Case: 19-20552          Document: 00515078728              Page: 1   Date Filed: 08/15/2019




                               REVISED August 15, 2019

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

                                                                                        FILED
                                            No. 19-20552                          August 14, 2019
                                                                                   Lyle W. Cayce
In re: DEXTER JOHNSON,                                                                  Clerk


                  Movant
--------------------------------------------------------------
Consolidated with 19-70013

DEXTER JOHNSON,

                 Petitioner - Appellant

v.

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

                 Respondent - Appellee




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


Before SOUTHWICK, GRAVES, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
        A Texas inmate whose execution is imminent has presented to us both a
request to review the district court’s denial of his Rule 60(b) motion for relief
from a prior judgment and also a motion for permission to file a successive
    Case: 19-20552    Document: 00515078728     Page: 2   Date Filed: 08/15/2019



                                 No. 19-20552
                               c/w No. 19-70013

application for a writ of habeas corpus. We conclude there is no merit in the
appeal and DENY review. On the other hand, we conclude that the motion for
permission to file has demonstrated possible merit in a claim regarding a
current intellectual disability that warrants full exploration by the district
court. We GRANT the motion and STAY the execution.


              FACTUAL AND PROCEDURAL BACKGROUND
      Dexter Johnson was convicted of the murder of Maria Aparece in the
course of attempting a robbery on June 13, 2007, and he was sentenced to
death. Far greater detail is given of the offense in Johnson v. Stephens, 617 F.
App’x 293 (5th Cir. 2015). His conviction and sentence were affirmed on direct
appeal.
      Patrick McCann was appointed as Johnson’s state habeas counsel.
Johnson filed a state application for writ of habeas corpus while his direct
appeal was pending. His state habeas claims were denied, and McCann did
not raise an ineffective assistance of trial counsel (IATC) claim.          That
application also did not include a claim under Atkins v. Virginia, 

(2002). McCann continued to represent Johnson in federal habeas proceedings,
filing an application one year later that was duplicative of the state habeas
claims, plus one claim that Johnson was interrogated in violation of Edwards
v. Arizona, 

(1981). It also did not include an Atkins claim.
      After Martinez v. Ryan, 

(2012), was decided, McCann filed a
motion in federal court to stay and to abey Johnson’s proceeding to allow
exhaustion of his IATC claims or to amend his application under Martinez to
add those claims. That claim alleged that trial counsel were ineffective for
failing to present evidence of Johnson’s brain damage and mental illness


                                       2
    Case: 19-20552    Document: 00515078728     Page: 3   Date Filed: 08/15/2019



                                 No. 19-20552
                               c/w No. 19-70013

during the guilt phase to show he could not form intent for murder and that
appellate counsel were ineffective for failing to raise IATC claims.
      The district court ordered supplemental briefing on Trevino v. Thaler,

(2013). It ultimately denied Johnson’s motion to stay and abey
or amend the federal application and Johnson’s request for habeas relief. The
district court granted a Certificate of Appealability (COA) on Johnson’s claim
that his custodial statement was admitted in violation of his Fifth Amendment
rights. We then affirmed the denial of habeas relief on his Fifth Amendment
claim and denied an additional request for a COA. Johnson, 617 F. App’x at
305. Johnson sought Supreme Court review, which was denied. Johnson v.
Stephens, 

(2016).
      On June 4, 2017, Johnson filed a motion in the federal district court
requesting a new trial.    The court denied the motion and his motion for
reconsideration. Johnson requested a COA, which was denied by this court.
Johnson v. Davis, 746 F. App’x 375, 381 (5th Cir. 2018) (per curiam). The
Supreme Court again denied him a writ of certiorari.
      On January 18, 2019, Johnson, pro se, requested a Federal Public
Defender (FPD) be appointed in his case because of the conflict of interest
between himself and McCann established after Martinez and Trevino.
McCann filed an opposition under seal. Johnson then filed a pro se motion on
February 1, 2019, again asking for independent counsel. On February 5, 2019,
the court appointed a FPD, but McCann remained counsel as well. The FPD
requested removal of McCann, which the State and McCann opposed.
      Six days after the motion to remove him, McCann filed a single-issue
successive habeas application in state court, which was denied April 29, 2019.
McCann also filed a clemency petition. On April 30, 2019, the district court


