Moore v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
June 27, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-70038
_______________
ERIC LYNN MOORE,
Petitioner-Appellee,
VERSUS
NATHANIEL QUARTERMAN,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant.
____________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_____________________________________
ON PETITION FOR REHEARING
Before SMITH, GARZA, and DENNIS,
Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc
as a petition for panel rehearing, the petition
for panel rehearing is GRANTED. The prior
opinion, Moore v. Quarterman, 454 F.3d 484
(5th Cir. 2006), is WITHDRAWN, and the
following opinion is substituted:

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2
Before SMITH, GARZA, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Eric Moore was convicted of capital mur-
der and sentenced to death in 1991. In the
wake of Atkins v. Virginia, 536 U.S. 304
(2002), he filed a successive petition for habe-
as corpus relief in state court, arguing that he
is mentally retarded and thus ineligible for the
death penalty. The petition was dismissed as
an abuse of the writ by the Texas Court of
Criminal Appeals (“TCCA”).
This court granted Moore authorization to
file a second federal habeas petition to raise an
Atkins claim. The federal district court ulti-
mately found him to be mentally retarded and
accordingly granted the requested relief. But
because Moore failed to exhaust the remedies
available to him on his Atkins claim in state
court, and because Texas’s abuse-of-the-writ-
doctrine would preclude him from filing an-
other petition based on facts he inexcusably
failed to develop,1 we vacate and remand with
instruction to dismiss the petition with preju-
dice.2
I.
A.
In December 1990 Moore and three other
men broke into the home of Richard and Eliz-
abeth Ayers, an elderly couple. The men
robbed and shot the couple, killing Elizabeth
Ayers and paralyzing Richard Ayers.
Moore was convicted of capital murder and
sentenced to death in June 1991. He appealed
his conviction and sentence, but the TCCA af-
firmed. Moore v. State, 882 S.W.2d 844 (Tex.
Crim. App. 1994), cert. denied, 513 U.S. 1114
(1995). Moore then filed his first petition for
habeas relief in state court, which was denied.
Ex parte Moore, No. 38,670-01 (Tex. Crim.
App. Nov. 25, 1998) (unpublished). His first
federal habeas petition likewise was denied.
Moore v. Cockrell, No. 99-CV-18 (E.D. Tex.
Nov. 26, 2001). A few months after Atkins
had been decided, we affirmed the denial of
the initial petition. Moore v. Cockrell, No. 01-
41489, 54 Fed. Appx. 591 (5th Cir. 2002) (ta-
ble), cert. denied, 538 U.S. 965 (2003).3
B.
In Atkins, 536 U.S. at 321, the Court estab-
lished for the first time that the execution of
mentally retarded defendants violates the
Eighth Amendment. After Atkins was decided,
Moore filed a successive habeas petition in
state court under TEX. CODE CRIM. PROC. art.
11.071 § 5(a), arguing that he is ineligible for
the death penalty because he is mentally re-
tarded and that this ground for relief was not
available to him when he filed his first state
habeas petition.4
1 See TEX. CODE CRIM. PROC. art. 11.071
§ 5(a); Ex parte Graves, 70 S.W.3d 103, 114
(Tex. Crim. App. 2002); Ex parte Kerr, 64
S.W.3d 414, 418 (Tex. Crim. App. 2002).
2 See Nobles v. Johnson,127 F.3d 409, 420 (5th
Cir. 1997) (“Procedural default . . . occurs when a
prisoner fails to exhaust available state remedies
and the court to which the petitioner would be re-
quired to present his claims in order to meet the
exhaustion requirement would now find the claims
procedurally barred.”).
3 Neither Moore’s initial state petition nor his
initial federal petition requested relief on the basis
of mental retardation.
4 Article 11.071 § 5(a) states, in relevant part,
(continued...)

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3
Moore asserted mental retardation as indi-
cated by his score of 74 on an IQ test taken
when he was in grade school, his placement in
special education throughout his schooling,
and his history of head injuries, at least one of
which occurred when he was nine or ten years
old. To substantiate these claims, he cited to
the trial record but provided no other evi-
dence. He requested an “opportunity to be
evaluated” and an evidentiary hearing, but the
TCCA dismissed the successive petition as an
abuse of the writ, asserting that Moore’s peti-
tion “fail[ed] to contain sufficient specific facts
which would satisfy the requirements” of arti-
cle 11.071 § 5(a). Ex Parte Moore, No.
38,670-02 (Tex. Crim. App. Feb. 5, 2003).
C.
Moore then sought permission from this
court to file a second federal habeas petition.
We allowed him to do so on the basis of 28
U.S.C. § 2244(b)(2)(A), finding that he had
made a prima facie showing of entitlement to
relief under Atkins sufficient to warrant further
exploration of his claim. In re Moore, 67 Fed.
Appx. 252 (5th Cir. 2003) (table). We noted,
however, that “the facts surrounding Moore’s
alleged retardation have not been developed,
and the parties have presented scant factual or
legal grounds for us to assess the procedural
default issue” that was raised by the state as a
defense. Id.
We directed the district court to perform its
own review of the record to determine wheth-
er Moore had met § 2244’s requirements for
filing a successive habeas petition. If the dis-
trict court was satisfied that those require-
ments had been met, it was instructed to con-
sider the merits of Moore’s claim and the
state’s defenses. Id.
D.
In his successive federal petition, unlike in
his successive state petition, Moore lays out
the three criteria used by the American Asso-
ciation on Mental Retardation (“AAMR”) to
diagnose mental retardation and alleges rea-
sons why he satisfies each.5 As in his state pe-
tition, he asserts that he scored a 74 on an IQ
test when he was seven years old. He argues
that this score indicates both subaverage intel-
lectual functioning and an onset of retardation
before age eighteen.6 He also contends that
4(...continued)
that
[i]f a subsequent application for a writ of ha-
beas corpus is filed after filing an initial appli-
cation, a court may not consider the merits of or
grant relief based on the subsequent application
unless the application contains sufficient spe-
cific facts establishing that: (1) the current
claims and issues have not been and could not
have been presented previously in a timely in-
itial application or in a previously considered
application filed under this article or Article
11.07 because the factual or legal basis for the
claim was unavailable on the date the applicant
filed the previous application . . . .
5 The AAMR states that mental retardation “is
characterized by [1] significantly subaverage in-
tellectual functioning, existing concurrently with
[2] related limitations in two or more of the fol-
lowing applicable adaptive skill areas: communi-
cation, self-care, home living, social skills, commu-
nity use, self-direction, health and safety, func-
tional academics, leisure, and work. [3] Mental re-
tardation manifests before age 18.” Mental Re-
tardation: Definition, Classification, and Systems
of Supports 5 (9th ed. 1992), quoted in Atkins, 536
U.S. at 309 n.3.
6 Citing a psychiatric textbook, the Atkins
Court, 536 U.S. at 309 n.5, noted that “an IQ be-
(continued...)

