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

_______________



### E RIC 

### LYNN 

### M OORE 

### ,

Petitioner-Appellee, VERSUS 

### NAT HANIEL 

### Q UARTERMAN 

### , D IRECTOR , T EXAS D EPARTMENT OF C RIMINAL JUSTICE , C ORRECTIONAL INSTITUTIONS D IVISION , 

### Respondent-Appellant.

____________________________________ Appeal from the United States District Court fo r the Eastern District of Texas

_____________________________________

Before S MITH , GARZA , and D ENNIS , Circuit Judges. JERRY E. S MITH , Circuit Judge: Eric Mo ore was convicted of capital murder and sentence d to death in 1991. In the wake of Atkins v. Virginia , 536 U.S. 304 (2002), he filed a successive peti tion fo r habeas corpus relief in state court, argui ng that he is ment ally retarded and th us ineligible fo r the death penalty. The petition was dismissed by the Texas Court of Criminal Appeals (“TCCA”). Moore received permission to file a successive federal habeas peti

tion. The district court ult imat ely fo und him to be mentally r etarded and accordi

ngly granted him the requested relief. But because Moore failed t o exhaust the remedies available to him o n his A tkins claim in state court, we vacate and remand with in-2

struction to dismiss the peti tion without prejudice. I.

A. In December 1990 Moore and three other men broke int o the home of Richard and Eliza beth Ayers, an elderly couple. The men robbed and shot the coupl e, killing Elizabeth Ayers and paralyzing Richard Ayers. Moore was convicted of capital murder and sentenced to death in June 1991. He appealed his conviction and sentence, but the TCCA affirmed both in June 1994. M oore v. State , 882 S.W.2d 844 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1114 (1995). Moore then filed his fir st peti

tion fo r habeas relief in state court, which was denied by the TCCA in November 1998. E x parte Moore , No. 38,670-01 (Tex. Crim. App. Nov. 25, 1998). Hi s first federal habeas peti

tion likewise was denied in November 2001. M

oore v. Cockrell, No. 99-CV-18 (E.D. Tex. Nov. 26 2001). We af firmed the denial of the init ial peti

tion in November 2002. Moore v. Cockrell , No. 01-41489, 54 Fed. Appx. 591 (5th Ci

r. 2002), c ert. denied, 538 U.S. 965 (2003). 1 B. In Atkins , 536 U.S. at 321, the Court established fo r the first ti

me that the execution of ment ally retarded def

endants violates the Eighth Amendment. Moore then filed a successive habeas peti

tion in state court under T EX . C ODE C RIM . P ROC . art. 1 1.071 § 5(a), arguing that he is ineligible for the death penalty because he is ment ally retarded and that this ground for relief was not available to him when he filed his first habeas petition. 2 Moore asserted ment al retardation as indicated by his score of 74 on an IQ test taken when he was in grade school, his placement in special education th

roughout his schoo ling, and his hist ory 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 b e evaluated” and an evidentiary hearing, but the TCCA dismissed the successive petition as an abuse of the wri

t, asserting that Moore’s peti

tion “fail[ed] to contai

n sufficient specific facts which would sati sfy the requirements” of article 11.071 § 5(a). E

x Parte Moore , No

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

C. Moore then sought perm issio n from this court to file a second habeas peti tion in federal court. We allo wed him to do so on the basis of 28 U.S.C. § 2244(b)(2)(A), finding that he had made a primafacie showing of entitlement to relief under Atkins suffic ient 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 mer its of or grant relief based on the subsequent applicationunless the application contains sufficient specific fa cts e stablishing that . . . the current claim s and issues have not been and could not have been present ed 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 rai sed by the state as a defense. Id

. We directed the district court to perform it s own review of the record to determ ine whethe r Moore had met § 2244’s requirements fo r filing a successive habeas petition. If the district court was satisfied that th ose requirement s had been met, it was instructed to consider the merit s of Moore’s claim and the state’s defenses. Id