                                       3
     Case: 19-20552    Document: 00515078728      Page: 4     Date Filed: 08/15/2019



                                  No. 19-20552
                                c/w No. 19-70013

stayed Johnson’s execution, noting “troubling concerns” about McCann.
McCann withdrew two days later.
      On June 24, 2019 Johnson filed a motion for relief from judgment under
Federal Rule of Civil Procedure 60(b). The district court denied the motion on
August 12, 2019 and did not certify any issue for appeal. Johnson immediately
applied for a certificate of appealability with this court.
      On August 6, 2019, Johnson moved in state court to strike his second
successive state habeas application, alleging that it was filed by McCann
without his permission. Along with that motion, he also filed a successive
habeas application. The new habeas application was denied “as an abuse of
the writ without reviewing the merits of the claims raised” on August 13, 2019.
The motion to strike the prior application also was denied.
      On August 8, 2019, Johnson also moved in this court under 28 U.S.C.
§ 2244 for an order authorizing the district court to consider a second or
successive application for a writ of habeas corpus based on an Atkins claim.
      We first discuss Johnson’s Motion for a Certificate of Appealability
relating to the district court’s denial of relief under Rule 60(b). Then we will
review the motion for an order authorizing a successive habeas application.

                                 DISCUSSION
I.    Motion for COA on denial of Rule 60(b) motion
      “At the COA stage, the only question is whether the applicant has shown
that ‘jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S.
Ct. 759, 773 (2017) (quoting Miller-El v. Cockrell, 

, 327 (2003)).
This court reviews the district court’s order denying a Rule 60(b) motion for an
abuse of discretion, so on a COA this court must determine whether reasonable
                                        4
    Case: 19-20552     Document: 00515078728     Page: 5   Date Filed: 08/15/2019



                                  No. 19-20552
                                c/w No. 19-70013

jurists could conclude the district court abused its discretion. 

While
a full merits inquiry is not proper in the COA analysis, we conduct a threshold
inquiry to determine if the district court’s decision was debatable. 

      “[R]elief under Rule 60(b)(6) is available only in ‘extraordinary
circumstances.’” 

(quoting Gonzales v. Crosby, 

, 535
(2005)). Extraordinary circumstances “will rarely occur in the habeas context.”

. The district court is permitted to consider a “wide
range of factors” in determining whether extraordinary circumstances are
present. 

. “These may include, in an appropriate case,
‘the risk of injustice to the parties’ and ‘the risk of undermining the public’s
confidence in the judicial process.’” 

v. Health Servs.
Acquisition Corp., 

, 863-64 (1988)). “Moreover, a Rule 60(b)(6)
movant must show that he can assert ‘a good claim or defense’ if his case is
reopened.” Ramirez v. Davis, 19-70004, 

, at *6 (5th Cir. June
26, 2019) (quoting 

).
      The district court concluded that Johnson’s motion was a valid Rule 60(b)
motion because it attacked a defect in the integrity of the prior federal habeas
proceeding. See Gilkers v. Vannoy, 

, 344 (5th Cir. 2018). That
defect was McCann’s ineffective assistance and conflicts of interest. Jurists of
reason would not conclude that the district court abused its discretion in
finding Johnson’s motion to be a true Rule 60(b) motion.
      The district court also determined that Johnson’s motion was timely
because newly appointed counsel filed the motion within six months after
appointment as co-counsel and very shortly after original habeas counsel was
removed. The question of timeliness is based on the “facts and circumstances
of the case.” Ramirez, 

, at *5 (quotation omitted).