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4
his poor performance in school and other
events in his personal history that are a part of
the trial record indicate a deficiency in the
adaptive skill areas of functional academics,
social skills, self-direction, and health and
safety.7
On receiving Moore’s successive petition,
the federal district court ordered a stay of exe-
cution. Hoping to develop the record in ad-
vance of a hearing on the merits of his claim,
Moore then moved the court to authorize his
counsel to obtain “expert investigatory ser-
vices,” including a psychologist trained in the
field of mental retardation and a mitigation
investigator.
The district court denied the motion as pre-
mature and later denied the state’s motion to
dismiss the petition, agreeing with us that
Moore had met the § 2244(b)(2)(A) require-
ments for filing a successive habeas petition.
Moore v. Johnson, No. 03-CV-224 (E.D. Tex.
May 15, 2003). Finding fault with the state
court’s application of article 11.071 § 5(a), the
court granted Moore habeas relief, ordering
the state to release him from custody unless,
within 180 days, it reopened his state habeas
petition and conducted a fact-finding hearing
to determine whether he is entitled to relief un-
der Atkins. Moore v. Cockrell, No. 03-CV-
224 (E.D. Tex. July 28, 2003).
The state appealed, arguing that a district
court can grant habeas relief only if it finds
that a defendant is in custody in violation of
the Constitution or laws or treaties of the
United States. The state contended that the
court’s determination that the state had misap-
plied its own procedural rule was not suffi-
cient. Moore cross-appealed, arguing that he
is entitled to an evidentiary hearing in federal
court on his claim of mental retardation and
that his claim is not procedurally defaulted.
We agreed with the state and vacated, in-
structing the court to determine on remand
whether Moore is entitled to an evidentiary
hearing and, regardless of whether it held such
a hearing, whether Moore’s Atkins claim is
procedurally defaulted. On a finding of no de-
fault, we directed the court to determine
whether Moore is entitled to relief on the mer-
its of his claim. Moore v. Dretke, 369 F.3d
844, 846 (5th Cir. 2004).
E.
In June 2004, the district court issued an
order stating it already had decided, in refusing
to alter or amend the now-vacated writ, that
there was no procedural default. Moore v.
Dretke, No. 03-CV-224 (E.D. Tex. June 8,
2004).8 It granted an evidentiary hearing and,
6(...continued)
tween 70 and 75 or lower . . . is typically consid-
ered the cutoff score for the intellectual function
prong of the mental retardation definition.”
7 In his successive state petition, Moore did not
contend that he is limited in two or more adaptive
skill areas. He makes this particular claim for the
first time in his federal petition. In addition, he at-
taches portions of his school records to his federal
petition, a step he did not take when he filed his
state petition.
8 “A federal court may not consider a state pri-
soner’s constitutional claim if the state courts
based their rejection of that claim on an adequate
and independent state ground.” Emery v. Johnson,
139 F.3d 191, 194-95 (5th Cir. 1998). If a state
court rejects a habeas petition based on a purely
procedural ground, rather than on a consideration
of the merits of the constitutional claim, the dis-
missal is independent of that claim. As long as the
application of the procedural rule is adequate (i.e.,
(continued...)

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5
in doing so, rejected the state’s contention that
Moore was not entitled to such a hearing un-
der 28 U.S.C. § 2254(e)(2)(A) because he had
failed factually to develop his Atkins claim in
state court. The court held that § 2254(e)-
(2)(A) did not strip Moore of his entitlement
to an evidentiary hearing, because it deter-
mined that Moore was prevented from devel-
oping his claim by the state court’s improper
application of article 11.071 § 5(a). Id.
During the three-day hearing, Moore intro-
duced the testimony of Dr. Antolin Llorente, a
licensed psychologist who attested to Moore’s
substandard intelligence and limitations in
adaptive skills. He opinedSSbased on his own
interaction with Moore (including his adminis-
tration of an additional IQ test) and his inter-
views of family members, friends, teachers,
and employersSSthat Moore is mentally retard-
ed. Moore proffered the direct testimony of
various family members and friends, most of
whom indicated that Moore had been “slow”
and incapable of handling some of the basic
requirements of daily living from an early age.
The state countered with the testimony of
Dr. Gary Mears, a licensed and board-certified
psychologist who had examined Moore. Mears
asserted that Moore has good communication
and interpersonal skills and was capable of
recalling with clarity his early childhood expe-
riences, his academic and work histories, and
his criminal record. Mears examined Moore’s
school and psychological testing records and
concluded that although Moore is arguably of
substandard intelligence, he is not deficient in
any of the AAMR’s enumerated adaptive skill
areas. Mears noted that Moore had in fact
made a reasonable effort to succeed in life.
The state also challenged the validity of
Moore’s IQ scores and emphasized that he
had not in fact been in special education
throughout his schooling. The state intro-
duced the testimony of some of Moore’s
teachers, who believed that his poor perfor-
mance in an academic setting was not on ac-
count of substandard ability, but because of his
disinterest and his refusal to apply himself.
The state also proffered the testimony of
four correctional officers who had interacted
with Moore on a daily basis. All of them in-
dicated that Moore communicates well and
successfully socializes with others.
8(...continued)
not arbitrary), it bars federal review of the consti-
tutional claim. “It is not always easy, however, to
determine whether a state court decision is based
on state procedural grounds or, instead, on the
court’s interpretation of federal law.” Id. at 195.
The state court dismissed Moore’s successive
habeas petition for failure to meet the requirements
of article 11.071 § 5(a). The federal district court
initially determined that the state court’s ruling did
not result in a procedural default of Moore’s Atkins
claim for either one of two possible reasons:
(1) The dismissal under article 11.071 § 5(a) is in-
dependent of the Atkins claim because all that the
statute requires is an allegation of specific facts es-
tablishing that the factual or legal basis of the
asserted claim was previously unavailable; the
ruling is inadequate, however, because given that
minimal procedural requirement, the dismissal of
Moore’s petition was arbitrary; or (2) the dismissal
is not independent of the Atkins claim, because the
TCCA performs a threshold merits inquiry under
article 11.071 § 5(a).
When it later ruled on the merits of Moore’s
Atkins claim, the court adopted only holding (1).
See infra. The district court never ruled on wheth-
er, as the state contends on appeal, Moore’s claim
is procedurally defaulted under 28 U.S.C. § 2254-
(b)(1)(A) for failure to exhaust state court reme-
dies.

