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 14, 2019

Lyle W. Cayce

Clerk

 Case: 19-20552 Document: 00515078728 Page: 1 Date Filed: 08/15/2019
No. 19-20552

c/w No. 19-70013

2

application for a writ of habeas 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 exploration 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 attempting 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 conviction and sentence were affirmed 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 McCann 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 (1981). 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

3

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

appellate counsel 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 Amendment 

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 

requesting 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 writ of certiorari.

On January 18, 2019, Johnson, pro se, requested a Federal Public 

Defender (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 State and McCann opposed. 

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

successive habeas 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

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 appealability 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 application. 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 under 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 district 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 applicant 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

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 Rule 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 public’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.” Ramirez 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. Jurists of 

reason would not conclude that the district court abused its discretion in 

finding Johnson’s motion to be a true Rule 60(b) motion. 

The district court also determined that Johnson’s motion was timely 

because newly appointed counsel filed the motion 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

6

Johnson challenges here the district court’s denial of his Rule 60(b) 

motion based on its finding that there were not extraordinary circumstances 

justifying reopening the judgment. The district court determined that Johnson 

had properly alleged a defect in the integrity of his proceeding but concluded 

that he had failed to demonstrate extraordinary circumstances, basing its 

opinion primarily on Johnson’s failure to plead any meritorious defaulted IATC 

claims. Johnson claims that the district court unnecessarily 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 that 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 claim, has placed 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) 

motion 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

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 conflicted

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” of a Rule 60(b)(6) motion: 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 

WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2857). 

The district court properly held that Johnson fell short on this significant 

requirement. In the reply brief, current counsel mentioned a few potentially 

meritorious claims that were previously defaulted but 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 

“procedural 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

8

to brief these claims, and so we find that reasonable jurists would not 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 performance, 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 

certain claims, the Supreme Court has stated that such an attack “ordinarily 

does not go to the integrity of the proceedings.” Gonzales v. Crosby, 545 U.S. 

at 532 n.5. Although Johnson attempts to recast McCann’s actions as choices, 

not omissions, the thrust of the logic still applies: McCann’s alleged deficient 

performance was not itself sufficient to constitute exceptional circumstances. 

Reasonable jurists would not debate that the 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 determine 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.

 Case: 19-20552 Document: 00515078728 Page: 8 Date Filed: 08/15/2019
No. 19-20552

c/w No. 19-70013

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 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. § 2244(b). 

Johnson’s two primary arguments in support of his Atkins claim are that 

his only recently discharged counsel had a conflict of interest because he is the 

 Case: 19-20552 Document: 00515078728 Page: 9 Date Filed: 08/15/2019
No. 19-20552

c/w No. 19-70013

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 trial, 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 above 70.2 The latest DSM-5 manual changed the diagnostic framework 

for intellectual disability. Higher 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). The State concedes that it was not. 

Thus, Johnson has met the requirements of 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 long 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

11

retroactive as to him. The State argues that it is not. We hold to the contrary, 

counterintuitively perhaps but not unreasonably, with the full weight of our 

conclusion being borne 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 previously unavailable

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 for 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 disability 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 intellectual 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 not a claim “with some possibility of 

merit” under Atkins, there later was a possible claim. In re Cathey, 857 F.3d

at 232-33, 237-38. To be clear, it was 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

12

change was in the medical methodology for evaluating the relevant disabilities

and in courts’ recognition of those changes.

Those 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 necessarily 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

disorders was released. The new diagnostic guidelines 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 disabled. 

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 time 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 claim, 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 232-33.

 Case: 19-20552 Document: 00515078728 Page: 12 Date Filed: 08/15/2019
No. 19-20552

c/w No. 19-70013

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 reviewed 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, the 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)). Shoop,

though, concerned the relitigation bar of Section 2254(d)(1), and it did not 

overrule Cathey, which concerned a prima facie showing under Section 2244.

The State gives us little else on which to evaluate Cathey. Its sole 

secondary argument is to distinguish 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. These 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 possibly meritorious when it had not previously been. The State 

seemingly recognizes the weakness of the distinctions, as after describing 

them, it returns to the argument that Cathey has been overruled by Shoop. 

 Case: 19-20552 Document: 00515078728 Page: 13 Date Filed: 08/15/2019
No. 19-20552

c/w No. 19-70013

14

What opens the door for Johnson is the Cathey 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 intellectualfunctioning deficits, 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 Johnson, 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. Martell 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 trial 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 grade and 

struggled with reading comprehension and problem solving. He also struggled 

 Case: 19-20552 Document: 00515078728 Page: 14 Date Filed: 08/15/2019
No. 19-20552

c/w No. 19-70013

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 “unreasonably 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 other 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 on 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 Texas court must 

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

sufficiently state an Atkins claim to permit consideration of the successive 

 Case: 19-20552 Document: 00515078728 Page: 15 Date Filed: 08/15/2019
No. 19-20552

c/w No. 19-70013

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 in 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 application 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 discussed this issue. 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 distinct 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

17

C. Timeliness

Johnson also must show that his application is timely. There is a oneyear 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 review 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, 2013, 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: 08/15/2019
No. 19-20552

c/w No. 19-70013

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 conflict-free counsel.

Johnson argues that the conflicts of his counsel were the extraordinary 

circumstances sufficient to justify his delay. The Supreme Court held that “at

least sometimes, professional misconduct that fails to meet [a circuit court’s] 

standard could nonetheless amount to egregious behavior and create an 

extraordinary circumstance that warrants equitable tolling.” Holland, 560 

U.S. at 651. Johnson also argues 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 instance.” Id. at 654 

(quotation marks and citation omitted). 

Similarly, we 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 gave us pause but determined further factual 

development was needed. Id. The district court here is also better positioned

than are we to gauge the timeliness of the motion for a successive application. 

We 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