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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                       No. 16-70005                               FILED
                                                                              June 15, 2017
                                                                             Lyle W. Cayce
WALTER ALEXANDER SORTO,                                                           Clerk

               Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

               Respondent–Appellee.




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


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
       On December 1, 2016, this Court issued a nondispositive opinion denying
certificates of appealability (“COAs”) with respect to Petitioner–Appellant
Walter Alexander Sorto’s Miranda and ineffective assistance of counsel claims.
Sorto v. Davis, 672 F. App’x 342 (5th Cir. 2016) (per curiam). The opinion
reserved judgment on the issue of whether the district court abused its
discretion in denying requests for funding that would have enabled Sorto to
obtain testing to determine whether he has an intellectual disability. 1 

A COA is not required for Sorto to appeal the district court’s denials of funding.
Ayestas v. Stephens, 

, 895 (5th Cir. 2016) (per curiam), cert. granted in part sub
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                                     No. 16-70005
344. In connection with this issue, the opinion requested supplemental briefing
discussing whether 28 U.S.C. § 2254(b)(1)(B)(ii) applies in the present case. 

excuses the requirement that a petitioner exhaust
state habeas remedies when the available state process is ineffective to protect
the petitioner’s rights. Supplemental briefs were submitted by Sorto and
Respondent–Appellee Lorie Davis, the director of the Texas Department of
Criminal Justice, Correctional Institutions Division (the “Director”). We now
hold that Texas’s corrective process did not effectively protect Sorto’s rights
under Atkins v. Virginia, 

(2002). Therefore, we VACATE the
district court’s denial of funding and dismissal of Sorto’s Atkins claim and
REMAND for further proceedings.
                                 I. BACKGROUND
       In 2003, Sorto was convicted of capital murder and sentenced to death in
Texas. During the pendency of his direct appeal, Sorto raised fifteen claims in
a state habeas application filed pursuant to Article 11.071 of the Texas Code
of Criminal Procedure. Sorto subsequently filed a pro se “Motion to Amend
Petition for State Habeas Corpus 11.071,” alleging that intellectual disability
barred his execution under Atkins. The Texas Court of Criminal Appeals (the
“TCCA”) addressed both filings in a single order. Ex parte Sorto, No. WR-
71,381-01, 

, at *1 (Tex. Crim. App. Feb. 25, 2009) (per curiam).
With regard to the 2005 state habeas application, the TCCA adopted the trial
judge’s findings and conclusions and denied habeas relief. 

the
TCCA held that Sorto’s 2006 pro se motion was a subsequent application and




nom. Ayestas v. Davis, No. 16-6795, 

(U.S. Apr. 3, 2017); Woodward v. Epps,

, 333 n.8 (5th Cir. 2009). Instead, this Court must simply determine whether
the district court abused its discretion in denying the requested funds. Brown v. Stephens,

, 459 (5th Cir. 2014).
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dismissed it as an “abuse of the writ” after concluding that it “fail[ed] to meet
any of the exceptions provided for in Article 11.071, § 5.” 2 

brought the present case seeking a writ of habeas corpus in
federal district court. In December 2009, and again in February 2010, Sorto’s
counsel asked the district court to authorize funding for psychological testing
so that Sorto could develop his Atkins claim. On May 5, 2010, the district court
issued an order denying the requested funds and explaining that “Sorto has
not shown that he has any reasonable likelihood of meeting the high standards
necessary to both overcome the procedural default and state a valid claim of
mental retardation.” Accordingly, the district court concluded that the
“requested funding [was] not reasonably necessary.” The district court then
issued an order staying the case and ordering Sorto to present his unexhausted
Atkins claim in state court.
       On November 8, 2010, Sorto filed a subsequent habeas application with
the TCCA, arguing, among other things, that he should be granted relief under
Atkins. In support of his Atkins claim, Sorto presented an IQ score of 66 on the
Test of Nonverbal Intelligence (“TONI”), which he claimed placed him “well
within the range of significantly subaverage intellectual functioning.” Sorto
also submitted several affidavits from people who had known him since
childhood; these affidavits suggested that his intelligence was impaired as a
child and that he had difficulty functioning competently as an adult. Finally,
Sorto presented a declaration from Dr. Gilbert Martinez, a clinical
psychologist, who reviewed the TONI results and the affidavits. Dr. Martinez




