Morris v. Dretke

• Decision Date: 16 June 2005
• Docket Number: No. 04-70004.,04-70004.
• Citation: 413 F.3d 484
• Parties: Kenneth Wayne MORRIS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

413 F.3d 484

Kenneth Wayne MORRIS, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 04-70004.

United States Court of Appeals, Fifth Circuit.

June 16, 2005.

COPYRIGHT MATERIAL OMITTED

Michael B. Charlton, Law Office of Michael B. Charlton, Alvin, TX, Gerald James Bierbaum (argued), Houston, TX, for Morris.

Deni S. Garcia (argued), Austin, TX, for Dretke.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, DeMOSS and DENNIS, Circuit Judges.

DeMOSS, Circuit Judge:

Petitioner-Appellant Kenneth Wayne Morris ("Morris") sought a COA on the issue whether the presentation of a factually stronger habeas claim in federal court than in the state courts always mandates a dismissal without prejudice based on the exhaustion principle. Morris v. Dretke, 379 F.3d 199, 201 (5th Cir.2004). We granted Morris a COA on that exhaustion issue and asked the parties to specifically address the following:

[W]hether Morris's presentation of additional evidence of mental retardation in federal court beyond that which he presented in the state courts is exhausted because it only supplemented his state Atkins [v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)] claim or is unexhausted because it fundamentally altered his state Atkins claim; and if Morris's claim is [thus rendered] unexhausted, whether he has met any exception to excuse exhaustion.

Id. at 207. For the following reasons, we determine that Morris's presentation of new evidence merely supplemented the Atkins claim he had already presented to the state courts; his Atkins claim meets exhaustion per 28 U.S.C. § 2254(b)(1)(A); and the district court erred in dismissing Morris's Atkins claim for want of exhaustion. Therefore, we VACATE the order of dismissal without prejudice and REMAND with instruction to conduct an evidentiary hearing to determine whether Morris is mentally retarded and thus categorically ineligible for the death penalty pursuant to Atkins. See 536 U.S. at 321, 122 S.Ct. 2242 (holding the Eighth Amendment "places a substantive restriction on the State's power to take the life of a mentally retarded offender") (internal quotation marks and citation omitted).

BACKGROUND

In December 1993 Morris was convicted and sentenced to death for the capital offense of murdering James Moody Adams. On direct appeal, the Texas Court of Criminal Appeals ("TCCA") affirmed Morris's conviction and sentence; the Supreme Court of the United States denied certiorari. The TCCA then denied Morris's application for writ of habeas corpus. In April 2000 Morris initiated federal habeas proceedings. The district court denied Morris habeas relief and denied him a COA. This Court also denied Morris a COA. Morris did not seek certiorari review in the Supreme Court. Texas set an execution date of April 15, 2003.

On June 20, 2002, the Supreme Court held that the Eighth Amendment protects against the execution of mentally retarded defendants. Atkins, 536 U.S. at 321, 122 S.Ct. 2242. Atkins claims are applicable to defendants on collateral review. Bell v. Cockrell, 310 F.3d 330, 332 (5th Cir.2002). Those defendants whose convictions were already final on direct review, like Morris, had one year to file their Atkins claims under 28 U.S.C. § 2244(d)(1)(C). On April 10, 2003, within ten months after Atkins was decided, Morris filed a successive application for writ of habeas corpus in state district court. The sole legal basis for Morris's successive state writ was Atkins's application to him as a mentally retarded person facing execution. Morris argued that his application met the subsequent application requirements of Article 11.071, Section 5, of the Texas Code of Criminal Procedure because the constitutional legal basis for his claim, Atkins, was unavailable at the time he filed his previous state habeas corpus application.

In his successive state application, Morris referenced the American Association on Mental Retardation ("AAMR") standard for determining mental retardation:

Mental retardation refers to substantial limitations in present functioning. It is characterized by [1] significantly subaverage intellectual functioning, existing concurrently with [2] related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work. [3] Mental retardation manifests before age 18.

