In Re Jamaal Howard

CAPITAL CASE Jamaal Howard’s prior federal habeas counsel pleaded a claim that he is intellectually disabled and therefore ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002), and then withdrew it before any court adjudicated it, because under the clinical framework then in force her experts could not attribute the adaptive deficits they found to intellectual disability rather than to Howard’s co-occurring mental illness. After Howard’s initial federal habeas proceeding ended, that framework changed. The Fifth Circuit denied Howard authorization to present the claim in a successive petition. The questions presented are:

1. Whether this Court should exercise its original habeas jurisdiction and transfer this petition to the district court for hearing and determination under 28 U.S.C. § 2241(b), where Howard makes a substantial showing that he is categorically ineligible for execution.

2. Whether an Atkins claim that was withdrawn by an amended pleading before any court adjudicated it, and that rests on a clinical framework that did not exist when it was withdrawn, was “presented in a prior application” within the meaning of 28 U.S.C. § 2244(b)(1).