In Re: Hearn

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 20, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10245

IN RE: YOKAMON LANEAL HEARN,

Movant.

On Motion for Authorization to File
Successive Petition for Writ of Habeas
Corpus in the United States District Court
for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Movant Yokamon Laneal Hearn is a state prisoner on death row in Texas. He moves

pursuant to 28 U.S.C. § 2244(b)(2)(A) for an order authorizing the filing and consideration of a

second petition for writ of habeas co rpus. Hearn’s application is based on the new rule of

constitutional law set forth in Atkins v. Virginia, 536 U.S. 304 (2002). He claims he is ineligible for

execution under Atkins because he is mentally retarded. Id.

This Court may allow the filing of a second habeas 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)(3)(C). Hearn 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

1
to him, and (3) that he is mentally retarded. In re Johnson, 334 F.3d 403, 404 (5th Cir. 2003). Texas

concedes that Hearn satisfies the first two requirements, that is, his Atkins claim was not previously

presented in any prior application to this Court, and Atkins respresents a new, retroactively applicable

rule of constitutional law that was previously unavailable. The issue before this Court is whether

Hearn has made a prima facie showing that he is mentally retarded.

A prima facie showing of mental retardation is “‘simply a sufficient showing of possible merit

to warrant a fuller [exploration] by the district court.’” Id. (quoting In re Morris, 328 F.3d 739, 740

(5th Cir. 2003)). Mental retardation is a disability characterized by three criteria: significant limitation

in intellectual functioning, significant limitation in adaptive behavior and functioning, and onset of

these limitations before the age of 18. American Association on Mental Retardation (“AAMR”),

Mental Retardation: Definition, Classification, and Systems of Supports 1 (10th ed. 2002).

Hearn’s motion includes expert reports from Pablo Stewart, M.D., Mary Alice Conroy, Ph.D.,

and James R. Patton, Ed.D. Dr. Stewart’s report does not address the question of whether Hearn

is mentally retarded. Rather, it assesses Hearn for fetal alcohol syndrome (“FAS”). Dr. Stewart

concludes that Hearn suffers from FAS and further notes that “[o]ne of the frequently occurring

consequences of FAS is mental retardation. Indeed, FAS is the most commonly-identified case of

mental retardation.” Dr. Stewart’s report offers an explanation for the cause of Hearn’s alleged

mental retardation; it neither diagnoses nor excludes mental retardation.

Dr. Conroy’s psychological evaluation addresses the first prong of the mental retardation

diagnosis, that is, it was conducted “in order to obtain an assessment of [Hearn’s] general intellectual

functioning.” Dr. Conroy makes no conclusions regarding whether Hearn is mentally retarded; her

findings relate only to Hearn’s limitations in intellectual functioning.

2
 The third expert, Dr. Patton, interprets Dr. Conroy’s findings and determines that Hearn has

significant limitations in intellectual functioning. Based on testing he administered, Dr. Patton further

opines that Hearn has significant limitations in adaptive behavior and functioning. Finally, Dr. Patton

determines that the onset of these limitations occurred before Hearn was 18. Dr. Patton concludes:

“In summary, it is my professional opinion, based on the materials reviewed, the test results recently

obtained, and the interviews with key respondents, that Mr. Hearn meets the criteria of mental

retardation, as defined by the American Association of Mental Retardation.”

Texas argues that Dr. Patton’s opinion is facially invalid and cannot constitute a prima facie

showing of mental retardation because Dr. Patton is not a licensed psychologist and Hearn presents

no pro of that Dr. Patton is certified by Texas to diagnose mental retardation. In Dr. Patton’s

assessment of mental retardation, he summarized his numerous qualifications and significant

experience. Based on these qualifications, we decline to conclude that Dr. Patton is not qualified to

assess and diagnose mental retardation for the purposes of Hearn’s prima facie showing.

We reject the dissent’s argument that we cannot consider Dr. Patton’s opinion because he

does not meet the Texas Health and Safety Code’s standard for those who may determine mental

retardation. This standard, found in Texas’s Persons With Mental Retardation Act (“PMRA”),

provides that mental retardation may be diagnosed only by “a physician or psychologist licensed in

this state or certified by the [Texas Department of Mental Health and Mental Retardation].” TEX.