       2Article 11.071, Section 5(a) of the Texas Code of Criminal Procedure provides that if
a prisoner files a subsequent habeas application after his initial habeas application, Texas
courts “may not consider the merits of or grant relief based on the subsequent application
unless the application contains sufficient specific facts” establishing that one of three narrow
exceptions applies.
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gave his “professional opinion that Mr. Sorto’s history contains significant
indications of intellectual and adaptive deficits beginning in the developmental
period prior to age 18.” Although the declaration acknowledged that a
“complete evaluation” was needed “to make an appropriate diagnosis,” Dr.
Martinez stated that Sorto’s “test scores suggest the presence of intellectual
deficits” and that “individuals who have known Mr. Sorto from childhood have
provided a view of his life of seriously impaired functioning in a broad spectrum
of daily living requirements.”
      A few months later, the TCCA issued a short order dismissing Sorto’s
2010 state habeas application. Ex parte Sorto, No. WR-71381-03, 

, at *1 (Tex. Crim. App. Apr. 20, 2011) (per curiam). With respect to
Sorto’s Atkins claim, the court held that Sorto had “failed to make a threshold
presentation of evidence that, if true, is sufficient to show that no rational
factfinder would fail to find that he is mentally retarded.” 

then returned to the federal district court. In October 2013, the
district court granted funds for psychological testing. Sorto used the funds to
hire Dr. Martinez, who administered several tests, including the Wechsler
Adult Intelligence Scale-Third Edition (“WAIS-III”), and reviewed various
affidavits by family members describing Sorto’s history and development. The
testing showed that Sorto had a full-scale IQ score of 63, a score within the
“Extremely Low” range of intellectual functioning. In addition, Dr. Martinez
observed that “[t]here is information in Mr. Sorto’s reported history that is also
suggestive of deficits in adaptive functioning throughout his development,
including very poor academic functioning, speech and language deficits,
procedural learning deficits, and social behavior deficits.” Dr. Martinez
concluded that Sorto’s “overall pattern of cognitive and intellectual functioning
is strongly indicative of intellectual disability.” Dr. Martinez noted, however,


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                                  No. 16-70005
that     a   “comprehensive   adaptive   functioning   assessment    is   strongly
recommended to confirm this diagnosis of intellectual disability.”
        Sorto subsequently filed a motion specifically requesting funds to
complete the assessment Dr. Martinez recommended. On September 30, 2015,
the district court issued a memorandum and order denying Sorto’s request for
additional funding and denying habeas relief on all claims. The district court
noted that it could only review the record that was presented to the state court
and thus was constrained “from considering the results of Dr. Martinez’s
testing,” even though those results constituted “compelling” evidence of
intellectual disability. With respect to the denial of additional funding, the
district court explained, “Sorto has not provided any substantive basis to
suppose that additional testing would provide any basis to allow federal review
of his Atkins claim. Testing is not reasonably necessary when it will only
support a claim for which federal review is unavailable.” The district court also
rejected Sorto’s claim that the state court process “was clearly ineffective at
safeguarding [his] rights” and thus held that Sorto was not entitled to relief
under 28 U.S.C. § 2254(b)(1)(B)(ii). According to the district court, “Sorto’s
failure to put forth evidence sufficiently calling into doubt his intellectual
ability, not the state court’s failure to authorize the expenditure of funds,
foreclosed state habeas review.” Sorto timely appealed.
                               II. DISCUSSION
        Under 28 U.S.C. § 2254(b)(1), a writ of habeas corpus cannot be granted
unless “(A) the applicant has exhausted the remedies available in the courts of
the State; or (B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the
rights of the applicant.” Sorto argues that because Texas law only allows him
to receive state funds to develop his Atkins claim if he has already made a
threshold showing of intellectual disability—a showing that is nearly
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                                   No. 16-70005
impossible to make without funding for IQ testing—the state corrective process
is ineffective to protect his rights. Therefore, he contends that the exhaustion
requirement should have been excused under § 2254(b)(1)(B)(ii). In response,
the Director argues that § 2254(b)(1)(B)(ii) cannot apply because Sorto has
already exhausted his Atkins claim and that the state corrective process is not
so clearly ineffective as to trigger § 2254(b)(1)(B)(ii).
      The § 2254(b)(1)(B)(ii) issue is tied to the question of whether the district
court abused its discretion in denying Sorto’s requests for federal funds to
develop his Atkins claim. “A trial court abuses its discretion when its ruling is
based on an erroneous view of the law or a clearly erroneous assessment of the
evidence.” 

