review de novo. Id.

C.

The exhaustion requirement is satisfied if

petitioner has fairly “presented the substance

of his claim to the state courts.” Vasquez v.

Hillery, 474 U.S. 254, 258 (1986). The requirement is not satisfied if he “presents new

legal theories or factual claims in his federal

habeas petition. We have consistently held

that a petitioner failsto exhaust state remedies

when he presents material additional evidentiary support to the federal court that was not

presented to the state court.” Anderson, 338

8 Although the state represents in its briefs that

it does not waive the argument that Moore’s Atkins

claim is procedurally defaulted because the state

court’s dismissal was predicated on an independent

and adequate state ground, the state offers no

support for that argument other than to claim that

“the issue is certainly debatable.” It instead spends

much of its brief discussing the effect of the state

court’s ruling if it is in fact merits-based and thus

not independent of Moore’s constitutional claim.

Because the state failed adequately to brief the

issue of whether the state court’s dismissal of

Moore’s successive petition provides an independent and adequate bar to federal habeas review, the

argument is waived. See United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001). 

Accordingly, we will not further analyze this

issue of procedural default, although we note that

there is disagreement within this circuit with regard

to the effect of the dismissal, under article 11.071

§ 5(a), of a successive habeas petition raising a

previously unavailable factual or legal claim.

Compare Morris v. Dretke, 413 F.3d 484, 500 n.4

(5th Cir. 2005) (Higginbotham, J., concurring)

with In re Johnson, 334 F.3d 403, 405 (5th Cir.

2003) (Jones, J., concurring); see also Moreno v.

Dretke, 2006 WL 1352161, at *4 n.3 (5th Cir.

May 18, 2006). We also note that the state has not

waived its argument with regard to the particular

reason for why there is no procedural default.

Although the district court held that the state court

dismissal wasindependent ofthemerits of Moore’s

Atkins claim, yet inadequate, the state contendsthat

the dismissal arguably was not independent of the

merits of the claim. 
7

F.3d at 386. (internal citations and quotations

omitted). Evidence is not material for exhaustion purposes if it “supplements, but does not

fundamentally alter, the claimpresented to the

state courts.” Id. at 386-87. The failure to exhaust is a procedural bar to federalreview that

may be excused if the petitioner “can demonstrate cause for the defaults and actual prejudice.” Martinez v. Johnson, 255 F.3d 229,

239 (5th Cir. 2001).

D.

The state argues that Moore’s successive

state habeas petition wassparse to the point of

amounting to a brief, conclusionalallegation of

mental retardation. The state emphasizes in

particular that Moore made no allegations and

offered no evidence before the TCCA with regard to his limitations in adaptive skill areas.

The state contends that the presentation of

such allegations and evidence for the first time

in federal court fundamentally alters Moore’s

Atkins claim, rendering it unexhausted. We

agree.

In Anderson, an “admittedly close case” on

whether the petitioner had exhausted his state

court remedies with respect to his ineffective

assistance of counsel claim, this court asserted

that the fact that “the portion of Anderson’s

state post-conviction brief dedicated to ineffective assistance is remarkably detailed in

both fact and law” provided the tipping point

in favor of a finding of exhaustion. Anderson,

338 F.3d at 388. In Morris, a more recent

“admittedly close” case that addressed the

same question with which we are now

facedSSwhether new evidence introduced in

federalcourtrendered petitioner’sAtkinsclaim

unexhaustedSSwe similarly emphasized the

importance of the detail with which the state

petition was presented. Morris, 413 F.3d at

496.

The petitioner in Morris had not included

an IQ score in his successive state habeas petition, because he lacked the funds to obtain

the expert assistance required to administer

such a test. After his state petition was dismissed, we allowed Morris to file a successive

federal habeas petition, and the district court

granted him leave to retain expert and investigative assistance. As a result, Morris was able

to present a full-scale IQ score of 53 at the

subsequent evidentiary hearing on the merits

of his federal petition. Id. at 489. 

