United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 2, 2006
March 17, 2006
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-10243
In re: Robert Madrid Salazar
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, Lubbock
Before KING, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
In March 1999, death-row inmate Robert Madrid Salazar was
convicted of capital murder for the 1997 beating death and sexual
assault of his girlfriend’s two-year-old daughter. Having
exhausted his initial state and federal habeas claims, Salazar
faces execution, scheduled for March 22, 2006.
On February 14, 2006, Salazar filed a subsequent state
application for writ of habeas corpus with the Texas Court of
Criminal Appeals based on Atkins v. Virginia, 536 U.S. 304
(2002), which categorically bars the execution of mentally
retarded persons. The Texas Court of Criminal Appeals dismissed
his application as an abuse of the writ, rejecting Salazar’s
assertion that he is mentally retarded and therefore exempt from
execution under Atkins. Ex parte Salazar, No. WR-49,210-02 (Tex.
Crim. App. Mar. 9, 2006) (per curiam).
Salazar, maintaining that he is mentally retarded, now moves
in this court pursuant to 28 U.S.C. § 2244(b)(3)(A) for
authorization to file a successive application for writ of habeas
corpus with the United States District Court based on the new
constitutional rule announced in Atkins. Salazar also moves for
a stay of execution. Because we hold that Salazar has failed to
establish a prima facie case of mental retardation, we DENY his
motions.
I. THE AEDPA STANDARD FOR AUTHORIZING THE FILING OF A SUCCESSIVE
APPLICATION FOR WRIT OF HABEAS CORPUS IN THE DISTRICT COURT
The Antiterrorism and Effective Death Penalty Act (“AEDPA”)
strictly limits the ability of federal habeas applicants to file
successive applications for writ of habeas corpus in federal
court, directing courts to dismiss any claim presented in a
successive application unless, inter alia, “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.” 28 U.S.C. § 2244(b)(2)(A). An
applicant wishing to file a successive federal habeas application
with a district court must first “move in the appropriate court
of appeals for an order authorizing the district court to
consider the application.” Id. § 2244(b)(3)(A). Under this
statutory scheme, this court serves a “gatekeeping” function,
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Felker v. Turpin, 518 U.S. 651, 657 (1996), and “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” § 2244(b). 28
U.S.C. § 2244(b)(3)(C). A prima facie showing is “simply 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) (quoting Bennett v. United States, 119 F.3d
468, 469 (7th Cir. 1997)).
Because Salazar bases his application on the new
constitutional rule announced in Atkins, to obtain authorization
to file a successive claim, he must make a prima facie showing
that “(1) his claim has not previously been presented in a prior
application to this court, (2) his claim relies on a decision
that stated a new, retroactively applicable rule of
constitutional law that was previously unavailable to him, and
(3) . . . he is mentally retarded.” In re Hearn, 418 F.3d 444,
444-45 (5th Cir. 2005). Because Salazar has met the first two
requirements of his prima facie case--i.e., that his claim has
not previously been presented before this court and that his
claim relies on a new, retroactively applicable rule of
constitutional law not available to him when he filed his initial
habeas application--we must determine only whether he has made a
prima facie case of mental retardation.
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II. PRIMA FACIE CASE OF MENTAL RETARDATION
While the Supreme Court in Atkins categorically barred the
execution of mentally retarded persons, it declined to announce a
uniform definition of mental retardation, noting that “[n]ot 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.” 536 U.S. at 317. The Court
therefore left “to the State[s] the task of developing
appropriate ways to enforce the constitutional restriction upon
[their] execution of sentences,” id., but cited with approval the
American Association on Mental Retardation (“AAMR”) definition of
mental retardation. Id. at 309 n.3.
Since the Atkins decision, Texas courts addressing Atkins
claims have followed the definition of mental retardation adopted
by the AAMR and the almost identical definition contained in
section 591.003(13) of the Texas Health & Safety Code. Under
this standard, an applicant claiming mental retardation must show
that he suffers from a disability characterized by “(1)
‘significantly subaverage’ general intellectual functioning,”
usually defined as an I.Q. of about 70 or below; “(2) accompanied
by ‘related’ limitations in adaptive functioning; (3) the onset
of which occurs prior to the age of 18.” Ex parte Briseno, 135
S.W.3d 1, 7 (Tex. Crim. App. 2004); see also TEX. HEALTH & SAFETY
CODE § 591.003(13) (Vernon 2003) (defining “mental retardation”
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as “significantly subaverage general intellectual functioning
that is concurrent with deficits in adaptive behavior and
originates during the developmental period”); Morris v. Dretke,
413 F.3d 484, 490 (5th Cir. 2005) (applying the AAMR standard
adopted in Briseno to a federal habeas claim based on Atkins).
