United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 2, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-20806
In re MILTON WUZAEL MATHIS,
Movant.
Order on Motion for Leave to File Successive Writ
in the United States District Court
for the Southern District of Texas
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Milton Mathis seeks permission to file a successive habeas claim in federal district court based
upon Atkins v. Virginia, 536 U.S. 304 (2002). For the following reasons, we grant him permission
to file a successive federal habeas application.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 15, 1998, Chris Lentsch heard gunshots in his home and turned to see Mathis
exiting Travis Brown’s room with a gun in his hand. Mathis claimed that Brown had just shot
himself. Lentsch told Mathis to put the gun down, but Mathis shot fifteen-year-old Melanie
Almaguer in the head, leaving her alive but paralyzed from the neck down. Mathis then shot Daniel
Hibbard in the head, causing his death. Mathis finally pointed the gun at Esmerelda Lester,
whereupon he discovered he was out of bullets. Mathis thereafter rummaged through the house, set
fire to Brown’s room, threatened Lester and Lentsch, and finally left in Brown’s car. Mathis was
later apprehended and indicted.
Mathis was convicted and sentenced to death. The Court of Criminal Appeals affirmed his
conviction and sentence on direct appeal on February 13, 2002. Mathis’s first state petition for writ
of habeas was denied on April 3, 2002. Mathis filed his first federal habeas petition on April 3, 2003,
and it was denied on February 2, 2004. While his federal habeas petition was pending, Mathis filed
a successive state habeas claim on June 20, 2003, raising his Atkins claim for the first time. On March
3, 2004, the Court of Criminal Appeals dismissed Mathis’s Atkins application because he had not
shown that the federal court stayed its proceedings as required by Ex Parte Soffar, 143 S.W.3d 804
(Tex. Crim. App. 2004).
On February 17, 2004, Mathis filed a motion for reconsideration with the federal district court
and at the same time requested that the district court hold the case in abeyance pending the United
States Supreme Court’s decision in Atkins v. Virginia. The district court denied the motion on March
11, 2004, and Mathis appealed on April 8, 2004, seeking a COA, which the lower court denied.
Mathis then applied for a COA from this court on August 10, 2004, seeking a stay of the
federal proceedings so he could return to state court and raise his Atkins claim. This court denied
both Mathis’s application for a COA and his motion for a stay of execution on March 11, 2005.
Mathis then filed a successive habeas application in state court on April 15, 2005, also seeking a stay
of execution. The Court of Criminal Appeals granted the stay, and the case was remanded to the trial
court for consideration of Mathis’s Atkins claim.
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The state trial court held an evidentiary hearing in September of 2005, and on January 5,
2006, recommended that Mathis be denied habeas relief. The Court of Criminal Appeals adopted the
trial court’s findings and conclusions and denied relief on September 20, 2006. Mathis now seeks
to file a successive federal habeas petition raising his Atkins claim.
II. DISCUSSION
“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 applicant satisfies the
requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(C). Because Mathis is asserting an Atkins
claim, we must consider three elements of his prima facie case: “1) [whether] the claim[ ] to be
presented in the proposed successive habeas corpus application [has] not previously been presented
in any prior application to this Court; 2) [whether] the claim to be presented in the proposed
successive habeas application relies on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable . . . 3) and [whether] the
applicant should be categorized as ‘mentally retarded’ as defined in [Atkins and Penry v. Lynaugh,
492 U.S. 302 (1989)].” In re Morris, 328 F.3d 739, 740-41 (5th Cir. 2003) (internal citations
omitted). The Director concedes that Mathis’s claim satisfies the first two elements; the only issue
to be determined by this court is whether or not Mathis has presented a prima facie case that he is
mentally retarded.
A prima facie showing of mental retardation is made out in this context if Mathis makes “a
sufficient showing of possible merit to warrant a fuller exploration by the district court. . . . If . . . it
appears reasonably likely that the application satisfies the stringent requirement for the filing of a
second or successive petition, we shall grant the application.” Bennett v. United States, 119 F.3d
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468, 469-70 (7th Cir. 1997); see Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th Cir.
2001) (quoting Bennett). “[T]he state court findings concerning the Atkins claim are wholly
irrelevant to our inquiry as to whether [Mathis] has made a prima facie showing of entitlement to
proceed with his federal habeas application, which is an inquiry distinct from the burden that [Mathis]
must bear in proving his claim in the district court.” In re Wilson, 442 F.3d 872, 878 (5th Cir. 2006)
(emphasis in original). If we grant the motion, the district court must conduct its own independent
review of whether or not Mathis has met the requirements of § 2244(b). Morris, 328 F.3d at 741
(quoting Reyes-Requena, 243 F.3d at 899). The district court is, therefore, the “second gate through
which the petitioner must pass before the merits of his or her motion are heard.” Id. (internal
citations and quotations omitted).