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6
Following the hearing, the district court
again granted Moore habeas relief, holding
that he is mentally retarded and thus ineligible
for the death penalty pursuant to Atkins.
Moore v. Dretke, No. 03-CV-224 (E.D. Tex.
July 1, 2005).9 The court found that the state
court’s dismissal of Moore’s petition was not
a ruling on the merits, but rather was an inde-
pendent, though inadequate, application of ar-
ticle 11.071 § 5(a). The court therefore em-
ployed a de novo standard of review in as-
sessing the merits of Moore’s claim, determin-
ing that no deference was owed to the state
court’s ruling under the Anti-Terrorism and
Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254.
The state appeals, advancing three main ar-
guments in the alternative: (1) Moore’s claim
is procedurally defaulted under 28 U.S.C.
§ 2254(b)(1)(A) because he failed to exhaust
his state court remedies before proceeding to
federal court; the petition he filed with the
TCCA amounted to a mere conclusional alle-
gation of mental retardation that deprived the
state court of the opportunity to rule on the
substance of his claim; (2) the state court’s
dismissal of Moore’s successive petition was
merits-based and accordingly should be upheld
given the deference it is owed under AEDPA;
and (3) even if the district court was correct in
employing a de novo standard, the district
court’s factual findings with regard to Moore’s
intellectualand adaptive functioning are clearly
erroneous, and its legal conclusion that Moore
falls under the protection of Atkins is incor-
rect.10
II.
A.
In the district court, the state opposed
Moore’s request for an evidentiary hearing on
the basis of 28 U.S.C. § 2254(e)(2), arguing
that Moore had failed factually to develop his
Atkins claim in state court and thus should not
be allowed such a hearing in federal court. On
appeal the state contends that Moore’s pres-
entation of new factual allegations, along with
supporting evidence, in federal court that he
did not include in his state petition implicates
the exhaustion requirement of 28 U.S.C.
§ 2254(b)(1)(A). We have at least twice held
that any problems presented by allegations and
evidence introduced for the first time on fed-
eral review are “more accurately analyzed
under the ‘exhaustion’ rubric . . . .” Dowthitt
v. Johnson, 230 F.3d 733, 745 (5th Cir. 2000);
9 The court directed the state to release Moore
from custody unless, within 180 days, it perma-
nently stayed his execution or reformed his sen-
tence to life imprisonment.
10 Although the state represents in its briefs that
it does not waive the argument that Moore’s Atkins
claim is procedurally defaulted because the state
court’s dismissal was predicated on an independent
and adequate state ground, the state offers no sup-
port for that argument other than to claim that “the
issue is certainly debatable.” It instead spends
much of its brief discussing the effect of the state
court’s ruling if it is in fact merits-based and thus
not independent of Moore’s constitutional claim.
Because the state failed adequately to brief the
issue of whether the state court’s dismissal of
Moore’s successive petition provides an independ-
ent and adequate bar to federal habeas review, the
argument is waived. See United States v. Marti-
nez, 263 F.3d 436, 438 (5th Cir. 2001). The state
has not, however, waived its argument with regard
to the particular reason for why there is no proce-
dural default. Although the district court held that
the state court dismissal was independent of the
merits of Moore’s Atkins claim, yet inadequate, the
state contends that the dismissal arguably was not
independent of the merits of the claim.

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7
see also Morris, 413 F.3d at 498.
B.
Under § 2254(b)(1)(A), “[a]n application
for a writ of habeas corpus on behalf of a per-
son in custody pursuant to the judgment of a
State court shall not be granted unless it ap-
pears that the applicant has exhausted the rem-
edies available in the courts of the State.” The
exhaustion requirement “is not jurisdictional,
but reflects a policy of federal-state comity de-
signed to give the State an initial opportunity
to pass upon and correct alleged violations of
its prisoners’ federal rights.” Anderson v.
Johnson, 338 F.3d 382, 386 (5th Cir. 2003)
(internal citations and quotations omitted).
Whether a federal habeas petitioner has satis-
fied the exhaustion requirement is a question
of law that we review de novo. Id.
C.
The exhaustion requirement is satisfied if
petitioner has fairly “presented the substance
of his claim to the state courts.” Vasquez v.
Hillery, 474 U.S. 254, 258 (1986). The re-
quirement is not satisfied if he “presents new
legal theories or factual claims in his federal
habeas petition. We have consistently held
that a petitioner fails to exhaust state remedies
when he presents material additional eviden-
tiary support to the federal court that was not
presented to the state court.” Anderson, 338
F.3d at 386. (internal citations and quotations
omitted). Evidence is not material for exhaus-
tion purposes if it “supplements, but does not
fundamentally alter, the claim presented to the
state courts.” Id. at 386-87. The failure to ex-
haust is a procedural bar to federal review that
may be excused if the petitioner “can demon-
strate cause for the defaults and actual preju-
dice.” Martinez v. Johnson, 255 F.3d 229,
239 (5th Cir. 2001).
D.
The state argues that Moore’s successive
state habeas petition was sparse to the point of
amounting to a brief, conclusional allegation of
mental retardation. The state emphasizes in
particular that Moore made no allegations and
offered no evidence before the TCCA with re-
gard to his limitations in adaptive skill areas.
The state contends that the presentation of
such allegations and evidence for the first time
in federal court fundamentally alters Moore’s
Atkins claim, rendering it unexhausted. We
agree.
In Anderson, an “admittedly close case” on
whether the petitioner had exhausted his state
court remedies with respect to his ineffective
assistance of counsel claim, this court asserted
that the fact that “the portion of Anderson’s
state post-conviction brief dedicated to inef-
fective assistance is remarkably detailed in
both fact and law” provided the tipping point
in favor of a finding of exhaustion. Anderson,
338 F.3d at 388. In Morris v. Dretke, 413
F.3d 484 (5th Cir. 2005), an even more recent
“admittedly close” case in which we addressed
the question with which we are now facedSS
whether new evidence introduced in federal
court rendered petitioner’s Atkins claim unex-
haustedSSwe similarly emphasized the impor-
tance of the detail with which the state petition
was presented. Morris, 413 F.3d at 496.
The petitioner in Morris had not included
an IQ score in his successive state habeas pe-
tition, because he lacked the funds to obtain
the expert assistance required to administer
such a test. After his state petition was dis-
missed, we allowed Morris to file a successive
federal habeas petition, and the district court
granted him leave to retain expert and investi-
gative assistance. As a result, Morris was able
to present a full-scale IQ score of 53 at the
subsequent evidentiary hearing on the merits

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8
of his federal petition. Id. at 489.
The state contended that Morris’s Atkins
claim was unexhausted because he had failed
to present this IQ evidence to the state court.
We disagreed, asserting that although, as in
Anderson, Morris’s federal claim was “un-
questionably in a comparatively stronger evi-
dentiary posture than it was in state court,”
several factors weighed in Morris’s favor. Id.
at 496 (internal citations and quotations omit-
ted). Most notably,
[Morris] . . . properly outlined the AAMR’s
definition for mental retardation, since
adopted by the TCCA as one of Texas’s
current standards for determining mental
retardation, [Ex parte Briseno, 135 S.W.3d
1, 7-8 (Tex. Crim. App. 2004)], and noted
the necessity to meet all three essential
prongs of the definition. See id. Morris al-
so clearly acknowledged that IQ evidence
was lacking in his particular case but still
insisted “[t]here is good reason to believe
that [Morris is retarded] . . . because of the
documented history of adaptive deficits,”
including Morris’s “inability to read and
write and his failure in functional academ-
ics,” “inability to obey the law and follow
rules,” “inability to avoid victimization,”
“inability to develop instrumentalities of
daily living [and] occupational skills,” and
“inability to maintain a safe environment,”
all of which were attested to by the sworn
affidavits and school records presented to
the state courts.
Id. (emphasis added).
Furthermore, we acknowledged with ap-
proval that “Morris saw fit to present an ex-
pert affidavit [along with his state petition],
which, albeit preliminarily, provided a psychol-
ogist’s acknowledgment of and support for
Morris’s mental retardation claim.” Id. Final-
ly, we noted that Morris had consistently as-
serted that “given the opportunity and resourc-
es, intellectual tests would confirm” his mental
retardation. Id. Accordingly, we held that the
state court had been given a fair opportunity to
rule on the substance of Morris’s Atkins claim
and that therefore his presentation of the IQ
score for the first time on federal review sup-
plemented, but did not fundamentally alter,
that claim.
The successive habeas petition Moore filed
with the TCCA pales in comparison to the one
we considered in Morris. As we have dis-
cussed, Moore merely asserted in his petition
that he had scored a 74 on an IQ test when he
was a child, that he had been placed in special
education throughout his schooling, and that
he had suffered multiple head injuries, one of
which occurred when he was no older than
ten.
Moore cited to the trial record in support of
these claims but offered neither school records
nor supporting affidavits from family members,
friends, teachers, or even the psychologist who
had testified on his behalf at trial. He refer-
enced neither the AAMR’s diagnostic criteria
for mental retardation nor the similar definition
of retardation contained in § 591.003 of the
Texas Health and Safety Code.11 Most impor-
tantly, he failed to allege that he is deficient in
two or more adaptive skill areas and indeed
made no mention of adaptive limitations as
such.
11 “‘[M]ental retardation’ means significantly
subaverage intellectual functioning that is concur-
rent with deficits in adaptive behavior and origi-
nates during the developmental period.” TEX.
HEALTH & SAFETY CODE § 591.003(13).