(quoting United States v. Ebron, 

, 153 (5th Cir. 2012)). Pursuant to 18 U.S.C. § 3599(f), a district court may
order that a defendant receive funding for “investigative, expert or other
services” if the court finds that such services “are reasonably necessary for the
representation of the defendant.” In both 2010 and 2015, the district court
determined that the requested federal funding was not reasonably necessary
because Sorto’s Atkins claim was not fully exhausted and any additional
evidence obtained would be unexhausted and therefore unreviewable.
However, if the exhaustion requirement should have been excused under
§ 2254(b)(1)(B)(ii) due to inadequacies in the state corrective process, then the
district court could have reviewed the additional evidence that Sorto would
have obtained using the funding. In that case, the district court’s denial of
funding was based on an erroneous view of the law and thus constituted abuse
of discretion.
A.    Sorto’s Atkins Claim Is Unexhausted
      Sorto argues that “[b]ecause it is supported by the WAIS-[III] evaluation
performed by Dr. Martinez in 2014, the claim that Sorto presented the court
below is significantly stronger and should be considered a different claim from
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                                  No. 16-70005
the one he presented to the state court.” Thus, he contends that his Atkins
claim is unexhausted. The Director argues that “Sorto did exhaust state
remedies, presenting an Atkins claim that was rejected on the merits,” and that
the additional testing Sorto obtained in 2014 “does not fundamentally alter the
existing claim and render it unexhausted.”
      In Lewis v. Quarterman, we held that “[t]he exhaustion requirement is
not satisfied if the petitioner ‘presents material additional evidentiary support
in the federal court that was not presented to the state court.’” 

,
284 (5th Cir. 2008) (quoting Dowthitt v. Johnson, 

, 745 (5th Cir.
2000)). This doctrine was based on the premise that “problems presented by
evidence introduced for the first time in federal court in support of a federal
habeas application are more accurately analyzed under the exhaustion rubric
of § 2254(b), not as issues of factual development under § 2254(d).” 

marks omitted) (quoting 

). However, in
Cullen v. Pinholster, 

(2011), the Supreme Court changed the way
federal courts approach evidence introduced for the first time in federal habeas
petitions. The Supreme Court held that “review under § 2254(d)(1) is limited
to the record that was before the state court that adjudicated the claim on the
merits.” 

81. Accordingly, the Director argues that “after Pinholster,
federal courts no longer examine new evidence under the exhaustion rubric.”
      In Ibarra v. Thaler, we noted that additional evidence the petitioner
“offered to bolster his Atkins claim in federal court, which included an
admissible affidavit of his psychologist in addition to numerous other
affidavits, was essential to his claim of mental retardation.” 

, 682
(5th Cir. 2012), vacated in part on other grounds on reh’g sub nom. Ibarra v.
Stephens, 

(5th Cir. 2013). But our opinion went on to explain that
“[b]y disallowing federal courts (with few exceptions) from considering
additional evidence not developed in the state court record, [Pinholster]
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necessarily rules out the use of such proffered evidence to flesh out claims
inadequately presented to the state courts.” 

concluded that
the district court “properly disregarded this newly proffered evidence.” 

Clark v. Thaler, this Court explained, “In light of the teachings in
Pinholster, we are not tasked with determining whether all of the new evidence
that Clark presented to the federal district court was exhausted.” 

