Busby v. Davis

892 F.3d 735

Edward Lee BUSBY, Petitioner–Appellant,

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 15-70008

United States Court of Appeals, Fifth Circuit.

June 13, 2018

David R. Dow, University of Houston, Law Center, Houston, for Petitioner–Appellant.

Jefferson David Clendenin, Assistant Attorney General, Tomee Morgan Heining, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, Respondents–Appellees

Before OWEN, GRAVES,^* and HIGGINSON, Circuit Judges.

PRISCILLA OWEN, Circuit Judge:

Edward Lee Busby seeks federal habeas corpus relief, asserting three claims: that (1) he is intellectually disabled and therefore ineligible for execution under Atkins v. Virginia ,¹ (2) he received ineffective assistance of counsel on direct appeal, and (3) his trial counsel was ineffective by failing to conduct an adequate sentencing investigation or by failing to present an adequate mitigation case during the penalty phase of trial. The district court denied relief. We affirm the district court's judgment.

I

Edward Lee Busby was arrested and charged for the January 2004 kidnapping, robbery, and murder of a seventy-eight-year-old woman, Laura Crane.² Evidence at trial reflected that Busby and a female accomplice, Kathleen "Kitty" Latimer, abducted Crane from a grocery store parking lot in Texas, placed her in the trunk of her vehicle, and drove to Oklahoma.³ Busby admitted to authorities that he wrapped twenty-three feet of duct tape around Crane's face. Crane's death was caused by asphyxiation.⁴ According to a medical examiner, Crane was bound with such force that her nose deviated from its normal position.⁵ Though Busby admitted his involvement in the crime, he denied that he intended to kill Crane.⁶ At trial, Busby's counsel twice attempted to introduce statements attributed to Latimer that potentially supported Busby's contention that he did not intend to kill his victim, but these statements were excluded by the trial court.⁷ The jury found Busby guilty.⁸

During the penalty phase of the trial, the jury determined that Busby posed a future risk of dangerousness to society and that no mitigating factors warranted a life sentence.⁹ These findings required the trial court to sentence Busby to death.¹⁰ Busby appealed, but his appellate counsel did not challenge the exclusion of Latimer's potentially exculpatory statements.¹¹ The Texas Court of Criminal Appeals (TCCA) affirmed,¹² and the Supreme Court denied Busby's petition for certiorari.¹³

In Busby's first state habeas petition,¹⁴ his appointed state habeas counsel initially asserted an ineffective-assistance-of-trial-counsel (IATC) claim regarding the adequacy of trial counsel's mitigation investigation.¹⁵ The TCCA granted state habeas counsel funding to perform an independent mitigation investigation.¹⁶ Invoices indicate that state habeas counsel's mitigation investigator conducted interviews of several people, including Busby's two sisters and mother.¹⁷

Six months after the filing of Busby's petition, his state habeas counsel withdrew the IATC claim, informing the TCCA that he was "convinced that adequate pretrial mitigation was conducted because no significant additional mitigating evidence would have been discovered."¹⁸ The TCCA dismissed the petition.¹⁹

Busby then filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254.²⁰ This petition alleged seven claims, including for the first time claims that: (1) Busby's death sentence violates the Eighth Amendment because he suffers from an intellectual disability (the term more recently used by the Supreme Court in describing the condition that Atkins denominated "mental retardation"),²¹ (2) Busby received ineffective assistance from direct appeal counsel due to the failure to challenge the trial court's exclusion of Latimer's statements, and (3) Busby received ineffective assistance of trial counsel because of counsel's alleged failure to conduct a reasonable mitigation investigation.²²

The district court stayed Busby's federal habeas petition to permit exhaustion of claims that had not previously been presented in state court.²³ Busby filed a successive state habeas petition, which the TCCA dismissed as an abuse-of-the-writ.²⁴ Busby then returned to federal court.²⁵