                                        5
    Case: 19-20552    Document: 00515078728    Page: 6   Date Filed: 08/15/2019



                                 No. 19-20552
                               c/w No. 19-70013

      Johnson challenges here the district court’s denial of his Rule 60(b)
motion based on its finding that there were not extraordinary circumstances
justifying reopening the judgment. The district court determined that Johnson
had properly alleged a defect in the integrity of his proceeding but concluded
that he had failed to demonstrate extraordinary circumstances, basing its
opinion primarily on Johnson’s failure to plead any meritorious defaulted IATC
claims. Johnson claims that the district court unnecessarily narrowed the wide
range of factors that should have been considered, focusing only on whether
Johnson described a meritorious IATC claim that was defaulted and whether
Johnson had pled that his federal habeas proceeding was deficient.
      Johnson claims that under the COA standard, jurists of reason could
debate whether the district court abused its discretion in concluding that
Johnson needed to present the merits of a defaulted IATC claim. Johnson
argues that the question under Rule 60(b) is not whether there is a meritorious
habeas claim if he was represented by conflict-free counsel, but whether his
previous counsel McCann’s performance was so deficient that he failed to
provide the quality of representation that 18 U.S.C. § 3599 guarantees.
Johnson’s claim is that McCann’s representation fell so far below the standards
of Section 3599 that his case presents extraordinary circumstances.
      Johnson also claims that the district court, which based its decision on
the lack of any debatable defaulted IATC claim, has placed habeas applicants
in an impossible situation. Johnson argues that requiring him to identify and
litigate the substantive merit and procedural defenses of defaulted IATC
claims would effectively require Mr. Johnson to transform his Rule 60(b)
motion into a successive petition.
      Finally, Johnson argues that reasonable jurists could debate whether the
district court abused its discretion by failing to address McCann’s ethical
                                      6
    Case: 19-20552     Document: 00515078728      Page: 7   Date Filed: 08/15/2019



                                  No. 19-20552
                                c/w No. 19-70013

violations.   Johnson claims that McCann violated multiple ethical rules,
including the duty of candor for not explaining his conflict of interest and the
duty of loyalty for not remedying the conflict.
      Responding to these arguments, we point out that having conflicted
counsel is not enough to obtain relief under Rule 60(b). See Raby v. Davis, 

, 884 (5th Cir. 2018). The Supreme Court explained that even if it is
shown to be debatable that state habeas counsel was constitutionally
ineffective, there is another “significant element” of a Rule 60(b)(6) motion: the
claim must have “some merit.” 

. The Court elaborated
that this means that the movant must show “a good claim or defense” because
that “is a precondition of Rule 60(b)(6) relief.” 

from 11
WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 2857).
      The district court properly held that Johnson fell short on this significant
requirement. In the reply brief, current counsel mentioned a few potentially
meritorious claims that were previously defaulted but failed to brief them in
any detail whatsoever.     The district court stated that it had directed the
conflict-free attorneys to “scour the record” for Strickland claims that meet the
prerequisites for Martinez and Trevino, but there were no identified
“procedural default[s] that would otherwise bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial.” Jennings, 760 F.
App’x 319, 324 (5th Cir. 2019) (citations omitted).         Our finding here is
consistent with Buck’s directive that we not delve too deeply into the
underlying merits of a claim, because none was 

.
Furthermore, in a deficient representation case such as this, there needed to
be some factor besides the representation. See 

-780 (finding that
Martinez/Trevino was one significant element but relying in significant part on
other circumstances such as race being a basis for the verdict). Johnson failed
                                        7
    Case: 19-20552    Document: 00515078728     Page: 8   Date Filed: 08/15/2019



                                 No. 19-20552
                               c/w No. 19-70013

to brief these claims, and so we find that reasonable jurists would not debate
the district court’s decision that Johnson’s Martinez and Trevino conflict
arguments were inadequate to show exceptional circumstances.
      As to Johnson’s argument that the district court ignored his claims about
McCann’s alleged deficient performance, the district court stated that Rule
60(b) relief is ordinarily not appropriate in the habeas context. Buck, 137 S.
Ct. at 777. If there were no underlying meritorious waived claims, then it can
hardly be argued that there is a “risk of injustice” to Johnson because he did
not argue he would be entitled to any form of relief if his case were reopened.
See 

(cited in 

).
Furthermore, in other cases where habeas counsel was deficient for omitting
certain claims, the Supreme Court has stated that such an attack “ordinarily
does not go to the integrity of the proceedings.” Gonzales v. 

n.5. Although Johnson attempts to recast McCann’s actions as choices,
not omissions, the thrust of the logic still applies: McCann’s alleged deficient
performance was not itself sufficient to constitute exceptional circumstances.
      Reasonable jurists would not debate that the district court did not abuse
its discretion in concluding that Johnson’s claims did not present extraordinary
circumstances. This is because Johnson failed to brief any waived claims
sufficient to allow the district court to determine whether any of them had
some merit. Johnson also fails to provide us any authority that Section 3599
has ever provided relief pursuant to Rule 60(b). In sum, reasonable jurists
would not debate that the district court did not abuse its discretion in denying
Johnson’s Rule 60(b) motion.
      Johnson’s motion for a COA is DENIED.