The state contended that Morris’s Atkins

claim was unexhausted because he had failed

to present this IQ evidence to the state court.

We disagreed, asserting that although, as in

Anderson, Morris’s federal claim was “unquestionably in a comparatively stronger evidentiary posture than it was in state court,”

several factors weighed in Morris’s favor. Id.

at 496 (internal citations and quotations omitted). Most notably,

[Morris] . . . properly outlined the AAMR's

definition for mental retardation, since

adopted by the TCCA as one of Texas’s

current standards for determining mental

retardation, [Ex parte Briseno, 135 S.W.3d

1, 7-8 (Tex. Crim. App. 2004)], and noted

the necessity to meet all three essential

prongs of the definition. See id. Morris also clearly acknowledged that IQ evidence

was lacking in his particular case but still

insisted “[t]here is good reason to believe

that [Morris is retarded] . . . because of the

documented history of adaptive deficits,”

including Morris’s “inability to read and

write and his failure in functional academics,” “inability to obey the law and follow

rules,” “inability to avoid victimization,”

“inability to develop instrumentalities of

daily living [and] occupational skills,” and

“inability to maintain a safe environment,”
8

all of which were attested to by the sworn

affidavits and school records presented to

the state courts.

Id. (emphasis added).

Furthermore, we acknowledged with approval that “Morris saw fit to present an expert affidavit [along with his state petition],

which, albeit preliminarily, provided a psychologist’s acknowledgment of and support for

Morris’s mental retardation claim.” Id. Finally, we noted that Morris had consistently asserted that “given the opportunityand resources, intellectual tests would confirm” his mental

retardation. Id. Accordingly, we held that the

state court had been given a fair opportunity to

rule on the substance of Morris’s Atkins claim

and that therefore his presentation of the IQ

score for the first time on federal review supplemented, but did not fundamentally alter,

that claim.

The successive habeas petition Moore filed

with the TCCA palesin comparison to the one

we considered in Morris. As we have discussed, Moore merely asserted in his petition

that he had scored a 74 on an IQ test when he

was a child, that he had been placed in special

education throughout his schooling, and that

he had suffered multiple head injuries, one of

which occurred when he was no older than

ten. 

Moore cited to the trialrecord in support of

these claims but offered neither schoolrecords

norsupporting affidavitsfromfamilymembers,

friends, teachers, or eventhe psychologist who

had testified on his behalf at trial. He referenced neither the AAMR’s diagnostic criteria

formentalretardation nor the similar definition

of retardation contained in § 591.003 of the

Texas Health and Safety Code.9 Most importantly, he failed to allege that he is deficient in

two or more adaptive skill areas and indeed

made no mention of adaptive limitations as

such. 

Moore’s contention that he was in special

education throughout his schooling arguably

could be construed as an allegation that he was

only minimally functional in an academic

setting. In support of that bare assertion,

however, he did not “identify any specific

special education classes or provide documentation of those classes,” Moreno, 2006 WL

1352161, at *4, nor did he offer any reason for

why he could not present such evidence.

Moore’s petition did not touch, even arguably,

on any other adaptive skill area, let alone

explain why supporting evidence was lacking.

Such a petition cannot be considered sufficiently “detailed in fact and law” to warrant a

finding of exhaustion.

In Morris, 413 F.3d at 497, we noted that

the AAMR’sthree diagnostic criteria are interdependent and that evidence satisfying one

prong is, “standing completely on its own,”

not sufficient to avoid summarydismissal of an

Atkins claim. Given that interdependence, it

cannot be said that where a defendant’s state

petition completely neglects one prong of the

AAMRinquiry, the presentation of evidence in

support ofthat prong on federalreview merely

supplements his Atkins claim. 

It is true that Morris’s state petition was

missing the allegation of a below-average IQ

9

“‘[M]ental retardation’ means significantly

subaverage intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.” TEX.