The district court afforded Busby the opportunity to present mitigation and other evidence at a hearing, but Busby did not identify any witnesses and offered only arguments of counsel.²⁶ The district court denied relief.²⁷ The court concluded that Busby's Atkins claim was procedurally defaulted and did not satisfy the federal miscarriage-of-justice or actual-innocence exceptions to procedural default.²⁸ The district court further declined to excuse Busby's procedural default of the claim that he received ineffective assistance of counsel in his direct appeal.²⁹ The federal district court also concluded that some of the mitigation evidence presented in Busby's habeas petition was duplicative of evidence presented to the jury during his trial, and that, on balance, had the jury heard all of the mitigation evidence and weighed it against the aggravating evidence, there was no reasonable probability that at least one juror would have struck a different balance and would have answered the special issues submitted in the sentencing phase differently.³⁰ We granted a certificate of appealability on all three claims.³¹

II

We first consider Busby's Atkins claim and begin with an overarching summary of our conclusions regarding that claim. Busby was convicted in November 2005, three years after the Supreme Court's seminal decision in Atkins .³² He had retained a psychologist and mental health expert, Timothy Proctor, Ph.D., who was a defense witness at his state-court trial. Proctor administered two IQ tests, on which Busby scored 77 and 81, respectively. Proctor testified that the score of 77 placed Busby in approximately the bottom sixth percentile, meaning that 94% of the population had a higher IQ than Busby,³³ but that Busby was not intellectually disabled.³⁴ Busby made no claim before or during that trial, on direct appeal, or in his first state habeas corpus application that he is intellectually disabled or that any of his counsel had been ineffective in failing to investigate or pursue such a claim.

The Atkins claim was first presented to a state court, the TCCA, in a second, successive habeas petition. Busby asserted that he was actually innocent of the death penalty under Article 11.071, section 5.03(a)(3) of the Texas Code of Criminal Procedure. This claim largely mirrored the Atkins claim in his federal habeas petition, though he asserts in federal court that he is entitled to habeas relief based on the miscarriage of justice exception under federal common law, which includes the Sawyer v. Whitley actual-innocence-of-the-death-penalty standard.³⁵ The federal district court afforded Busby the opportunity to have an evidentiary hearing. Busby declined such a hearing and relied on the evidence attached to his federal habeas petition.

In the course of the state-court trial that resulted in Busby's conviction and in his pursuit of state and federal habeas relief, Busby has retained at least four mental health experts. None of them diagnosed Busby as intellectually disabled or opined that he is intellectually disabled. Only counsel has offered that opinion. His expert witness at the trial resulting in his conviction and sentencing testified that Busby is not intellectually disabled. Busby's second, successive state habeas petition and his federal habeas petition attach reports from three other experts, mental health literature, and affidavits or declarations containing information about Busby's childhood and life. The record reflects several IQ scores, one of which resulted in a full-scale IQ score of 81. The fact that Busby has retained at least four mental health experts over the course of his prosecution and post-conviction proceedings, and none of them has opined that Busby is intellectually disabled, is compelling evidence. Busby has failed to show by clear and convincing evidence that "no reasonable juror [or factfinder] would have found him eligible for the death penalty."³⁶ Stated another way, a reasonable factfinder could conclude from the evidence Busby presented that he is not intellectually disabled.

The TCCA's disposition of the Atkins claim withstands scrutiny under AEDPA.³⁷ Busby's contention that, based on Sawyer v. Whitley , he is actually innocent of the death penalty, likewise fails.

A

The only state court to have considered Busby's Atkins claim was the TCCA. The claim was presented to that court in a second, successive application for habeas relief, and the Texas court denied relief in a brief written order. The Supreme Court has held that "[a] federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.’ "³⁸ The federal district court concluded that Busby's Atkins claim was procedurally defaulted. Busby takes issue with this conclusion, contending that the TCCA's ruling was a merits decision. We agree. The state court's decision regarding the Atkins claim was not independent of the federal question, and it necessarily entailed an assessment of the facts presented in support of the Atkins claim. It was a decision on the merits within the meaning of AEDPA.

The TCCA's order denying relief on the claims set forth in Busby's second, successive habeas application said, "we dismiss the application as an abuse of the writ without considering the merits of the claims."³⁹ Generally, "when a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal...