United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit November 17, 2005
Charles R. Fulbruge III
Clerk
No. 05-51310
In Re: BOBBY WAYNE WOODS,
Movant.
Motion for Authorization to File Successive Petition
in the United States District Court
for the Western District of Texas
Before BARKSDALE, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Bobby Wayne Woods, a Texas inmate sentenced to death based
upon his conviction for capital murder, seeks authorization to file
a successive petition for writ of habeas corpus in the United
States District Court for the Western District of Texas on two
issues related to his allegation that he is either mentally
retarded and therefore cannot be executed under Atkins v. Virginia,
536 U.S. 304 (2002), or too mentally ill to be executed under the
Eighth and Fourteenth Amendments. We grant in part and deny in
part his motion.
We grant Woods permission to file before the district court
*
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this opinion should not be published and is not precedent except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.
his Atkins claim that his sentence of capital punishment violates
the United States Constitution because he is mentally retarded.
However, we make no evaluation of this claim other than to hold
that Woods has made the prima facie showing required under §
2244(b). We deny the motion as to his remaining claims that: (1)
his mental illness is so severe that his execution would violate
the constitutional prohibition against cruel and unusual punishment
patently and (2) his conviction and death sentence were both
obtained in violation of the U.S. Constitution according to Jones,
Apprendi, Ring, Blakely, and Booker.
FACTUAL AND PROCEDURAL BACKGROUND
In May 1998, Woods was convicted of kidnapping two children,
an approximately eight-year-old boy and a girl, age eleven, from
their home, and he was sentenced to death for the capital murder of
the kidnapped girl. Woods’s conviction and sentence were appealed
to the Texas Court of Criminal Appeals (the “TCCA”) and affirmed on
June 14, 2000. Woods v. State, No. 73,136, slip op. (Tex. Crim.
App. June 14, 2000).
Woods filed his initial application for habeas relief in the
courts of Texas on September 15, 1999, and the TCCA adopted the
lower court’s findings and denied relief. Ex parte Woods, No.
44,856-01, slip op. at 2 (Tex. Crim. App. Sept. 13, 2000) (per
curiam) (unpublished). The Supreme Court of the United States
denied Woods’s petition for writ of certiorari on February 20,
2
2001. Woods v. Texas, 531 U.S. 1155 (2001).
On December 11, 2000, Woods filed his initial federal habeas
application in the Northern District of Texas, alleging many of the
same claims presented for state postconviction relief. See Woods
v. Johnson, No. 4:00-CV-1563-A (N.D. Tex. Dec. 11, 2000). The
cause of action was transferred to the Western District of Texas
and was there denied. Woods v. Cockrell, No. A:01-CA-055-SS (W.D.
Tex. Feb. 8, 2002). Woods appealed the denial of federal habeas
relief to this Court, and a panel of this Court denied his request
for a certificate of appealability on certain claims and otherwise
affirmed the district court’s denial of relief. Woods v. Cockrell,
2003 WL 1202760 (5th Cir. Feb. 24, 2003) (unpublished).
Woods began the process of his successive petition for
postconviction relief by filing an application with the TCCA on
April 8, 2003, that raised two claims: (1) that his death sentence
was unconstitutionally applied to him under Atkins v. Virginia, 536
U.S. 304 (2002), because he is mentally retarded and (2) that his
conviction and sentence violated the Fifth, Sixth, and Fourteenth
Amendments because the State failed “to allege all of the essential
elements of capital murder wherein the death penalty could be
imposed in the indictment.” The TCCA held that Woods’s second
claim was an abuse of the writ under the Texas Code of Criminal
Procedure, article 11.071 § 5. With respect to Woods’s Atkins
claim challenging only his sentence and not conviction, the TCCA
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remanded the application to the state trial court. Ex parte Woods,
No. 44,856-02, slip op. at 2 (Tex. Crim. App. May 21, 2003) (per
curiam) (unpublished).
The state court held a hearing on the issue of Woods’s
intellectual and functional capacity during which both Woods and
the State presented testimony and evidence. In addition to
submitted evidence of Woods’s scores on multiple intelligence
tests, the state court heard testimony from Woods’s former grade
school principal and two teachers who testified that while Woods
suffered from learning disabilities, he was not mentally retarded.
The state court found that Woods was not mentally retarded and
recommended that relief under Atkins be denied. The TCCA adopted
those findings and recommendations and denied relief. Ex parte
Woods, No. WR-44,856-02, slip op. at 2 (Tex. Crim. App. Apr. 27,
2005). Woods submitted his successive federal habeas application
to the district court on September 27, 2005, and he now moves this
Court for authorization to file that petition, which raises two
claims for relief, in the district court.
DISCUSSION
Because Woods filed his federal habeas application after the
effective date of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), his initial habeas petition was subject to the
provisions of that Act. See Penry v. Johnson, 532 U.S. 782, 792
(2001); Graham v. Johnson, 168 F.3d 762, 775 (5th Cir. 1999).
4
Woods’s instant motion for authorization to file a successive
petition is likewise subject to AEDPA’s requirements. See Graham,
168 F.3d at 775; see also In re Morris, 328 F.3d 739, 740 (5th Cir.
2003).
Under AEDPA, this Court may authorize such a filing only if we
determine that “the application makes a prima facie showing that
the applicant satisfies the requirements” of 28 U.S.C. § 2244(b).
28 U.S.C. § 2244(b)(3)(C) (2000).2
In the Fifth Circuit, a prima facie showing is “simply a
2
In relevant part, § 2244(b) provides,
(b) . . .
(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed
unless—
(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
(B) (i) the factual predicate for the claim could not
have been discovered previously through the exercise of
due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
(3) . . .
(C) The court of appeals may authorize the filing of a
second or successive application only if it determines
that the application makes a prima facie showing that
the application satisfies the requirements of this
subsection.
28 U.S.C. § 2244(b)(2)-(3).
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sufficient showing of possible merit to warrant a fuller
exploration by the district court.” In re Morris, 328 F.3d at 740
(citing Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir.
1997)); see also Reyes-Requena v. United States, 243 F.3d 893, 898-
99 (5th Cir. 2001). If we determine that it appears “reasonably
likely” that the motion and supporting documents indicate that the
application meets the “stringent requirement” for the filing of a
successive petition, then we must grant the filing. In re Morris,
328 F.3d at 740 (citation omitted).
Woods presents two claims for habeas relief in his successive
petition, arguing each meets the requirements of § 2244(b).3
First, Woods claims he is mentally retarded and therefore cannot be
executed under Atkins. We have carefully reviewed Woods’s motion
and the putative petition attached in support, as well as Texas’s
response in opposition.
We find that Woods has made a prima facie showing that the
Atkins claim of his proposed successive petition for writ of habeas
corpus raises a claim not previously presented in his prior
application to this Court. We also find Woods has raised, as to
3
In his motion for authorization to file his successive
petition, Woods restructures his claims into five separate
issues, but this altered organization does not affect our
analysis because in both the petition and the motion, only one
claim meets the requirement of § 2244(b) such that it may be
presented to the district court on successive petition. As
discussed herein, that issue is Woods’s challenge to his death
penalty sentence under Atkins.
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his Atkins challenge to his sentence only, an issue that relies “on
a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” See 28 U.S.C. § 2244(b)(2); In re Morris, 328 F.3d
at 740. Finally, we conclude Woods has made a prima facie showing
that he could be categorized as mentally retarded under Atkins v.
Virginia, 536 U.S. 304 (2002). See 28 U.S.C. § 2244(b)(3)(C); In
re Morris, 328 F.3d at 740. However, we express no opinion on the
merits of his substantive claim that he is mentally retarded.
