United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS November 13, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 03-20700
In re ROBERT JAMES CAMPBELL,
Petitioner.
On Motion for Authorization to File Successive Petition for Writ
of Habeas Corpus in the United States District Court of the
Southern District of Texas.
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM*
Movant Robert James Campbell has asked this court for
permission to file a Successive Petition for a Writ of Habeas
Corpus in the United States District Court of the Southern District
of Texas based on the Supreme Court’s recent decision in Atkins v.
Virginia, 536 U.S. 304 (2002), which bans the execution of the
mentally retarded. He alleges that he has made a prima facie
showing that his application satisfies the requirements for filing
a successive habeas petition as stated in 28 U.S.C. §
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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2244(b)(2)(A).1 We deny Campbell’s motion to file a successive
habeas brief.
Our recent decision in In re Morris, 328 F.3d 739 (5th Cir.
2003), provides a framework for analyzing Campbell’s claim.
Specifically, in Morris, we stated that a movant’s motion should be
granted if he makes a prima facie showing that (1) the claims to be
presented in the proposed successive habeas corpus application have
not previously been presented in any prior application to this
court; (2) the claim to be presented in the proposed successive
habeas corpus application relies on the new rule of constitutional
law announced in Atkins, made retroactive to cases on collateral
review by the Supreme Court and that was previously unavailable;
and (3) movant should be categorized as “mentally retarded” within
the understanding of Atkins. See Morris, 328 F.3d at 740-41; see
also In re: Johnson, 334 F.3d 403, 404 (5th Cir. 2003).
Campbell satisfies the first two categories of this prima
facie showing. We conclude, however, that Campbell does not state
a prima facie case of mental retardation within the understanding
of Atkins. Specifically, Campbell does not make “a sufficient
showing of possible merit to warrant a fuller explanation by the
district court.” Morris, 328 F.3d at 740 (quoting Bennett v.
1
Movant also requests leave to file a reply brief in
support of his motion. We grant Campbell’s request to file a
reply brief and have considered it in deciding this motion.
2
United States, 119 F.3d 468, 469-70 (7th Cir. 1997)). Campbell
contends that he suffered through severe poverty and child abuse
growing up, causing him to leave home at age thirteen and
subjecting him to extreme emotional disturbance as a teenager.
Campbell also contends that he had inadequate educational
opportunities growing up and performed very poorly in school.
Campbell finally contends that his father was known around town as
“crazy,” and that, to the extent this condition was congenital, it
would constitute a risk factor for mental retardation for Campbell.
In support of this motion, Campbell has attached affidavits
and school records supporting the contentions explained above.
Campbell also cites four categories of “risk factors,” published by
the 2002 American Association on Mental Retardation, that may
interact to cause mental retardation. Campbell argues that his
abusive and unstable childhood causes him to fit within all four of
these risk factors. Campbell contends, therefore, that he has made
the prima facie showing of mental retardation necessary for this
court to grant his motion. However, as the Supreme Court stated in
Atkins, “not all people who claim to be mentally retarded will be
so impaired as to fall within the range of mentally retarded
offenders about whom there is a national consensus.” Atkins, 536
U.S. at 317.
The evidence of childhood poverty and abuse, poor elementary
school performance, and family dysfunction that Campbell
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demonstrates in his motion is simply not enough to demonstrate that
his claim has any likelihood of success under Atkins. See Johnson,
334 F.3d at 404. Claims of mental retardation within the
understanding of Atkins present individualized, fact specific
inquiries. Accordingly, we cannot articulate any specific
requirements that a movant must make in order to have a motion for
leave to file a successive habeas petition granted by this court.
We note, however, that in this motion Campbell has not alleged that
he has any mental impairment or cognitive dysfunction whatsoever.
Compare Morris, 328 F.3d at 741 (Higginbotham, J., concurring)
(mentioning that the record demonstrated some evidence of movant’s
mental impairment). Additionally, Campbell does not allege that he
is mentally retarded within the understanding of Atkins, only that,
according to one set of factors, he is at risk for mental
retardation. Consequently, he has not made a prima facie showing
of mental retardation and is not entitled to file a successive
habeas petition in the district court.
Campbell also contends that he was entitled to a judge and/or
jury determination of his mental retardation because, pursuant to
the Supreme Court decision in Atkins, the absence of mental
retardation is an element of capital murder that the state must
prove beyond a reasonable doubt. See Ring v. Arizona, 536 U.S. 584
(2002); Apprendi v. New Jersey, 530 U.S. 446 (2000). This court
has already considered and rejected this argument. See Johnson,
4
334 F.3d at 405. Campbell’s contention therefore fails.
MOTION FOR LEAVE TO FILE A SUPPLEMENTAL BRIEF GRANTED; MOTION
FOR AUTHORIZATION TO FILE A SUCCESSIVE HABEAS PETITION DENIED.
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