HEALTH & SAFETY CODE § 591.003(13).
9

usually needed to support a finding ofsubstandard intellectual functioning. The petition,

however, “recognized the lack of [IQ] evidence in his record but noted various school

records obtained by his counsel” were indicative of his subpar intelligence. Id. at 487.

Moreover, the absence of IQ evidence in his

state petition was appropriately explained by

the fact that Morris at that time lacked the

funds to obtain testing.

Moore, bycontrast, neglected to specifyhis

adaptive limitations and failed to provide a

plausible excuse for why he could not present

more than a scintilla of evidence on that prong.

Indeed, there is no excuse for why he did not

at minimum submit affidavits from his family

members confirming his limitations in two or

more areas of adaptive functioning. As was

true in Dowthitt, 230 F.3d at 758, “[g]iven that

the family members were willing to testify at a

hearing, [Moore] could have easily obtained

their affidavits [before he filed his petition in

state court]. A reasonable person in [his]

place would have done at least as much . . . .

Obtaining affidavits from family members is

not cost prohibitive.”

E.

We recognize that the Atkins Court did not

adopt a particular criteria for determining

whether a defendant is mentally retarded; the

Court instead left to the states “the task of developing appropriate waysto enforce the constitutional restriction . . . .” Atkins, 536 U.S.

at 317. We also acknowledge that at the time

Moore filed his petition, neither the Texaslegislature nor the TCCA had developed a precise

means of determining whether a criminal

defendant qualifies for Atkins relief. 

The Atkins Court, however, did reference

the AAMR’s criteria and noted that most already-existing statutory definitions of mental

retardation “conform to the clinical definitions

. . . .” Id. at 317 n.22. In addition, in Ex

Parte Briseno, 135 S.W. 3d 1, 7 (Tex. Crim.

App. 2004), the court stated that even before

it officially adopted the AAMR’s criteria in the

Atkins context, it had “previously employed”

that definition in analyzing allegations of retardation relative to claims made under Penry

v. Lynaugh, 492 U.S. 302 (1989). Accordingly, it isfair to conclude that even for habeas

petitionsfiled pre-Briseno, a petitioner has not

adequately presented the substance of his

Atkins claim to the TCCA unless he has, at the

very least, (1) outlined either the AAMR

criteria or the substantially equivalent § 591-

.003(13) definition of mental retardation and

(2) either alleged why he satisfies each criterion or asserted reasons why he is currently

incapable of presenting any evidence on a particular prong.

Moore’sstate court petition is more akin to

the type of conclusional allegation that we

found insufficient to support exhaustion on an

ineffective assistance of counsel claim in Kunkle v. Dretke, 352 F.3d 980 (5th Cir. 2003),

than it isto the robust claim of mentalretardation presented to the state by the petitioner in

Morris. Moore’s Atkins claim istherefore defaulted under 28 U.S.C. § 2254(b)(1)(A). Because that finding alone requires the dismissal

of the petition, it is unnecessary for us to consider the remaining arguments advanced bythe

state.

Based on Moore’s failure to exhaust his

state court remedies, we VACATE the judgment granting the writ, and we REMAND

with instruction to dismiss Moore’s Atkins

claim without prejudice and for consideration

of Rhines v. Weber, 544 U.S. 269 (2005).
10

DENNIS, Circuit Judge, dissenting:

I respectfully dissent from the majority’s decision to vacate the

district court’s judgment granting Moore relief from the death

penalty. Specifically, I do not agree that Moore failed to exhaust

his state court remedies. Even if I were to agree that Moore

failed to exhaust his state court remedies, I believe that he

nevertheless is entitled to federal habeas review because he has

shown both sufficient cause for the default and actual prejudice.

Additionally, a fundamental miscarriage of justice will result if

we fail to consider the merits of Moore’s Atkins claim. Finally,

there was sufficient evidence to support the district court’s

finding that Moore is mentally retarded. Therefore, the federal

district court’s ruling granting Moore habeas relief should be

affirmed.

1.

