In re Campbell, 14–20293.

• Decision Date: 13 May 2014
• Docket Number: No. 14–20293.,14–20293.
• Citation: 750 F.3d 523
• Parties: In re Robert James CAMPBELL, Movant.
• Court: U.S. Court of Appeals — Fifth Circuit

750 F.3d 523

In re Robert James CAMPBELL, Movant.

No. 14–20293.

United States Court of Appeals,Fifth Circuit.

May 13, 2014.

Robert Charles Owen, Esq., Northwestern University School of Law, Chicago, IL, for Movant.

Before STEWART, Chief Judge, and DENNIS and ELROD, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Robert James Campbell, a death-row prisoner whose execution is scheduled for Tuesday, May 13, 2014, contends that he is intellectually disabled (formerly called “mentally retarded”) and is, therefore, constitutionally ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).¹ He has filed with this court a motion for authorization to file a successive federal habeas corpus petition asserting his Atkins claim and a motion for stay of execution pending the resolution of that claim. For the reasons that follow, we grant both motions.

I.

Campbell was born in 1972. In 1991, a few months after his eighteenth birthday, he murdered Alexandra Rendon. Campbell and a friend kidnapped Rendon while she was at a gas station, pumping gas. They drove her to a remote area where Campbell eventually shot her in the back.² He was convicted of capital murder in 1992 in the District Court of Harris County, Texas. The judgment was affirmed in the Texas Court of Criminal Appeals in 1995. Campbell v. State, 910 S.W.2d 475 (Tex.Crim.App.1995) (partial publication). During the following years, Campbell lodged several petitions for habeas corpus in Texas state courts and one petition in federal district court. None was successful.

On June 20, 2002, the Supreme Court held in Atkins v. Virginia that the death penalty, as imposed against the intellectually disabled, is excessive punishment under the Eighth Amendment, and, therefore, “the Constitution places a substantive restriction on the State's power to take the life of a mentally retarded offender.” 536 U.S. at 321, 122 S.Ct. 2242 (internal quotation marks omitted).

Campbell's attorney at the time, who believed but lacked proof that Campbell was intellectually disabled, began investigating for evidence to support Campbell's assertion of an Atkins claim. According to the representations and supporting evidence of Campbell's current counsel (not the attorney who represented him during the period immediately following Atkins ), Campbell's attorney then contacted each of the schools Campbell had attended and requested their records concerning him.³The schools provided scant materials showing generally that Campbell had performed poorly in his academics, but the records did not reflect any standardized intelligence testing. What Campbell's attorney did not know was that the Harris County District Attorney's office had, in 1991, subpoenaed Campbell's school records, specifically requesting “psychological testing” results, and, at that time, received evidence that Campbell had taken at least two intelligence tests as a child. When he was nine years old, Campbell received a “deviation IQ” of 68 on the “Otis–Lennon Mental Ability Test.” And, when he was seven years old, he performed in the lowest range of the “Metropolitan Readiness Test.” In the period immediately following Atkins, this evidence of intellectual disability was, apparently, in the exclusive possession of the District Attorney's office.

In March 2003, Campbell's attorney requested from the Texas Department of Criminal Justice “results from any and all intellectual functioning tests completed by Mr. Robert James Campbell.” ⁴ The department responded, in a letter dated March 31, 2003:

I am writing in response to your request dated March 21, 2003 asking for any and all intellectual functioning tests completed by inmate Campbell while incarcerated on a previous conviction.... As you know, inmates sentenced to death receive no intellectual testing upon incarceration.

Our records indicate that inmate Campbell was previously sentenced to a five-year term for robbery on April 23, 1990 and received by TDCJ in May 1990. The admission summary for that conviction indicates an IQ test score of 84. Because the actual IQ test instruments are kept for only a few months, any such test instrument for inmate Campbell would have been destroyed long ago.

That letter contained two significant contentions. First, the department's letter stated that “inmates sentenced to death receive no intellectual testing upon incarceration.” According to the representations and supporting evidence of Campbell's current counsel, that statement was incorrect or misleading. According to “clinical notes” of the Texas Department of Criminal Justice's Institutional Division which are in the record before us, in 1992, Campbell was administered the “WAIS–R IQ Short Form” (that is, the “Wechsler Adult Intelligence Scale–Revised Short Form”) test and scored 71. According to the report of a psychologist, Dr. Leslie Rosenstein, that test, which was “designed to be a quick, short screening tool developed to save time, and not a comprehensive measure of intelligence,” tends to “overestimate” intelligence. Thus, the 1992 test, which the department failed to disclose following CampbelFs attorney's request for “any and all intellectual functioning tests,” was evidence of intellectual disability.

