United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 23, 2006
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 06-40320
_____________________
In Re: JAMES LEE HENDERSON,
Movant.
_________________________________________________________________
Motion for Authorization to File Successive
Application for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254
_________________________________________________________________
Before JOLLY, WIENER, and GARZA, Circuit Judges.
PER CURIAM:
Texas death row inmate James Lee Henderson has applied for our
authorization to file a successive application for a writ of habeas
corpus in the district court.1 He seeks to challenge his death
sentence pursuant to the Supreme Court’s decision in Atkins v.
Virginia, 536 U.S. 304 (2002), which prohibits the execution of
mentally retarded criminals.
I
Nearly thirteen years have passed since, during the course of
a robbery, Henderson deliberately shot 73-year-old Martha Lennox in
the head while she was in the bedroom of her home. Henderson was
convicted of capital murder and sentenced to death in 1994. His
conviction and sentence were affirmed on direct appeal. In 1997,
he filed an application for state habeas relief, which the Texas
1
Henderson’s motion for appointment of counsel is granted.
Court of Criminal Appeals denied in July 1998. He filed a second
state habeas application on December 31, 1998. That application
was dismissed as an abuse of the writ.
Henderson filed a petition for federal habeas relief in
January 1999. The district court conducted an evidentiary hearing
in March 2001, and denied relief that September.
On June 20, 2002, while Henderson’s appeal to this court was
pending, the Supreme Court decided Atkins.
In June 2003, this court denied a certificate of appealability
and affirmed the district court’s denial of habeas relief.
Henderson filed a petition for a writ of certiorari. The Supreme
Court denied certiorari on January 26, 2004.
On January 16, 2004, before the petition was denied, Henderson
was evaluated by a psychologist, Dr. Susana Rosin. Dr. Rosin did
not complete her report until March 19, 2004 and, five days later,
Henderson filed another successive state habeas application,
raising his claim under Atkins.
On April 21, 2004, the Texas Court of Criminal Appeals issued
an order remanding the case to the trial court. The appeals court
stated that it had reviewed the application and found that
Henderson had presented facts which, if true, might entitle him to
relief. On remand, the trial court conducted a hearing and entered
findings of fact and conclusions of law, recommending that
Henderson’s Atkins claim be denied.
2
On January 25, 2006, the Texas Court of Criminal Appeals
denied relief. In a concurring statement, four judges of the court
observed that this “case presents a close question on the ultimate
factual issue of mental retardation.” The statement noted that the
court had remanded the case to the trial court “for an evidentiary
hearing because [Henderson] had made a prima facie showing of
mental retardation.”
On March 6, 2006, Henderson filed with this court his motion
for authorization to file a successive federal habeas petition.
II
Under AEDPA, this court may authorize the filing of a
successive petition 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).
Thus, Henderson
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) that he is
mentally retarded.
In Re Hearn, 418 F.3d 444, 444-45 (5th Cir. 2005). The State
concedes that Henderson has satisfied the first two requirements --
his Atkins claim has not been presented in a prior habeas
application, and Atkins is a new, retroactively applicable rule of
constitutional law that was previously unavailable. The disputed
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issue is whether Henderson 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. 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.
Hearn, 418 F.3d at 445 (internal quotations and citations omitted).
If it is “reasonably likely” that the motion and supporting
documents indicate that the application meets the “stringent”
requirements for the filing of a successive petition, then we must
grant authorization to file the petition. In re Morris, 328 F.3d
739, 740 (5th Cir. 2003). “[T]he state court findings concerning
the Atkins claim are wholly irrelevant to our inquiry as to whether
[Henderson] has made a prima facie showing of entitlement to
proceed with his federal habeas application, which is an inquiry
distinct from the burden that [Henderson] must bear in proving his
claim in the district court.” In re Wilson, 442 F.3d 872, 878 (5th
Cir. 2006).
A
Henderson argues that he has shown (1) intellectual testing
fixing his IQ at 66, which demonstrates subaverage intellectual
functioning; (2) significant limitations in several adaptive
skills; and (3) onset before age 18. In support of his motion,
Henderson presented Dr. Rosin’s affidavit and excerpts from the
4
transcript of the state court’s evidentiary hearing on his Atkins
claim.
According to Dr. Rosin, Henderson’s Full Scale IQ score is 66,
which is within the Mild Mentally Retarded range. She concluded
that this IQ score is consistent with the results from other
diagnostic tests that she administered, including the Trail Making
Test, which indicated that Henderson is in the mildly impaired
range, and the Wide Range Achievement Test-3, which showed a
seventh grade equivalent in reading and spelling, and a fifth grade
equivalent for arithmetic. At the hearing, Dr. Rosin testified
that, according to records dating to April 1992, when Henderson was
19 years old, he had a grade equivalent reading level of 4.9 and a
mathematics grade equivalent of 4.4.
