IN THE TINITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BOBBY LEE HINES

Petitioner.

VS.

NATHANIEL QUARTERMAN, Director

Texas Department of Criminal Justice,

Correctional Institutions Division

NO. 3-06-CV-0320-G

law, made retroactive to

Supreme Court, that was

Respondent.

MEMORANDUM ORDER

Petitioner Bobby Lee Hines, a Texas death row inmate who claims to be mentally retarded,

has filed a successive application for writ of habeas corpus challenging his impending execution

vnderAtkinsv.Virginia,536U.S.304, 1225.Ct.2242,153L.8d.2d335(2002).'Aspartofhiswrit

and reply brief, petitioner requests an evidentiary hearing on his Atkins claim. Respondent opposes

an evidentiary hearing on the grounds that petitioner failed to develop the factual basis of his claim

in state court or, alternatively, that the state court record is sufficient to enable the court to resolve

the issue of mental retardation without a hearing.

Under the AEDPA, a federal court may not hold an evidentiary hearing on a claim for habeas

relief if the petitioner failed to develop the factual basis of the claim in the state court proceedings,

unless:

(A) the claim relies on--

(i) a new rule of constitutional

cases on collateral review by the

previously unavailable; or

I The Fifth Circuit granted petitioner's motion for authorization to raise an Atkins claim in a successive

application for federal habeas relief. See In re Hines, No. 05-l1343 (5th Cir. Feb. 2,2006).
(ii) a factual predicate that could not have been previously

discovered through the exercise ofdue diligence; and

(B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.

28 U.S.C. $ 225a@)Q). "[A] failure to develop the factual basis of a claim is not established unless

there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's

counsel." lt/illiams v. Taylor,529 u.s. 420,432,120 S.Ct. 1479, 1488, 146 L.Ed.2d 435 (2000).

When an evidentiary hearing is not barred by section 225a@)Q), "the decision to grant such a

hearing rests in the discretion of the district court." Schriro v. Landrigan,550 U.S. 465, 127 S.Ct.

1933, 1937, 167 L.Ed.2d 836 (2007). In exercising that discretion, "the judge must review the

answer [and] any transcripts and records of state-court proceedings . . . to determine whether an

evidentiary hearing is warranted." Hall v. Quarterman,534 F.3d 365, 368 (5th Cir. 2008), quoting

Rule 8(a), Rules Governing Section 2254 Cases (2004). The court must also "consider whether such

a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would

entitle the applicant to federal habeas relief." Id., quoting Schriro,l27 S.Ct. at 1940.

After his capital murder conviction was affirmed on direct appeal and upheld on state and

federal habeas review, petitioner filed a successive state writ of habeas corpus challenging his death

sentence tnder Atkins. In support of his state writ, petitioner, through his attorney, submitted school

records, reports from child protective services, records from the Texas Youth Commission, and

results of intelligence tests, many of which suggesthat petitioner may have significant limitations

in intellectual functioning. Petitioner also obtained affidavits from his teachers, an employero and

family members attesting to his mental deficiencies and adaptive deficits. Two experts, Dr. Wesley

E. Profit and Dr. Gilda Kessner, concluded that petitioner suffers from mental retardation. Another
expert, Dr. Randall Price, reached the opposite conclusion. Although petitioner timely requested a

jury determination or, alternatively, an evidentiary hearing, on the issue of whether he is mentally

retarded, the trial court made that determination on the basis of conflicting expert witness affidavits

and other paper evidence submitted by the parties. On these facts, the court has little difficulty

concluding that petitioner did not fail to develop the factual basis of his Atkins claim in the state

court proceedings.

Having determined that petitioner is not barred from obtaining an evidentiary hearing, the

court must decide whether to hold such a hearing in this case. The resolution of that issue depends

on whether an evidentiary hearing could enable petitioner to prove his factual allegations which, if

true, would entitle him to habeas relief. See Hall,534 F.3d at 368. In order to prevail on his Atkins

claim, petitioner must prove that: (l) he has "significantly subaverage general intellectual

functioning," defined as an IQ of about 70 or below; (2) accompanied by related limitations in

adaptive functioning; (3) the onset of which occurs prior to the age of 18. See id. at369, quoting Ex

parte Briseno, 135 S.W.3d 1,7 (Tex. Crim.App. 2004). The results of the Wechsler Adult

Intelligence Scale (WAIS-IID test administered by one of petitioner's experts, which were presented

to the state habeas court, show that petitioner has a full scale IQ of 69, a performance IQ of 75, and

a verbal IQ of 69. The expert, Dr. Kessner, diagnosed petitioner as mentally retarded and concluded

that his current intellectual abilities and adaptive skill deficits are a continuation of cognitive deficits

that existed before the age of 18. Another expert, Dr. Profit, reached the same conclusion after

reviewing numerous records, reports, and affrdavits. Had the state habeas court conducted an

evidentiary hearing, petitioner would have had an opportunity to develop the testimony of these

experts and possibly convince the court that he was, in fact, mentally retarded. Even the Texas Court

of Criminal Appeals recognized that "the better practice is to conduct a live hearing in cases such
asthis[.]" See Exparte Hines,WR-40,347-02,op.at2(Tex. Crim. App. Nov. 23,2005). Thecourt

therefore determines that an evidentiary hearing is warranted.2

Accordingly, petitioner's request for an evidentiary hearing is granted. This hearing is set for

March 6. 2009 at 9:00 a.m. before U.S. Magistrate Judge Jeff Kaplan, I 100 Commerce Street, 16th

Floor, Dallas, Texas. The court will issue a writ of habeas corpus ad testificandum to compel the

appearance of petitioner at the evidentiary hearing. Counsel must file a motion under 28 U.S.C. $

1915 in order to obtain subpoenas to compel the appearance of any other witnesses. The materiality

standards set forth in Fed. R. Crim. P. l7(b) must be satisfied before any subpoenas will be issued.

Counsel shall file any such motion as soon as possible, but in no event later than February 20. 2009.

A copy of this order shall be sent to all counsel of record and to the United States Marshal.

SO ORDERED.

DATED: January 22,2009.

2 The court notes that the facts of this case are similar to Hall, wherein the Fifth Circuit held that the district

court abused its discretion in failing to conduct an evidentiary hearing on petitioner's Atkins claim. In both Hal/ and the

instant case, the state habeas court decided the ultimate issue ofmental retardation based on "conflicting expert opinions

of psychologists, asserted in aflidavits unaired in court and shielded from cross-examination." Hall, 534 F.3d at 372.

STATES MAGISTRATE J UDGts