                                       8
      Case: 19-20552   Document: 00515078728     Page: 9    Date Filed: 08/15/2019



                                  No. 19-20552
                                c/w No. 19-70013

II.    Motion for Successive Application
       We review a motion for the filing of a successive habeas application to
determine if the applicant makes a prima facie showing that he has met the
requirements of Section 2244.      28 U.S.C. § 2244(b)(3)(C).      A prima facie
showing is “simply a sufficient showing of possible merit to warrant a fuller
exploration by the district court.” In re Morris, 

, 740 (5th Cir.
2003) (quoting Bennett v. United States, 

, 469-70 (7th Cir. 1997)).
       A person in custody under a state-court judgment who moves to file a
successive application for a writ of habeas corpus in federal court must satisfy
these requirements:
             (1) A claim presented in a second or successive habeas
       corpus application under section 2254 that was presented in a
       prior application shall be dismissed.
             (2) A claim presented in a second or successive habeas corpus
       application under section 2254 that was not presented in a prior
       application shall be dismissed unless-
                    (A) the applicant shows that the claim relies on a new
             rule of constitutional law, made retroactive to cases on
             collateral review by the Supreme Court, that was previously
             unavailable; or
                   (B)(i) the factual predicate for the claim could not have
             been discovered previously through the exercise of due
             diligence; and
                   (ii) the facts underlying the claim, if proven and
             viewed in light of the evidence as a whole, would be sufficient
             to establish by clear and convincing evidence that, but for
             constitutional error, no reasonable factfinder would have
             found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b).
       Johnson’s two primary arguments in support of his Atkins claim are that
his only recently discharged counsel had a conflict of interest because he is the


                                        9
    Case: 19-20552        Document: 00515078728          Page: 10     Date Filed: 08/15/2019



                                       No. 19-20552
                                     c/w No. 19-70013

one whose ineffectiveness in state habeas needed to be challenged, and that
recent changes to the medical standards for determining intellectual disability
benefit him. Applying Section 2244(b)(2)(A), Johnson argues that Atkins is a
new rule of constitutional law that is retroactive and that his claim was
previously unavailable because the latest professional diagnostic manual
changed the framework for intellectual disability. 1
       At trial, Johnson was found not to be intellectually disabled. This was
under an earlier manual, DSM-IV-TR, which relied on Johnson’s IQ score that
was above 70. 2 The latest DSM-5 manual changed the diagnostic framework
for intellectual disability. Higher IQ scores no longer bar a diagnosis of an
intellectual disability. Dr. Daniel A. Martell concluded that as of July 31, 2019,
Johnson “meets the criteria for a diagnosis of Intellectual Disability” under the
DSM-5. In 2019, Johnson scored 70 on a full-scale WAIS-IV IQ test.
       First, Johnson must show that his claim was not presented in a prior
federal application. 28 U.S.C. § 2244(b)(1). The State concedes that it was not.
Thus, Johnson has met the requirements of Section 2244(b)(1).
       Second, “Atkins created a new rule of constitutional law . . . made
retroactive to cases on collateral review by the Supreme Court.”                         In re
Campbell, 

, 530 (5th Cir. 2014). As is obvious, though, Atkins was
decided long before Johnson even committed his crimes. A meaningful hurdle
for Johnson is to demonstrate why we should consider that case to be



       1  Johnson also argues that his claim satisfies Section 2244(b)(2)(B), dealing with the
factual predicates for his claims. We conclude that the arguments and evidence before us
satisfy only Section 2244(b)(1).
        2 The manuals express current medical standards for defining intellectual disability.

“Reflecting improved understanding over time, . . . current manuals offer ‘the best available
description of how mental disorders are expressed and can be recognized by trained
clinicians.’” Moore v. Texas, 

, 1053 (2017) (quoting the DSM-5 and noting that
current medical standards constrain a state’s definition of what is an intellectual disability).
                                              10
   Case: 19-20552     Document: 00515078728     Page: 11   Date Filed: 08/15/2019



                                 No. 19-20552
                               c/w No. 19-70013

retroactive as to him. The State argues that it is not. We hold to the contrary,
counterintuitively perhaps but not unreasonably, with the full weight of our
conclusion being borne by this court’s recent decision in In re Cathey, 

(5th Cir. 2017). We discuss that case next.