. D. In his federal peti

tion, unlike in his state pet it ion, Moore lays out the three criteria used by the American Association on Mental Retardation (“AAMR”) to diagnose mental retardation and alleges reasons why he satisfies each. 3 As in his st ate peti tion, he asserts that he s cored a 74 on an IQ test when he wasseven years old. He argues that this score ind icates both subaverage int ellectual functioning and an onset of retardation befor e age eighteen. 4 He also contends that his poor perfo rmance in school and other events in his personal history that are a part of the trial record indicate a deficiency in the adapti ve skill areas of functional academics, social skills, selfdirection, and health and safety. 5 On receiving Moore’s successive peti tion, the district court ordered a stay of execution. Hopi ng to develop the record in advance of a hearing on the merit s of his claim, Moore then mo ved the court to authorize his counsel to obtai n “expert invest igatory services,” including a psychologist trai

ned in the field of ment al retardation and a mitigation investigator. The district court denied the mo tion as premature and lat er denied the state’s motion to dismiss the peti

tion, agreeing with us that Moore had met the § 2244(b) ( 2)(A) requirement s fo r f

iling a successive habeas petition. Moore v. Johnson , No. 03-CV-224 (E.D. Tex. May 15, 2003). Finding fault wi th 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 peti tion and conducted a fact-f inding hearing to determ ine whether he is entitled to relief under Atkins

. M

oore 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 mor e of the following applicab le adaptive skill areas: communication, self-care, home living, social skills , 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), q uoted 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 l ower . . . is typically consider ed the cutoff score for the intellectual function prong of the mental retardation definition.”

5 In his state petition, Moore did not c ontend 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 federa l petition, a step he did not take when he filed his state petition.4

224 (E.D. Tex. July 28, 2003). The state appeal ed, arguing that a district court can grant habeas relief only if it finds that a defendant is in custody in vio lat io n of the Constitution or laws or treaties of the Unit ed States. The state contended that the court’s determ

inat io n that the state had misapplied i ts own procedural rule was not sufficient. Moore cross-appealed, arguing that he is entitled to an evidentiary hearing in federal c ourt on his claim o f ment al retardation and that his claim is not procedurally defaulted. We agreed with the state and vacated, instructi ng the court to determ

ine on remand whether Moore is entitle d to an evidentiary hearing and, regardless of whether it held such a hearing, whether Moore’s A tkins claim is procedurally defaulted. On a finding of no defaul t, we di rected the court to determ ine whether Moore is entitled to relief on the merit s of his claim. M

oore v. Dretke , 369 F.3d 844, 846 (5th Cir. 2004).

E. In June 2004, the distri ct court issued an order stati ng it already had decided, in refusing to alt er or amend the now-vacated writ, that there was no procedural default

. M oore v. Dretke , No. 03-CV-224 (E.D. Tex. June 8, 2004). 6 It granted an evidentiary hearing and, in doi ng 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 dev elo p his Atkins claim in state court. The court held that § 2254(e)- (2)(A) did not stri

p Moore of his enti

t lement to an evidentiary hearing, because it determined that Moore was prevented from developi ng his claim by the state court’ s i mproper application of article 11.071 § 5(a). Id

.

6 “A federa l court may not consider a state prisoner’s constitutional claim if the state courts based their re

jection 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 re jects a habeas petition based on a purely procedural ground, rather than on a consideration of the mer i ts 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, inst ead, 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 not e 2. The federal district court initially determined that the state court’s ruling did not re sult in a procedural default of Moore’s Atkins claim for 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 req

uirement, the dismissal of Moore’s petition was arbitrary; or (2) The dismiss al is not independent of the A tkins claim, because the TCCA performs a threshold merits inquiry under article 11.071 § 5(a). When it later ruled on the mer its of Moore’s Atkins claim, the court adopted only ho lding (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 exhau st state court remedies.5

During the th

ree-day hearing, Moore introduced the testi

mo ny of Dr. Ant olin Llo rente, a licensed psychologist who attested to Moore’s substandard int elligence and li mitations in adapti ve skills. He opi

ned



### S S based on his own int eraction with Moore (i

ncluding his administration of an additiona l IQ test) and his int erviews of family members, friends, teachers, and employers



