                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                              Submitted May 1, 2007
                               Decided May 2, 2007

                                      Before

                         Hon. WILLIAM J. BAUER, Circuit Judge

                         Hon. MICHAEL S. KANNE, Circuit Judge

                         Hon. TERENCE T. EVANS, Circuit Judge

No. 07-1951
                                               Appeal from the United States
DAVID L. WOODS,                                District Court for the
    Petitioner-Appellant,                      Southern District of Indiana,
                                               Indianapolis Division.
      v.
                                               No. 07 C 411
ED BUSS, Superintendent,
     Respondent-Appellee.                      Larry J. McKinney, Chief Judge.


                                    ORDER

      Pending before the court is David Woods’ request for a Certificate of
Appealability, motion for Appointment of Counsel and motion for a Stay of Execution.
For the reasons set forth below, we grant his motion for Appointment of Counsel. We
deny Woods request for a Certificate of Appealability and his motion for a Stay of
Execution.

                                  I. HISTORY

       On April 7, 1984, David Woods stabbed to death a 77 year-old man in order to
steal $130 in cash and a television that Woods later resold for $20. Woods v.
McBride, 430 F.3d 813, 815-16 (7th Cir. 2005). Woods was convicted of murder and
No. 07-1951                                                                    Page 2

robbery and was sentenced to death. Id. at 816. His case proceeded through direct
and post-conviction review in the Indiana state courts. Id. (citing Woods v. State,
547 N.E.2d 772 (Ind. 1989); Woods v. State, 557 N.E.2d 1325 (Ind. 1990), cert denied
501 U.S. 1259 (1991) (affirming his conviction and sentence on direct review);
Woods v. State, 701 N.E. 1208 (Ind. 1998), cert. denied 528 U.S. 861 (1999)
(affirming denial of post-conviction relief)). The case arrived at federal court in
April 1999 for habeas review pursuant to 28 U.S.C. § 2254. Id. The district court
denied habeas relief, we affirmed that decision, we denied Woods’ petition for
rehearing and rehearing en banc, and the Supreme Court denied his petition for a
Writ of Certiorari. Woods v. McBride, 430 F.3d 813 (7th Cir. 2005), cert. denied, 127
S. Ct. 391 (2006).

      Woods then brought a successive petition for post-conviction relief in the
Indiana state courts. Woods v. State, 863 N.E.2d 301 (Ind. 2007). He argued that
he could not be executed because he is mentally retarded (and he also argued about
a dispute with his attorney but this second issue about his attorney is not relevant
because Woods only argues the mental retardation issue before us). Id. at 302. The
Indiana Supreme Court rejected Woods’ claims in its March 26, 2007 decision. Id.
at 308.

       On April 2, 2007, Woods returned to the federal court seeking to stop his
execution. The district court dismissed Woods’ petition for want of jurisdiction on
April 20, 2007 pursuant to 28 U.S.C. § 2244(b)(3)(A) because Woods had not
received authorization from the court of appeals to file a second and successive
petition. Woods filed his notice of appeal on April 25, 2007 and the district court
denied his motion for a certificate of appealability on April 27, 2007. Woods filed
his present motion before this court on April 30, 2007. Woods is scheduled to be
executed on May 4, 2007 at 12:01 A.M.

                                   II. ANALYSIS

      A. Appointment of Counsel

       Circuit Rule 22(a)(3) states that “appellate counsel shall be appointed for any
person under a sentence of death who is financially unable to obtain representation,
requests that counsel be appointed, and does not already have counsel appointed by
the state.” Woods counsel from the district court requests to be appointed as his
appellate counsel and they represent that Woods is indigent. We have granted the
request for appointment of counsel by separate order.

      B. Certification of Appealability

       Woods seeks a certificate of appealability on the issue of “whether Woods’
petition must be dismissed as a ‘successive Petition.’” Apr. 30, 2007 Motion before
No. 07-1951                                                                     Page 3

the Seventh Circuit at pg. 3. Woods is attacking his sentence of death by arguing
that he cannot be executed because he is mentally retarded. This issue has been
fully litigated by the Indiana State courts in Woods v. State. 863 N.E.2d 301 (Ind.
2007). Therefore, Woods seeks habeas relief and so our analysis is controlled by the
AEDPA. See Hill v. McDonough, 126 S. Ct. 2096, 2101 (2006) (explaining the
difference between habeas relief governed by the AEDPA and § 1983 relief).

       Woods’ previous habeas petition did not raise the issue of whether he can be
executed due to mental retardation. The district court properly determined that
Woods seeks to bring a “second or successive” petition raising the mental
retardation issue, this second petition was governed by the requirements of 28
U.S.C. § 2244(b), and therefore Woods’ petition was dismissed by the district court
for want of jurisdiction because he had failed to obtain prior approval from the court
of appeals to bring a “second or successive” petition. See Burton v. Stewart, 127 S.
Ct. 793, 796 (2007). The dismissal of Woods’ petition for want of jurisdiction is a
final order and therefore we must consider Woods’ present request for a certificate
of appealability. See United States v. Carraway, 478 F.3d 845, 848 (7th Cir. 2007).

