QUESTIONS PRESENTED (CAPITAL CASE)
, 536 U.S. 304 (2002), this Court held that the Eighth Amendment categorically bars the execution of offenders with mental retardation(MR). Using the clinical criteria identified in
, the only mental health expertto assess Marvin Wilson’s cognitive functioning diagnosed him with MR. At no pointin the Texas proceeding did the State introduce any evidence or testimony disputingthe MR diagnosis. Texas courts and the Fifth Circuit are nevertheless allowing theexecution to proceed, having concluded that
does not apply to Mr. Wilsonbecause he does not satisfy the so-called “Briseño” factors. The Briseño factors,which Texas courts use to conduct MR inquiries, narrow the universe of offendersthat
protects by permitting execution of offenders with “mild MR,” thecondition for which
originally announced the Eighth Amendment exemption.Most elementally, the Questions Presented are about whether Texas can evade
and whether lower federal courts must enforce it.1.
Did the Texas decision unreasonably apply
by using the
factors to narrow the Eighth Amendment exemption for capital offenderswith MR?2.
May a federal court incorporate the presumption of correctness from 28U.S.C. § 2254(e)(1) into an inquiry under 28 U.S.C. § 2254(d)(2), therebyusing the § 2254(e)(1) presumption to ignore inconsistent evidence as havingbeen subject to an “implied adverse credibility” determination?