### REVISED August 15, 2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 20552

In re: DEXTER JOHNSON,

Movant

-------------------------------------------------------------- Consolidated with 19

- 70013
DEXTER JOHNSON,

Petitioner

- Appellant

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

- Appellee

Appeals from the United States District Court for the Southern District of Texas

Before SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges

. LESLIE H. SOUTHWICK , Circuit Judge : A Texas inmate whose execution is imminent has presented to us both a request to review the district court’s denial of his Rule 60(b) motion for relief from a prior judgment and also a motion for permission to file a successive United States Court of Appeals Fifth Circuit 

### FILED August 1 4 , 2019

Lyl e W. Cayce Clerk Case: 19-20552 Document: 00515078728 Page: 1 Date Filed: 08/15/2019No. 19

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2 application for a writ of ha beas corpus. We conclude there is no merit in the appeal and DENY review . On the other hand, we conclude that the motion for permission to file has demonstrated possible merit in a claim regarding a
current intellectual disability that warrants full expl oration by the district court. We GRANT the motion and STAY the execution.

FACTUAL AND PROCEDURAL BACKGROUND Dexter Johnson was convicted of the murder of Maria Aparece in the course of attempt ing a robbery on June 13, 2007 , and he was sentenced to death . Far greater detail is given of the offense in Johnson v. Stephens , 617 F. App’x 293 (5th Cir. 2015). His convictio n and sentence were af firmed on direct appeal. Patrick McCann was appointed as Johnson’s state habeas counsel. Johnson filed a state application for writ of habeas corpus while his direct appeal was pending. His state habeas claims were denied, and McCan n did not raise an ineffective assistance of trial counsel (IATC) claim. That application also did not include a claim under Atkins v. Virginia , 536 U.S. 304 (2002) . McCann continued to represent Johnson in federal habeas proceedings, filing an application one year later that was duplicative of the state habeas claims, plus one claim that Johnson was interrogated in violation of Edwards

v. Arizona , 451 U.S. 477 (198 1). It also did not include an Atkins claim. After Martinez v. Ryan , 566 U.S. 1 (2012), was decided, McCann filed a motion in federal court to stay and to abey Johnson’s proceeding to allow exhaustion of his IATC claims or to amend his application under Martinez to add those claims. That claim alleged that trial counsel were ineffective for failing to present evidence of Johnson’s brain damage and mental illness Case: 19-20552 Document: 00515078728 Page: 2 Date Filed: 08/15/2019No. 19

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3 during the guilt phase to show he could not form intent for murder and that

appe llate counse l were ineffective for failing to raise IATC claims. The district court ordered supplemental briefing on Trevino v. Thaler , 569 U.S. 413 (2013) . It ultimately denied Johnson’s motion to stay and abey or amend the federal application and Johnson’s request for habeas relief. The district court granted a Certificate of Appealability ( COA ) on Johnson’s claim that his custodial statement was admitted in violation of his Fifth Amendment rights. We then affirmed the denial of habeas relief on his Fifth Amendme nt claim and denied an additional request for a COA. Johnson , 617 F. App’x at
305. Johnson sought Supreme Court review, which was denied. Johnson v. Stephens , 136 S. Ct. 980 (2016). On June 4, 2017, Johnson filed a motion in the federal district court

r equesting a new trial. The court denied the motion and his motion for reconsideration. Johnson requested a COA, which was denied by this court. Johnson v. Davis , 746 F. App’x 375, 381 (5th Cir. 2018) (per curiam). The Supreme Court again denied him a w rit of certiorari. On January 18, 2019, Johnson, pro se , requested a F ederal P ublic
D efender (FPD ) be appointed in his case because of the conflict of interest between himself and McCann established after Martinez and Trevino

. McCann filed an opposition under seal. Johnson then filed a pro se motion on February 1, 2019, again asking for independent counsel. On February 5, 2019, the court appointed a FPD, but McCann remained counsel as well . The FPD requested removal of McCann, which the S tate and McCann opposed