      A.    Claim was previously unavailable
      We analyze whether Johnson’s “claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” § 2244(b)(2)(A).
      In Cathey, the determination before trial that the defendant had an IQ
of 77 meant his IQ was too high for intellectual disability. In re 

. Upon Cathey’s admission to prison, though, which was pre-Atkins,
an IQ test was given to him that supported that his IQ was about 73, within
the range of error for sufficient intellectual disability to be exempt from the
death penalty. 

For disputed reasons, the documents for that test
did not become available to the inmate and counsel until at least 12 years after
his conviction. 

was 9 years after Cathey’s conviction that courts
recognized as viable a theory called the Flynn Effect which supported that IQ
scores could be inflated for certain reasons. 

229-33. Finally, any
authority for making an IQ of 70 a ceiling for intellectual disability was
rejected in 2014 when the Supreme Court held that there could not be a
mandatory IQ number cutoff for consideration of intellectual disability. See
Hall v. Florida, 

, 721-22 (2014); In re 

.
      For all these reasons, even though when Cathey filed his initial state and
federal habeas applications there was not a claim “with some possibility of
merit” under Atkins, there later was a possible claim. In re 

, 237-38. To be clear, it was more than just a reassessment by medical
professionals of this inmate’s particular mental abilities.     The significant
                                     11
   Case: 19-20552     Document: 00515078728     Page: 12   Date Filed: 08/15/2019



                                 No. 19-20552
                               c/w No. 19-70013

change was in the medical methodology for evaluating the relevant disabilities
and in courts’ recognition of those changes.
      Those facts amounted at least to a prima facie showing that Atkins was
previously unavailable as required by Section 2244(b)(2)(A). 

We
did not separately analyze whether it was enough that Atkins in a generic
sense was a rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, even though it was not so clearly retroactive in
its application to Cathey. We accept here that the explicit conclusions in
Cathey necessarily decided that latter point as well and move on.
      The facts relevant to Johnson are quite similar. In 2013, six years after
Johnson’s conviction, a new diagnostic manual called the DSM-5 for mental
disorders was released. The new diagnostic guidelines included significant
changes in the diagnosis of intellectual disability, which changed the focus
from specific IQ scores to clinical judgment. The DSM-5 recognizes that an
individual with an IQ score over 70 may still qualify as intellectually disabled.
The previous diagnostic manual, in effect when Johnson filed his initial federal
habeas petition, did not classify Johnson as intellectually disabled because of
his IQ. Further bolstering that his claim was unavailable until now, Johnson
under a current full-scale IQ testing scored 70, within the Atkins range.
Johnson also argues that although the DSM-5 was published before his habeas
petition was denied for the first time in federal court, the DSM-5 was published
only 17 days before the denial, which renders his claim not feasible as an
amendment to his first petition.      This change in diagnostic standards is
comparable to what allowed Cathey to proceed with his Atkins claim, which
were the judicial recognition of the Flynn Effect and the abandonment of any
rule-of-thumb for a maximum relevant IQ level. 

                                       12
   Case: 19-20552    Document: 00515078728     Page: 13   Date Filed: 08/15/2019



                                No. 19-20552
                              c/w No. 19-70013

      The State’s principal argument about Cathey is that it was “effectively
overruled by the Supreme Court in Shoop v. Hill, 

, 507-08 (2019)
(per curiam).” The court in Cathey relied significantly on Moore in evaluating
the prima facie showing of Cathey’s intellectual disability. In re 

. The Supreme Court in Moore had reviewed a Texas Court of
Criminal Appeals decision which had not applied updated medical standards
in evaluating an Atkins claim. 

. Later, the Supreme
Court in Shoop determined that Moore was not clearly established law for the
purposes of deciding whether a state court, whose decision was reached before
Moore was decided, had unreasonably applied established law to a habeas
claim. 

(citing 28 U.S.C. § 2254(d)(1)). Shoop,
though, concerned the relitigation bar of Section 2254(d)(1), and it did not
overrule Cathey, which concerned a prima facie showing under Section 2244.
      The State gives us little else on which to evaluate Cathey. Its sole
secondary argument is to distinguish the present case from Cathey in these
ways: Cathey’s conviction was final before Atkins was decided, while Johnson
committed his crimes after Atkins; by the time Cathey was seeking Section
2254 relief, Atkins had been decided but it was unclear how to present the
claim, uncertainties that did not apply to Johnson’s initial pursuit of federal
habeas; and Cathey showed greater diligence in bringing the Atkins claim than
did Johnson. These distinctions do not assist the State. The central problem
here is that both Cathey and now Johnson were presented — after all the
events which the State argues are distinctions — with reasons that an Atkins
claim is possibly meritorious when it had not previously been. The State
seemingly recognizes the weakness of the distinctions, as after describing
them, it returns to the argument that Cathey has been overruled by Shoop.