HEALTH & SAFETY CODE ANN. § 591.003(16) (2005) (enacted before Atkins). This standard,

however, has not been made applicable to Atkins proceedings.

The Supreme Court in Atkins left “to the States the task of developing appropriate ways to

enforce the constitutional restriction upon its execution of sentences.” Ex Parte Briseno, 135 S.W.3d

3
1, 5 (Tex. Crim. App. 2004) (quoting Atkins, 536 U.S. at 317). In Briseno, the Texas Court of

Criminal Appeals held that until the Texas legislature provides a statutory definition of mental

retardation, it will use the definition of mental retardation promulgated by the AAMR and mirrored

by subsection 591.003(13) of the PMRA when addressing Atkins claims. Id. at 8. Neither the

AAMR definition nor subsection (13) of the PMRA addresses who is qualified to render an opinion

on whether a particular person is mentally retarded. Briseno neither explicitly nor implicitly endorses

subsection (16) of the PMRA, upon which the dissent relies to argue for Dr. Patton’s exclusion;

indeed, Briseno itself relied upon lay opinion to determine retardation. Id. at 18.

The dissent surmises that the majority is “saying that even if Patton is unqualified under Texas

law to testify as an expert, he can state his ‘opinions’ as a lay witness.” The dissent condemns this

as an “astonishing notion” that would eviscerate the reasonable restrictions of Federal Rule of

Evidence 703. We have no such notion. This criticism evinces a fundamental misunderstanding of

both the reasoning in Briseno and the majority’s argument.

Pointing to Briseno’s adopt ion of the AAMR and § 391.003(13) standards, the dissent

concludes that it “follows logically that if the State of Texas, through its highest criminal court, has

decided to use its statutory definition of ‘mental retardation’ in Atkins proceedings, it would be a ‘no

brainer’ that the statutory definition of who is qualified to opine as to mental retardation would also

apply.” This conclusion, however, is belied by Briseno itself. In Briseno, the court observed that

[a]lthough experts may offer insightful opinions on the question of whether a
particular person meets the psychological diagnostic criteria for mental retardation,
the ultimate issue of whether this person is, in fact, mentally retarded for purposes of
the Eighth Amendment ban o n excessive punishment is one for the finder of fact,
based upon all of the evidence and determinations of credibility.

Id. at 9 (emphasis added). The court catalogued a number of “evidentiary factors” that a finder of

4
fact may consider when determining whether an defendant is mentally retarded, including whether

“family, friends, teachers, employers [and] authorities” believed him to be mentally retarded during

the developmental stage, whether he responds “coherently, rationally, and on point” to oral or written

questions, and whether his “conduct in response to external stimuli” is “rational and appropriate.”

Id. at 8.

The court then affirmed the lower court’s determination that the applicant was not mentally

retarded. In doing so, the court relied in part on the lay testimony of Texas Department of Criminal

Justice officers regarding the applicant’s behavior while in jail. Id. at 18 (“In sum, we conclude that,

while there is expert opinion testimony in this record that would support a finding of mental

retardation, there is also ample evidence, including expert and lay opinion testimony, as well as

written records, to support the trial court’s finding . . . .”). If the Texas Court of Criminal Appeals

was willing to ground its Atkins determination in part on the testimony of lay witnesses, it could

not—as a pure matter of logic—have tacitly adopted the standard in § 591.003(16) as a litmus test

for qualification to opine on an applicant’s mental condition.1

The purpose of the PMRA is to provide social services to and guarantee rights of persons

with mental retardation. § 591.002. The PMRA, by its own terms, is irrelevant to the application

of Atkins. For Eighth Amendment purposes, it neither defines mental retardation nor—more

relevantly—establishes who may diagnose mental retardation. Laying aside whether, or how much,

Texas may, in implementing Atkins, restrict expert testimony according to the standards of subsection

1
Further evidence that the Briseno court did not adopt subsection (16)’s standard is that it
referred broadly to who may assess mental retardation: “Psychologists and other mental health
professionals are flexible in their assessment of mental retardation.” Id. at 7 n.24 (emphasis
added).