. Six days after the motion to remove him , McCann filed a single

- issue successive habea s application in state court, which was denied April 29, 2019. McCann also filed a clemency petition. On April 30, 2019, the district court Case: 19-20552 Document: 00515078728 Page: 3 Date Filed: 08/15/2019No. 19

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4 stayed Johnson’s execution, noting “troubling concerns” about McCann. McCann withdrew two days later. On June 24, 2019 Johnson filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). The district court denied the motion on August 12, 2019 and did not certify any issue for appeal

. Johnson immediately applied for a certificate of appealab ility with this court

. On August 6, 2019, Johnson moved in state court to strike his second successive state habeas application, alleging that it was filed by McCann without his permission. Along with that motion, he also filed a successive habeas applica tion. The new habeas application was denied “as an abuse of the writ without reviewing the merits of the claims raised” on August 13, 2019. The motion to strike the prior application also was denied

. On August 8, 2019, Johnson also moved in this court un der 28 U.S.C. § 2244 for an order authorizing the district court to consider a second or successive application for a writ of habeas corpus based on an Atkins claim. We first discuss Johnson’s Motion for a Certificate of Appealability relating to the dis trict court’s denial of relief under Rule 60(b) . Then we will review the motion for an order authorizing a successive habeas application.

DISCUSSION I. Motion for COA on denial of Rule 60(b) motion “At the COA stage, the only question is whether the applic ant has shown that ‘jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’” Buck v. Davis , 137 S. Ct. 759, 773 (2017) (quoting Miller

- El v. Cockrell , 537 U.S. 322, 327 (2003)). This court reviews the district court’s order denying a Rule 60(b) motion for an abuse of discretion, so on a COA this court must determine whether reasonable Case: 19-20552 Document: 00515078728 Page: 4 Date Filed: 08/15/2019No. 19

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5 jurists could conclude the district court abused its discretion. Id. at 777. While a full merits inquiry is not proper in the COA analysis, we conduct a threshold inquiry to determine if the district court’s decision was debatable. Id. at 774. “[R]elief under R ule 60(b)(6) is available only in ‘extraordinary circumstances.’” Id. at 777 (quoting Gonzales v. Crosby , 545 U.S. 524, 535 (2005)). Extraordinary circumstances “will rarely occur in the habeas context.” Gonzalez , 545 U.S. at 535 . The district court is permitted to consider a “wide range of factors” in determining whether extraordinary circumstances are present. Buck , 137 S. Ct. at 778. “These may include, in an appropriate case, ‘the risk of injustice to the parties’ and ‘the risk of undermining the p ublic’s confidence in the judicial process.’” Id . (quoting Liljeberg v. Health Servs. Acquisition Corp. , 486 U.S. 847, 863

- 64 (1988)). “Moreover, a Rule 60(b)(6) movant must show that he can assert ‘a good claim or defense’ if his case is reopened.” Rami rez v. Davis , 19

- 70004, 2019 WL 2622147, at *6 (5th Cir. June 26, 2019) (quoting Buck , 137 S. Ct. at 780). The district court concluded that Johnson’s motion was a valid Rule 60(b) motion because it attacked a defect in the integrity of the prior federal habeas proceeding

. See Gilkers v. Vannoy , 904 F.3d 336, 344 (5th Cir. 2018)

. That defect was McCann’s ineffective assistance and conflicts of interest. J urists of reason would not conclude that the district court abused its discretion in finding Johnson’s motion to be a true R ule 60(b) motion. The district court also determined that Johnson’s motion was timely because newly appointed counsel filed the mo tion within six months after appointment as co

- counsel and very shortly after original habeas counsel was removed. The question of timeliness is based on the “facts and circumstances of the case

. ” Ramirez , 2019 WL 2622147 , at *5 (quotation omitted). Case: 19-20552 Document: 00515078728 Page: 5 Date Filed: 08/15/2019No. 19