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9
Moore’s contention that he was in special
education throughout his schooling arguably
could be construed as an allegation that he was
only minimally functional in an academic set-
ting. In support of that bare assertion, how-
ever, he did not “identify any specific special
education classes or provide documentation of
those classes,” Moreno, 450 F.3d at 164, nor
did he offer any reason why he could not pre-
sent such evidence. Moore’s petition did not
touch, even arguably, on any other adaptive
skill area, let alone explain why supporting evi-
dence was lacking. Such a petition cannot be
considered sufficiently “detailed in fact and
law” to warrant a finding of exhaustion.
In Morris, 413 F.3d at 497, we noted that
the AAMR’s three diagnostic criteria are inter-
dependent and that evidence satisfying one
prong is, “standing completely on its own,”
not sufficient to avoid summary dismissal of an
Atkins claim. Given that interdependence, it
cannot be said that where a defendant’s state
petition completely neglects one prong of the
AAMR inquiry, the presentation of evidence in
support of that prong on federal review merely
supplements his Atkins claim.
It is true that Morris’s state petition was
missing the allegation of a below-average IQ
usually needed to support a finding of substan-
dard intellectual functioning. The petition,
however, “recognized the lack of [IQ] evi-
dence in his record but noted various school
records obtained by his counsel” were indica-
tive of his subpar intelligence. Id. at 487.
Moreover, the absence of IQ evidence in his
state petition was appropriately explained by
the fact that Morris at that time lacked the
funds to obtain testing.
Moore, by contrast, neglected to specify his
adaptive limitations and failed to provide a
plausible excuse for why he could not present
more than a scintilla of evidence on that prong.
Indeed, there is no excuse for why he did not
at minimum submit affidavits from his family
members confirming his limitations in two or
more areas of adaptive functioning. As was
true in Dowthitt, 230 F.3d at 758, “[g]iven that
the family members were willing to testify at a
hearing, [Moore] could have easily obtained
their affidavits [before he filed his petition in
state court]. A reasonable person in [his]
place would have done at least as much . . . .
Obtaining affidavits from family members is
not cost prohibitive.”
E.
We recognize that the Atkins Court did not
adopt a particular criterion for determining
whether a defendant is mentally retarded; the
Court instead left to the states “the task of de-
veloping appropriate ways to enforce the con-
stitutional restriction . . . .” Atkins, 536 U.S.
at 317. We also acknowledge that at the time
Moore filed his petition, neither the Texas leg-
islature nor the TCCA had developed a precise
means of determining whether a criminal de-
fendant qualifies for Atkins relief.
The Atkins Court, however, did reference
the AAMR’s criteria and noted that most al-
ready-existing statutory definitions of mental
retardation “conform to the clinical definitions
. . . .” Id. at 317 n.22. In addition, in Ex
Parte Briseno, 135 S.W. 3d 1, 7 (Tex. Crim.
App. 2004), the court stated that even before
it officially adopted the AAMR’s criteria in the
Atkins context, it had “previously employed”
that definition in analyzing allegations of re-
tardation relative to claims made under Penry
v. Lynaugh, 492 U.S. 302 (1989). Accord-
ingly, it is fair to conclude that even for habeas
petitions filed pre-Briseno, a petitioner has not
adequately presented the substance of his
Atkins claim to the TCCA unless he has, at the
very least, (1) outlined either the AAMR cri-

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10
teria or the substantially equivalent § 591-
.003(13) definition of mental retardation and
(2) either alleged why he satisfies each cri-
terion or asserted reasons why he is currently
incapable of presenting any evidence on a par-
ticular prong.
Moore’s state court petition is more akin to
the type of conclusional allegation that we
found insufficient to support exhaustion on an
ineffective assistance of counsel claim in Kun-
kle v. Dretke, 352 F.3d 980 (5th Cir. 2003),
than it is to the robust claim of mental retarda-
tion presented to the state by the petitioner in
Morris. Moore’s Atkins claim is therefore de-
faulted under 28 U.S.C. § 2254(b)(1)(A).
F.
We decline to excuse Moore’s failure to ex-
haust his state court claim. “The failure to ex-
haust is a procedural bar to federal review that
may be excused if the petitioner can demon-
strate cause for the defaults and actual preju-
dice.” Hillery, 474 U.S. at 260. Here, there
was no cause; nothing “external to the peti-
tioner” prevented him from at least referring to
the test for mental retardation that had been
discussed by the Supreme Court and had ap-
peared in two other Texas authorities at the
time of his petition, or from supplying school
records or affidavits from family members at-
testing to his adaptive limitations.
Moore argues that, at the time he filed his
petition, he did not know how extensive his
factual pleading had to be to satisfy § 11.071
in the context of an Atkins claim. He did
know, however, that Texas had to develop a
standard to implement Atkins. He noted at or-
al argument that § 11.071 is analogous to the
federal bar on successive habeas petitions,
§ 2254(b)(2)(A), which requires a petitioner to
make a prima facie showing of entitlement to
relief. It should have been obvious to him that
[a] second or subsequent writ must contain
‘sufficient specific facts’ to support an ap-
plicant’s Atkins claim. A writ application
which makes the naked assertion, ‘I am
mentally retarded,’ obviously does not suf-
fice to leap over this second hurdle. If it
did, every inmate on death row would be
equally entitled to file a subsequent writ in
the hope that something, somewhere, might
turn up to support this bare assertion.”
Ex Parte Williams, 2003 WL 1787634, at *1
(Tex. Crim. App. 2003) (Cochran, J., concur-
ring) (unpublished).
Neither Williams nor Briseno had been de-
cided when Moore filed his second state ha-
beas petition, and we do not rigidly hold him
to the pellucid standards announced in those
cases; it is, nonetheless, reasonable to require
him to cite a standard already mentioned by
the Supreme Court in Atkins and on the books
in two Texas authorities at the time of his pe-
tition and to supply (or argue credibly as to
why he could not supply) evidence to support
his claim.
As we have explained, Moore failed ade-
quately to do this. To excuse his petition
would be to excuse an inadequate and conclu-
sional filing that, for reasons not fairly attrib-
utable to factors outside the petitioner’s con-
trol, denied the state court its fair opportunity
to develop a standard by which to implement
Atkins and evaluate Moore’s petition.
Because our finding of unexcused failure to
exhaust state remedies alone requires the dis-
missal of the petition, it is unnecessary to con-
sider the state’s remaining arguments. Based
on Moore’s default of his state court remedies,
we VACATE the judgment granting the writ
and REMAND with instruction to dismiss
Moore’s Atkins claim with prejudice.