Exhaustion of State Remedies

The state presented three alternative arguments on appeal: (1)

Moore failed to exhaust state court remedies; (2) the federal

district court erred in reviewing Moore’s claim de novo; and (3)

the district court’s factual findings were clearly erroneous. The

majority opinion disposes of the case on the exhaustion issue,

finding that, under Dowthitt v. Johnson, this case is “more

accurately analyzed under the ‘exhaustion’ rubric[.]” 230 F.3d 733,
1 In footnote 8, the majority concludes that, because it was not

adequately briefed, the state has waived its argument that Moore’s

Atkins claim is procedurally defaulted because the state court’s

dismissal was based on the requirements of TEX. CODE CRIM. PROC. art.

11.071 §5(a), which was an independent and adequate state court ground.

I agree with the assessment that this argument is waived.

11

745 (5th Cir. 2000).1 Because the majority finds that Moore presented material additional

evidence in federal court that was not presented to the state court, the majority concludes that

Moore’s Atkins claim is unexhausted, and therefore dismisses his petition. Given the

circumstances of this case, however, the majority’s finding of

failure to exhaust is in error.

My first point of contention is with the test created by the

majority. The majority recognizes that Moore filed his subsequent

state habeas petition after Atkins v. Virginia, 536 U.S. 304, 321

(2002), but before the Texas Court of Criminal Appeals decided Ex

Parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), the case in

which the Texas Court of Criminal Appeals adopted the definition of

mental retardation to be used in Atkins cases. Nevertheless, the

majority has decided that “it is fair to conclude that even for

habeas petitions filed pre-Briseno, a petitioner has not adequately

presented the substance of his Atkins claim to the [Texas Court of

Criminal Appeals] unless he has, at the very least, (1) outlined

either the AAMR criteria or the substantially equivalent §

591.003(13) definition of mental retardation and (2) either alleged

why he satisfies each criterion or asserted reasons why he is

currently incapable of presenting any evidence on a particular
2 Atkins, 536 U.S. at 317 (leaving to the states “the task of

developing appropriate ways to enforce the constitutional restriction[.]”).

3 The majority opinion states that Moore’s petition “cannot be

considered sufficiently ‘detailed in fact and law’ to warrant a finding

of exhaustion.”

12

prong.” Apparently, the majority has come to this conclusion

because the Texas Court of Criminal Appeals indicated in Briseno

that it had “previously employed” the AAMR definition of mental

retardation in cases making claims under Penry v. Lynaugh, 492 U.S.

302 (1989). Though the Texas courts previously had relied on

definitions of mental retardation in Penry cases, they had not yet

clarified what standard would be used in Atkins cases, as they were

directed to do by the Supreme Court.2 At the time Moore filed his

subsequent state habeas petition, there was nothing in Texas’

Atkins jurisprudence to direct Moore on how to present evidence of

mental retardation in his petition. Therefore, I disagree with the

majority that it is “fair to conclude” that Moore was required to

present his mental retardation evidence in the manner set forth by

the AAMR or the Texas Health and Safety Code.

Despite the fact that Moore was not required to present his

mental retardation evidence in accordance with definitions not yet

adopted by Texas, Moore did give evidence of mental retardation

such that his petition was sufficiently “detailed in fact and law”

to warrant a finding of exhaustion.3 In his subsequent state habeas

petition, Moore provided evidence of a low IQ, that he had been in
4 The majority does not take issue with Moore’s evidence of “significantly subaverage intellectual functioning” and “onset prior to age 18.”

The only problem appears to be with Moore’s evidence of limited adaptive

functioning.

13

special education, had brain damage, and that the onset of these

problems was prior to age 18. To claim that he is mentally

retarded, Moore had to assert: (1) significantly subaverage general

intellectual functioning; (2) limitations in adaptive functioning;

(3) an onset prior to age 18. Briseno, 135 S.W.3d at 8. Clearly,

Moore touched on all three of the criteria for mental retardation

in his subsequent state habeas petition.4 Therefore, he “presented the substance

of his claimto the state court[]”, thussatisfying the exhaustion requirement. Vasquez v. Hillery, 474

U.S. 254, 258 (1986).