                                      13
   Case: 19-20552      Document: 00515078728      Page: 14   Date Filed: 08/15/2019



                                     No. 19-20552
                                   c/w No. 19-70013

      What opens the door for Johnson is the Cathey decision, which has
precedentially determined that it is correct to equate legal availability with
changes in the standards for psychiatric evaluation of the key intellectual
disability factual issues raised by Atkins. We are applying that decision to a
new, but not meaningfully distinguishable, set of facts.

      B.    Prima facie showing of disability
      The requirement of a prima facie showing comes from Section
2244(b)(3)(C).    Part of the showing is not only that his claim relies on
retroactive Supreme Court precedent that was previously unavailable, but also
a prima facie showing that his claim has merit. See In re 

. To be intellectually disabled, an individual must establish intellectual-
functioning deficits, adaptive deficits, and onset of those deficits when the
individual is a minor. See 

Dr. Daniel Martell concluded after
extensive evaluation of Johnson, including IQ scores, neuropsychological
testing, and interviews with witnesses and Johnson, that Johnson has deficits
in intellectual functioning. This is “confirmed by his IQ score of 70 on the
WAIS-IV, IQ scores from tests administered pretrial, and the clear cognitive
deficits displayed on multiple neuropsychological tests.” Dr. Martell concluded
also that Johnson is at or below the bottom two percent of the population with
regard to verbal learning and memory, that Johnson has frontal lobe
impairment,      and   that   he   has right    hemisphere   brain    dysfunction.
Furthermore, Dr. Watson, the trial expert, averred that he would no longer
testify that Johnson is not intellectually disabled based on Johnson’s IQ test
scores from that time.
      Dr. Martell also concluded that Johnson exhibited deficits in all three
domains of adaptive functioning. Johnson repeated the second grade and
struggled with reading comprehension and problem solving. He also struggled
                                    14
   Case: 19-20552     Document: 00515078728     Page: 15    Date Filed: 08/15/2019



                                  No. 19-20552
                                c/w No. 19-70013

to articulate words. In high school, Johnson functioned at the sixth-grade
level. Johnson also exhibited deficits in the social domain, as he struggled to
make friends, was immature compared to peers, could not make eye contact,
could not hold a conversation, struggled to control his emotions, and could not
read the emotions of others. Johnson’s deficiency in the practical domain was
evidenced by his inability to follow bus or walking directions, struggles with
personal hygiene, and inability to manage money or his own affairs.
      Finally, Dr. Martell concluded that the onset of Johnson’s disability was
during the developmental period, through witness declarations, trial
testimony, and records.
      The State contends that we must review whether the Texas Court of
Criminal Appeals “unreasonably determined that the facts set forth in
[applicant]’s petition, if true, would not establish by clear and convincing
evidence that no rational factfinder would fail to find [applicant] intellectually
disabled.” Busby v. Davis, 

, 716 (5th Cir. 2019). The State
contends Johnson’s application here lacks merit because we should defer to the
Texas Court of Criminal Appeals’ decisions. There are actually two state court
denials of Johnson’s Atkins claim. One was on April 29, 2019, the other on
August 13, 2019. Both orders from the Court of Criminal Appeals stated that
the court dismissed the “application as an abuse of the writ without reviewing
the merits of the claims raised.” Both orders post-date Moore.
      Whether the decisions were on the merits is affected by recent caselaw
that recasts a similarly-phrased Texas decision as a merits one “when a
defendant who was convicted post-Atkins raises an Atkins claim for the first
time in a successive habeas application[; that is because] the Texas court must
determine whether the defendant has asserted facts, which if true, would
sufficiently state an Atkins claim to permit consideration of the successive
                                       15
    Case: 19-20552     Document: 00515078728      Page: 16    Date Filed: 08/15/2019



                                   No. 19-20552
                                 c/w No. 19-70013

petition.” 