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6 John son challenges here the district court’s denial of his Rule 60(b) motion based on its finding that there we re not extraordinary circumstances justifying reopening the judgment. The district court determined that Johnson had properly alleged a defect in th e integrity of his proceeding but concluded that he had failed to demonstrate extraordinary circumstances, basing its opinion primarily on Johnson’s failure to plead an y meritorious defaulted IATC claims. Johnson claims that the district court unnecessari ly narrowed the wide range of factors that should have been considered, focusing only on whether Johnson described a meritorious IATC claim that was defaulted and whether Johnson had pled that his federal habeas proceeding was deficient. Johnson claims t hat under the COA standard, jurists of reason could debate whether the district court abused its discretion in concluding that Johnson needed to present the merits of a defaulted IATC claim. Johnson argues that the question under Rule 60(b) is not whether there is a meritorious habeas claim if he was represented by conflict

- free counsel, but whether his previous counsel McCann’s performance was so deficient that he failed to provide the quality of representation that 18 U.S.C. § 3599 guarantees. Johnson’s claim is that McCann’s representation fell so far below the standards of Section 3599 that his case presents extraordinary circumstances. Johnson also claims that the district court, which based its decision on the lack of any debatable defaulted IATC c laim, has place d habeas applicants in an impossible situation. Johnson argues that requiring him to identify and litigate the substantive merit and procedural defenses of defaulted IATC claims would effectively require Mr. Johnson to transform his Rule 60 (b)

m otion into a successive petition. Finally, Johnson argues that reasonable jurists could debate whether the district court abused its discretion by failing to address McCann’s ethical Case: 19-20552 Document: 00515078728 Page: 6 Date Filed: 08/15/2019No. 19

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7 violations. Johnson claims that McCann violated multiple ethical rules, including the duty of candor for not explaining his conflict of interest and the duty of loyalty for not remedying the conflict

. Responding to these arguments, we point out that having conflict ed counsel is not enough to obtain relief under Rule 60(b). See Raby v. Davis , 907 F.3d 880, 884 (5th Cir. 2018). The Supreme Court explained that even if it is shown to be debatable that state habeas counsel was constitutionally ineffective, there is another “significant element” o f a Rule 60(b)(6) m otion : the claim must have “some merit.” Buck , 137 S. Ct. at 780. The Court elaborated that this means that the movant must show “a good claim or defense” because that “is a precondition of Rule 60(b)(6) relief.” Id. (second quotation from 11 W RIGHT & M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 2857 )

. The district court properly held that Johnson fell short on this significant requirement. In the reply brief, c urrent counsel mentioned a few potentially meritorious claims that were previously defaulted bu t failed to brief them in any detail whatsoever. The district court stated that it had directed the conflict

- free attorneys to “scour the record” for Strickland claims that meet the prerequisites for Martinez and Trevino , but there were no identified “pro cedural default[s] that would otherwise bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial.” Jennings , 760 F. App’x 319, 324 (5th Cir. 2019) (citations omitted)

. Our finding here is consistent with Buck ’s directive that we not delve too deeply into the underlying merits of a claim, because none was presented. 137 S. Ct. at 774. Furthermore, in a deficient representation case such as this, there needed to be some factor besides the representation. See Id. at 777

- 780 (finding that
Martinez / Trevino was one significant element but relying in significant part on other circumstances such as race being a basis for the verdict). Johnson failed Case: 19-20552 Document: 00515078728 Page: 7 Date Filed: 08/15/2019No. 19

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8 to brief these claims , and so we find that reasonable jurists would n ot debate the district court’s decision that Johnson’s Martinez and Trevino conflict arguments were inadequate to show exceptional circumstances. As to Johnson’s argument that the district court ignored his claims about McCann’s alleged deficient performan ce, the district court stated that Rule 60(b) relief is ordinarily not appropriate in the habeas context. Buck , 137 S. Ct. at 777

. If there were no underlying meritorious waived claims, then it can hardly be argued that there is a “risk of injustice” to Johnson because he did not argue he would be entitled to any form of relief if his case were reopened. See Liljeberg , 486 U.S. at 863

- 864 (cited in Buck, 137 S. Ct. at 778)