,
417 (5th Cir. 2012). Instead, we “consider[ed] only the record that was before
the state habeas court.” 

both Ibarra and Clark, the petitioners argued that the evidence
presented to the federal courts was exhausted because the evidence merely
supplemented the claims they had raised in state court; thus, they argued that
the federal courts should review their additional evidence under § 2254(d).

; 

. By contrast, Sorto has argued
that the evidence he presented for the first time in the district court rendered
his claim unexhausted. This approach is consistent with Fifth Circuit
precedent. In at least one unpublished case issued after Pinholster, we held
that a petitioner’s claims “fit into the class of cases in which new evidence
renders a petitioner’s claims unexhausted.” Sells v. Stephens, 536 F. App’x 483,
492 (5th Cir. 2013). The opinion explained:
      [W]e have consistently refused to consider a habeas petitioner’s
      claims exhausted where the petitioner provides substantial
      amounts of new evidence, the claims and allegations before the
      state court were conclusory and undeveloped, the petitioner offers
      new evidence that could not have been derived from the state court
      record, and the petitioner offers new evidence which alters the
      nature of his claims.

Thus, the doctrine discussed in Lewis—that new evidence
sometimes renders a claim unexhausted—remains in effect after Pinholster.
      Under that doctrine, a claim is only rendered unexhausted if the new
evidence offered for the first time in the district court is “material.” See Lewis,
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                                       No. 

–85. “Evidence is material if it fundamentally alters, not merely
supplements, the claim presented in state court.” 

must ask
whether Sorto’s Atkins claim is “in a significantly different and stronger
evidentiary posture than it was before the state courts.” 

(quoting Joyner v. King, 

, 1320 (5th Cir. 1986)).
       To assess the evidentiary posture of Sorto’s claim, it is necessary to
examine the requirements the state imposes on habeas applicants. 3 Texas law
dictates that a “state habeas applicant who alleges that he is mentally retarded
in an initial post-conviction writ application must prove it by a preponderance
of the evidence in order to obtain relief on his claim.” Ex parte Blue, 

, 162 (Tex. Crim. App. 2007) (emphasis added). However, the Texas
legislature has determined “that the State’s interest in the finality of its
judgments justifies the imposition of higher burdens upon the subsequent
applicant who did not avail himself of the opportunity and resources available
to him at trial or in an initial writ.” 

an applicant raises an Atkins claim for the first time in a
subsequent habeas application, the TCCA will only review the claim on the
merits if the applicant first makes “a threshold showing of evidence that would
be at least sufficient to support an ultimate conclusion, by clear and convincing
evidence, that no rational factfinder would fail to find mental retardation.” 4 

63. This does not mean that the subsequent application must “actually



       3  As the Supreme Court recently noted, “States have some flexibility, but not
‘unfettered discretion,’ in enforcing Atkins’ holding.” Moore v. Texas, 

, 1052–
53 (2017).
        4 Although not directly applicable here, it is worth noting that a “subsequent state

habeas applicant . . . who filed an initial writ application before Atkins, and thus could not
have been expected to raise it initially,” is required to make a slightly less stringent “prima
facie showing of mental retardation in his subsequent pleading, and then, if granted leave to
proceed by this Court, must establish in the subsequent proceedings that he is mentally
retarded by a preponderance of the evidence.” Ex parte 

.
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                                        No. 16-70005
convince” the TCCA that the applicant has an intellectual disability, but the
applicant must show “more than that the evidence preponderates in favor of a
finding” that he is intellectually disabled. 

petitioner must
“make a threshold presentation of evidence that, if true, would be sufficient to
show by clear and convincing evidence” that the petitioner has “1) significant
sub-average general intellectual functioning, usually evidenced by an IQ score
below 70, that is accompanied by, 2) related limitations in adaptive
functioning, 3) the onset of which occurs prior to the age of 18.” 

noted that “under Texas law, the lack of a full-scale IQ score of
75 or lower is fatal to an Atkins claim.” Blue v. Thaler, 

, 658 (5th
Cir. 2011) (citing Ex parte Hearn, 

(Tex. Crim. App. 2010)).
Indeed, it seems the TCCA will not consider an Atkins claim on the merits if a
subsequent habeas application does not include a full-scale IQ score. 5 See 

Ex parte 

. In Blue, an expert for the defense
administered “short-form versions of the verbal portions of the Wechsler test
and concluded that Blue ‘ha[d] an actual IQ in the range of 75 to 

. Because Blue had not received a satisfactorily low full-scale IQ score,
we held that the IQ evidence in his subsequent habeas application was
“insufficient to support Blue’s Atkins claim” and that the TCCA’s
determination that he had “not made out a prima facie claim of mental
retardation [was] objectively reasonable.” 

