Busby v. Davis

925 F.3d 699

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.

FILED May 20, 2019

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

Jefferson David Clendenin, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, Tomee Morgan Heining, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent-Appellee.

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

PRISCILLA OWEN, Circuit Judge.

We treat Edward Lee Busby’s petition for rehearing en banc as a petition for panel rehearing pursuant to Fifth Circuit Internal Operating Procedures under Federal Rule of Appellate Procedure 35. Busby’s petition for rehearing is DENIED. The opinion in No. 15-70008, issued June 13, 2018, and reported at 892 F.3d 735, is hereby WITHDRAWN, and the following opinion is ISSUED in its place.

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 subsequent 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 in Busby’s federal habeas petition. Busby argued that the evidence presented in that petition "proves by a preponderance of the evidence that he has mild mental retardation."³⁵ The federal district court stayed proceedings to permit Busby to present the claim to a state court.³⁶ Because the Atkins claim was raised in state court in a second habeas petition and could have been presented in the first state habeas proceeding, Texas law required the TCCA to treat the claim as a successive habeas petition.³⁷ Busby asserted that he was actually innocent of the death penalty under article 11.071, section 5(a)(3) of the Texas Code of Criminal Procedure,³⁸ which essentially embodies the elements of the federal actual-innocence standard as set forth in Sawyer v. Whitley .³⁹ The TCCA denied the Atkins claim without an evidentiary hearing,⁴⁰ and Busby has not challenged the lack of a hearing.

After the TCCA rejected his Atkins claim, Busby relied on the evidence attached to his federal habeas petition. It largely, but not entirely, mirrored the evidence presented to the TCCA. In his second amended petition for habeas relief in federal district court following the TCCA’s denial of relief, Busby addressed only the factual underpinnings of his Atkins claim.⁴¹ He affirmatively relied upon the TCCA’s decision in Ex parte Briseño ,⁴² citing it as authoritative throughout his briefing on the Atkins claim.⁴³ Though he asserted that the TCCA had ruled on the merits in denying the Atkins claim,⁴⁴ Busby did not argue in his briefing in the federal district court that the TCCA’s decision was based on an "unreasonable application of clearly established Federal law."⁴⁵ Although he has forfeited such a claim by failing to raise it in the federal district court, we review the TCCA’s decision under § 2254(d)(1), out of an abundance of caution.

Busby has retained at least four mental health experts during the course of his trial and post-conviction proceedings. None of them has 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 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 81.⁴⁶ The TCCA’s decision was not "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."⁴⁷

Clearly established federal law is not violated or misapplied when a state court requires an inmate, convicted after Atkins , who presents an Atkins claim in a second, successive state habeas petition to show by clear and convincing evidence that "no reasonable juror [or factfinder] would have found him eligible for the death penalty."⁴⁸ Stated another way, when...