Busby v. Guerrero

── Busby v. Guerrero ── Court: Court of Appeals for the Fifth Circuit Date: May 11, 2026 Category: Death Penalty w/ Counsel Case: 26-70004 Document: 47-1 Page: 1 Date Filed: 05/08/2026 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 8, 2026 No. 26-70004 Lyle W. Cayce Clerk Edward Lee Busby, Petitioner—Appellant, versus Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee. consolidated with _____________ No. 26-10354 _____________ In re Edward Lee Busby, Movant. Application for Certificate of Appealability from the United States District Court for the Northern District of Texas USDC No. 4:09-CV-160 Before Richman, graves, and Higginson, Circuit Judges. Per Curiam: Case: 26-70004 Document: 47-1 Page: 2 Date Filed: 05/08/2026 No. 26-70004 c/w No. 26-10354 Edward Lee Busby has filed a motion to stay his execution, which is scheduled to occur on May 14, 2026. JUDGE GRAVES would grant habeas relief and therefore grant a stay of execution. JUDGE HIGGINSON would grant a temporary stay of execution until the United States Supreme Court issues a decision in Hamm v. Smith, No. 24-872, 145 S. Ct. 2776 (2025). JUDGE RICHMAN would deny a stay of execution and would deny habeas relief. Accordingly, IT IS ORDERED that the execution scheduled for May 14, 2026, is temporarily STAYED pending further order of this court. 2  Case: 26-70004 Document: 47-1 Page: 3 Date Filed: 05/08/2026 No. 26-70004 c/w No. 26-10354 Stephen A. Higginson, Circuit Judge: I join the grant of a temporary stay of execution of Petitioner Edward Lee Busby’s sentence of death pending the Supreme Court’s forthcoming decision in Hamm v. Smith, No. 24-872, 145 S. Ct. 2776 (2025). In Hamm, the Supreme Court granted certiorari as to this question: Whether and how courts may consider the cumulative effect of multiple intelligent quotient (IQ) scores in assessing a claim under Atkins v. Virginia, 536 U.S. 304 (2002). The United States, as well as many amici states, including Texas, further urge the Court to revisit its larger Eighth Amendment framework governing how courts must evaluate individuals who may be intellectually disabled. Broadly, therefore, Hamm is likely to confirm the constitutional rule we must apply in capital cases like this one to determinations of intellectual disability. Even narrowly, Hamm is likely to instruct how we must evaluate multiple IQ scores above 70 in conjunction with different assessments, by different experts, of a capital defendant’s deficits in adaptive behavior. Busby’s circumstance closely parallels the Petitioner’s in Hamm, and perhaps even more starkly underscores the need for clarity regarding lower court review of such evidence, considering that both the state and Busby agreed in the state habeas court that he qualified as intellectually disabled. Argument in Hamm was heard last year and the decision is expected any day or, at most, in weeks, as we near the end of the Court’s term. For this reason, I join the tempora