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:

FACTUAL AND PROCEDURAL BACKGROUND

Dexter Johnson was convicted of the murder of Maria Aparece in the 

course of committing attempted robbery on June 13, 2007, and was sentenced 

to death. Far greater detail is given of the offense in Johnson v. Stephens, 617 

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2019

Lyle W. Cayce

Clerk

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F. App’x 293 (5th Cir. 2015). His conviction and sentence were affirmed on 

direct appeal.

Johnson was appointed state habeas counsel, Patrick McCann. 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 an Atkins v. Virginia, 536 U.S. 304 (2002), claim. 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 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 during the guilt phase 

to show he could not form intent for murder and that appeal counsel were 

ineffective for failing to raise IATC claims. 

The district court ordered supplemental briefing on Trevino v. Thaler,

569 U.S. 413 (2013), and 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 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).

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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 kept McCann’s appointment. The FPD 

requested removal of McCann, which was opposed by the State and McCann. 

Six days after the motion to remove McCann, 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 

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 

pursuant to Federal Rule of Civil Procedure 60(b). The district court denied 

the motion on August 12, 2019. 

On August 6, 2019, Johnson moved to strike his second successive state 

habeas application, alleging that it was filed by McCann without his 

permission. He also filed a successive habeas application with the motion to 

strike on the same day. This motion was denied “as an abuse of the writ 

without reviewing the merits of the claims raised” on August 13, 2019.

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Separately, Johnson moved in this court for an order authorizing the 

district court to consider a second or successive application for a writ of habeas 

corpus under 28 U.S.C. § 2244 based on an Atkins claim on August 8, 2019. 

Before us now are Johnson’s Motion for a Certificate of Appealability 

(COA) relating to the district court’s denial of relief under Rule 60(b) and also 

Johnson’s motion for an order authorizing a successive application for habeas 

corpus. We address Johnson’s motion for a COA first.

DISCUSSION

I. Motion for COA on Rule 60(b)

“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 

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 

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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 “true” Rule 

60(b) motion because it attacked a defect in the integrity of the federal habeas 

proceeding and did not “seek[] to add a new ground for relief’ or ‘attack[] the 

federal court’s previous resolution of a claim on the merits,’” which “is the 

‘functional equivalent of [an] unauthorized successive § 2254 petition[].’” 

Quoting Gilkers v. Vannoy, 904 F.3d 336, 344 (5th Cir. 2018). That defect was 

McCann’s deficient performance and conflicts of interest. We do not find that

jurists of reason would 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).

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 

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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 failed to demonstrate extraordinary circumstances because he did not 

plead 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 

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 

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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. Current counsel mentioned a few potentially meritorious claims 

that were previously defaulted in his reply brief but failed to brief them in any 

detail whatsoever. The district court noted that it directed Johnson’s conflictfree attorneys to “scour the record” for Strickland claims that meet the 

prerequisites for Martinez and Trevino but that 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 

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 

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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 extraordinary 

circumstances that might “risk . . . undermining the public’s confidence in the 

judicial process” were present. Liljeberg, 486 U.S. at 864. Johnson also fails 

to provide us any authority that Section 3599 has ever provided relief pursuant 

to Rule 60(b). In sum, we conclude that 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.

II. Motion for Successive Application

We review an application 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 

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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 seeks 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 

one whose ineffectiveness in state habeas needed to be challenged, and that 

recent changes to the medical standards for determining mental 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 

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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 professional 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 WAISIV 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 he did 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 

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 

 

1 Johnson also argues that his claim satisfies Section 2244(b)(2)(B), dealing with the 

factual predicates for his claims, but we need not, and do not, discuss that argument. 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).

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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 the 

Cathey precedent on which we rely, the applicant’s IQ initially was thought to 

be too high for intellectual disability. In re Cathey, 857 F.3d at 230. Upon his 

admission to prison, which was pre-Atkins, an IQ test was given to him that 

supported that his IQ was within the range for sufficient mental disability to 

be exempt from the death penalty. Id. at 232. For reasons that were disputed, 

the documents for that test did not become available to the inmate and counsel 

until 12 years after his conviction. Id. In addition, it was 6 years after Cathey’s 

conviction that a litigation theory bearing on the accuracy of IQ scores called 

the Flynn Effect was recognized by courts. Id. at 227, 229-33. Thus, when 

Cathey filed his initial state and federal habeas applications, there was not a

claim “with some possibility of merit” under Atkins to be made and there 

remained no such claim for several years. Id. at 232.

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 that the conclusions in Cathey necessarily 

decided that latter point as well and move on here.

We see the facts relevant to Johnson to be quite similar. In 2013, six 

years after Johnson’s conviction, a new diagnostic manual called the DSM-5 

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for mental disability 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. 

The State’s principal argument about Cathey is that it was “effectively 

overruled by the Supreme Court in 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, which concerns the relitigation bar of Section 2254(d)(1), did not 

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

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

secondary argument is an effort to distinguish the present case from Cathey 

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for these reasons: Cathey’s conviction was final before Atkins was decided, 

while Johnson committed his crimes after Atkins was decided; 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. We cannot say these distinctions 

resolve this case in the State’s favor. The central problem here is that both the 

counsel for Cathey and now the one for Johnson were presented — after all the 

events which the State argues are distinctions — with reasons that made an 

Atkins claim possibly meritorious when it had not previously been. The State 

seemingly recognizes that central problem, as after describing the ostensible 

distinctions, it returns to the argument that Cathey has been overruled by 

Shoop. 

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

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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 

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 

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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 

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 labeling that as 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. 

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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 

required at this stage 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.

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). 

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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 the publication of the DSM-5, which was on May 18, 

2013. As that does not meet the one-year statute of limitations, Johnson 

argues that 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. 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. 

 Case: 19-20552 Document: 00515077003 Page: 17 Date Filed: 08/14/2019
No. 19-20552

c/w No. 19-70013

18

We stated that the delay there gave us pause but determined further factual 

development was needed. Id. The district court is better positioned than are 

we to determine the timeliness of Johnson’s motion for a successive application. 

Having found that Johnson has at this stage made a prima facie showing 

that his successive petition satisfies 28 U.S.C. § 2244(b)(2)(A), we GRANT 

Johnson’s motion for authorization and STAY the execution.

 Case: 19-20552 Document: 00515077003 Page: 18 Date Filed: 08/14/2019