Busby v. Davis, No. 15-70008 (5th Cir. 2019)
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The Fifth Circuit treated the petition for rehearing en banc as a petition for panel rehearing pursuant to Fifth Circuit Internal Operating Procedures under Federal Rule of Appellate Procedure 35. The court denied the petition for rehearing, withdrew its prior opinion, and issued the following opinion in its place.
The court affirmed the district court's denial of habeas relief to petitioner, who was convicted of murder and sentenced to death. The court held that, under federal law, if an actual-innocence claim were presented in a successive federal habeas petition, a clear-and-convincing-evidence standard would be applied; federal law does not require states to apply a less demanding standard in a successive state habeas proceeding; and, in the alternative, applying a preponderance-of-the-evidence standard, the TCCA's decision denying petitioner's Atkins claim was not based on an unreasonable determination of the facts in light of the evidence presented to it. In this case, no expert has ever opined that petitioner is intellectually disabled.
The court also rejected petitioner's claim that he received ineffective assistance of counsel on direct appeal, and that his trial counsel was ineffective by failing to conduct an adequate sentencing investigation or by failing to present an adequate mitigation case during the penalty phase of trial.
This opinion or order relates to an opinion or order originally issued on January 27, 2017.
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