. Furthermore, in other cases where habeas counsel was deficient for omitting
cert ain claims, the Supreme Court has sta ted that such an attac k “ ordinarily does not go to the integrity of the proceedings .” Gonzales v. Crosby , 5 4 5 U.S.
at 532 n.5. Although Johnson attempts to recast McCann’s actions as choice s , not omission s , the thrust of the logic still applies: McCann’s alleged deficient performance wa s not itself sufficient to constitute exceptional circumstances. Reasonable jurists would not debate that t he district court did not abuse its discretion in concluding that Johnson’s claims did not present extraordinary circumstances. This is because Johnson failed to brief any waived claims sufficient to allow the district court to det ermine whether any of them had some merit. Johnson also fails to provide us any authority that Section 3599 has ever provided relief pursuant to Rule 60(b). In sum, reasonable jurists would not debate that the district court did not abuse its discretion in denying Johnson’s Rule 60(b) motion. Johnson’s motion for a COA is DENIED

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9 II. Motion for Successive Application We review a motion for the filing of a successive habeas application to determine if the applicant makes a prima facie showing that he has met the requirements of Section 2244. 28 U.S.C. § 2244(b)(3)(C). A prima facie showing is “ simply a sufficient showing of possible merit to warrant a fuller exploration by the district court. ” In re Morris , 328 F.3d 739, 740 (5th Cir. 2003) (quoting Bennett v. United States , 119 F.3d 468, 469

- 70 (7th Cir. 1997)). A person in custody under a state

- court judgment who moves to file a successive application for a writ of habeas corpus in federal court must satisfy these requirements: (1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless

- (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear a nd convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b). Johnson’s two primary arguments in support of his Atkins claim are that his only rec ently discharged counsel had a conflict of interest because he is the Case: 19-20552 Document: 00515078728 Page: 9 Date Filed: 08/15/2019No. 19

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10 one whose ineffectiveness in state habeas needed to be challenged, and that recent changes to the medical standards for determining intellectual disability benefit him. Applying Section 2244(b)(2)(A), Johnson argues that Atkins is a new rule of constitutional law that is retroactive and that his claim was previously unavailable because the latest professional diagnostic manual changed the framework for intellectual disability. 1 At tri al, Johnson was found not to be intellectually disabled. This was under an earlier manual, DSM

- IV

- TR, which relied on Johnson’s IQ score that

was a bove 70

. 2 The latest DSM

- 5 manual changed the diagnostic framework for intellectual disability . H igher IQ scores no longer bar a diagnosis of an intellectual disability. Dr. Daniel A. Martell concluded that as of July 31, 2019, Johnson “meets the criteria for a diagnosis of Intellectual Disability” under the DSM

- 5. In 2019, Johnson scored 70 on a full

- scale WAIS

- IV IQ test. First, Johnson must show that his claim was not presented in a prior federal application. 28 U.S.C. § 2244(b)(1). T he State concedes that it was not. Thus, Johnson has met the requirements o f Section 2244(b)(1). Second, “ Atkins created a new rule of constitutional law . . . made retroactive to cases on collateral review by the Supreme Court.” In re Campbell , 750 F.3d 523, 530 (5th Cir. 2014) . As is obvious, though , Atkins was decided lon g before Johnson even committed his crimes. A meaningful hurdle for Johnson is to demonstrate why we should consider that case to be

1 Johnson also argues that his claim satisfies Section 2244(b)(2)(B), dealing with the factual predicates for his claims . We conclude that the arguments and evidence before us satisfy only Section 2244(b)(1).
2 The manuals express current medical standards for defining intellectual disability. “Reflecting improved understanding over time, . . . current manuals offer ‘the best available description of how mental disorders are expressed and can be recognized by trained clinicians. ’ ” Moore v. Texas , 137 S. Ct. 1039, 1053 (2017) (quoting the DSM

- 5 and noting that current medical standards constrain a state’s definition of what is an intellectual disability). Case: 19-20552 Document: 00515078728 Page: 10 Date Filed: 08/15/2019No. 19

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11 retroactive as to him. The S tate argues that it is not. We hold to the contrary , counterintuitively perhaps but not unr e asonably, with the full weight of our conclusion being born e by this court’s recent decision in In re Cathey , 857 F.3d 221 (5th Cir. 2017). We discuss that case next.

A. Claim was previous ly unavailab le We analyze whether Johnson’s “ claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable .” § 2244(b)(2)(A).
In Cathey , the determination before trial that the defendant had an IQ of 77 meant his IQ was too high fo r intellectual disability

. In re Cathey , 857 F.3d at 230. Upon Cathey’s admission to prison , though, which was pre

- Atkins , an IQ test was given to him that supported that his IQ was about 73, within the range of error for sufficient intellectual disabili ty to be exempt from the death penalty. Id. at 232. For disputed reasons, the documents for that test did not become available to the inmate and counsel until at least 12 years after his conviction. Id. Further , it was 9 years after Cathey’s conviction that courts recognized as viable a theory called the Flynn Effect which supported that IQ

scores could be inflated for certain reasons

. Id. at 227, 229

- 33. Finally, any authority for making an IQ of 70 a ceiling for intel lectual disability was rejected in 2014 when the Supreme Court held that there could not be a mandatory IQ number cutoff for consideration of intellectual disability. See Hall v. Florida , 572 U.S. 701, 721

- 22 (2014) ; In re Cathey , 857 F.3d at 237

- 38

. For all these reasons , even though when Cathey filed his initial state and federal habeas applications there was no t a claim “with some possibility of merit” under Atkins , there later was a possible claim

. I n re Cathey , 857 F.3d
at 232

- 33, 237

- 38

. To be clear, it wa s more than just a reassessment by medical professionals of this inmate’s particular mental abilities. The significant Case: 19-20552 Document: 00515078728 Page: 11 Date Filed: 08/15/2019No. 19

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12 change was in the medical methodology for evaluating the relevant disabilities and in courts’ recognition of those changes

. T hose facts amounted at least to a prima facie showing that Atkins was previously unavailable as required by Section 2244(b) (2) (A). Id. at 233. We did not separately analyze whether it was enough that Atkins in a generic

sense was a rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court , even though it was not so clearly retroactive in its application to Cathey. We accept here that the explicit conclusions in Cathey ne cessarily decided that latter point as well and move on. The facts relevant to Johnson are quite similar . In 2013 , six years after Johnson’s conviction, a new diagnostic manual called the DSM

- 5 for mental dis orders was released

. The new diagnostic guide lines included significant changes in the diagnosis of intellectual disability, which changed the focus from specific IQ scores to clinical judgment. The DSM

- 5 recognizes that an individual with an IQ score over 70 may still qualify as intellectually disa bled. The previous diagnostic manual, in effect when Johnson filed his initial federal habeas petition, did not classify Johnson as intellectually disabled because of his IQ. Further bolstering that his claim was unavailable until now, Johnson under a current full

- scale IQ testing scored 70, within the Atkins range

. Johnson also argues that although the DSM

- 5 was published before his habeas petition was denied for the first ti me in federal court, the DSM

- 5 was published only 17 days before the denial, which renders his claim not feasible as an amendment to his first petition. This change in diagnostic standards is comparable to what allowed Cathey to proceed with his Atkins cl aim, which

were the judicial recognition of the Flynn Effect and the abandonment of any rule

- of

- thumb for a maximum relevant IQ level. Id. at 232

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13 The State ’s principal argument about Cathey is that it was “effectively overruled by the Supreme Court in Shoop v. Hill , 139 S. Ct. 504, 507

- 08 (2019) (per curiam). ” The court in Cathey relied significantly on Moore in evaluating the prima facie showing of Cathey’s intellectual disability. In re Cathey , 857 F.3d at 234

- 36. The Supreme Court in Moore had review ed a Texas Court of Criminal Appeals decision which had not applied updated medical standards in evaluating an Atkins claim. Moore , 137 S. Ct. at 1053. Later, t he Supreme Court in Shoop determined that Moore was not clearly established law for the purposes of deciding whether a state court , whose decision was reached before
Moore was decided, had unreasonably applied established law to a habeas claim. Shoop , 139 S. Ct. at 507

- 08 (citing 28 U.S.C. § 2254(d)(1))