5
(16) of t he PMRA or other standards, there is no indication that it has done so. Reliance on

subsection (16) of the PMRA to exclude Dr. Patton’s testimony is therefore misplaced.2 This Court

relies on Dr. Patton’s report for the limited purpose of assessing whether Hearn has made a prima

facie case of mental retardation—that is, whether he has raised questions of possible merit which

justify further exploration below.3

Texas further argues that Dr. Patton’s opinion on adaptive functioning improperly relies upon

the Adaptive Behavior Assessment System–Second Edition (“ABAS-II”). Hearn responds that Dr.

Patton correctly used and relied upon the ABAS-II in making his determination. We will not address

this factual dispute over Dr. Patton’s methods and findings. We hold only that Hearn, through Dr.

Patton’s report and its incorporation of the reports of Dr. Stewart and Dr. Conroy, has put forth

minimally sufficient evidence to make a prima facie case that he may be a person with mental

retardation.

2
Hearn characterizes subsection (16)’s standard for persons qualified to diagnose mental
retardation as “myopic” because it allows only Texas licensed or certified physicians or
psychologists to diagnose mental retardation. We take no position on the merit of this standard;
we merely determine that it has not been made applicable in Atkins proceedings.
3
We note that Dr. Patton has offered his opinion on a defendant’s mental retardation in a
similar case. See Morris v. Dretke, No. 04-70004, 2005 U.S. App. LEXIS 11430, at *11–12 (5th
Cir. June 16, 2005). Texas argued in Morris that Dr. Patton was an “unlicensed psychologist.”
See Texas’s Response in Opposition to Application for Certificate of Appealability at 7. The
district court, ruling on Texas’s motions to dismiss Morris’s amended petition for habeas corpus,
did not determine whether Morris had made a sufficient showing of mental retardation or whether
it could consider Dr. Patton’s testimony. Rather, it dismissed the petition without prejudice on
exhaustion grounds. Morris v. Dretke, No. H-03-2186 (S.D. Tex. filed Dec. 5, 2003). The
district court did note, however, that Morris’s amended petition, which included Dr. Patton’s
affidavits opining that Morris was mentally retarded, was a “much stronger Atkins claim than he
presented to the Texas courts.” Id. at *17. This Court agreed that Morris’s evidence, which
included Dr. Patton’s affidavits, was “professional assessment evidence” which “factually
bolstered” Morris’s Atkins claim. 2005 U.S. App. LEXIS 11430, at *30–31.

6
 In accordance with the Supreme Court’s mandate in Atkins, because there is sufficient, albeit

slight,4 merit in Hearn’s motion to warrant further exploration by the district court, it is hereby

ORDERED that Hearn’s motion for permission to file a successive petition for writ of habeas corpus

is GRANTED.

4
Dr. Patton’s report shows that Hearn barely meets the standard for significant limitations
in intellectual functioning. On the AAMR’s definition of mental retardation, significant limitations
in intellectual functioning amount to performance on an appropriate assessment instrument that is
approximately two standard deviations below the mean, taking into account the instrument’s
standard measurement error. On the Wechsler Adult Intelligence Scale-Third Edition (“WAIS-
III”), two standard deviations below the mean would amount to a score of 70. The measurement
of error is approximately 5 points, so that a score of 70 represents a range of 65–75. On the
WAIS-III administered by Dr. Conroy, Hearn obtained a Full Scale IQ of 74, a Verbal IQ of 73,
and Performance IQ of 78. Dr. Patton, taking into account the measurement error for the WAIS-
III, concludes that Hearn’s scores “are in the IQ range that can be considered approximately two
standard deviations below the mean of 100.”

7
JERRY E. SMITH, Circuit Judge, dissenting:

I.