-- 10 of 39 --

11
DENNIS, Circuit Judge, dissenting:
I respectfully dissent from the majority’s decision to
vacate the district court’s judgment granting Moore
relief from the death penalty. Specifically, I do not
agree that Moore failed to exhaust his state court
remedies. Even if I were to agree that Moore failed to
exhaust his state court remedies, I believe that he
nevertheless is entitled to federal habeas review because
he has shown both sufficient cause for the default and
actual prejudice. Additionally, a fundamental miscar-
riage of justice will result if we fail to consider the
merits of Moore’s Atkins claim. Finally, there was
sufficient evidence to support the district court’s
finding that Moore is mentally retarded. Therefore, the
federal district court’s ruling granting Moore habeas
relief should be affirmed.
1. Exhaustion of State Remedies
The state presented three alternative arguments on
appeal: (1) Moore failed to exhaust state court remedies;
(2) the federal district court erred in reviewing Moore’s
claim de novo; and (3) the district court’s factual

-- 11 of 39 --

1 In footnote 8, the majority concludes that, because it
was not adequately briefed, the state has waived its
argument that Moore’s Atkins claim is procedurally
defaulted because the state court’s dismissal was based
on the requirements of TEX. CODE CRIM. PROC. art. 11.071
§5(a), which was an independent and adequate state court
ground. I agree with the assessment that this argument
is waived.
12
findings were clearly erroneous. The majority opinion
disposes of the case on the exhaustion issue, finding
that, under Dowthitt v. Johnson, 230 F.3d 733, 745 (5th
Cir. 2000), this case is “more accurately analyzed under
the ‘exhaustion’ rubric[.]”.1 Because it finds that Moore
presented material additional evidence in federal court
that was not presented to the state court, it concludes
that Moore’s Atkins claim is unexhausted, and therefore
dismisses his petition. Given the circumstances of this
case, however, the majority’s finding of failure to
exhaust is in error.
A. Incorrect Test Applied to Exhaustion Analysis
My first point of contention is with the test created by
the majority. The majority recognizes that Moore filed
his successive state habeas petition after Atkins v.

-- 12 of 39 --

13
Virginia, 536 U.S. 304 (2002), but before the Texas Court
of Criminal Appeals decided Ex Parte Briseno, 135 S.W.3d
1 (Tex. Crim. App. 2004), the case in which the Texas
Court of Criminal Appeals adopted the definition of
mental retardation to be used in Atkins cases. Neverthe-
less, the majority decides that “it is fair to conclude
that even for habeas petitions filed pre-Briseno, a
petitioner has not adequately presented the substance of
his Atkins claim to the [Texas Court of Criminal Appeals]
unless he has, at the very least, (1) outlined either the
AAMR criteria or the substantially equivalent §
591.003(13) definition of mental retardation and (2)
either alleged why he satisfies each criterion or as-
serted reasons why he is currently incapable of present-
ing any evidence on a particular prong.” Apparently, the
majority reaches this conclusion because the Texas Court
of Criminal Appeals indicated in Briseno that it had
“previously employed” the AAMR definition of mental
retardation in cases making claims under Penry v.
Lynaugh, 492 U.S. 302 (1989). Though the Texas courts
previously had relied on definitions of mental retarda-

-- 13 of 39 --

2 Atkins, 536 U.S. at 317 (leaving to the states “the
task of developing appropriate ways to enforce the
constitutional restriction”).
3 The majority opinion states that Moore’s petition
“cannot be considered sufficiently ‘detailed in fact and
law’ to warrant a finding of exhaustion.”
14
tion in Penry cases, they had not yet clarified what
standard would be used in Atkins cases, as they were
directed to do by the Supreme Court.2 At the time Moore
filed his successive state habeas petition, there was
nothing in Texas’ Atkins jurisprudence to direct Moore on
how to present evidence of mental retardation in his
petition. Therefore, I disagree with the majority that
it is “fair to conclude” that Moore was required to
present his mental retardation evidence in the manner set
forth by the AAMR or the Texas Health and Safety Code.
Despite the fact that Moore was not required to present
his mental retardation evidence in accordance with
definitions not yet adopted by Texas, Moore did give
evidence of mental retardation such that his petition was
sufficiently “detailed in fact and law” to warrant a
finding of exhaustion.3 In his successive state habeas
petition, Moore provided evidence of a low IQ, that he

-- 14 of 39 --

4 The majority does not take issue with Moore’s evidence
of “significantly subaverage intellectual functioning”
and “onset prior to age 18.” The only problem appears to
be with Moore’s evidence of limited adaptive functioning.
15
had been in special education, had brain damage, and that
the onset of these problems was prior to age 18. To
claim that he is mentally retarded, Moore had to assert:
(1) significantly subaverage general intellectual func-
tioning; (2) limitations in adaptive functioning; and (3)
an onset prior to age 18. Briseno, 135 S.W.3d at 8.
Clearly, Moore touched on all three of the criteria for
mental retardation in his successive state habeas peti-
tion.4 Therefore, he “presented the substance of his claim
to the state court[]”, thus satisfying the exhaustion
requirement. Vasquez v. Hillery, 474 U.S. 254, 258
(1986).
The majority turns to this circuit’s recent opinion,
Moreno v. Dretke, 450 F.3d 158 (5th Cir. 2006), as
authority to disregard that Moore’s claim of being in
special education classes as evidence that he suffers
from limited adaptive functioning. In Moreno, this court
declined to issue a COA on Moreno’s Atkins claim, finding

-- 15 of 39 --

16
no error in the district court’s decision that the state
court reasonably held that Moreno did not present a prima
facie Atkins claim. Id. at 165. In his successive state
habeas petition, Moreno presented evidence that he scored
a 64 on an IQ test when he was 35 years old. Id. at 164.
He also alleged that he attended special education
classes as a child, thus arguing that he suffered adap-
tive limitations. Id. The Moreno panel stated that
Moreno’s “only evidentiary support for [the special
education] claim was the psychologist’s report reciting
Moreno’s self-reported educational background. He could
not identify any specific special education classes or
provide documentation of those classes.” Id. at 164.
The majority in this case uses that statement from Moreno
to conclude that Moore’s claim that he was in special
education classes is not sufficient to constitute proof
of limited adaptive functioning. The majority’s conclu-
sion is in error.
In Moreno, the court based its decision on much more
than the lack of supporting evidence of special education
classes. The Moreno panel explained, “[m]uch of this

-- 16 of 39 --

17
evidence, such as Moreno’s employment history, fails to
suggest adaptive limitations. Balanced against this
meager evidence of adaptive limitations is the substan-
tial evidence that Moreno possesses adaptive behavioral
skills.” Id. at 165. The Moreno panel did not conclude
that claiming to have been in special education classes
was not enough to qualify as proof of limited adaptive
functioning, but that, in Moreno’s case, the evidence to
the contrary outweighed the allegations that Moreno was
in special education classes because he suffered limited
adaptive functioning. Id. This is not the situation in
Moore’s case, and therefore, the case before us is
distinguishable from Moreno.
Since Moore adequately presented the substance of his
claim that he is mentally retarded and therefore not
eligible for the death penalty according to Atkins in
state court, his claim was properly exhausted and there
was no bar to the district court ruling on the merits of
Moore’s Atkins claim. Accordingly, any new evidence
presented to the district court merely supplemented
Moore’s state claim. As the majority explains:

-- 17 of 39 --

18
We have consistently held that a petitioner
fails to exhaust state remedies when he presents
material additional evidentiary support to the
federal court that was not presented to state
court.” Anderson v. Johnson, 338 F.3d 382, 386
(5th Cir. 2003). Evidence is not material for
exhaustion purposes if it “supplements, but does
not fundamentally alter, the claim presented to
the state court.” Id. at 386-87.
To support the claim that he suffers from limited adap-
tive functioning, Moore offered a vast amount of evidence
in federal court that was not presented to state court,
including testimony from family, friends, teachers, and
neighbors, as well as school records. This testimony
merely supplemented Moore’s claim that he was in special
education classes and suffered limited adaptive function-
ing. Moore is allowed to “supplement and clarify” his
claims presented in state court “through expansion of the
record” with evidence such as “more sophisticated statis-
tical analyses than were presented in state courts” and
“introduction of new factual materials supportive of
those already in the record[.]” See Randy Hertz & James
S. Liebman, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 23.3c,
at 1088-89 (5th ed. 2005) (internal citations omitted).
Because Moore’s additional evidence presented in federal

-- 18 of 39 --

19
court did not “fundamentally alter the legal claim”
presented in state court, his claim was not unexhausted.
See Vasquez, 474 U.S. at 260.
The majority attempts to distinguish this case from
Morris v. Dretke, 413 F.3d 484 (5th Cir. 2005), a case in
which this circuit found that, though the petitioner
presented more evidence in federal court than in state
court, his Atkins claim was not unexhausted. The court
came to this conclusion even though it found that Morris’
federal claim was “unquestionably in comparatively
stronger evidentiary posture than it was in state court”
because Morris presented an IQ score in federal district
court and had not presented an IQ score in his state
court habeas petition. Id. at 496 (internal citations
omitted). The Morris court found that Morris “clearly
acknowledged that IQ evidence was lacking in [Morris’]
particular case, but still insisted ‘[t]here is good
reason to believe that [Morris is retarded]. . . because
of the documented history of adaptive deficits[.]’” Id.
(citations omitted).
Apparently, the Morris court looked to Morris’ evidence

-- 19 of 39 --

20
of limited adaptive functioning to compensate for the
lack of an IQ score. Even the majority in this case
concedes the Morris court’s point that “the AAMR’s three
diagnostic criteria are interdependent.” See id. at 497.
Thus, there is no reason why, in Moore’s case, this court
could not look to the evidence of special education and
brain injury to deduce that Moore had limited adaptive
functioning. This is especially true since, as in
Morris, there is “nothing in [the] record that shows that
[Moore] ‘attempted to expedite federal review by deliber-
ately withholding essential facts from the state
courts.’” Id. at 496. Therefore, the outcome in Morris
actually supports Moore in this case. Where, as in
Moore’s situation, the substance of a petitioner’s claim
was presented in state court, and additional, supplemen-
tal evidence is presented in federal court, that peti-
tioner has exhausted his claim in federal court, even if
his federal court evidence makes his case stronger.
B. The Prima Facie Requirement Applied Retroactively
My second point of contention is the majority’s charac-
terization of the Texas Court of Criminal Appeals’

-- 20 of 39 --

21
decision as a consideration of Moore’s claims on the
merits and as analogous to the merits inquiries in Morris
and Moreno, which both included within the scope of an
Atkins claim in a motion for authorization to file a
successive habeas petition, a prima facie showing that
the petitioner is, in fact, mentally retarded. The
majority opinion agrees with the state’s argument that
“Moore's successive state habeas petition was sparse to
the point of amounting to a brief, conclusional allega-
tion of mental retardation.”
The legal requirements for a valid Atkins claim were not
clear at time Moore filed his second application for
post-conviction relief in state court and when the Texas
Court of Criminal Appeals denied his application under
Texas Code of Criminal Procedure, Article 11.071, Section
5(a). It denied his application simply as an “abuse of
the writ,” because the application failed to “contain
sufficient specific facts which would satisfy the re-
quirements of Art. 11.071 Sec. 5(a).” Ex Parte Moore,
No. 38,670-02 (Tex. Crim. App. Feb. 5, 2003). Impor-
tantly, the judgment was filed on February 5th, 2003.

-- 21 of 39 --

22
The basis for the majority’s application of the Morris
and Moreno standards for their state exhaustion analysis
presumably is the assumption that the “sufficient facts”
language in 11.071 is analogous to the prima facie
showing of mental retardation required as part of a
petitioner’s Atkins claim before a successive petition is
permitted in federal court under 28 U.S.C. § 2244(b).
The majority states, “[t]he successive habeas petition
Moore filed with the TCCA pales in comparison to the one
we considered in Morris,” which is a federal 28 U.S.C. §
2244 case. The majority builds its opinion from this
two-part foundation: (1) motions for successive habeas
petitions based on an Atkins claim in both state and
federal courts require a prima facie showing; (2) the
prima facie requirement is comparable between federal and
state courts. From these two premises, the majority
concludes that the new evidence supporting Moore’s prima
facie showing of mental retardation as presented to the
federal courts “fundamentally alter[s]” the Atkins claim
presented to the state court. As the majority holds,
since the state and federal appellate forums both require

-- 22 of 39 --

23
the presentation of such evidence adjudged under similar
standards, the petitioner cannot be excused from his
failure to present this evidence in state court.
The two premises that underpin the majority’s conclusion
do not apply to Moore unless they are unfairly applied
retroactively. The premise that the Texas courts and the
Fifth Circuit include a prima facie showing, as part of
a motion to file a successive petition for post-convic-
tion relief based on an Atkins claim, did not exist when
Moore filed his second state application for post-convic-
tion relief, and more importantly, when the Texas Court
of Criminal Appeals rendered its judgment on February 5,
2003. The Texas Court of Criminal Appeals, in a divided
unpublished opinion in Ex Parte Williams, 2003 WL 1787634
(Tex. Crim. App. Feb. 26, 2003) and the Fifth Circuit in
In re Morris, 328 F.3d 739 (5th Cir. Apr. 15, 2003),
required, for the first time, a prima facie evidentiary
showing for Atkins claims in applications to file succes-
sive petitions for post-conviction relief. Subsequently,
the Texas courts then equated these federal and state
requirements as analogous. See, e.g., Ex Parte Riveria,

-- 23 of 39 --

24
2003 WL 21752841 *1 n. 2 (Tex. Crim. App. July 25, 2003).
As one can see, all these decisions occurred after the
Texas Court of Criminal Appeals ruled on Moore’s succes-
sive application for post-conviction relief. Even Ex
Parte Williams, the first case in this series, was
determined after Moore already filed his motion to
authorize his successive federal habeas petition on
February 11, 2003, Moore v. Cockrell, 2003 WL 25321830 *1
(E.D.Tex. 2003), which we subsequently approved. See
Moore v. Dretke, 369 F.3d 844, 845 (5th Cir. 2004).
Unlike the standards issue raised in the previous
section, Moore could not have possibly predicted when he
filed his state petition and his motion to file a succes-
sive habeas petition in federal court that a prima facie
evidentiary showing of mental retardation was required in
his state application for post-conviction relief. In
fact, the dissenters in Ex Parte Williams rejected the
view that Article 11.071 Section 5(a) required a prima
facie evidentiary showing, but would have required only
“sufficient facts” necessary to point out that an inter-
vening change in the law provided a new claim previously