Second, the department's letter stated that, in 1990, during his earlier incarceration on a robbery conviction, Campbell received an IQ test score of 84, which would suggest that he was not intellectually disabled. Apparently, nothing is known today about that score, including what test was administered, what were the qualifications of the person who administered the test, and, indeed, whether such a test had been administered at all.

On May 28, 2003, Campbell's attorney, without knowledge of the three intelligence tests suggesting intellectual disability, filed in Texas state court an application for a writ of habeas corpus alleging, “based upon a good faith belief that Campbell may be mentally retarded,” that his execution would violate Atkins. The attorney attached to the application two pages of school records demonstrating Campbell's failing grades and affidavits from Campbell's relatives and friends. The application requested an opportunity for discovery and an evidentiary hearing in state trial court. In response, the State argued that Campbell's “sparse school records” were insufficient to warrant further factual development and that the application should be dismissed. The Texas Court of Criminal Appeals agreed, held that the application was “insufficient,” and dismissed it. Ex parte Campbell, No. WR–44551–02, slip op. at 4 (Tex.Crim.App. July 2, 2003) (unpublished).

Campbell, through his attorney, then requested from this court authorization to file a successive habeas corpus petition asserting his Atkins claim in federal district court. See28 U.S.C. § 2244(b)(3)(A); Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (“[A] habeas petitioner [is required] to obtain leave from the court of appeals before filing a second habeas petition in the district court.”). As with the state application, the attorney attached to the federal motion for authorization the school records and affidavits. On November 13, 2003, this court held that the evidence was “simply not enough to demonstrate that his claim has any likelihood of success under Atkins ” and, therefore, he failed to make a “ prima facie showing of mental retardation” and was “not entitled to file a successive habeas petition in the district court.” In re Campbell, 82 Fed.Appx. 349, 351 (5th Cir.2003).

Next, in federal district court, on November 25, 2003, Campbell's attorney sought funds for intellectual-function testing, and, on December 9, the request was denied. Campbell v. Cockrell, No. 4:00–CV–3844 (S.D.Tex. Dec. 9, 2003). A year later, on December 9, 2004, this court denied Campbell's request for the certificate of appealability needed to appeal the funding denial. Campbell v. Dretke, 117 Fed.Appx. 946, 959 (5th Cir.2004).

Throughout this litigation in the state and federal courts regarding Campbell's ability to assert an Atkins claim on the merits, the State never disclosed that it was in possession of evidence of three intelligence tests suggesting that Campbell was intellectually disabled.

Years passed. At some point, it is not clear from the record when, Campbell obtained new counsel, the attorneys representing him now. The new attorneys tell us that, in March 2014, they realized that the District Attorney's office subpoenaed Campbell's school records back in 1991. The new attorneys requested that the District Attorney's office provide copies of the records that had been produced to them. The District Attorney's office complied with the request. According to Campbell's counsel, upon receiving the records, the attorneys discovered that the District Attorney's office had received from the school two pages of documents that were not provided to Campbell's prior attorney when he made his request: the two pages reflecting the two intelligence tests. Later, it is not clear exactly when, or how, Campbell's counsel discovered the Department of Criminal Justice short form intelligence test that the department had failed to disclose when requested by Campbell's prior attorney.

In April 2014, Dr. Rosenstein, a board certified psychologist on referral from Campbell's counsel, evaluated Campbell for intellectual disability.⁵ Dr. Rosenstein's evaluation included her administration of a series of intelligence tests and review of historical information about Campbell, including his school records and prior intelligence tests. Dr. Rosenstein's tests showed Campbell to have a full scale IQ of 69. Dr. Rosenstein diagnosed Campbell with “mild mental retardation.” ⁶

With the May 13, 2014, execution date fast approaching, on May 5, Campbell filed a subsequent application for writ of habeas corpus in Texas courts, attaching the new and...