Largely for the reasons I expressed in dissenting from the

opinion appointing counsel and staying execution, see In re Hearn,

376 F.3d 447, 459-71 (5th Cir. 2004) (Smith, J., dissenting), I

continue to disagree with the panel majority’s handling of this

matter, which has been prolonged by misapplication of the standards

set by Congress and the applicable caselaw.5 This is a desperate

attempt to salvage something from nothing, to manufacture an

eleventh-hour claim of retardation to stave off execution. Every

member of this panel (any protestations to the contrary) surely

knows well that Hearn is not retarded, and the district court

eventually will so find, yet this minuet is played again and again

to satisfy fanciful notions of procedural nicety.6

In its most recent stanza, the song includes Hearn’s obvious

inability to find an expert qualified under state law anywhere in

the State of Texas who is willing to say that he is retarded. Two

5
See especially the summary of Hearn’s flimsy evidence, summarized in part II.B.1 and 2
of the dissent at 376 F.3d at 467-70 (Smith, J., dissenting).
6
When I refer to “fanciful notions of procedural nicety,” I do not mean to make light of
this matter, which is of the most serious nature given that a life hangs in the balance. Indeed, we
must diligently follow the requirements laid down by the Supreme Court and this court to assure
Hearn his constitutional rights. But the panel majority, too, must remember that there are indeed
death row inmates who are actually retarded and therefore not lawfully subject to the penalty of
death, whose cases deserve our most serious attention. By expending excess resourcesSSstate
and federalSSon Hearn’s frivolous claim, this court, albeit with the best intention, disserves those
petitioners and muddies the standards that we must apply as the Supreme Court has directed.
8
of the three “experts” he presents (after ample time and funds to

find them) indeed appear to be qualified under Texas law, but both

decline to opine that Hearn is retarded. The panel majority evades

this barrier by a bizarre parsing of state law and of state and

federal caselaw, to find a way to allow Hearn’s third but unautho-

rized expert, Professor Patton, to testify.

II.

We are faced today with the same quandry discussed in In re

Morris, 328 F.3d 740 (5th Cir. 2003) (per curiam). There, in

addressing another request to file a successive habeas corpus peti-

tion, this court discussed the conflicting evidence; one judge ac-

knowledged that he was “confessedly dubitante” on whether there was

“enough merit to warrant further exploration by the district

court.” Id. at 741 (Higginbotham, J., concurring). To the extent

we are “dubitante” here, we should follow the lead of the panel

that issued binding Fifth Circuit authority in In re Johnson, 334

F.3d 404 (5th Cir. 2003) (per curiam). In evaluating a request to

file a successive habeas petition on an Atkins claim, the Johnson

panel was faced with facts strikingly similar to those presented by

Hearn. Much like Hearn, petitioner Johnson presented equivocal

letters from a psychologist expressing the belief that his verbal

intelligence level might be as low as 62-65. Johnson presented a

seventh grade transcript showing failure in all his academic

9
courses. The panel decided that “the two letters and seventh grade

transcript offered by Johnson are simply insufficient to suggest

that further development of his claim has any likelihood of success

under the Atkins criteria.” Id.

III.

Hearn (and perhaps the panel majority) of course would counter

that Hearn has presented the opinion of an “expert” who says he is

retarded, and that that important evidence distinguishes this case

from Johnson. But that could not possibly be so unless Hearn’s new

affiant is qualified to speak to mental retardation under Texas

law. It is at this point that the panel majority most seriously

misses the mark.

A.

Hearn relies almost exclusively on the assessment of a wit-

ness, Professor Patton, who has an “Ed.D.” degree and who is self-

described as “an educational consultant and author in the field of

special education and disabilities” and has “served as a mental

retardation specialist.”7 One of the many problems with Hearn’s

proffer, however, is that Texas law provides that mental retarda-

7
I do not mean in any way to criticize Professor Patton’s work or to make fun of his
credentials as a person with considerable experience (including writing and teaching) as an
educational consultant and respected professor at a leading university. The question is whether he
is qualified under Texas law to opine as to Hearn’s claim of mental retardation. That is fair game,
and no personal attack on Patton is intended.
10
tion may only be “determined by a physician or psychologist

licensed in this state or certified by” the Texas Department of

Mental Health and Mental Retardation to make a determination of

retardation. That is the specific requirement of section

591.003(16) of the Texas Health and Safety Code. It is undisputed

that Patton is neither a physician nor a psychologist, in Texas or

elsewhere.

B.

The panel majority’s excuse for considering Patton’s opinion

is that “the Texas Health and Safety Code’s standard for those who

may determine mental retardation . . . has not been made applicable

to Atkins proceedings.” This reasoning is so shabby as to seem

contrived, though I am sure that, instead, it is presented in good

faith.

Both parties in this case, and all three judges on this panel,

agree that Texas has not yet formally adopted procedures for hand-

ling claims of mental retardation in the wake of Atkins. This

vacuum has been dealt with successfully, however, by the Texas

courts. Recently in In re Briseno, 135 S.W.3d 1 (Tex. Crim. App.

2004), Texas’s highest criminal court recounted that in Atkins the

Supreme Court “left to the individual states the substantive and

procedural mechanisms to implement that decision.” Id. at 5. “The

Texas Legislature has not yet enacted legislation to carry out the

11
Atkins mandate. Id. Accordingly, the Court of Criminal Appeals

recognized that it “must act to provide the bench and bar with

temporary judicial guidelines in addressing Atkins claims.” Id.

(footnote omitted).

The Court of Criminal Appeals then proceeded to “set out . . .

judicial standards for courts considering [Atkins] claims. Id. It

noted that the Texas Legislature had passed, but the governor had

vetoed, legislation prohibiting execution of the mentally retarded

that adopted the definition of mental retardation contained in §

591.003(13) of the Health and Safety Code. The Court of Criminal

Appeals also observed that it previously had employed the defini-

tion from § 591.003(13). Id. (citing Ex parte Tennard, 960 S.W.2d

57, 60-61 (Tex. Crim. App. 1997)). The court reasonably concluded

that “[u]ntil the Texas Legislature provides an alternate statutory

definition of ‘mental retardation’ for use in capital sentencing,

we will follow the [American Association on Mental Retardation] or

section 591.003(13) criteria in addressing Atkins mental retarda-

tion claims.” Id. at 8. Only a few days ago, this court recog-

nized that indeed in Briseno the Court of Criminal Appeals has

“adopted . . . the Texas Health and Safety Code section 591.003(13)

. . . as an alternative standard for a petitioner to show his

mental retardation.” Morris v. Dretke, No. 04-70004, 2005 U.S.

App. LEXIS 11430, at *37 (5th Cir. June 16, 2005).

12
 C.

It follows logically that if the State of Texas, through its

highest criminal court, has decided to use its statutory definition

of “mental retardation” in Atkins proceedings, it would be a “no

brainer” that the statutory definition of who is qualified to opine

as to mental retardation would also apply. In fact, reaching a

contrary conclusion is unreasonable: to assume that the legisla-

ture or Court of Criminal Appeals would apply the one provision but

not the other.

An examination of the two subsections of section 591.003

reveals why this is so. Subsection (13), which the panel majority

blesses in today’s missive, states that “Mental retardation” means

significantly subaverage general intellectual functioning that is

concurrent with deficits in adaptive behavior and originates during

the development period.” Subsection (16) of the same statute,

which the panel majority dismisses as not properly ensconced as a

Texas Atkins standard, reads, almost identically, as follows:

“Person with mental retardation” means a person determined by a

physician or psychologist licensed in this state or certified by

the department to have subaverage general intellectual functioning

with deficits in adaptive behavior.”

In fact, it is difficult to imagine how “mental retardation”

under subsection (13) can be determined accurately without some

sort of standard for how its various components (“subaverage

13
general intelligence,” etc.) can be identified in a particular

person. The legislature wisely added the requirement of physician

or psychologist to ensure that the definition itself has meaning

and is not subject to the “opinion” of any lay witness that a

particular person appears “dumb” or “smart.” In this very real

sense, the limitation on who can opine as to retardation is an

integral part of the definition of the term.

It is our duty to determine, as best we can during this

“legislative interregnum,” Briseno, 135 S.W.3d at 5, what the Court

of Criminal Appeals would do with subsection 16. It is non-

sensical to suggest that the legislature or Court of Criminal

Appeals, if faced with the question, would utilize subsection 13

without subsection 16. Yet, that is precisely what the panel

majority has done, using only the wimpy notion that subsection (16)

“is not mentioned in Briseno.” Of course, the obvious reason

subsection (16) is not mentioned there is that it apparently was

not an issue there, as it most certainly is here.