-- 24 of 39 --

25
foreclosed. See Ex Parte Williams, 2003 WL 1787634, at
6 (Price, J., dissenting). Applying similar reasoning as
the Ex Parte Williams dissenters, the Tenth Circuit in
Ochoa v. Sirmons, 485 F.3d 538, 544-545 (10th Cir. 2007),
criticized the Fifth Circuit’s decision in In Re Morris
as having no basis in precedent, and, thus, disputed our
incorporation of a prima facie evidentiary showing into
the Atkins claim in motions for authorization to file
successive federal habeas petitions. See Ochoa, 485 F.3d
at 541-545 & n.4 (“Development and resolution of the
mental retardation issue is, rather, the province of the
district court in the proceedings we properly authorize
on the distinct grounds specified in § 2244(b)(2)(A)”).
Clearly, it was reasonable for Moore to believe that his
state claim and federal claim when filed at the appellate
court level were the same claims, regardless of the
evidentiary proof incorporated into them, since an Atkins
claim did not require any prima facie showing of mental
retardation in applications for successive petitions for
post-conviction relief at the appellate levels before Ex
Parte Williams and In Re Morris. The majority’s conclu-

-- 25 of 39 --

26
sion that because the evidence provided for the prima
facie showing of mental retardation was different for
federal and state forums, and therefore the whole Atkins
claim was not factually exhausted in state court, retro-
actively applies the prima facie showing requirement in
Ex Parte Williams and In Re Morris to Moore’s state
petition. Before these standards existed, we cannot
assume that the Texas Criminal Court of Appeals examined
the merits of the prima facie evidence of mental retarda-
tion, because they were not required to. In fact, per
the dissenters in Ex Parte Williams, the Texas Criminal
Court of Appeals should examine only whether “sufficient
facts” establish that the “legal basis for his claim was
unavailable when he filed his initial application for
writ of habeas corpus.” Ex Parte Williams, 2003 WL
1787634, at *6 (Price, J., dissenting) (emphasis added).
If the Texas Court of Criminal Appeals denied Moore’s
petition because he did not allege sufficient facts to
establish that an Atkins claim was unavailable when he
filed the initial writ, then it committed a clear consti-
tutional error by denying the retroactivity of Atkins.

-- 26 of 39 --

5 The other possibility was that the Texas Court of
Criminal Appeals’ denial of Moore’s second application
for post-conviction relief was based on an independent
procedural bar. That argument was waived. See, supra,
footnote 1.
27
If the Texas court actually examined the merits of the
evidence for mental retardation and dismissed the entire
Atkins claim under article 11.071 based on the insuffi-
ciency of evidence for mental retardation, then the
decision was arbitrary, since there was no requirement or
notice that such a prima facie showing was required at
that time for article 11.071 section 5(a) review. This
was the conclusion of the district court. Moore v.
Dretke, 2005 WL 1606437, *3 (E.D.Tex. 2005); see supra
______ at n.8.5
In effect, the Texas Court of Criminal Appeals’ decision
must either be considered clear constitutional error for
failing to apply Atkins claims retroactively or, as the
district court found, the decision was arbitrary for
analyzing the merits under a prima facie showing require-
ment when the petitioner was not required to make such a

-- 27 of 39 --

6 In addition, before In Re Riveria, the evidentiary
standards found in federal court opinions should not be
presumed to apply to any merits inquiry at the state
level.
28
showing.6 Additionally, since the Atkins claim in applica-
tions for successive petitions for post-conviction relief
did not include an evidentiary component in state or
federal forums when Moore’s state claim was adjudicated,
his state claim should not be considered “fundamentally”
different from the federal claim for exhaustion purposes
based solely on differences in evidentiary support.
Finally, the plaintiff never “failed” to exhaust the
facts presented to the federal courts below, because a
prima facie showing of mental retardation was never
required at that time in the state court. Cf. Morris v.
Dretke, 413 F.3d 484, 499-500 (5th Cir. 2005)
(Higginbotham, J., concurring) (“The [Supreme] Court
rejected a ‘no-fault’ reading of [28 U.S.C. § 2244], and
found that ‘[u]nder the opening clause of § 2254(e)(2),
a failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some
greater fault, attributable to the prisoner or the

-- 28 of 39 --

29
prisoner's counsel.’”). In any event, the injustices
detailed above will only magnify and complement the
equity arguments discussed below.
2. Exceptions to the Exhaustion Rule
The failure to exhaust may be excused if the petitioner
“can demonstrate cause for the defaults and actual
prejudice.” Martinez v. Johnson, 255 F.3d 229, 239 (5th
Cir. 2001). This circuit has recognized that “[c]ause is
defined as something external to the petitioner, some-
thing that cannot fairly be attributed to him that
impedes his efforts to comply with the state procedural
rule. ‘Cause’ factors may include interference by
officials that makes compliance with the procedural rule
impracticable, a showing that the factual or legal basis
for the claim was not reasonably available to counsel,
and ineffective assistance of counsel [ . . . ] on direct
appeal.” Matchett v. Dretke, 380 F.3d 844, 848-49 (5th
Cir. 2004) (internal citations omitted). Further,
prejudice is found where “the specific facts and circum-
stances of the proceeding in which the error occurred”
have “worked to the petitioner’s actual and substantive

-- 29 of 39 --

30
disadvantage.” Hertz & Liebman, supra, § 26.3c, at 1346-
47 (emphasis in original)(citing United States v. Frady,
456 U.S. 152, 170 (1982) and United States v. Olano, 507
U.S. 725, 734-35, 736, 739-41 (1993)).
Given this standard, it is evident that even if Moore’s
claims are unexhausted, he satisfies the “cause and
prejudice” exception to the exhaustion rule. Though
Moore did not provide all of the evidence available to
him in order to support his assertion that he attended
special education classes as a child, and did not express
his mental retardation evidence using the AAMR catego-
ries, he did state that “[t]o date, there has been no
published case from the Court of Criminal Appeals giving
guidance to what constitutes retardation under Texas
law.” Contrary to the majority’s position, Moore’s
statement regarding the then-uncertain state of Texas law
does provide an explanation of why such supporting
evidence was lacking - Moore had not received guidance
from Texas courts on how to present his evidence of
mental retardation post-Atkins. Certainly, something
external to Moore, namely that Texas had not yet decided

-- 30 of 39 --

31
Briseno and Ex Parte Williams, caused Moore’s inability
to present his mental retardation evidence according to
the now-established Texas procedure. Further, the facts
and circumstances of Moore’s case demonstrate that Moore
was prejudiced by this lack of guidance. The fact that
Moore did not know how to set forth his mental retarda-
tion evidence such that it would be acceptable to the
Texas Court of Criminal Appeals caused the state court to
dismiss Moore’s successive state habeas petition. This
is clearly an “actual and substantive disadvantage”
suffered by Moore. As such, Moore has satisfied the
“cause and prejudice” exception to the exhaustion rule.
Another exception to the exhaustion rule applies to
situations where the petitioner can “demonstrate . . .
that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thomp-
son, 501 U.S. 722, 750 (1991). The Supreme Court has
made clear that the “miscarriage of justice” exception
extends to cases in which “[t]he Constitutional violation
has probably resulted in the imposition of a death
sentence upon one who is actually innocent of a death

-- 31 of 39 --

32
sentence.” Hertz & Liebman, supra, § 26.4, at 1369
(internal citations omitted); see also Dugger v. Adams,
489 U.S. 401, 411 n.6 (1989). This means that a peti-
tioner can invoke the “miscarriage of justice” exception
if, but for the failure to exhaust, “the petitioner would
have not been eligible for the death penalty because some
constitutional or state statutory prerequisite for the
imposition of a death sentence could not have been
satisfied.” Hertz & Liebman, supra, § 26.4, at 1369-71;
see also Sawyer v. Whitley, 505 U.S. 333, 343, 345-50
(1992). Moore easily satisfies this exception because,
as explained in section 3 of this dissent, when allowed
to look at the merits of Moore’s Atkins claim, the
district court properly found that Moore is mentally
retarded. Therefore, in accordance with the Supreme
Court’s finding in Atkins, Moore is ineligible for the
death penalty, as his execution would constitute cruel
and unusual punishment in violation of the Eighth Amend-
ment. In other words, the evidence in this case shows
that any alleged failure to exhaust is excused because
Moore is actually “innocent of the death penalty.”

