Is Mr. Brown entitled to a merits review of his Atkins claim under federal law, Moore I and Moore II, and was the procedural bar asserted by the Texas Court of Criminal Appeals an independent and adequate state ground to preclude the assertion of an Atkins claim where the applicable statute provides that a court may consider the merits of a subsequent application when 'the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article . . . because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application'?

QUESTIONS PRESENTED Mr. Brown was sentenced to death in 1993, prior to this Court’s ruling in Atkins v. Virginia, 536 U.S. 304 (2002), which held that the Eighth Amendment prohibits the execution of individuals with intellectual disability. Mr. Brown’s first state habeas petition was filed March 29, 1998, and his subsequent (and last previous) petition was filed on October 29, 2014. In 2017 this Court held that the Briseno factors adopted by Texas Court of Criminal Appeals (TCCA) for evaluating an Atkins claim are based on superseded medical standards that create an unacceptable risk that a person with intellectual disabilities will be executed in violation of the Eighth Amendment. Moore v. Texas, 581 U.S. 1 (2017) (Moore I). On remand, the TCCA determined that Moore was not a person with intellectual disability, a determination that this Court held was erroneous in Moore v. Texas, 139 S.Ct. 666 (2019) (Moore IT). The State of Texas seeks to execute Mr. Brown, who was determined to be Educable Mentally Retarded (EMR) in his childhood and had a full-scale IQ score assessed at 70, by applying without explanation a procedural bar that the State did not raise and is not supported either by the language of the applicable statute or by prior consistent state court interpretation of that statute. Mr. Brown has never before raised an Atkins claim and only last sought relief in state courts in 2014. When the State sought an execution date, competent counsel was appointed in July of 2022 and filed this Atkins claim on March 1, 2023. Although i Mr. Brown argued to the Texas Court of Criminal Appeals that his execution is categorically prohibited by the Eighth Amendment and that his claim met the procedural requirements of Texas Criminal Code Article 11.071, Section 5(a)(1) based on the new legal bases of Moore Iand Moore II, the state court did not address any of his arguments on the merits in its ruling. Instead, on March 7, 2023, the Texas Court of Criminal Appeals purported to apply its state-created procedural bar and failed to address any of Mr. Brown’s arguments either as to the availability of a state remedy or as to their merits. The State of Texas now seeks to execute him although no court has ever considered the constitutional implications of his diagnosis and without explaining why his claims are procedurally barred. In this petition and accompanying motion, Mr. Brown requests that his execution be stayed and certiorari be granted to address the following substantial questions: 1. Is Mr. Brown entitled to a merits review of his Atkins claim under federal law, Moore I and Moore II, and was the procedural bar asserted by the Texas Court of Criminal Appeals an independent and adequate state ground to preclude the assertion of an Atkins claim where the applicable statute provides that a court may consider the merits of a subsequent application when “the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article . . . because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application”? 2. Can a state procedural rule overcome the Eighth Amendment prohibition against executing the intellectually disabled? ii