D.

Perhaps the most profound statement in the panel majority’s

opinion is the following: “Nothing in Briseno supports the propo-

sition that Dr. Patton is unqualified to opine whether Hearn is

mentally retarded for purposes of an Atkins claim; indeed, Briseno

relied upon lay opinion to determine retardation” (citing Briseno,

14
135 S.W.3d at 18). The lay opinion on which Briseno relied

consisted of prison officers who testified that the prisoner’s

“behavior seemed ‘normal’ and ‘appropriate’ in prison.” Id. A

deputy sheriff testified that petitioner was “‘intelligent, shrewd,

and very cunning.’” Id. These obviously were fact witnesses who

testified as to their day-to-day encounters with the petitioner.

Hearn, on the other hand, proffers Patton as an “expert” in

the field of mental retardation. The panel majority here is saying

that even if Patton is unqualified under Texas law to testify as an

expert, he can state his “opinions” as a lay witness. This runs

directly contrary to Rule 701 of the Federal Rules of Evidence,

which reads as follows:

If the witness is not testifying as an expert, the
witness’ testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, and
(b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other special-
ized knowledge within the scope of [Federal Rule of
Evidence] 702.

(Emphasis added.)

If the panel majority’s statement holds true, the reasonable

restrictions of rule 703 are entirely eviscerated. A petitioner

(or, for that matter, the state) can present any “expert” to opine

as to mental retardation, and if that person’s qualifications or

testimony fails as a matter of law to constitute admissible expert

testimony, his testimony nevertheless (and at the whim of any

15
judge) can be received and considered as “lay” testimony.8 This is

indeed frightening.

IV.

A.

Fortunately, the panel majority has placed the following re-

striction on the use of Hearn’s witness’s report: The majority

relies on it “for the limited purpose of assessing whether Hearn

has made a prima facie case of mental retardationSSthat is, whether

he has raised questions of possible merit which justify further

exploration below.” By this statement, the district court is free

to reject Patton’s testimony, including for the reason that he is

not qualified in Texas to opine as to mental retardation under §

591.003(16), unless, of course, the district court buys into the

astonishing notion (discussed in the preceding paragraph) that

Patton can testify here as a lay witness.

8
Despite the panel majority’s undocumented theory, Patton does not qualify as a “lay
witness,” either. His proffered testimony is based not on day-to-day, lay encounters with Hearn,
but entirely on the following (as stated in his report):

I have reviewed the materials sent to me from Naomi Terr and Richard Burr,
pertaining to their client, Yokamon Hearn. This information includes records of
Mr. Hearn’s academic, behavioral, personal background and the assessment results
generated by Dr. Mary Alice Conroy from her evaluation conducted on 10 May
2005. I interviewed Mr. Hearn at the Polunsky Unit in Livingston, Texas, on 06
May, 2005. In addition, I interviewed his mother, five of his cousins, and a former
teacher on 09-10 May 2005. Lastly, I conducted a formal adaptive behavior
assessment with one of Mr. Hearn’s cousins on 15 May 2005. I performed all of
these activities to determine whether or not Mr. Hearn met the criteria for mental
retardation as indicated by the 2002 definition of the American Association on
Mental Retardation.
16
 B.

In this regard, I remind the district court that, on remand,

it is fully authorizedSSindeed, charged with the responsibilitySSto

serve as a “second ‘gate’ through which the petitioner must pass

before the merits of his or her motion are heard.”9 Thus, this

court has “borrowed from the Seventh Circuit” the “‘tentative’

process” for considering an application for permission to file a

successive habeas petition. In re Morris, 328 F.3d at 741

(Higginbotham, J., concurring).

Under this process, the district court is bound to use the

following methodology: “[A] petitioner ‘must get through two gates

before the merits of the motion can be considered.’” Reyes-

Requena, 243 F.3d at 899 (quoting Bennett, 119 F.3d at 470). This

is so because a court of appeals uses the prima facie test, making

“rulings on such applications under tight deadlines and with

limited information.” Id. (citing Bennett, 119 F.3d at 469).