-- 32 of 39 --

33
3. The District Court’s Finding of Mental Retardation
The majority does not reach the issue of whether the
district court erred in finding that Moore is mentally
retarded. It is necessary to reach this issue, however,
because Moore’s Atkins claim was either exhausted in
state court, or his failure to exhaust is excused.
Therefore, this appeal cannot be disposed of on a finding
of failure to exhaust. Accordingly, it is necessary to
turn to the state’s argument that the district court’s
factual findings were clearly erroneous.
The district court analyzed Moore’s habeas petition
using the AAMR definition of mental retardation, one of
the mental retardation definitions adopted by the Texas
Court of Criminal Appeals in Briseno. The AAMR defines
mental retardation as:
A disability characterized by significant limi-
tations in both intellectual functioning and in
adaptive behavior, as expressed in conceptual,
social, and practical adaptive skills. This
disability originates before age 18.
Briseno, 135 S.W.3d at 8; American Association of Mental
Retardation, MENTAL RETARDATION: DEFINITION, CLASSIFICATION AND
SYSTEMS OF SUPPORTS (10th Ed. 2002) at 1. Therefore, as

-- 33 of 39 --

7 The Weschler Adult Intelligence Scales test (the
“WAIS”) is the standard instrument in the U.S. for
assessing intellectual functioning. The Flynn effect
(continued...)
34
explained earlier, to prove that he is mentally retarded,
Moore had to establish: (1) significantly subaverage
general intellectual functioning; (2) limitations in
adaptive functioning; and (3) an onset prior to age 18.
See Briseno, 135 S.W.3d at 8. The district court prop-
erly found that Moore presented sufficient evidence to
warrant a finding of mental retardation.
First, Moore met his burden of showing that he suffered
from subaverage general intellectual functioning. The
state claims that the district court erred in finding
Moore mentally retarded, because that finding was made in
the absence of a single, valid IQ score, and instead on
the sole basis of subjective, anecdotal testimony from
biased family members. Moore has taken four IQ tests
over his lifetime. The first was the Primary Mental
Abilities Test (“PMA”) given at age 6, on which he scored
a 74. He also received a 76 on the WAIS-R taken at age
24 in 1991, which was adjusted to a 72.1 to account for
the Flynn effect.7 On the WAIS-III, administered in 2004,

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7(...continued)
recognizes that norm IQ scores across a population have
increased approximately 3 points per decade.
35
Moore scored a 66. Last, Moore took a TONI-2 non-verbal
reasoning test and scored in the Very Poor range. At
trial, though Dr. Gary Mears, the state’s expert psychol-
ogist, did testify that he had some questions about the
accuracy of the IQ scores, he also stated that he would
agree with Dr. Antolin Llorente, Moore’s expert psycholo-
gist, that Moore satisfied the significantly subaverage
general intellectual functioning prong of the mental
retardation definition. Dr. Llorente testified that all
of Moore’s IQ scores, including the one taken at age 6,
were consistent with the WAIS-III score of 66. Dr.
Llorente also testified that Moore was assessed for
response bias to determine whether he was fabricating his
results, and no such bias was found. Given the agreement
among the experts and the concession by the state’s
expert, there appears to be sufficient evidence for the
district court to have determined that Moore satisfied
this prong of the definition.
Second, to support the claim that he suffers from

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8 There is evidence that Moore was not in special
education classes, but in “corrective classes.” It
appears that this distinction is inconsequential, because
the point is that Moore was not able to keep up with
children his age.
36
limited adaptive functioning, Moore offered a significant
amount of evidence in federal court, including testimony
from family, friends, teachers, and neighbors, as well as
school records.8 Though Dr. Mears stated that Moore was
not limited in adaptive functioning, he admitted that he
could not effectively assess adaptive functioning without
the use of adaptive functioning scales. Dr. Llorente,
though, did confidently conclude that Moore suffered from
adaptive deficits in every area of set forth by the
DSM-IV or the AAMR. Likewise, there was sufficient
evidence for the district court to conclude that the
onset of Moore’s mental retardation occurred before age
18. Again, the experts agreed that this was the case.
In addition to the experts, testimony was given by
Moore’s family members explaining that it was common
knowledge within the community that Moore was “slow” as
a child. Overall, the district court listened to the
opinions of experts, heard testimony from family members,

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37
and reviewed Moore’s academic records, vocational work,
communication skills, health and safety, social skills,
leisure, self-care, home living, use of community re-
sources, and victimization and gullibility. Based on all
of these factors, there was sufficient evidence for the
district court to conclude that each prong of the defini-
tion of mental retardation was satisfied. Therefore, it
was not clearly erroneous for the district court to
conclude that Moore is mentally retarded.
4. District Court’s Standard of Review
The majority also does not reach the issue of whether
the district court applied an incorrect standard of
review to Moore’s habeas petition. Again, it is neces-
sary to reach this issue because this case cannot be
disposed of on the exhaustion question alone. Consider-
ing the procedural history of this case, it is apparent
that the district court employed the correct standard of
review.
The state takes issue with the district court’s decision
to review Moore’s claim de novo and its explanation that
it was doing so because the state court’s dismissal was

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38
procedural in nature and was not an adjudication on the
merits. Though the state argues that large portions of
Moore’s mental retardation claim are procedurally de-
faulted, the state still maintains that the dismissal of
Moore’s successive state habeas application may not have
been independent of Atkins and, thus, may not be an
absolute procedural dismissal. If this is the case, then
the district court should have reviewed the state court’s
dismissal only to determine whether it was “contrary to,
or involved an unreasonable application of, clearly
established federal law as determined by the United
States Supreme Court, or resulted in a decision based on
an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding,” as
directed by AEDPA. 28 U.S.C. § 2254(d)(1)-(2).
However, Moore’s claim was not adjudicated on the merits
in state court. The Texas Court of Criminal Appeals
dismissed Moore’s application because it found that Moore
had failed to allege specific facts in his application
that would satisfy the elements of the Texas subsequent

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9 Alternatively, the Texas Court of Criminal Appeals may
have incorrectly dismissed Moore’s application when it
examined whether there were “sufficient facts” to support
a legal basis for his claim, i.e., if Atkins applied
retroactively to his claim. If it dismissed his claim by
failing to apply Atkins retroactively to Moore’s claim,
then there is clear constitutional error.
39
application rule.9 This was a pure procedural decision,
and it did not involve the Texas Court of Criminal
Appeals hearing Moore’s evidence to determine whether he
is in fact mentally retarded. When a state court does
not adjudicate a claim on its merits, the federal court
must determine the claim de novo. Miller v. Johnson, 200
F.3d 274, 281 n.4 (5th Cir. 2000). Therefore, AEDPA’s
deferential standard of review does not apply. As such,
the district court did not err in undertaking a de novo
review of Moore’s Atkins claim.
Conclusion
For the reasons indicated, the district court did not
err in hearing Moore’s federal habeas petition. Further-
more, the district court’s ruling granting Moore habeas
relief was not in error. Because it holds otherwise, I
dissent from the majority opinion.

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