. Shoo p , though, concern ed the relitigation bar of Section 2254(d)(1), and it did not overrule Cathey , which concern ed a prima facie showing under Section 2244. The State gives us little else on which to evaluate Cathey . Its sole secondary argument is to distin guish the present case from Cathey in these

ways : Cathey’s conviction was final before Atkins was decided , while Johnson committed his crimes after Atkins ; by the time Cathey was seeking Section 2254 relief, Atkins had been decided but it was unclear how to present the claim, uncertainties that did not apply to Johnson’s initial pursuit of federal habeas; and Cathey showed greater diligence in bringing the Atkins claim than did Johnson. T hese distinctions do not assist the State . The central problem here is that both Cathey and now Johnson were presented

— after all the events which the State argues are distinctions

— with reasons that an Atkins claim is p ossibly meritorious when it had not previously been . The State seemingly recognizes the weakness of the distinctions , as a fter describing the m , it returns to the argument that Cathey has been overruled by Shoop

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14 What opens the door for Johnson is the C athey decision, which has precedentially determined that it is correct to equate legal availability with changes in the standards for psychiatric evaluation of the key intellectual disability factual issues raised by Atkins. We are applying that decision to a new, but not meaningfully distinguishable, set of facts.

B. Prima facie showing of disability The requirement of a prima facie showing comes from Section 2244(b)(3)(C). Part of the showing is not only that his claim relies on retroactive Supreme Court precedent that was previously unavailable, but also

a prima facie showing that his claim has merit. See In re Cathey , 857 F.3d at
226. To be intellectually disabled, an individual must establish intellectual

functioning defic its, adaptive deficits, and onset of those deficits when the individual is a minor. See id. at 235. Dr. Daniel Martell concluded after extensive evaluation of Johnson, including IQ scores, neuropsychological testing, and interviews with witnesses and Joh nson , that Johnson has deficits in intellectual functioning. This is “confirmed by his IQ score of 70 on the WAIS

- IV, IQ scores from tests administered pretrial, and the clear cognitive deficits displayed on multiple neuropsychological tests. ” Dr. Martel l concluded also that Johnson is at or below the bottom two percent of the population with regard to verbal learning and memory, that Johnson has frontal lobe impairment, and that he has right hemisphere brain dysfunction. Furthermore, Dr. Watson, the tri al expert, averred that he would no longer testify that Johnson is not intellectually disabled based on Johnson’s IQ test scores from that time. Dr. Martell also concluded that Johnson exhibited deficits in all three domains of adaptive functioning. Johnson repeated the second g rade and struggled with reading comprehension and problem solving. He also struggled Case: 19-20552 Document: 00515078728 Page: 14 Date Filed: 08/15/2019No. 19

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15 to articulate words. In high school , Johnson functioned at the sixth

- grade level. Johnson also exhibited deficits in the social domain, as he struggled to make friends, was immature compared to peers, could not make eye contact, could not hold a conversation, struggled to control his emotions, and could not read the emotions of others. Johnson’s deficiency in the practical domain was evidenced by his inability to follow bus or walking directions, struggles with personal hygiene, and inability to manage money or his own affairs

. Finally, Dr. Martell concluded that the onset of Johnson’s disability was during the developmental period, through witness declarations, trial testimony, and records. The State contends that we must review whether the Texas Court of Criminal Appeals “ unr easonably determined that the facts set forth in [ applicant ]’s petition, if true, would not establish by clear and convincing evidence that no rational factfinder would fail to find [ applicant ] intellectually disabled.” Busby v. Davis , 925 F.3d 699, 716 ( 5th Cir. 2019). The State contends Johnson’s application here lacks merit because we should defer to the Texas Court of Criminal Appeals’ decisions. There are actually two state court denials of Johnson’s Atkins claim. One was on April 29, 2019, the oth er on August 13, 2019. Both orders from the Court of Criminal Appeals stated that the court dismissed the “application as an abuse of the writ without reviewing the merits of the claims raised.” Both orders post

- date Moore

. Whether the decisions were o n the merits is affected by recent caselaw that recasts a similarly

- phrased Texas decision as a merits one “ when a defendant who was convicted post