       5  Texas law on this point may be inconsistent with Supreme Court precedent. The
Supreme Court recently “invalidated Florida’s strict IQ cutoff because the cutoff took ‘an IQ
score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in
the field would consider other evidence.’” 

(quoting Hall v. Florida,

, 1995 (2014)). Likewise, if experts would consider other evidence of
intellectual disability in the absence of a full-scale IQ score, then it may be improper for Texas
courts to treat the lack of a full-scale IQ score as final and conclusive.
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       In the instant case, Sorto’s 2010 state habeas application stated that he
had received an IQ score of 66 on the TONI. Nevertheless, as the district court
noted, the TONI is “a screening tool used to arrive at a rough estimate of the
subject’s intellectual ability.” The mere fact that Sorto did not present a full-
scale IQ score to the TCCA appears to have been fatal to his state habeas
application. See 

After Sorto returned to federal court, however, Dr.
Martinez’s evaluation produced a full-scale IQ score of 63, a score that appears
to adequately evince significant subaverage general intellectual functioning
under Texas law. See Ex parte 

. Dr. Martinez also
concluded that Sorto’s “overall pattern of cognitive and intellectual functioning
is strongly indicative of intellectual disability.” This evidence places Sorto’s
claim in a significantly different and stronger evidentiary posture than the
claim presented before the state court, thus fundamentally altering—and not
merely supplementing—his claim. Accordingly, we hold that the new evidence
rendered Sorto’s Atkins claim unexhausted.
B.     Texas’s Corrective Process Is Ineffective
       Section 2254(b)(1)(B)(ii) states that exhaustion is not required if
“circumstances exist that render [the available state corrective] process
ineffective to protect the rights of the applicant.” The Director contends that
this exception only applies “if the corrective process is so clearly deficient as to
render futile any effort to obtain relief.” Duckworth v. Serrano, 

, 3
(1981). Sorto responds that “it cannot be the case . . . that the exception to the
exhaustion doctrine codified in section 2254(b)(1)(B)(ii) is limited to Serrano
futility.” Instead, he contends that “[i]n addition to instances in which the state
court process is illusory or futile, the exception to the exhaustion doctrine
codified in 28 U.S.C. § 2254(b)(1)(B)(ii) is applicable when the state court
process is inadequate.”


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                                  No. 16-70005
      In Serrano, the Supreme Court specifically referenced § 2254(b) before
describing the futility exception, 

, which could suggest that
the Supreme Court interpreted the statute’s exceptions to the exhaustion
requirement as applying only in cases where resort to state court process would
be futile. On the other hand, a year later, the Supreme Court stated that “the
exhaustion doctrine does not bar relief where the state remedies are
inadequate or fail to ‘afford a full and fair adjudication of the federal
contentions raised.’” Rose v. Lundy, 

, 516 n.7 (1982) (quoting Ex
parte Hawk, 

, 118 (1944)). This suggests that § 2254(b)(1)(B)(ii) is
satisfied if the state fails to afford a petitioner a full and fair adjudication of
his federal constitutional claims.
      Sorto argues that he “lost the opportunity to have his meritorious claim
heard [in state court] simply because Counsel could not personally bear the
cost of expert assistance.” Texas law does not provide “for investigative or
expert funding . . . for the preparation of subsequent writ applications, as it
does for preparation of an initial writ application.” Ex parte 