The majorityturnsto thisCircuit’srecent opinion, Moreno v. Dretke, as authorityto disregard that

Moore’s claimof being in special education classes is evidence that he suffers from

limited adaptive functioning. 2006 WL 1352161 (5th Cir. May 18,

2006). In Moreno, this Court declined to issue a COA on Moreno’s

Atkins claim, finding no error in the district court’s decision

that the state court reasonably held that Moreno did not present a

prima facie Atkins claim. In his subsequent state habeas petition,

Moreno presented evidence that he scored a 64 on an IQ test when he

was 35 years old. He also alleged that he attended special

education classes as a child, thus arguing that he suffered

adaptive limitations. The Moreno panel stated that Moreno’s “only

evidentiary support for [the special education] claim was the
14

psychologist’s report reciting Moreno’s self-reported educational

background. He could not identify any specific special education

classes or provide documentation of those classes.” Id. at *4.

The majority in this case uses this statement from Moreno to

conclude that Moore’s claim that he was in special education

classes is not sufficient to constitute proof of limited adaptive

functioning. The majority’s conclusion is in error. 

In Moreno, the Court based its decision on much more than the

lack of supporting evidence of special education classes. The

Moreno panel explained, “[m]uch of this evidence, such as Moreno’s

employment history, fails to suggest adaptive limitations.

Balanced against this meager evidence of adaptive limitations is

the substantial evidence that Moreno possesses adaptive behavioral

skills.” Id. The Moreno panel did not conclude that claiming to

have been in special education classes was not enough to qualify as

proof of limited adaptive functioning, but that, in Moreno’s case,

the evidence to the contrary outweighed the allegations that Moreno

was in special education classes because he suffered limited

adaptive functioning. This is not the situation in Moore’s case,

and therefore, the case before us is distinguishable from Moreno.

Since Moore adequately presented the substance of his claim in

state court - that he is mentally retarded and therefore not

eligible for the death penalty according to Atkins - his claim was

properly exhausted and there was no bar to the district court
15

ruling on the merits of Moore’s Atkins claim. Accordingly, any new

evidence presented to the district court merely supplemented

Moore’s state claim. As the majority explains:

We have consistently held that a petitioner fails to

exhaust state remedies when he presents material additional evidentiary support to the federal court that was

not presented to state court.” Anderson v. Johnson, 338

F.3d 382, 386 (5th Cir. 2003). Evidence is not material

for exhaustion purposes if it “supplements, but does not

fundamentally alter, the claim presented to the state

court.” Id. at 386-87. 

To support the claim that he suffers from limited adaptive

functioning, Moore offered a vast amount of evidence in federal

court that was not presented to state court, including testimony

from family, friends, teachers, and neighbors, as well as school

records. This testimony merely supplemented Moore’s claim that he

was in special education classes and suffered limited adaptive

functioning. Moore is allowed to “supplement and clarify” his

claims presented in state court “through expansion of the record”

with evidence such as “more sophisticated statistical analyses than

were presented in state courts” and “introduction of new factual

materials supportive of those already in the record[.]” See Randy

Hertz & James S. Liebman, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE §

23.3c, at 1088-89 (5th ed. 2005) (internal citations omitted).

Because Moore’s additional evidence presented in federal court did

not “fundamentally alter the legal claim” presented in state court,

his claim was not unexhausted. See Vasquez, 474 U.S. at 260.

The majority attempts to distinguish this case from Morris v.
16

Dretke, 413 F.3d 484 (5th Cir. 2005), a case in which this Circuit

found that, though the petitioner presented more evidence in

federal court than in state court, his Atkins claim was not

unexhausted. The Court came to this conclusion even though it

found that Morris’ federal claim was “unquestionably in comparatively stronger evidentiary posture than it was in state court”

because Morris presented an IQ score in federal district court and

had not presented an IQ score in his state court habeas petition.

