Ex Parte Blue

A state habeas applicant alleging mental retardation for the first time in a subsequent writ application can proceed to the merits of his application if he presents evidence of a sufficiently clear and convincing character that no rational factfinder would fail to find he is mentally retarded.

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Click here for the full text of this decision FACTS:Carl Henry Blue made a subsequent application for writ of habeas corpus in his capital case, arguing that he cannot be subjected to the death penalty consistent with the U.S. Supreme Court’s 2002 decision Atkins v. Virginia, because he is mentally retarded. Blue proffered some anecdotal evidence that he suffered from some adaptive deficits, which manifested before he was 18 years old. He offered “sketchy” grade school records, the Court of Criminal Appeals stated, that showed he performed poorly in his academic classes, was socially promoted several times, had to repeat the eighth grade and eventually left school altogether. The only IQ-score evidence in the record came from Blue’s trial, where an expert testified that, based upon incomplete testing, he estimated Blue’s IQ to fall between 75 and 80. Although Blue filed his initial postconviction application for writ of habeas corpus almost a year after the Supreme Court decided Atkins, Blue failed to raise the issue of mental retardation in that initial writ application. He therefore made no attempt in his subsequent habeas application to argue that the CCA could review his claim under Texas Code of Criminal Procedure Art. 11.071, �5(a)(1). Instead, Blue made two alternative arguments. First, he asserted that the CCA could reach the merits of his claim of mental retardation under Art. 11.071, �(5)(a)(3). Under this provision, a subsequent capital habeas applicant is entitled to merits review of a claim if he can show by clear and convincing evidence that, but for a violation of the U.S. Constitution, “no rational juror would have answered in the state’s favor one or more of the special issues that were submitted to the jury in the applicant’s trial under Article 37.071[.]“ Alternatively, Blue asserted that, because the Eighth Amendment prohibition against executing the mentally retarded is absolute, the CCA should suspend all notions of waiver, forfeiture, procedural default and abuse of the writ, thus abandoning any otherwise valid interest the state may have in the finality of the judgment and permitting Blue to proceed with his claim. HOLDING:The CCA denied Blue’s subsequent application for a writ of habeas corpus. The CCA first held that whether Blue can proceed with his subsequent writ application depends upon whether he can satisfy the criteria of Art. 11.071, �5(a)(3). The CCA noted that a state habeas applicant who alleges that he is mentally retarded in an initial postconviction writ application must prove it by a preponderance of the evidence in order to obtain relief on his claim. But the standard, the CCA stated, is higher for a subsequent habeas applicant such as Blue. The CCA held that a state habeas applicant alleging mental retardation for the first time in a subsequent writ application is allowed to proceed to the merits of his application under �5(a)(3) if he alleges and presents, as a part of his subsequent pleading, evidence of a sufficiently clear and convincing character that the CCA could ultimately conclude that no rational factfinder would fail to find he is in fact mentally retarded. Applying that standard, the CCA found no evidence that Blue’s poor academic performance was necessarily a product of, or that his apparent adaptive deficits were related to, significantly below-average general intellectual functioning. In the absence of such a connection, the CCA could not say that Blue presented threshold evidence sufficient to support a firm belief or conviction that he is mentally retarded. The only expert opinion that Blue offered, the CCA stated, is that the “paucity of information presented . . . makes it impossible to conclude whether [the applicant] is mentally retarded.” Because Blue failed to meet the “clear and convincing” standard, the CCA denied him leave to proceed. OPINION:Price, J., delivered the opinion of the court in which Meyers, Johnson, Keasler, Hervey, Holcomb and Cochran, J.J., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion. “The Court holds for the first time today that an applicant may overcome our statutory bar to subsequent writ applications by means of a freestanding claim of actual innocence in this case,”actual innocence of the death penalty.’ Because this conclusion is warranted neither by our statute nor by the federal caselaw underlying our statute, I concur in the Court’s judgement.” Johnson, J., also filed a concurring opinion. “The United States Supreme Court has, unfortunately, inserted into the legal lexicon the phrase”actual innocence of the death penalty.’ The meaning of the phrase is more properly expressed as”ineligibility for the death penalty’ because it has nothing whatsoever to do with a claim of actual innocence, that is, that the claimant did not commit the charged offense.” Womack, J., concurred without a written opinion.

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