### SS

that Moore is mentally retarded. Moore prof

fered the direct testimony of various family members and friends, mo st 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 testi mo ny of Dr. Gary Mears, a licensed and board-certified psychologist who had examined Moore. Mears asserted that Moore has good com munication and int erpersonal skills and w as capable of recalling with clarity his early childhood experiences, his academic an d work hist ories, and his criminal record. 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 adapti ve skill areas. Mears noted that Moore had i n fact made a reasonable effort to succeed in life. The state also challenged the validity of Moore’s IQ scores and em phasized that he had not in fact been i

n special education th roughout his schooling. The state int roduced the testimony of some of Moore’s teachers, who believed that his poor performance in an academic setting was not on account of substandard ability, but because ofhis disint erest and his refusal to apply himself. The state also prof

fered the testi

mo ny o f fo ur correctional o fficers who had interacted with Moore on a daily basis. All o f them indicated that Moore com municates well and successfully socializes with others. Following the hearing, the district co urt again granted M o ore habeas relief, holding that he is ment ally retarded and th us ineligible fo r the de ath penal

ty pursuant to A tkins

. Moore v. Dretke , No. 03-CV-224 (E.D. Tex. July 1, 2005). 7 The court found that the state court’s di smissal o f Mo ore’s peti tion was not a ruling on the merit s, but rather was an independent, though inadequate, application of article 11.071 § 5(a). The court theref ore employed a de novo standard of review in assessing the merit s of Moore’s claim, determining that no deference was owed to the state court’s ruling under the Ant i- Terrorism and Ef fective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. The state appeals, advancing th ree main arguments in the alt ernative: (1) Moore’s claim is procedur ally 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 amo unted to a mere conclusional allegation of mental retardation that deprived the state court of the opportuni ty to rule on the substance of his claim; (2) the state court’s dismissal of Mo ore’ s successive petition was merit s-based and accordi

ngly should 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 di strict court’s factual findings with regard to Moore’s int ellectual and adaptive functioning are clearly erroneous, and it s legal conclusion that Moore falls under the p r otection of Atkins is inco r7 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 fo r an evidentiary hearing on the basis of 2 8 U.S.C. § 2254(e)(2), argui ng that Moore had failed factually to develop his Atkins claim in state court and th us should not be allo wed such a hearing in federal court. On

appeal the state cont ends that Moore’s presentation of new factual allegations, alo ng with supporti ng evid ence, i

n federal court that he did not include in his state peti tion implicat es the exhaustion requireme nt of 28 U.S.C. § 2254(b)(1)(A). We have at least twice held that any problems presented by allegations and evidence introduced fo r the fir st time on federal review are “mo re accurately analyzed under the ‘exhaustion’ rubric . . . .” Dow thitt v. Johnson , 230 F.3d 733, 745 (5th Cir. 2000); see also Morris , 413 F.3d at 498.

B. Under § 2254(b)(1)(A), “[a]n application fo r a wri t of habeas corpus on behalf of a person i n custody pursuant to the j udgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.” The exhaustion requirement “is not jurisdictional, but reflects a policy of federal-state com ity designed to give the State an init ial opportuni ty to pass upon and correct alleged violations of it s pri soners’ federal rights .” A nderson v. Johnson , 338 F.3d 38 2 , 386 (5th Cir. 2003) (i nt ernal cit at io ns and quotations omitted). Whether a federal habeas petitioner has satisfied the exhau sti on requirement is a question of law that we review de novo

. Id

.

C. The exhaustio n requi

rement is satisfied if peti ti oner has fairly “presented the substance of his claim to th e state courts.” V asquez v. Hillery , 474 U.S. 254, 258 (1986). The requirement is not satisfied if he “presents new legal theories or f

actual claims in his federal habeas peti

tion. We have consistently held that a peti tioner fails to 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 re

presents 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. S

ee 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 succe ssive habeas petition raising a previously unavailable factual or legal claim. Compare M

orris 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 was independent of the mer its of Moore’s Atkins claim, yet inadequate, the state contends that the dismissal arguably was not independent of the mer its of the claim.7

F.3d at 386. (i

nt ernal citations and quotations om itted). Evidence is not material for exhaustion purposes if it “

supplements , but does not fundamentally alter, the claim presented to the state courts.” I

d

. at 386-87. The failure to exhaust is a procedural bar to federal review that may be excused if the peti tioner “can demonstrate cause for the defaults and actual prejudice.” Martinez v. Johnson , 255 F.3d 229, 239 (5th Cir. 2001). D. The state argues th at Moore’s successive state habeas peti

tion was sparse to the poi

nt of amo unting to a brief, conclusional allegation of ment al retardation. The state emphasizes in particular that Moore made no allegations and of fered 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 fo r the fir st ti me in federal court fundamentally alt ers Moore’s Atkins claim, rendering it unexhausted. We agree. In Anderson , an “admittedl y clo se case” on whether the peti