- Atkins raises an Atkins claim for the first time in a successive habeas application [; that is because] the T exas court must determine whether the defendant has asserted facts, which if true, would sufficiently state an Atkins claim to permit consideration of the successive Case: 19-20552 Document: 00515078728 Page: 15 Date Filed: 08/15/2019No. 19

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16 petition. ” Busby , 925 F.3d at 707. We understand the Busby court to be referring to the analysis the Texas court is to undertake in considering a successive application under Texas Code of Criminal Procedure article 11.071, section 5(a) , and calling that merits

- based. Regardless of what the best reading of Busby may be, the initial decision i n this case is for the district court. We now consider whether Johnson must overcome the relitigation bar of Section 2254(d). Section 2244(b)(3)(C) states that a court “may authorize the filing of a second or successive appl ication only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” It makes no mention of Section 2254(d), which is in a different subsection. In re Cathey discusse d this is sue. 857 F.3d at 236. It recognized that Cathey’s Atkins claim was previously brought in a successive habeas petition before the state court, but the court did not analyze the relitigation bar of Section 2254(d) in making its Section 2244 analysis. Id. We held that “the state court findings concerning the Atkins claim are wholly irrelevant to our inquiry as to whether [the petitioner] has made a prima facie showing of entitlement to proceed with his federal habeas application, which is an inquiry distin ct from the burden that [the petitioner] must bear in proving his claim in the district court.” Id. (alteration in original) ( quoting In re Wilson , 442 F.3d 872, 878 (5th Cir. 2006) ) . We therefore conclude that Johnson is not yet required to address the Texas court’s decisions. Having determined that Johnson at this stage is not required to show that the state court unreasonably determined the facts, we find that Johnson has at least made a prima facie showing of intellectual disability. Case: 19-20552 Document: 00515078728 Page: 16 Date Filed: 08/15/2019No. 19

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17 C. Timel iness Johnson also must show that his application is timely. There is a one
year statute of limitations on applications for a writ of habeas corpus running from the latest of: (A) the date on which the judgment became final by the conclusion of direct rev iew or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review ; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Johnson devotes his argument to the equitable tolling of the statute of limitations , which he claims began to run on the date which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence . § 2244(d)(1)(D). The date that factual predicate became available was on May 18, 201 3, with the publication of the DSM

- 5. Though that does not meet the one

- year statute of limitations, Johnson argues he is entitled to equitable tolling under Holland v. Florida , 560 U.S. 631, 649 (2010). “ To establish his entitlement to equitable tolling , a petitioner must

‘ sho[w] (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely filing. ’” Manning v. Epps , 688 F.3d 177, 183 (5th Cir. 2012) (quoting Holland , 560 U.S. Case: 19-20552 Document: 00515078728 Page: 17 Date Filed: 08/15/2019No. 19

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18 at 649). As to diligence, Johnson claims that he was diligent in seeking counsel that was not conflicted. He requested, pro se , conflict

- free counsel once he was aware of the conflict. He has also filed this motion within six months of appointment of conf lict

- free counsel. Johnson argues that the conflict s of his counsel were the extraordinary circumstances sufficient to justify his delay. The Supreme Court held that “a t least sometimes, professional misconduct that fails to meet [a circuit court’s] standard could nonetheless amount to egregious behavior an d create an extraordinary circumstance that warrants equitable tolling.” Holland , 560 U.S. at 651

. Johnson also argue s that equitable tolling is best decided at an evidentiary hearing because of its fact

- bound nature. “[W] e also recognize the prudence, when faced with an equitable, often fact

- intensive inquiry, of allowing the lower courts to undertake it in the first i nstance.” I d. at 654 (quotation marks and citation omitted). Similarly, w e have held that questions of equitable tolling are best left to the district court for the initial analysis. In re Cathey , 857 F.3d at 240

- 41. We stated there that the delay gav e us pause but determined further factual development wa s needed. Id. T he district court here is also better positioned than are we to gauge the timeliness of the motion for a successive application.
W e GRANT Johnson’s motion for authorization to file a successive application for a writ of habeas corpus and STAY the execution. We DENY a COA on the district court’s order rejecting the Rule 60(b) motion. Case: 19-20552 Document: 00515078728 Page: 18 Date Filed: 08/15/2019