To state a successful claim, an applicant must satisfy all three
prongs of this test. See Hall v. Texas, 160 S.W.3d 24, 36 (Tex.
Crim. App. 2004) (en banc).
We are convinced that Salazar’s Atkins claim does not have
sufficient possible merit to warrant further exploration by the
district court. Salazar offers no affirmative evidence tending
to show that he suffers from significantly subaverage general
intellectual functioning or that any such intellectual
functioning has been accompanied by related limitations in
adaptive functioning. Specifically, he provides no proof in the
form of test scores, school records, doctor reports, affidavits
from teachers or family members, or any similar documentation
indicating that he has ever been suspected of being mentally
retarded, diagnosed with any other disability, or placed in a
special needs program. In fact, the only two professionals ever
personally to evaluate Salazar have concluded that he is not
mentally retarded, and his scores on two separate I.Q. tests are
above the cutoff for mental retardation, which Texas recognizes
as a score of 70 or below. See Briseno, 135 S.W.3d at 7 n.24
(noting that “[s]ignificantly subaverage intellectual functioning
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is defined as an IQ of about 70 or below (approximately 2
standard deviations below the mean)”).
In 1978, Salazar, who was eight years old at the time,
scored a 102 on a Slosson Intelligence Test administered by Dr.
Michael Ratheal. Dr. Ratheal, who administered several other
tests to Salazar and performed a lengthy psychological
evaluation, noted that Salazar’s I.Q. score “suggests functioning
in the Average range of intelligence.” Ratheal Report at 2.
Although Salazar did receive low scores on the Vineland Adaptive
Behavior test administered during the same session, Dr. Ratheal
noted that the “scores indicate extremely low functioning in the
areas of adaptive behavior, especially in consideration of
Robert’s average intellectual ability.” Ratheal Report at 5.
Based on the totality of her examination, Dr. Ratheal did not
conclude that Salazar was mentally retarded. Moreover, in 1999,
while Salazar was twenty years old and awaiting trial for capital
murder, he scored an 87 on the WAIS-R intelligence test
administered by Dr. Antolin Llorente, who spent two days
examining Salazar and administering a total of twenty-five tests.
Like Dr. Ratheal, Dr. Llorente did not conclude that Salazar was
mentally retarded based on his examination, noting in his report
that Salazar’s scores indicated that Salazar was “currently
functioning within the upper end of the Low Average to low end of
the Average range of intelligence.” Llorente Report at 5.
Attempting to cast doubt on the reliability of these
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assessments, Salazar offers the lone statement of Dr. Richard
Garnett, a frequent expert witness in Texas capital cases who has
experience in diagnosing and working with people with mental
retardation. Dr. Garnett, who reviewed Salazar’s medical records
and I.Q. scores at the request of Salazar’s attorney, asserts
that the Slosson Test “should not be considered a valid indicator
of Mr. Salazar’s intellectual functioning” and that the test
results “must be followed by a more formal and in-depth
evaluation and diagnosis.” Garnett Report at 3. However, Dr.
Garnett fails to note in his analysis that, in addition to
administering the Slosson Test, Dr. Ratheal did perform an in-
depth evaluation of Salazar, and her nine-page psychological
evaluation report never suggested that Salazar might be mentally
retarded, instead describing him as “a bright youngster” and
“functioning in an average range of intellectual ability.”
Ratheal Report at 6.
Dr. Garnett also posits that Salazar’s later score of 87 on
the WAIS-R test might have been artificially inflated because of
a phenomenon called the “Flynn Effect.” This theory attributes
the general rise of I.Q. scores of a population over time to the
use of outdated testing procedures, emphasizing the need for the
repeated renormalization of I.Q.-test standard deviations over
time. Although Dr. Garnett describes the effect of this
phenomenon on the average I.Q. score in the general population,
he does not indicate what effect it would have had on Salazar’s
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score in particular or even whether it is appropriate to adjust
an individual’s score based on this theory.1
Finally, Dr. Garnett emphasizes that Salazar scored poorly
on the Vineland Adaptive Behavior Test administered by Dr.