. As a result, the TCCA has essentially admitted that Texas law does not
always afford full and fair adjudication to applicants who raise Atkins claims
in subsequent habeas applications:
      An attorney who is appointed for the first time to prepare a federal
      habeas corpus petition and in the course of his investigation
      develops a good faith suspicion that his client may be mentally
      retarded will indeed find himself in a dilemma if the initial state
      habeas attorney has not raised the issue, and the record does not
      already contain (as it almost invariably will not) evidence
      sufficient to satisfy the clear and convincing burden imposed by
      [Texas law]. . . .
      This means that pro bono subsequent writ counsel is put in the
      unfortunate position of having to choose whether to personally
      bear the costs of expert and investigative assistance, raise the costs
      himself from private charitable sources, file a writ application

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                                  No. 16-70005
      without such assistance that will almost surely fall short of the
      statutory burden, or file no writ application at all despite his good
      faith suspicions.

67. Though acknowledging this unfortunate dilemma, the TCCA
explained that this “is the hurdle the Legislature has deemed appropriate for
the subsequent applicant who has, for whatever reason, bypassed his
opportunity to avail himself of the resources to which he would have been
entitled had he raised the issue in an initial writ application.” 

constitutional rights are not subject to the whims of state
legislatures. “[A]t the very core of exhaustion doctrine is the requirement that
state procedures be adequate and effective, for it is only because these
procedures are adequate to vindicate federal constitutional rights that the
forbearance of the federal courts from swift consideration of habeas corpus
claims is justified.” Carter v. Estelle, 

, 445 (5th Cir. 1982).
      Texas procedures did not afford Sorto an adequate opportunity to
vindicate his federal constitutional rights. In 2006, Sorto attempted to raise
his Atkins claim through a pro se motion to amend his initial state habeas
application “because Appointed Counsel refuse[d] to help file this claim on the
habeas corpus writ.” Nevertheless, because Sorto’s pro se motion to amend was
filed after his initial habeas application, the TCCA treated the motion as a
subsequent habeas application and summarily dismissed it as an abuse of the
writ. Ex parte Sorto, 

, at *1. When Sorto later raised a more
substantial Atkins claim in his 2010 state habeas application, Texas law
prevented the state courts from granting funding to enable Sorto to obtain full-
scale IQ testing, even though the TCCA has acknowledged that an Atkins claim
“will almost surely fall short of the statutory burden” “without such
assistance.” See Ex parte 

. The TCCA then dismissed
this subsequent Atkins claim without fully reviewing it on the merits,

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apparently because Sorto was unable to supply a full-scale IQ score. See Ex
parte Sorto, 

, at *1; see also 

. In this
way, the state denied Sorto the resources necessary to obtain full-scale IQ
testing and then refused to review his claim on the merits because he had not
obtained a full-scale IQ score. This does not constitute a full and fair
adjudication of Sorto’s Atkins claim. Cf. Griffin v. Illinois, 

, 19
(1956) (“There can be no equal justice where the kind of trial a man gets
depends on the amount of money he has.”).
      Accordingly, we hold that the state corrective process was ineffective to
protect Sorto’s rights and that the district court should have excused
exhaustion under § 2254(b)(1)(B)(ii). To be clear, we do not hold that Texas’s
process of reviewing Atkins claims is ineffective in all instances but instead
hold that the process was ineffective in the specific circumstances of this case,
where Sorto was required to demonstrate he had a full-scale IQ score below a
certain mark without being given any resources to obtain IQ testing. Because
the district court could have reviewed Sorto’s Atkins claim in its entirety,
including any unexhausted evidence, the district court erred in concluding that
the funding would only support a claim for which federal review was
unavailable. Thus, the district court based its denial of funding on an
erroneous view of the law and thereby abused its discretion.
                             III. CONCLUSION
      For the reasons discussed above, we VACATE the district court’s denial
of funding, and we REMAND the case for further proceedings consistent with
this opinion. On remand, the district court should reassess whether funding is
reasonably necessary in light of our holding that the exhaustion requirement
must be excused. In addition, we VACATE the dismissal of Sorto’s Atkins claim
so that the district court can reevaluate the claim taking into account the


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                                 No. 16-70005
excusal of the exhaustion requirement and any additional evidence Sorto may
present if further funding is granted.




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