Id. at 496 (internal citations omitted). The Morris Court found

that Morris “clearly acknowledged that IQ evidence was lacking in

[Morris’] particular case, but still insisted ‘[t]here is good

reason to believe that [Morris is retarded]. . . because of the

documented history of adaptive deficits[.]’” Id. (citations

omitted). 

Apparently, the Morris Court looked to Morris’ evidence of

limited adaptive functioning to compensate for the lack of an IQ

score. Even the majority in this case concedes the Morris Court’s

point that “the AAMR’s three diagnostic criteria are interdependent.” See Id. at 497. Thus, there is no reason why, in Moore’s

case, this Court could not look to the evidence of special

education and brain injury to deduce that Moore had limited

adaptive functioning. This is especially true since, as in Morris,

there is “nothing in [the] record that shows that [Moore] ‘attempted to expedite federal review by deliberately withholding

essential facts from the state courts.’” Id. at 496. Therefore,
17

the outcome in Morris actually supports Moore in this case. Where,

as in Moore’s situation, the substance of a petitioner’s claim was

presented in state court, and additional, supplemental evidence is

presented in federal court, that petitioner has exhausted his claim

in federal court, even if his federal court evidence makes his case

stronger.

2.

Exceptions to the Exhaustion Rule

The failure to exhaust may be excused if the petitioner “can

demonstrate cause for the defaults and actual prejudice.” Martinez

v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001). This Circuit has

recognized that “[c]ause is defined as something external to the

petitioner, something that cannot fairly be attributed to him that

impedes his efforts to comply with the state procedural rule.

‘Cause’ factors may include interference by officials that makes

compliance with the procedural rule impracticable, a showing that

the factual or legal basis for the claim was not reasonably

available to counsel, and ineffective assistance of counsel [...]

on direct appeal.” Matchett v. Dretke, 380 F.3d 844, 848-49 (5th

Cir. 2004) (internal citations omitted). Further, prejudice is

found where “the specific facts and circumstances of the proceeding

in which the error occurred” have “worked to the petitioner’s

actual and substantive disadvantage.” Hertz & Liebman, supra, §

26.3c, at 1346-47 (emphasis in original)(citing United States v.

Frady, 456 U.S. 152, 170 (1982) and United States v. Olano, 507
18

U.S. 725, 734-35, 736, 739-41 (1993)).

Given this standard, it is evident that even if Moore’s claims

are unexhausted, he satisfies the “cause and prejudice” exception

to the exhaustion rule. Though Moore did not provide all of the

evidence available to him in order to support his assertion that he

attended special education classes as a child, nor did he express

his mental retardation evidence using the AAMR categories, he did

state that “[t]o date, there has been no published case from the

Court of Criminal Appeals giving guidance to what constitutes

retardation under Texas law.” Contrary to the majority’s position,

Moore’s statement regarding the then-uncertain state of Texas law

does provide an explanation of why such supporting evidence was

lacking - Moore had not received guidance from Texas courts on how

to present his evidence of mental retardation post-Atkins.

Certainly, something external to Moore, namely that Texas had not

yet decided Briseno, caused Moore’s inability to present his mental

retardation evidence according to an established Texas procedure.

Further, the facts and circumstances of Moore’s case demonstrate

that Moore was prejudiced by this lack of guidance. The fact that

Moore did not know how to set forth his mental retardation evidence

such that it would be acceptable to the Texas Court of Criminal

Appeals caused the state court to dismiss Moore’s subsequent state

habeas petition. This is clearly an “actual and substantive

disadvantage” suffered by Moore. As such, Moore has satisfied the

“cause and prejudice” exception to the exhaustion rule.
19

Another exception to the exhaustion rule applies to situations

where the petitioner can “demonstrate...that failure to consider

the claims will result in a fundamental miscarriage of justice.”

Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Supreme Court

has made clear that the “miscarriage of justice” exception extends

to cases in which “[t]he Constitutional violation has probably

resulted in the imposition of a death sentence upon one who is

actually innocent of a death sentence.” Hertz & Liebman, supra, §

26.4, at 1369 (internal citations omitted); see also Dugger v.

Adams, 489 U.S. 401, 411 n.6 (1989). This means that a petitioner

can invoke the “miscarriage of justice” exception if, but for the

failure to exhaust, “the petitioner would have not been eligible

for the death penalty because some constitutional or state

statutory prerequisite for the imposition of a death sentence could

not have been satisfied.” Hertz & Liebman, supra, § 26.4, at 1369-

71; see also Sawyer v. Whitley, 505 U.S. 333, 343, 345-50 (1992).

Moore easily satisfies this exception because, as explained in

section 3 of this dissent, when allowed to look at the merits of

Moore’s Atkins claim, the district court properly found that Moore

is mentally retarded. Therefore, in accordance with the Supreme

Court’s finding in Atkins, Moore is ineligible for the death

penalty, as his execution would constitute cruel and unusual

punishment in violation of the Eighth Amendment. In other words,

the evidence in this case shows that any alleged failure to exhaust

is excused because Moore is actually “innocent of the death
20

penalty.”

3.

The District Court’s Finding of Mental Retardation

The majority does not reach the issue of whether the district

court erred in finding that Moore is mentally retarded. It is

necessary to reach this issue, however, because Moore’s Atkins

claim was either exhausted in state court, or his failure to

exhaust is excused. Therefore, this appeal cannot be disposed of

on a finding of failure to exhaust. Accordingly, it is necessary

to turn to the state’s argument that the district court’s factual

findings were clearly erroneous.

The district court analyzed Moore’s habeas petition using the

AAMR definition of mental retardation, one of the mental retardation definitions adopted by the Texas Court of Criminal Appeals in

Briseno. The AAMR defines mental retardation as:

A disability characterized by significant limitations in

both intellectual functioning and in adaptive behavior,

as expressed in conceptual, social, and practical

adaptive skills. This disability originates before age

18. Briseno, 135 S.W.3d at 8; American Association of

Mental Retardation, MENTAL RETARDATION: DEFINITION, CLASSIFICATION AND SYSTEMS OF SUPPORTS (10th Ed. 2002) at 1. 

Therefore, as explained earlier, to prove that he is mentally

retarded, Moore had to establish: (1) significantly subaverage

general intellectual functioning; (2) limitations in adaptive

functioning; and (3) an onset prior to age 18. See Briseno, 135

S.W.3d at 8. The district court properly found that Moore

presented sufficient evidence to warrant a finding of mental
5 The Weschler Adult Intelligence Scales test (the “WAIS”) is the

standard instrument in the US for assessing intellectual functioning.

The Flynn effect recognizes that norm IQ scores across a population have

increased approximately 3 points per decade.

21

retardation. 

First, Moore met his burden of showing that he suffered from

subaverage general intellectual functioning. The state claims that

the district court erred in finding Moore mentally retarded,

because that finding was made in the absence of a single, valid IQ

score, and instead on the sole basis of subjective, anecdotal

testimony from biased family members. Moore has taken four IQ

tests over his lifetime. The first was the Primary Mental

Abilities Test (“PMA”) given at age 6, on which he scored a 74. He

also received a 76 on the WAIS-R taken at age 24 in 1991, which was

adjusted to a 72.1 to account for the Flynn effect.5 On the WAIS-III,

administered in 2004, Moore scored a 66. Lastly, Moore took a TONI-2 non-verbal reasoning test

and scored in the Very Poor Range. At trial, though Dr. Gary Mears, the

state’s expert psychologist, did testify that he had some questions

about the accuracy of the IQ scores, he also stated that he would

agree with Dr. Antolin Llorente, Moore’s expert psychologist, that

Moore satisfied the significantly subaverage general intellectual

functioning prong of the mental retardation definition. Dr.