AAMR, MENTAL RETARDATION: DEFINITION, CLASSIFICATION, AND SYSTEMS OF SUPPORT 5 (9th ed.1992).¹ Morris also referenced the nearly identical definition of mental retardation in the Diagnostic and Statistical Manual of Mental Disorders:

The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C).

AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 41 (text rev., 4th ed. 2000) ("DSM-IV").

Morris recognized the lack of Intelligence Quotient ("IQ") evidence in his record but noted various school records obtained by his counsel, including a letter concerning Morris's official withdrawal from the Cypress-Fairbanks Public Schools special assignment campus.² Morris also supported his claim of retardation with evidence regarding his adaptive deficits: affidavits from family members and friends noting he cannot read or write with any proficiency and had always been very suggestible and easily influenced; notes from a mental health expert appointed for his trial, Dr. Jerome Brown, indicating Morris was intellectually limited and had learning problems; and partial school records classifying Morris as learning disabled and indicating he dropped out at age 15 after repeating the eighth grade, having failed the third, fifth, and eighth grades and most of his special education/resource classes.

In addition, Morris included an affidavit from psychologist Dr. Richard Garnett who reviewed the above materials "in an attempt to determine whether there was sufficient evidence to support a motion for a hearing to determine whether or not Mr. Morris might meet the criteria for mental retardation as defined by current psychological theory." Dr. Garnett offered his informed, professional opinion that there were "indeed sufficient indicators to suggest that Mr. Morris has mental retardation" and "[h]e should be given the opportunity for a professional assessment and evaluation as a part of that review, and [] then go before the court for a determination." Morris indicated that Dr. Brown had made a determination that he was not mentally retarded. However, Dr. Garnett noted that Dr. Brown "for some reason apparently did not administer a test of intellectual level." Morris contended that Dr. Brown's testing and methodology rendered his mental retardation assessment scientifically unreliable, in light of his not having used any intelligence testing instrument.

Morris argued that together all the evidence he submitted demonstrated his deficiencies in the following specific adaptive behavioral skill areas: (1) conceptual, referring to Morris's inability to read and write and his failures in functional academics; (2) social, referring to Morris's inability to obey the law and follow rules, and his inability to avoid victimization; and (3) practical, referring to Morris's inability to develop instrumentalities of daily living or occupational skills, and his inability to maintain a safe environment.

Furthermore, Morris maintained that Gerald Bierbaum, one of the attorneys signing Morris's successive application, had approached the trial court to request that counsel be appointed so an expert could be obtained to perform intellectual testing and to request a modification of the execution date. Morris contended that the trial court would consider such request if the state did not oppose it and that the attorneys who signed Morris's successive writ conferred with the Harris County District Attorney's office, which was so opposed. Morris argued that an evidentiary hearing was necessary to develop and fully present all available evidence supporting his claim of mental retardation under Atkins. Morris then expressly requested the following: leave to file his successive state writ, the appointment of counsel, the necessary resources to establish his claims, and an evidentiary hearing. The TCCA dismissed Morris's successive state habeas application as an abuse of the writ on April 14, 2003.³

On April 15, 2003, Morris filed a request with this Court for authorization to file a successive federal habeas petition. Morris based his request on the same information he presented in the state courts. This Court stayed Morris's execution and tentatively granted his motion to file a successive petition. We held that Morris had made a prima facie showing that: (1) the claim to be presented in the proposed successive habeas application had not been previously presented in any prior application to this Court; (2) such claim relied on a previously unavailable new rule of constitutional law, which had been made retroactive to cases on collateral review by the Supreme Court; and (3) he should be categorized as mentally retarded. In re Morris, 328 F.3d 739, 740-41 (5th Cir.2003). Our authorization for Morris to file his successive habeas petition was tentative in that it was dependent on the district court finding that the requirements under the Antiterrorism and Effective Death Penalty Act of 1996 ...