Lizcano v. Davis, Director TDCJ-CID

Filing 51

ORDER ACCEPTING 45 FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: The recommendation of the United States Magistrate Judge is ACCEPTED, and these proceedings are STAYED while Lizcano pursues his state court remedies in accord ance with the Recommendation and this order. Accordingly, Lizcano is ORDERED to file an application for reconsideration of his claim in the state court within 30 days of the date of this order, and, unless he obtains the sought relief in state cou rt, to return to this court within 45 days after he exhausts his state court remedies. If relief is granted by the state court, Respondent must promptly notify this Court and if such grant of relief causes the remaining claims to become moot, then these proceedings shall be dismissed. If Lizcano fails to comply with this order, these proceedings shall be dismissed. The Clerk of Court is directed to administratively close this case for statistical purposes. (Ordered by Judge Jane J. Boyle on 10/6/2017) (ams)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JUAN LIZCANO,
Petitioner,
V.
LORIE DAVIS, Director,
Texas Department of Criminal Justice
Correctional Institutions Division,
Respondent.

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No. 3:16-cv-1008-B
(Death Penalty Case)

ORDER ACCEPTING FINDINGS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Although petitioner Juan Lizcano complained to the state court that he was intellectually
disabled and exempt from execution, the state court denied his claim by applying a standard that was
later held to violate the Eighth Amendment in Moore v. Texas, 137 S. Ct. 1039 (Mar. 28, 2017).
Since Moore was issued, the Texas Court of Criminal Appeals (“CCA”) has authorized subsequent
proceedings to consider this intervening change in law, but state law will not allow the state court
to consider relief in this case unless these federal proceedings are stayed. Because it is in the interest
of justice to allow the state court to reconsider this case in light of Moore, and no objections have
been filed, the recommendation of the Magistrate Judge to stay these proceedings is ACCEPTED
and Lizcano’s motion is GRANTED.
I.
On June 19, 2017, Lizcano filed an unopposed motion for a stay of these proceedings “to
permit the CCA to correct its errors and reevaluate his claim of intellectual disability under
constitutional standards.” Mot., doc. 34, 1. The motion asserted that the state courts found that

Lizcano satisfied the first prong of the intellectual disability prong, having an IQ of 70 or below, but
that his claim was denied on the basis of the abrogated test set out in Ex parte Briseno, 135 S.W.3d
1 (Tex. Crim. App. 2004). Mot., 1-2. In particular, the CCA found that despite the fact that
Lizcano had shown adaptive deficits, evidence of Mr. Lizcano’s adaptive strengths supported a finding
that he was not intellectually disabled under Briseno. Lizcano argues that this standard was found
unconstitutional in Moore v. Texas, 137 S. Ct. 1039 (2017), that the CCA’s analysis was wrong, and
that it should be allowed to correct its error. Mot. at 2-4.
Respondent filed a response in opposition, arguing that Lizcano has already exhausted this
claim and, therefore, cannot make the showing of good cause required by Rhines v. Weber, 544 U.S.
269, 277 (2005). Resp., doc. 40, 3. Respondent also argues that even though the state court used
a standard to deny his claim that the Supreme Court found unconstitutional, Lizcano cannot obtain
relief in this or any court because the standard had not been recognized as unconstitutional at the
time that the state court denied his claim. Resp., 5-15. Respondent also asserts that Lizcano’s ability
to seek a state court reconsideration of his claim would not be affected by this Court denying the
requested stay. Resp., 5.
The United States Magistrate Judge observed that state law would prevent Lizcano from
seeking review of his claim in state court unless this Court grants a stay. See Findings &
Recommendation, doc.45, 6 (quoting Cathey v. Davis, No. 4:15-cv-02883, slip op. at 2 (S. D. Tex.,
July 28, 2017)). The Magistrate Judge also observed that the CCA has allowed subsequent review
of previously rejected claims based on the abrogation of Briseno by Moore. See id., 3. Finally, the
Magistrate Judge concluded that the interests of justice would be served by granting a stay to allow

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the state court to reconsider this claim in light of Moore. See id., 5-6. No objections have been filed
to the Findings and Recommendation to stay these proceedings.
II.
The Findings and Recommendation of the Magistrate Judge correctly recognize the interests
of justice in this matter. The state court has not been afforded the critical opportunity to consider
Lizcano’s claim of intellectual disability under a constitutional standard and should be allowed that
opportunity before an execution is carried out. Accordingly, Lizcano’s motion is granted.
III.
ORDER
The recommendation of the United States Magistrate Judge is ACCEPTED, and these
proceedings are STAYED while Lizcano pursues his state court remedies in accordance with the
Recommendation and this order.
Accordingly, Lizcano is ORDERED to file an application for reconsideration of his claim in
the state court within 30 days of the date of this order, and, unless he obtains the sought relief in
state court, to return to this court within 45 days after he exhausts his state court remedies. If relief
is granted by the state court, Respondent must promptly notify this Court and if such grant of relief
causes the remaining claims to become moot, then these proceedings shall be dismissed. If Lizcano
fails to comply with this order, these proceedings shall be dismissed.
The Clerk of Court is directed to administratively close this case for statistical purposes, but
nothing in this order shall be considered a final dismissal or disposition of this case. This case shall
be reopened upon proper motion filed in accordance with the provisions of this order.
IT IS SO ORDERED.
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DATED October 6th, 2017.

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JANE J. BOYLE
UNITED STATES DISTRICT JUDGE

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