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Click here for the full text of this decision FACTS:In December 1990, Moore and three other men broke into the home of Richard and Elizabeth Ayers, an elderly couple. The men robbed and shot the couple, killing Elizabeth and paralyzing Richard. A jury convicted Eric Moore of capital murder and sentenced him to death in 1991. He appealed his conviction and sentence, but the Court of Criminal Appeals affirmed. Moore then filed his first petition for habeas relief in state court, which the state court denied. In the wake of the U.S. Supreme Court’s 2002 opinion Atkins v. Virginia, Moore filed a successive petition for habeas corpus relief in state court, arguing that he was mentally retarded and thus ineligible for the death penalty, and that this ground for relief was not available to him when he filed his first state habeas petition. Moore asserted mental retardation as indicated by his score of 74 on an IQ test taken when he was in grade school, his placement in special education throughout his schooling and his history of head injuries, at least one of which occurred when he was 9 or 10 years old. To substantiate these claims, he cited to the trial record but provided no other evidence. Moore requested an “opportunity to be evaluated” and an evidentiary hearing, but the CCA dismissed the successive petition as an abuse of the writ, asserting that Moore’s petition “fail[ed] to contain sufficient specific facts which would satisfy the requirements” of Texas Code of Criminal Procedure Art. 11.071 �5(a), which governs successive habeas applications. The 5th U.S. Circuit Court of Appeals granted Moore authorization to file a second federal habeas petition to raise an Atkins claim. The court noted, however, that “the facts surrounding Moore’s alleged retardation have not been developed, and the parties have presented scant factual or legal grounds for us to assess the procedural default issue” that was raised by the state as a defense. In June 2004, the district court issued an order stating it already had decided, in refusing to alter or amend the now-vacated writ, that there was no procedural default. It granted an evidentiary hearing and, in doing so, rejected the state’s contention that Moore was not entitled to such a hearing under 28 U.S.C. �2254(e)(2)(A), because he had failed factually to develop his Atkins claim in state court. The federal district court ultimately found Moore to be mentally retarded and accordingly granted the requested relief. The state appealed. HOLDING:Vacated and remanded with instructions to dismiss the petition with prejudice. Under �2254(b)(1)(A), the court stated, “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.” The exhaustion requirement “is not jurisdictional, but reflects a policy of federal-state comity designed to give the State an initial opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” The exhaustion requirement, the court stated, is satisfied if petitioner has fairly “presented the substance of his claim to the state courts.” The requirement is not satisfied if he “presents new legal theories or factual claims in his federal habeas petition. On appeal to the 5th Circuit, the state argued that Moore’s successive state habeas petition was sparse to the point of amounting to a brief, conclusional allegation of mental retardation. The state emphasized that Moore made no allegations and offered no evidence before the CCA with regard to his limitations in adaptive skill areas. The state contended that the presentation of such allegations and evidence for the first time in federal court fundamentally altered Moore’s Atkins claim, rendering it unexhausted. The 5th Circuit agreed. Moore’s state court petition, the court stated, was more akin to the type of conclusional allegation that the court found insufficient to support exhaustion on an ineffective assistance of counsel claim in its 2003 opinion Kunkle v. Dretke than it was to the robust claim of mental retardation presented to the state by the petitioner involved in the court’s 2005 opinion Morris v. Dretke. Moore’s Atkins claim, the court stated, “is therefore defaulted under 28 U.S.C. �2254(b)(1)(A).” OPINION:Per curiam; Smith and Garza, JJ. DISSENT:Dennis, J. “I respectfully dissent from the majority’s decision to vacate the district court’s judgment granting Moore relief from the death penalty. Specifically, I do not agree that Moore failed to exhaust his state court remedies. Even if I were to agree that Moore failed to exhaust his state court remedies, I believe that he nevertheless is entitled to federal habeas review because he has shown both sufficient cause for the default and actual prejudice. Additionally, a fundamental miscarriage of justice will result if we fail to consider the merits of Moore’s Atkins claim. Finally, there was sufficient evidence to support the district court’s finding that Moore is mentally retarded. Therefore, the federal district court’s ruling granting Moore habeas relief should be affirmed.”

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