tioner had exhausted his state court remedie s with respect to his ineffect ive assistance of counsel claim, this court asserted th at 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 ti pping poi nt in favor of a finding of exhaustion. A nderson , 338 F.3d at 388. In M

orris , a mo re recent “admittedl

y clo se” case that addressed the same question with which we are now faced



### SS whether new evidence introduced in federal court rendered peti tioner’s At

kins claim unexhaust e d



### SS we similarly emphasized the impo rtance of the detail with which the state peti tion wa s presented. M

orris , 413 F.3d at 496. The peti tioner in Morris had not included an IQ score in his successive state habeas peti tion, because he lacked the funds to obt ain the exp ert assi stance required to administer such a test. Aft er his state petit io n was di smissed, we allo wed Morri s to file a successive federal hab eas peti

tion, and the district court granted him leave to retai

n expert and invest igati ve assistance. As a result, Morris was able to p resent a f

ull-scale IQ score of 53 at the subsequent evidentiary heari ng on the merits of his federal petition. Id. at 489. The state con

tended that Morris’s A tkins claim was unexhausted because he had failed to present this IQ evidence to the state court. We disagreed, asserting that al though, as in Anderson , Morri s ’s f

ederal claim was “unquestionably in a com

parati vely stronger evidentiary posture than it was in state court,” several factors weighed in Morri s’s favor. I d

. at 496 (i nt ernal cit ations and quotations om it

ted). Most notabl

y, [Morri s]

. . . properl

y outlined the AAMR's definit io n fo r mental retardation, since adopted by the TCCA as one of Texas’s current stan dards fo r determ ining ment al retardation, [Ex parte Briseno , 135 S.W.3d 1, 7-8 (Tex. Crim. App. 2004)], and noted the necessity to meet all th ree essential prongs of the definit io n. S ee id

. Morri s also clearly acknowledged that IQ evidence was lacking in his particular cas e but still ins ist ed “ [t]here is good reason to believe that [Morri s is retarded]

. . . because of the documented hist ory of adapti ve deficit s,” including Morri s’s “inabilit y t o read and wri te and his failure in functional academics,” “inability to obey the law and follo w rules,” “inab i lity to avoid vict imizat io n,” “inability to develop instrumentalities o f daily living [and] occupational skills,” and “inability to main

tai n a safe environment,”8

all of wh ich were attested to by the sw orn affidavits and school records presented to the state courts

. Id. (em phasis added). Furthermore, we acknowl edged with approval that “Morris saw fit to present an expert affidavit [alo ng wi

th his st ate peti

tion], which, albeit preliminarily, provided a psychologist’s acknowledgment of and support fo r Morri s’s ment al retardation claim.” I d

. Finally, we noted that Morri s had co nsistently asserted that “given the opportuni ty and resources, int ellectual tests would confirm” his ment al retardation. I

d

. Accordingly, we held that the state court had been given a fair opportuni ty to rule on the substance of Morri s’s Atkins claim and that therefore his pr e sentation of the IQ score for the first time on federal review supplemented, but did not fundamentally alter, that claim. The successive habeas peti tion Moore filed with the TCCA pales in com parison to the one we considere d in M

orris

. As we have discussed, Moore merely asserted in his peti tion that he had scored a 74 on an IQ test when he was a child, that he had been placed in special education th

roughout his schooling, and that he had suf

fered multiple head injuries, one of which occurred when he was no older than ten. Moore cit ed to the trial record in support of these claims but of

fered neither school records nor supporti

ng affidavit s from family members, friends, teachers, or even the psychologist who had testified on his behalf at trial. He referenced neither the AAMR’s diagnostic criteria fo r ment al retardation nor the similar definit io n of retardat io n contai

ned in § 591.003 of the Texas Health and Safety Code. 9 Most importantl y, he failed to allege that he is deficient in two or mo re adapti

ve skill areas and i

ndeed made no mention of adaptive limitations as such. Moore’s contention that he was in special education th

roughout his schooling arguably could be construed as an allegation that he was only mini

mally functional in an academic setti ng. In support of t hat 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 of fer any reason fo r why he could not present such evidence. Moore’s peti

tion did not touch, even arguably, on any other adaptive skill area, let alone explain why supporti

ng evidence was lacking. Such a peti

tion cannot be considered sufficiently “detailed in fact and law” to warrant a finding o f exhaustion. In Morris , 413 F.3d at 497, we noted that the AAMR’s th

ree diagnostic criteria are int erdep endent and that evidence satisfying one prong is, “standing com

pletely on its own,” not sufficient to avoid summary dismissal of an Atkins claim. Given that interdependence, it cannot be said th at where a defendant’s state peti tion com pletely neglects one prong of the AAMR inquiry, the presentation of evidence in support of that prong on federal review merely supplements his Atkins claim. It is t rue that Morri s’s state petition was missing the allegati on of a below-average IQ