Ratheal and that these scores could be indicative of mental
retardation. Although this fact, standing alone, might be
troubling, the definition for mental retardation adopted by the
AAMR and by the state of Texas requires us to consider the data
in context. Thus, Dr. Ratheal’s note that Salazar’s adaptive
behavior “scores indicate extremely low functioning in the areas
of adaptive behavior, especially in consideration of Robert’s
average intellectual ability” indicates that, while Salazar might
have suffered from limitations in adaptive behavior as a child,
1
Even assuming that the Flynn Effect is a valid
scientific theory and is applicable to Salazar’s individual I.Q.
score--and we express no opinion as to whether this is actually
the case--Salazar’s score readjusted to account for score
inflation is still above the cutoff for mental retardation. Dr.
Garnett explains that, under the Flynn Effect theory, the passage
of time has inflated test scores by approximately one-third to
two-thirds of a point per year since the normalization of the
particular test in question. Therefore,
one can establish a range of estimated score inflation by
taking the number of years that has [sic] passed since
the standardization norms were established and the date
of test admission, and then multiply .3 and .6 to get the
range of inflation. Those amounts are subtracted from
the IQ score to obtain the range of effect.
Garnett Report at 5. Salazar took his WAIS-R test in 1999,
twenty-one years after it was normalized; thus, using the above
equation, his readjusted score would range from 80.7 to 74.4,
both of which are above the cutoff score of 70.
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it was not accompanied by the significantly subaverage general
intellectual functioning required under the definition. Ratheal
Report at 5 (emphasis added); see TEX. HEALTH & SAFETY CODE
§ 591.003(13) (defining mental retardation as subaverage general
intellectual functioning that is “concurrent with” deficits in
adaptive behavior); Hall, 160 S.W.3d at 36 (requiring that all
three prongs of the definition be satisfied for a successful
claim of mental retardation).
In short, no professional who has ever personally evaluated
Salazar has labeled him mentally retarded, and Salazar offers no
support for his claim other than the statement of Dr. Garnett,
who never personally evaluated or tested Salazar. Dr. Garnett’s
statement, without more, “is simply insufficient to suggest that
further development of [Salazar’s] claim has any likelihood of
success under the Atkins criteria.” In re Johnson, 334 F.3d 403,
404 (5th Cir. 2003) (denying a motion for authorization to file a
successive habeas application based on Atkins where the applicant
offered only two letters from psychologists and a seventh-grade
transcript showing poor grades); In re Campbell, 82 F. App’x 349,
350 (5th Cir. 2003) (denying a motion for authorization where the
applicant did not provide any evidence of mental impairment or
cognitive dysfunction). Because Salazar has failed to state a
prima facie case of mental retardation, we cannot grant his
motion for authorization to file a successive habeas application
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in district court.2
III. CONCLUSION
For the foregoing reasons, we DENY Salazar’s motion for
authorization to file a successive habeas application based on
Atkins. His motion for a stay of execution is also DENIED.
2
We also note that, even if we were to grant Salazar’s
motion for authorization to file a successive habeas application,
his application would be time barred in district court under the
AEDPA one-year limitations provision unless equitable tolling
were deemed appropriate. See 28 U.S.C. § 2244(d)(1)(C) (limiting
the period for filing a successive habeas application based on a
new rule of retroactively applicable constitutional law to one
year from “the date on which the constitutional right asserted
was initially recognized by the Supreme Court”). The Supreme
Court issued its decision in Atkins on June 20, 2002; therefore,
the AEDPA limitations period expired on June 20, 2003, more than
two and a half years ago. See In re Hearn, 376 F.3d 447, 456
n.11 (5th Cir. 2004).
The state urges us to deny Salazar’s motion solely on
the ground that the successive application would be time barred
under § 2244(d)(1)(C) without addressing whether Salazar has made
a sufficient prima facie showing as required for authorization
under 28 U.S.C. § 2244(b)(3)(C). However, we need not make this
determination--or answer the open question of whether, in our
role as “gatekeeper” under § 2244(b)(3)(C), we have the statutory
authority to deny a motion for authorization solely on the basis
of timeliness under § 2244(d)(1)(C)--because we hold that Salazar
has failed to make a prima facie showing that the application
satisfies the requirements of § 2244(b). Cf. In re Wilson, ---
F.3d ----, 2006 WL 574273 (5th Cir.) (granting a motion for
authorization to file a successive habeas application based on
Atkins after holding that the applicant had made a prima facie
case of mental retardation and determining that equitable tolling
would apply to save his application from being untimely in the
district court under § 2244(d)(1)(C)); In re Elizalde, No. 06-
20072 (5th Cir. Jan. 31, 2006) (denying a similar motion on the
ground that the applicant had failed to establish a prima facie
case of mental retardation and also noting in dicta that his
application would likely be time barred in district court).
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