Three lay witnesses testified for Henderson at the state
hearing. Reverend Milton Glass, who taught at Henderson’s
elementary school, testified that Henderson was in special
education, that his grooming and dress were not age-appropriate,
and that he had difficulty with social interaction, that he had low
self-esteem, and that he was very gullible. Two of Henderson’s
classmates testified that Henderson’s hygiene was not age-
appropriate, that he often came to school smelling like urine, that
his verbal skills were delayed, and that he had low self-esteem and
was very gullible. Based on Henderson’s scores on the Vineland
Adaptive Behavior Scales, designed to assess communication,
personal and social sufficiency, Dr. Rosin concluded that
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Henderson exhibited a “low” adaptive level of functioning, with age
equivalent scores ranging between seven years-six months and eleven
years. It was Dr. Rosin’s expert opinion that Henderson has
adaptive behavior deficits in self-direction, work skills, safety
and academic skills.2
Finally, Dr. Rosin testified that, because there was no
evidence that Henderson suffered from any accident or illness after
age 18 that would account for a recent drop in his IQ scores, it
was her opinion that he has functioned within the mildly mentally
retarded range since he was very young. She also testified that
his adaptive behavior deficits existed before he was 18 years old.
B
The State argues that Henderson has failed to make a prima
facie case of subaverage intellectual functioning.3 According to
the State, Steve Gilliland, a licensed professional counselor for
the Texas Department of Criminal Justice, testified at the state
evidentiary hearing that he did an intake assessment of Henderson
in 1994, and that Henderson scored an 83 on the short form of the
Wechsler Adult Intelligence Scale - Revised (“WAIS-R”).
2
According to Dr. Rosin, a diagnosis of mental retardation
requires the demonstration of adaptive deficits in at least two of
the following areas: communication, self-care, home living,
social/interpersonal, use of community resources, self-direction,
work skills, functional academic skills, health and safety.
3
Neither party furnished this court with a complete transcript
of the state evidentiary hearing. Henderson’s motion includes
selected excerpts. The State’s response describes testimony that
it presented, but does not include excerpts of the transcript.
6
The State also points to the testimony of Dr. Michael
Gillhausen, a licensed psychologist, who testified that the
reliability of the short form WAIS-R is 94%, which would allow a
reliable conclusion that Henderson’s IQ would fall within the range
from 76-90. Dr. Gillhausen noted that Henderson had scored at the
seventh grade level on achievement tests given by Dr. Rosin, but
that in his experience, the mildly mentally retarded usually cannot
score above the sixth grade level.
According to the State, the state trial court found that Dr.
Rosin’s assessment was less credible than those of Dr. Gillhausen
and Gilliland, because Dr. Rosin’s tests were administered after
Henderson knew that his life would be spared if he were mentally
retarded.
The State also contends that Henderson has not made a prima
facie showing of significant deficits in adaptive functioning.
According to the State, Dr. Gillhausen testified that, based on his
review of grievance forms that Henderson prepared while he was in
prison, Henderson had a very good vocabulary and an ability to form
concepts and comprehend procedures and rules. The State also
introduced prison records reflecting that Henderson had ordered
paperback and hardcover books, and had copies of Tom Clancy and
Stephen King novels in his cell. The State asserts that Creea
Impson, Henderson’s juvenile intake probation and parole officer,
testified that during the time she supervised him prior to the
capital murder, Henderson was not a follower, was always aware of
7
what he was doing and why he did it, and wrote rational letters of
restitution to his crime victims.
Finally, the State asserts that Henderson failed to make a
prima facie showing that his alleged mental retardation onset
before age 18.
As we noted earlier, neither party presented us with a
complete transcript of the testimony presented at the state court
hearing. Henderson offered selected excerpts supporting his claim
of retardation, but the State did not provide any evidence to
support the assertions in its brief. Based on the limited
materials available to us, we conclude that Henderson has made a
prima facie showing of mental retardation. We therefore grant his
motion for authorization to file a successive habeas petition.
III
We note that, unless the doctrine of equitable tolling
applies, Henderson’s successive petition is time-barred. See 28
U.S.C. § 2244(d)(1). Although the parties have briefed that
question, we have concluded that, under the circumstances of this
case, it is premature for us to address it. We therefore leave it
for the district court to decide whether Henderson’s case presents
the “rare and exceptional circumstances” that would entitle him to
the benefit of equitable tolling. See In re Hearn, 389 F.3d 122
(5th Cir. 2004); In re Wilson, 442 F.3d 872, 878 (5th Cir. 2006);
In re Salazar, 443 F.3d 430 (5th Cir. 2006).
IV
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For the foregoing reasons, Henderson’s motion for
authorization to file a successive federal habeas petition is
GRANTED.
9