Thus, we permit the filing of Woods’s claim that he is mentally
retarded and therefore ineligible for the death penalty under
Atkins.4
As to Woods’s remaining claims, we deny authorization to
present them to the district court. Woods challenges his sentence
because he claims the determination that he is not mentally
retarded was determined by a judge rather than by a jury. Woods
argues the burden of proof with respect to mental retardation was
improperly placed upon him as petitioner rather than upon the
State. Woods challenges the sufficiency of the evidence to support
the state court findings that he is not mentally retarded and
argues that, even if he is not mentally retarded, the Eighth and
Fourteenth Amendments bar his execution because he is so mentally
4
This claim is a portion of, but not the entirety of, Issue
One in Woods’s petition.
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ill as to make the death penalty cruel and unusual punishment.
Each of these claims fails to meet the requirements of § 2244(b).
The Supreme Court has clarified recently that the factfinder
with respect to a determination of mental retardation need not be
a jury as opposed to judge when it vacated a Ninth Circuit order
directing a federal habeas petitioner to institute proceedings in
the courts of Arizona for jury determination of the question of
mental retardation. Schriro v. Smith, 126 S. Ct. 7, 8-9 (2005)
(stating “[t]he Ninth Circuit erred in commanding the Arizona
courts to conduct a jury trial to resolve Smith’s mental
retardation claim” and reiterating the statement from Atkins, 536
U.S. at 317, that the method for determining whether a defendant is
mentally retarded is left to the States).
Woods claims that he was denied a jury determination of his
status as mentally retarded under Ring v. Arizona, 536 U.S. 584
(2002). This claim does not meet the requirements of § 2244(b)
because the claim that a jury must determine mental retardation
does not rely upon a new rule of constitutional law made
retroactive by the Supreme Court. On the contrary, the Supreme
Court has squarely stated that Ring is not retroactive. Schriro v.
Summerlin, 542 U.S. 348, 358, 159 L. Ed. 2d 442, 124 S. Ct. 2519,
2526 (2004). Therefore, § 2244(b)(2) precludes Woods’s filing of
such a claim. See United States v. Webster, 421 F.3d 308, 312 (5th
Cir. 2005).
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Woods argues the burden of proof with respect to mental
retardation was improperly placed upon him as petitioner rather
than upon the State to prove beyond a reasonable doubt. Again, no
Supreme Court case created such a rule and applied it
retroactively, as is required. Moreover, our Circuit has rejected
this precise argument on a request for certificate of
appealability. Webster, 421 F.3d at 311. Woods cannot make the
prima facie showing required by § 2244(b) on a claim that is
foreclosed. See id.
We also reject Woods’s argument that he should be permitted to
present his claim that he is mentally ill and, for that reason,
cannot be executed in accordance with the Constitution. Section
2244(b) orders the dismissal of a successive petition insofar as a
claim presented does not meet at least one of several requirements,
in short, a new rule of constitutional law made retroactive by the
Supreme Court. Atkins did not cover mental illness separate and
apart from mental retardation, and Woods points to no Supreme Court
case creating such a rule. Therefore, his mental illness claim may
not be presented to the district court because it does not satisfy
§ 2244(b)(2)(A). Moreover, Woods failed to raise this claim before
the state courts of Texas.
Accordingly, we authorize the filing in district court of the
Successive Petition for Writ of Habeas Corpus attached to Woods’s
motion only with respect to a portion of Issue One, that is,
9
whether Woods is mentally retarded and therefore ineligible for the
death penalty according to Atkins. For the reasons stated above,
we deny the motion as to the remaining claims.
The district court, in its role as second gatekeeper, “must
conduct a ‘thorough’ review to determine if the motion
‘conclusively’ demonstrates that it does not meet AEDPA’s second or
successive motion requirements.” Reyes-Requena, 243 F.3d at 899
(citation omitted); see also 28 U.S.C. § 2244(b)(4). In this case,
the district court must conduct such thorough review as to Woods’s
claim related to his factual allegation of mental retardation and
must dismiss the claim if it determines the stringent requirements
of AEDPA are not met. See 28 U.S.C. § 2244(b)(4).
MOTION GRANTED IN PART; DENIED IN PART.
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