9 “‘[M]en tal retardation’ means significantly subaverage intellectual functioning that is concurrent with deficits in adaptive behavior and originates during the developmental period.” T E X . H EA LTH & S AFE TY C ODE § 591.003(13).9

usually needed to support a finding of substandard int elle ctual functioning. The petition, however, “recognized the lack of [IQ] evidence in his record but noted various school records obtai

ned by his counsel” were indicati ve of his subpar int e lligence. I d

. at 487. Moreover, the absence of IQ evidence in his state peti tion was appropriately explained by th e fact that Morris at that ti me lacked the funds to obtain testing. Moore, by contrast, neglected to specify his adapti ve limit at io ns and failed to provide a plausible excuse for why he could not present mo re than a scintilla of evidence on that prong. Indeed, there is no excuse fo r why he did not at minimum submit affidavit s fro m his family mem b ers confirming his limit ations in two or mo re areas of adapti

ve functioning. As was true in Dow

thitt, 230 F.3d at 758, “[g]iven that the family members were willing to testify at a hearing, [Moore] could have easily obtai ned their affidavit s [before he filed his peti tion in state c o urt]. A reasonable person in [his] place would have done at least as much . . . . Obtaining affidavit s from family members is not cost prohi

bit ive.” E. We recognize that the Atkins Court did not adopt a particular criteria fo r determ ining whether a defendant is ment ally retarded; the Court inst ead left to the states “the task of develo ping appropriate ways to enforce the consti tutional restriction . . . .” Atkins , 536 U.S. at 317. We also acknowledge that at the time Moore filed his peti

tion, neither the Texas legislature nor the TCCA had developed a precise means of determ

ining 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 definit io ns of ment al retardation “conform to the clinical definit io ns

. . . .” I d

. at 317 n.22. In addit io n, in E x Parte Briseno , 135 S.W. 3d 1, 7 ( Tex. Cri m. App. 2004), the court stated that even before it of ficially adopted the AAMR’s criteria in the Atkins context, it had “previously em p lo yed” that defini

ti on in analyzing allegations of retardation relative to claims made under Penry v. Lynaugh , 492 U.S. 302 (1989). Accordingly, it is fair to conclude that even fo r habeas peti tions filed pre-Briseno , a peti tioner 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) definit io n of ment al 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’s state court peti

tion is mo re akin to the ty pe of conclusional allegation that we fo und insufficient to support exhaustion on an ineffect ive assistance of counsel claim in Kunkle v. Dretke , 352 F.3d 980 ( 5th Ci r. 2003), than it is to the robust claim of ment al retardation presented to the state by the peti tioner in Morris

. Moore’s A tkins claim is therefore default ed under 28 U.S.C. § 2254(b)(1)(A). Because that finding alo ne requires the dismissal of the peti tion, it is unnecessary fo r us to consider the remaining arguments advanced by the state. Based on Moore’s failure to exhaust his state court remedies, we VACAT E the j udgment granting the writ, and we REMAND with instruction to di smiss Moore’s A tkins claim without prej udice 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 f ederal 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 grant ing 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 remed ies; (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 st ate has waived its argument that Moore’s Atkins claim is procedurally defaulted because the state court’s dismissal was based on the requirements of T E X . C ODE C RIM . P ROC . 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 majo rit y co ncludes that Moore’s Atkins claim is unex hausted, and therefore di smisses 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 majorit y 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 cr iteria 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 o n a particular2 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 o f Criminal Appeals indicated in B riseno that it had “previo usly 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, Moo re 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 in4 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 claim to the state court[]”, th us satisfying the exhaustion requirement. V asquez v. Hillery , 474 U.S. 254, 258 (1986). The majo ri

ty turns to this Circuit’s recent opi nio n, Moreno v. Dretke , as authori ty to disregard that Moore’s claim of being in special education classes is evidence that he suffers from limited adap tive functioning. 2006 WL 1352161 (5th Cir. May 18, 2006). In Moreno , this Court declined to issue a COA on Moreno’s Atkins claim, find ing 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 the14