      To obtain a certificate of appealability, the application must make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
Tennard v. Dretke, 542 U.S. 274, 282 (2004); Watson v. Hulick, 481 F.3d 537, 543
(7th Cir. 2007). This means that “reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal
quotations and citations omitted); Rodriguez v. United States, 286 F.3d 972, 978
(7th Cir. 2002).

       We conclude that we must deny Woods’ request for a certificate of
appealability on both procedural and substantive grounds. Woods’ habeas petition
is limited by the one-year statute of limitations contained in 28 U.S.C. § 2244(d).
The controlling provision for statute of limitations purposes for Woods is 28 U.S.C. §
2244(d)(1)(C), which holds that he has one year to file a habeas petition based on a
newly recognized constitutional right made retroactively applicable by the Supreme
Court to collateral review. The right of mentally retarded defendants to be free
from execution was made retroactively applicable to cases on collateral review by
the Supreme Court in Penry v. Lynaugh, 492 U.S. 302, 330 (1989), although the
underlying right was not recognized until the Supreme Court’s decision in Atkins v.
Virginia, 536 U.S. 304 (2002). See Davis v. Norris, 423 F.3d 868, 879 (8th Cir.
2005). Thus, the controlling date for statute of limitations purposes was the date of
the Supreme Court’s Atkins decision, June 20, 2002. Woods would not bring his
mental retardation habeas claim until almost five years later. Regardless of what
small amount of tolling occurred for the time that Woods’ mental retardation claim
was before the state court, see 28 U.S.C. § 2244(d)(2), (and the pending of his
No. 07-1951                                                                      Page 4

original habeas petition in federal court does not toll the one year clock, Dolis v.
Chambers, 454 F.3d 721, 723 (7th Cir. 2006) (citing Duncun v. Walker, 533 U.S.
167, 180 (2001)), Woods clearly has not brought his petition within the one year
limitations period required under the statute.

        It is true that Woods’ original habeas petition was filed in federal court in
1999 and was pending before the district court in 2002. However, this is not a
situation of a petitioner facing an untenable choice of either adding an unexhausted
claim to his already state exhausted claims in his original habeas petition or
running into the statute of limitations. See Dolis, 454 F.3d at 723-25. Instead, as
the state notes in its response to Woods’ pending motion, “one of [Woods] arguments
in his first habeas petition ... was that his trial counsel incorrectly suggested to the
jury that Woods may be mentally retarded.” Buss Resp. of May 1, 2007 at pg. 3.
Thus, it is fair to conclude that Woods did not add the mental retardation issue to
his first habeas petition because he made a strategic choice.

       Furthermore, as a substantive matter, Woods has failed to make a prima
facie showing that he is mentally retarded and therefore the rule from Atkins is not
applicable to his case. See In re Mathis, – F.3d –, No. 06-20806, 2007 WL 958637, at
*2 (5th Cir. Apr. 2, 2007); In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003); see
also Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997) (“By ‘prima facie
showing’ we understand ... simply a sufficient showing of possible merit to warrant
a fuller exploration by the district court.”). As the Indiana Supreme Court
determined:

      Woods has been the subject of a substantial amount of examination
      and testing; the record already contains documentation about his
      mental status. ... Despite considerable resources already having been
      spent to investigate Woods’ mental status, Woods is not identified as
      mentally retarded in any of these sources or by his own experts. ...
      Having reviewed the documentation cited by the parties, we conclude
      the record does not contain a reasonable possibility that Woods’s
      intellectual functioning puts him in a class of persons who are
      considered mentally retarded.

Woods v. State, 863 N.E.2d 301, 304-05 (Ind. 2007). The Indiana Supreme Court
went onto explain that although IQ tests are not definitive on the issue, Woods has
continually tested in the 70s, 80s, or 90s on IQ tests during his lifetime. Id. 305-06.
Woods has provided us no reason to refute the conclusion of the Indiana Supreme
Court.

       Finally, Woods notes that the Supreme Court issued an order seeking
additional briefing on Panetti v. Quaterman, on the issue of whether the case should
be dismissed as a second or successive habeas petition. – S. Ct. –, No. 06-6407,
No. 07-1951                                                                   Page 5

2007 WL 957524 (Apr. 2, 2007). We do not see how any resolution in Panetti can
alter the outcome in this case.

      C. Request for Stay

      “A stay of execution pending the resolution of a second or successive petition
for habeas corpus should be granted only when there are ‘substantial grounds upon
which relief might be granted.” Garza v. Lappin, 253 F.3d 918, 920-21 (7th Cir.
2001) (quoting Delo v. Stokes, 495 U.S. 320, 321 (1990)). We see no reason to stay
the execution and therefore deny Woods’ motion.

      We are mindful of the Supreme Court’s instruction that “there is a strong
equitable presumption against the grant of a stay where a claim could have been
brought at such a time as to allow consideration of the merits without requiring
entry of a stay.” Nelson v. Campbell, 541 U.S. 637, 650 (2004).

                               III. CONCLUSION

     Appellant Woods’ April 30, 2007 request for a Certificate of
Appealability is DENIED. Appellant Woods’ April 30, 2007 motion for a Stay of
Execution is DENIED.
