United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 8, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 06-10153
__________________________
In Re: ROBERT JAMES NEVILLE,
Movant.
___________________________________________________
On Motion for Authorization to File
Successive Petition for Writ of Habeas
Corpus in the United States District Court
Before the Northern District of Texas
___________________________________________________
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:
Robert James Neville moves pursuant to 28 U.S.C. § 2244(b)(2) for authorization to file a
successive petition for writ of habeas corpus. He asserts that Atkins v. Virginia, 536 U.S. 304 (2002)
and Roper v. Simmons, 543 U.S. 551 (2005) created a new rule of constitutional law, made
retroactive by the Supreme Court, making the execution of mentally ill persons unconstitutional. No
such rule of constitutional law was created, however, by either Atkins or Roper. See, e.g., In re
Woods, 155 F. App’x. 132, 136 (5th Cir. 2005) (declining to grant a successive habeas petition to
consider the defendant’s alleged mental illness because the new constitutional rule created in Atkins
does not cover mental illness). He, therefore, cannot satisfy the requirements as set forth by AEPDA
1
needed to grant authorization to file a successive habeas petition. 28 U.S.C. § 2244(b)(2).1
In addition, Neville does not present a prima facie case that he is mentally ill. He puts forward
only two pieces of evidence. First, he points to the testimony of a medical doctor presented during
the punishment phase of Neville’s trial. The doctor testified that Neville has lupus, which can make
him act erratically and irrationally. Second, Neville points to several affidavits submitted by Neville’s
former counsel. These attorneys attest that they believe that Neville has mental deficiencies and that
they believe that Neville might be mentally retarded.2 Neither the doctor’s testimony regarding
Neville’s lupus nor his former attorneys’ impressions of his mental state constitute “a sufficient
showing of possible merit to warrant a fuller exploration by the district court.” In re Morris, 328 F.3d
739, 740 (5th Cir. 2003) (internal quotation omitted).
Therefore, we DENY Neville’s petition to file a successive petition for a writ of habeas corpus
and DENY Neville’s motion for a stay of execution.
1
Twenty years ago, Ford v. Wainwright established that the Eighth Amendment prohibits the
execution of the insane. 477 U.S. 399, 410 (1986). Neville, however, does not assert that he is insane.
2
These affidavits do not address whether Neville has a mental illness. These affidavits were
prepared for the Texas state court proceedings in which Neville argued that he was mentally retarded.
The Texas court found that he failed to make a prima facie case of retardation and, therefore, denied
his motion for leave to file a writ of mandamus. In his briefs to this court, Neville no longer argues
that he is mentally retarded, but rather now claims mental illness.
2