Whether or not Mathis has made a prima facie showing of mental retardation must be judged
by the American Association on Mental Retardation’s (“AAMR”) definition and associated factors.
See AM. ASS’N ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION, CLASSIFICATION,
AND SYSTEMS OF SUPPORTS 5 (9th ed. 1992); see also Ex Parte Briseno, 135 S.W.3d 1 (Tex. 2004)
(noting additional factors for consideration). “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.” In re Hearn, 418 F.3d 444, 445 (5th
Cir. 2005) (citing the AAMR factors).
First, Mathis alleges that Dr. Gilda Kessner administered the Weschler Adult Intelligence
Scale (“WAIS”) test to him in 2005, and his score was 64, which placed him in the range of “mild
mental retardation.” Mathis also presented two other IQ tests, a Weschler Intelligence Scale for
Children-Revised (“WISC-R”) test given in 1991 on which he scored a 79 and another WAIS given
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in 2000, prior to the Atkins decision, on which he scored a 62. Typically, a person’s IQ must be
measured at 70 or below to qualify as mentally retarded. Hearn, 418 F.3d at 447 n.4.
Second, Mathis presented the affidavits of several lay witnesses who opined on Mathis’s
abilities in the so-called “adaptive skill areas.” Mathis alleges that he was placed in “special
education” classes in the eighth grade and failed the ninth grade. Additionally, Mathis notes his life-
long difficulties counting money and following simple commands. Lay witnesses testified to his poor
hygiene and odd sartorial habits. Finally, Mathis was noted to have difficulty forming social
relationships because of his reluctance to communicate and his gullibility. Lay witnesses also noted
their belief that Mathis was retarded. Based on all of the above, Mathis states that Dr. Kessner
diagnosed him with mental retardation, applying the AAMR criteria.
Mathis does not present any specific evidence beyond the foregoing that his retardation
manifested itself prior to the age of eighteen, as required by the AAMR. However, the lay testimony
detailed Mathis’s many problems during his childhood, similar to In re Henderson, 462 F.3d 413, 416
(5th Cir. 2006) & Morris, 328 F.3d at 741 (Higginbotham, J., concurring). Dr. Kessner’s diagnosis
of mental retardation under the AAMR indicates that she determined that Mathis’s onset was prior
to his eighteenth birthday.
The Director rebuts much of Mathis’s evidence with counter-evidence. First, the Director
notes that the IQ test given to Mathis in 1991, when he was below eighteen years of age, did not
place him in the range of mental retardation.1 The Director also notes that at the time of his
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The Director also responds to an argument that Mathis apparently made in his state Atkins
claim but does not specifically raise before this court that his score on the WISC-R must be adjusted
for the Flynn Effect. The Flynn Effect, which has not been accepted in this Circuit as scientifically
valid, In re Salazar, 443 F.3d 430, 433 n.1 (5th Cir. 2006), posits that, over time, the IQ scores of
a population rise without corresponding increases in intelligence and thus the test must be re-
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incarceration in 2000, Dr. Michael Gilhousen conducted an IQ test and an evaluation of Mathis and
did not diagnose mental retardation because of his belief that Mathis’s limitations stemmed from
heavy drug use and did not manifest themselves prior to Mathis’s eighteenth birthday. The Director
argues that Mathis’s later IQ test does not establish mental retardation without some showing of pre-
eighteen onset.
The Director argues that while Mathis’s academic record is “less than stellar,” many of his
problems were caused by poor attendance and discipline problems rather than mental retardation.
The Director also points out that much of Mathis’s lay testimonial evidence is contradictory and self-
serving at best. The Director contends that the vast differences in some of the witnesses’ testimony
at trial and at the Atkins hearing below render their opinions suspect. The Director also relies on
Mathis’s testimony at his trial, noting that it is coherent, indicates complex thought processes, and
demonstrates self-interest. Additionally, the Director points out that Mathis did not present any
evidence on the Briseno factors and argues that each of them weighs against a finding of mental
retardation.
Cases in which this court has denied a motion to file a successive habeas claim based on
Atkins usually involve sparse records, where no expert has diagnosed the movant with retardation.
In In re (Kia) Johnson, 334 F.3d 403 (5th Cir. 2003), Johnson presented only three pieces of
evidence: two letters from a forensic psychologist noting “areas of concern” and a seventh grade
transcript that showed his many failing grades. Id. at 404. This evidence was not enough to make
out a prima facie case of retardation. Id. Generally, having an expert testify that you are “at risk”
normalized over time. Because Mathis relies primarily on his IQ score on the test given by Dr.