. We understand the Busby court to be
referring to the analysis the Texas court is to undertake in considering a
successive application under Texas Code of Criminal Procedure article 11.071,
section 5(a), and calling that merits-based.        Regardless of what the best
reading of Busby may be, the initial decision in this case is for the district court.
      We now consider whether Johnson must overcome the relitigation bar of
Section 2254(d). Section 2244(b)(3)(C) states that a court “may authorize the
filing of a second or successive application only if it determines that the
application makes a prima facie showing that the application satisfies the
requirements of this subsection.” It makes no mention of Section 2254(d),
which is in a different subsection. In re Cathey discussed this 

. It recognized that Cathey’s Atkins claim was previously brought in a
successive habeas petition before the state court, but the court did not analyze
the relitigation bar of Section 2254(d) in making its Section 2244 analysis. 

that “the state court findings concerning the Atkins claim are wholly
irrelevant to our inquiry as to whether [the petitioner] has made a prima facie
showing of entitlement to proceed with his federal habeas application, which is
an inquiry distinct from the burden that [the petitioner] must bear in proving
his claim in the district court.” 

original) (quoting In re Wilson,

, 878 (5th Cir. 2006)). We therefore conclude that Johnson is not
yet required to address the Texas court’s decisions.
      Having determined that Johnson at this stage is not required to show
that the state court unreasonably determined the facts, we find that Johnson
has at least made a prima facie showing of intellectual disability.




                                         16
    Case: 19-20552    Document: 00515078728     Page: 17   Date Filed: 08/15/2019



                                 No. 19-20552
                               c/w No. 19-70013

      C.    Timeliness
      Johnson also must show that his application is timely. There is a one-
year statute of limitations on applications for a writ of habeas corpus running
from the latest of:
      (A) the date on which the judgment became final by the conclusion
      of direct review or the expiration of the time for seeking such
      review;
      (B) the date on which the impediment to filing an application
      created by State action in violation of the Constitution or laws of
      the United States is removed, if the applicant was prevented from
      filing by such State action;
      (C) the date on which the constitutional right asserted was initially
      recognized by the Supreme Court, if the right has been newly
      recognized by the Supreme Court and made retroactively
      applicable to cases on collateral review; or
      (D) the date on which the factual predicate of the claim or claims
      presented could have been discovered through the exercise of due
      diligence.
28 U.S.C. § 2244(d)(1).
      Johnson devotes his argument to the equitable tolling of the statute of
limitations, which he claims began to run on the date which the factual
predicate of the claim or claims presented could have been discovered through
the exercise of due diligence. § 2244(d)(1)(D). The date that factual predicate
became available was on May 18, 2013, with the publication of the DSM-5.
Though that does not meet the one-year statute of limitations, Johnson argues
he is entitled to equitable tolling under Holland v. Florida, 

, 649
(2010). “To establish his entitlement to equitable tolling, a petitioner must
‘sho[w] (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstances stood in his way and prevented timely filing.’”
Manning v. Epps, 

, 183 (5th Cir. 2012) (quoting Holland, 

   Case: 19-20552     Document: 00515078728     Page: 18   Date Filed: 08/15/2019



                                 No. 19-20552
                               c/w No. 19-70013

at 649). As to diligence, Johnson claims that he was diligent in seeking counsel
that was not conflicted. He requested, pro se, conflict-free counsel once he was
aware of the conflict. He has also filed this motion within six months of
appointment of conflict-free counsel.
      Johnson argues that the conflicts of his counsel were the extraordinary
circumstances sufficient to justify his delay. The Supreme Court held that “at
least sometimes, professional misconduct that fails to meet [a circuit court’s]
standard could nonetheless amount to egregious behavior and create an
extraordinary circumstance that warrants equitable tolling.” 

. Johnson also argues that equitable tolling is best decided at an
evidentiary hearing because of its fact-bound nature. “[W]e also recognize the
prudence, when faced with an equitable, often fact-intensive inquiry, of
allowing the lower courts to undertake it in the first instance.” 

(quotation marks and citation omitted).
      Similarly, we have held that questions of equitable tolling are best left
to the district court for the initial analysis. In re 

.
We stated there that the delay gave us pause but determined further factual
development was needed. 

court here is also better positioned
than are we to gauge the timeliness of the motion for a successive application.
      We GRANT Johnson’s motion for authorization to file a successive
application for a writ of habeas corpus and STAY the execution. We DENY a
COA on the district court’s order rejecting the Rule 60(b) motion.




                                        18