One Moore bite at the apple in capital habeas

Last month, Texas death row inmate Eric Lynn Moore got a rare audience before the full 5th U.S. Circuit Court of Appeals, regarding whether his mental-retardation claim was procedurally defaulted. Last year by a 2-1 vote in Moore v. Quarterman, the 5th Circuit ruled that his claim was defaulted, because he had not adequately raised that issue in state court first. But the trouble with that ruling was U.S. District Judge Leonard Davis of Tyler found in 2005 that Moore was mentally retarded. As we all know, executing the mentally retarded is a massive no-no, according the U.S. Supreme Court’s ruling in 2002 in Atkins v. Virginia. Shortly after the high court issued Atkins, Moore filed a successive writ petition with the Court of Criminal Appeals that the CCA dismissed as an “abuse of writ.” After Moore filed a second federal habeas corpus writ petition, the 5th Circuit directed Davis to conduct a hearing on Moore’s Atkins claim. But the 5th Circuit then dismissed Moore’s Atkins claim without prejudice in 2006 and again with prejudice in 2007, because it was procedurally defaulted — rulings he appealed. On June 26, less than a month after the en banc argument, the full 5th Circuit came down on Moore’s side. In a per curiam opinion, the court found that there was plenty of argument about whether or not Moore failed to exhaust his mental retardation claim in state court before claiming it in a federal habeas writ -- but, well,  never mind that. Instead the court found in Moore v. Quarterman that it should forgive that procedural technicality, because the CCA had not yet issued Ex Parte Briseno when Moore filed his federal habeas writ petition. In Briseno, the CCA established the evidence a defendant must show to prove mental retardation. “Because Moore had cause for and suffered prejudice from the then uncertain state of Texas law on how to present Atkins evidence in state court, the federal district court had the authority to review his claim, even if it was unexhausted, and was under no obligation to defer to the state court’s decision,” according to the opinion. “We RETURN this case to the panel for review of the ultimate Atkins determination of mental retardation under the clear error standard.”
-- John Council