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.” I d . 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 deci sion 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 t his 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 o f 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 court15

ruling on the merits of Moore’s Atkins claim. Accordingly, any new evidence pre sented 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 re medies when he presents m aterial 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 th e state court.” Id . at 386-87. To support the claim that he suffers from li mited adaptive functioning, Moore offered a v ast amount of evidence in federal court that was not presented to state court, inc luding testimony from family, friends, teac hers, and neighbors, as well as school records. This testimony merely supplemented Moore’s claim that he

was in special education classes and suffere d 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 stat e courts” and “introduction of new factual materials supportive of those already in the record[.]” See Randy Hertz & James S. Liebman, F E DERAL H ABEAS C ORPUS P RACTICE AND P ROCEDURE § 23.3c, at 1088-89 (5th ed. 2005) (internal citat ions 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 cas e, but still insisted ‘[t]here is good

reason to believe that [Morris is retard ed]. . . because of the documented history of adaptive deficits[.]’” Id . (citations omitted). Apparently, the Morris Court looked to Morr is’ 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 thr ee 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] ‘attempte d 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.” M artinez

v. Johnson , 255 F.3d 229, 239 ( 5th Cir. 2001). This Circuit has recognized t hat “[c]ause is defined as something external to the petitioner, something that cannot fairly be attributed to him that imp edes his efforts to comply with the state procedural rule. ‘Cause’ fa ctors 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, s upra , § 26.3c, at 1346-47 ( emphasis in original)(citing U nited States v. Frady , 456 U.S. 152, 170 (1982) and United States v. Olano , 50718

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 d ate, 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 explan ation 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. Fu rther, 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 Tex as 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 c an “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 imposi tion of a death sentence upon one who is actually innocent of a death sentence.” Hertz & Liebman, s upra , § 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 fo r the death penalty because some constitutional or state statutory prerequisite for the imposition of a death sentence could not have been satisfied.” Hertz & Liebman, s upra , § 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 explaine d 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 hi s 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 death20

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 retard ed. It is necessary to reach this issue, howeve r, because Moore’s A tkins 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 anal yzed Moore’s habeas petition using theAAMR 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. B riseno , 135 S.W.3d at 8; American Associati on of Mental Retardation , M ENTAL R ETARDATION : D EFINITION , C LASSIFICA TION AND S YSTEMS OF S UPPORTS (10th Ed. 2002) at 1. Therefore, as explained earli er, to prove that he is mentally retarded, Moore had to establi sh: (1) significantly subaverage general intellectual functioning; (2) limitations in adaptive functioning; and (3) an onset prior to age 18. S ee Briseno , 135 S.W.3d at 8. The district court properly found that Moore presente d sufficient evidence to warrant a finding of mental5 The Weschler Adult Intelligence Scales test (the “WAIS”) is the

standard instrument in th e 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 Mo ore 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, administ ered in 2004, Moore scored a 66. Lastly, Moore took a TONI-2 non-verbal reasoning test and scored in the Very Poor Range. At t rial, 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 functi oning 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 such6 There is evidence that Moore was not in special education classes,

but in “corrective classes.” It appears that this distinction is incon sequential, 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 stat e’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 su ffers from limited adaptive functioning, Moore o ffered a significant amount of evidence in feder al court, including testimony from family, friends, teachers, and neighbors, as well as school records. 6 Though Dr. Mears stated that Moore was not limit ed in adapti ve functioning, he admitted that he could not effectively assess adapti

ve functioning without the use of adapti ve functioning scales. Dr. Llorente, though, did confidently conclude that Moore suffered from adapti ve deficit s in every area of set fo rth by the DSM-IV or the AAMR. Likewise, there was sufficient evidence for the dist ri ct 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 th e experts, testi mo ny was given by Moore’s family members explaining that it was com mo n 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, com munication skills, health and safety, social skills, leisure, self-care, home living, use of com munity resources, and vict imizat io n 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 retar dation was satisfied. Therefore, it was not clearly23

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 me ntal 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 determinewhether 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 evidence24

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 f ound 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 fa c t 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 re lief was not in error. Because it holds otherwise, I dissent from the majority opinion.