Kessner in 2005, we will make our determination of his ability to make out a prima facie case based
on this score, while taking into account the existence of multiple measures of Mathis’s IQ.
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of mental retardation because of congenital factors, poverty, and abuse is not enough to support a
successive Atkins petition, In re Campbell, 82 Fed. Appx. 349, 351 (5th Cir. 2003), nor is presenting
a claim that your IQ test scores are flawed without presenting any affirmative evidence of the AAMR
factors, In re Salazar, 443 F.3d 430, 432-33 (5th Cir. 2006). However, having a psychiatrist testify
as to mental retardation provides significant, if not necessarily conclusive, prima facie support for an
Atkins claim. See generally Hearn, 418 F.3d 444; see also Salazar, 443 F.3d at 434 (noting that “no
professional who has ever personally evaluated Salazar has labeled him mentally retarded”).
The evidence in this case is similar to the evidence at issue in Henderson, 462 F.3d 413, in
which this court concluded that the petitioner had made a prima facie showing of mental retardation.
Henderson presented evidence that his IQ had been tested as 66, while the State presented an IQ test
on which he scored an 83. Id. at 415-16. Henderson presented lay testimony from several witnesses
about his special education classes, poor hygiene, strange dressing habits, and poor social skills, while
the State countered with testimony from prison officials about Henderson’s good vocabulary and
reading habits. Id. at 416-17. Neither party entered much evidence specifically on the point of pre-
eighteen onset. Id. at 417. Based on the above evidence and Henderson’s burden to show a prima
facie case, the court granted Henderson’s motion. Id.
In this case, both sides have expert opinions on whether or not Mathis is retarded based on
the available evidence, and there are varying measures of Mathis’s IQ. Additionally, while there is
extensive lay testimony in this case, the Director argues that much of it is contradictory. A prima
facie showing is only “a sufficient showing of possible merit to warrant a fuller [exploration] by the
district court.” Henderson, 462 F.3d at 415 (quoting Hearn, 418 F.3d at 445) (alteration in original).
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We conclude, using Henderson as a guide, that Mathis has presented enough evidence to this court
to warrant the district court’s considering his Atkins claim under the framework laid out in Reyes-
Requena. We note that the district court is free to reach its own conclusions on whether Mathis’s
motion “‘conclusively’ demonstrates that it does not meet AEDPA’s second or successive motion
requirements.” In re (Michael) Johnson, 322 F.3d 881, 883 (quoting Reyes-Requena, 243 F.3d at
899). We express no view on whether Mathis will or ultimately should prevail on his claim of
retardation.
We must also consider whether Mathis’s application was timely filed within the one-year
period of limitation allowed by the statute. 28 U.S.C. § 2244(d)(1). Unless Mathis is entitled to
equitable tolling, his successive federal habeas claim raising the Atkins issue, filed initially on
September 26, 2006, is well past the June 20, 2003 deadline.
When Mathis filed his application in state court raising his Atkins issue on June 20, 2003, the
very last day of the AEDPA limitations period on Atkins claims, the time for filing in federal court
was tolled for as long as his application was pending in the Texas courts. See Wilson, 442 F.3d at
874. “The Texas two-forum rule reasonably caused [Mathis] to delay filing a state habeas leaving
himself only one day after the state court ruling to obtain authorization and file a federal habeas
petition.” Id. at 878. Indeed, Texas’s modification of the two-forum rule was based on the
“problematic situation when the Supreme Court announces a ‘watershed’ procedural or substantive
change in the law which applies retroactively to all cases, even those on collateral review.” Soffar,
143 S.W.3d at 806 (mentioning Atkins specifically). “[B]ringing his Atkins claim in state court would
have required [Mathis] to abandon his initial federal habeas application and sacrifice permanently the
claims within it in.” Wilson, 442 F.3d at 876.
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However, based on the record in this case, it is unclear if equitable tolling is warranted. After
Mathis’s initial federal habeas application was denied on March 11, 2005, over a month passed before
Mathis filed his successive state habeas application raising his Atkins claim for the second time in state
court. While we recognize that Mathis’s situation is similar to others in which we have allowed
equitable tolling of the statutory limitation, see Wilson; In re Hearn, 376 F.3d 447 (5th Cir.), on
rehearing 389 F.3d 122 (5th Cir. 2004), we decline to address the issue in this case as neither party
has briefed the issue. Instead, we “leave it for the district court to decide whether [Mathis’s] case
presents the ‘rare and exceptional circumstances’ that would entitle him to the benefit of equitable
tolling.” Henderson, 462 F.3d at 417; see also Salazar, 443 F.3d at 434 n.2 (It is an open question
in this Circuit “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).”).
III. CONCLUSION
For the foregoing reasons, we grant Mathis’s motion to file a successive federal habeas claim.
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