Stated another way, the duty of the district court is as follows:

Therefore, the “grant [by a court of appeals to file a
second or successive motion] is, . . . it is important to
note, tentative in the following sense: the district
court must dismiss the motion that we have allowed the
applicant to file, without reaching the merits of the
motion, if the court finds that the movant has not
satisfied the requirements for the filing of such a
motion.” [Bennett, 119 F.3d] at 470. The district court
then is the second “gate” through which the petitioner

9
In re Morris, 328 F.3d at 741 (quoting Reyes-Requena v. United States, 243 F.3d 893,
899 (5th Cir. 2001) (King, C.J.) (quoting Bennett v. United States, 119 F.3d 468, 470 (7th Cir.
1997), and citing 28 U.S.C. § 2244(b)(4))).
17
 must pass before the merits of his or her motion are
heard.

. . . [T]he district court must conduct a “thorough”
review to determine if the motion “conclusively” demon-
strates that it does not meet AEDPA’s second or succes-
sive motion requirements [citation omitted].

Reyes-Requena, 243 F.3d at 899 (some brackets and ellipses in

original).

V.

In summary, I dissent because the panel majority has failed

properly to apply the AEDPA standard for determining whether a

prima facie case has been made. In its otherwise flawed opinion

issued almost a year ago, the panel majority accurately opined that

the evidence Hearn had presented (which included an affidavit from

Patton) was “certainly insufficient to establish a prima facie case

of mental retardation.” In re Hearn, 376 F.3d 447, 455. In the

intervening time, nothing of substance has been added to Hearn’s

“certainly insufficient” proffer. If anything, his presentation

has gone backward, for even with sufficient financial and temporal

resources he has presented only the brief reports of two experts

who are unable to say he is retarded, and the more detailed report

of a third person who is unqualified as a matter of Texas law to

opine on Hearn’s mental abilities.10

10
The special concurrence made a similar evaluation last year: “What little ‘evidence’ that
has been presented is equivocal and needs explanation. If the record before us is all that Hearn
(continued...)
18
 Yet, the panel majority seems intent, once again, on extending

this matter to yet another verse, to give Hearn “just one more

chance” to establish mental retardation in the face of a showing

that the majority admits is “slight.” I fully understand and

respect the panel majority’s diligence in making sure there is no

substance to Hearn’s new-found claim of disability. I only protest

that even in light of that sensitivity, it is our duty, as keepers

of the first “gate,” to call a halt and say “enough is enough” when

faced with a claim that plainly fails to make a prima facie case

under the requirements of AEDPA.11 Accordingly, I respectfully

dissent and place it into the hands of the district court to set

10
(...continued)
can produce before the district court with the assistance of a lawyer, I would quickly agree that it
falls far short of a prima facie showing.” In re Hearn, 376 F.3d at 458 (Higginbotham, J.,
concurring). No new admissible evidence that is substantial has been proffered.
11
Predictably the panel majority might respond that it is the chore of the district court, and
not this court, to do the final weighing in deciding whether a proper case is presented. We should
follow the lead of the panel in Johnson, which, in deciding that no prima facie case had been
established, carefully reviewed the petitioner’s presentation and opined that it was “insufficient to
suggest that further development of his claim has any likelihood of success under the Atkins
criteria.” Johnson, 334 F.3d at 404.

In reviewing again what was written last year by the various members of this panel, I now
question whether there was ever much attention to this court’s role as the first gatekeeper. In
other words, it may be that the panel majority always anticipated that leave would be granted to
file a successive habeas petition so that the district court could evaluate the facts in the first
instance. For example, the concurring judge reasoned as follows: “If there is nothing there, as
the dissent seems to know, the district court will so conclude. In the end I have more confidence
in facts decided by an Article III trial judge with competent counsel before him than those
determined on appeal by appellate judges.” In re Hearn, 376 F.3d at 459 (Higginbotham, J.,
concurring). This approach flies in the face of Johnson and seems to suggest that this court’s role
as the first gatekeeper is minimal, at best.
19
this matter straight.

20