Whether the Eighth Amendment prohibits the execution of an individual with intellectual disability under Atkins v. Virginia when multiple experts, including the state's own expert, have diagnosed the defendant as intellectually disabled

No question identified. : Background Petitioner Victor Saldano was convicted of capital murder in July 1996, and the trial court set punishment at death pursuant to the jury’s answers to special issues submitted under Texas law. His conviction and sentence were affirmed by the Texas Court of Criminal Appeals (TCCA) on direct appeal. Saldafio v. State, No. AP-72,556 (Tex. Crim. App. Sept. 15, 1999) (not designated for publication). On petition for a writ of certiorari from Mr. Saldano’s 1999 death sentence, this Court granted Mr. Saldano’s petition, vacated his 1999 death sentence, and remanded his case to the TCCA in light of the then-Attorney General’s confession of error (namely, the State’s expert's testimony that Mr. Saldano’s race was a factor in its future dangerousness argument). See Saldano v. Texas, 530 U.S. 1212 (2000). Subsequently, the TCCA again affirmed Mr. Saldano’s conviction and death sentence. Saldano v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002). His initial application for habeas corpus in state court was subsequently denied. In 2003, Mr. Saldafio was granted penalty phase relief in federal court on a similar claim that again challenged the unconstitutional ethnic/race discrimination of an expert called by the State to support its case for future dangerousness. See Saldajio v. Cockrell, 267 F. Supp. 2d 635, 640-2 (E.D. Tex. 2003). Mr. Saldano was retried and in 2004, Mr. Saldano was resentenced to death, following a trial where his lawyers did not present mental health or intellectual disability evidence. Mr. Saldafio’s second death sentence was affirmed on direct appeal. Saldafo v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007). Mr. Saldano challenged the constitutionality of his sentence on state post-conviction and federal habeas corpus proceedings, to no avail. See generally Ex parte Saldano, WR-41,313-04 (Tex. Crim. App. Oct. 29, 2008) (unpublished); Saldavio v. Davis, Director TDCJ-CID, No. 16-70025 (5th Cir. Feb. 19, 2019). 2. In April 2021, as the State sought an execution date, the convicting court appointed the Office of Capital and Forensic Writs (OCFW), and undersigned counsel, to represent Mr. Saldano.! On January 31, 2022, the OCFW filed a motion arguing Mr. Saldafio was incompetent to be executed pursuant to Ford v. Wainwright, 477 U.S. 399 (1986), which was supported by voluminous evidence describing Mr. Saldano’s psychiatric condition and neuropsychological testing, including an IQ score of 73 on the Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-4), Spanish Version. 3. Following the Ford motion supported, in part, by an IQ score in the range of intellectual disability, the parties agreed to a pause in the proceedings to investigate Mr. Saldano’s intellectual disability. This effort included a voluntary evaluation of Mr. Saldano by a neuropsychologist retained by the State. The State’s neuropsychologist obtained an IQ score consistent with the testing of Mr. Saldano’s expert and a diagnosis of intellectual disability. 1 The Office of Capital and Forensic Writs is Texas state agency that serves as the capital postconviction public defense office for the State of Texas. Created by the Texas Legislature in 2010, OCFW did not exist at the time of Mr. Saldano’s prior state post-conviction petition and began representing Mr. Saldano for the first time in 2021. 4. On June 26, 2024, Mr. Saldano filed a successive post-conviction petition raising an intellectual disability claim under Atkins v. Virginia, 536 U.S. 304 (2002). Mr. Saldano’s petition was supported by the opinions of four separate experts, including the State’s expert, who each opined that Mr. Saldano met the criteria for intellectual disability, and 13 declarations from family, friends, and other individuals who described his developmental challenges. 5. Importantly, the State of Texas also filed a brief in support of Mr. Saldano’s petition, asking the Court of Criminal Appeals to remand his petition for an evidentiary hearing