Llorente testified that all of Moore’s IQ scores, including the one

taken at age 6, were consistent with the WAIS-III score of 66. Dr.

Llorente also testified that Moore was assessed for response bias

to determine whether he was fabricating his results, and no such
6 There is evidence that Moore was not in special education classes,

but in “corrective classes.” It appears that this distinction is

inconsequential, because the point is that Moore was not able to keep

up with children his age.

22

bias was found. Given the agreement among the experts and the

concession by the state’s expert, there appears to be sufficient

evidence for the district court to have determined that Moore

satisfied this prong of the definition. 

Secondly, to support the claim that he suffers from limited

adaptive functioning, Moore offered a significant amount of

evidence in federal court, including testimony from family,

friends, teachers, and neighbors, as well as school records.6 Though

Dr. Mears stated that Moore was not limited in adaptive functioning, he admitted that he could not

effectively assess adaptive functioning without the use of adaptive functioning scales. Dr. Llorente,

though, did confidently conclude that Moore suffered fromadaptive deficitsin every area ofset forth

by the DSM-IV or the AAMR. Likewise, there was sufficient evidence for the district court to

conclude that the onset of Moore’s mental retardation occurred before age 18. Again, the experts

agreed that this was the case. In addition to the experts, testimony was given by Moore’s family

members explaining that it was common knowledge within the community that Moore was “slow”

as a child. Overall, the district court listened to the opinions of experts, heard testimony from family

members, and reviewed Moore’s academic records, vocational work, communication skills, health

and safety,socialskills, leisure,self-care, home living, use of community resources, and victimization

and gullibility. Based on all of these factors, there was sufficient evidence for the

district court to conclude that each prong of the definition of

mental retardation was satisfied. Therefore, it was not clearly
23

erroneous for the district court to conclude that Moore is mentally

retarded.

4.

District Court’s Standard of Review

The majority also does not reach the issue of whether the

district court applied an incorrect standard of review to Moore’s

habeas petition. Again, it is necessary to reach this issue

because this case cannot be disposed of on the exhaustion question

alone. Considering the procedural history of this case, it is

apparent that the district court employed the correct standard of

review.

The state takes issue with the district court’s decision to

review Moore’s claim de novo and its explanation that it was doing

so because the state court’s dismissal was procedural in nature and

was not an adjudication on the merits. Though the state argues

that large portions of Moore’s mental retardation claim are

procedurally defaulted, the state still maintains that the

dismissal of Moore’s subsequent state habeas application may not

have been independent of Atkins and, thus, may not be an absolute

procedural dismissal. If this is the case, then the district court

should have only reviewed the state court’s dismissal to determine

whether it was “contrary to, or involved an unreasonable application of, clearly established federal law as determined by the

United States Supreme Court, or resulted in a decision based on an

unreasonable determination of the facts in light of the evidence
24

presented in the state court proceeding,” as directed by AEDPA. 28

U.S.C. § 2254(d)(1)-(2). 

However, Moore’s claim was not adjudicated on the merits in state

court. The Texas Court of Criminal Appeals dismissed Moore’s

application because it found that Moore had failed to allege

specific facts in his application that would satisfy the elements

of the Texas subsequent application rule. This was a pure

procedural decision, and did not involve the Texas Court of

Criminal Appeals hearing Moore’s evidence to determine whether he

is in fact mentally retarded. When a state court does not

adjudicate a claim on its merits, the federal court must determine

the claim de novo. Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th

Cir. 2000). Therefore, AEDPA’s deferential standard of review does

not apply. As such, the district court did not err in undertaking

a de novo review of Moore’s Atkins claim. 

Conclusion

For the reasons indicated, the district court did not err in

hearing Moore’s federal habeas petition. Furthermore, the district

court’s ruling granting Moore habeas relief was not in error.

Because it holds otherwise, I dissent from the majority opinion.