                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                          UNITED STATES COURT OF APPEALS
                               For the Fifth Circuit                                  March 30, 2007

                                                                                 Charles R. Fulbruge III
                                                                                         Clerk
                                        No. 06-11356




               In Re: KENNETH WAYNE THOMAS

                                            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
                         Dallas Division


Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

       Texas death row inmate Kenneth Wayne Thomas (“Thomas”) has

applied for our authorization to file a successive application for

a writ of habeas corpus in the district court.                                  He seeks to

challenge his death sentence pursuant to the Supreme Court’s

decision in Atkins v. Virginia,1 which prohibits execution of

mentally retarded criminals.

       Sometime between the evening of March 15, 1987 and the morning

of March 16, 1987, Thomas murdered Mildred Finch in the course of



       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
       1
        536 U.S. 304 (2002).
burglarizing her home in Dallas, Texas.           Thomas was convicted on

September 2, 1987 and received a death sentence.               The Texas Court

of Criminal Appeals (“TCCA”) affirmed his conviction and sentence

on June 8, 1994.      In 1997, he filed an application for state habeas

relief, which the TCCA denied in 1999.

     In   July   of   2000,   Thomas   filed    his    first   federal   habeas

petition which was denied in October 2001.            We denied a Certificate

of Appealability in November 2002.          On April 14, 2003, Thomas’s

petition for writ of certiorari was denied by the United States

Supreme Court.

     On June 20, 2002, after Thomas filed his first federal habeas

petition, the Supreme Court decided Atkins.

     On May 23, 2003, Thomas filed a successive state habeas

application, challenging his sentence on the basis of his alleged

mental retardation.       Following an evidentiary hearing, the trial

court recommended that Thomas’s claim be denied and, on December

13, 2006, the Texas Court of Criminal Appeals adopted the trial

court’s findings of fact, denied relief, and vacated the stay of

execution that it had entered in 2003.

     On   December      19,   2006,    Thomas    filed     this   motion   for

authorization to file a successive federal habeas petition.

                                       I.

     Under the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”), we may authorize the filing of a successive petition



                                       2
only if we determine that “the application makes a prima facie

showing that the application satisfies the requirements of [28

U.S.C. § 2244(b)].”2           Thus, because Thomas bases his application on

Atkins, 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.3                            “[T]he state

court findings concerning the Atkins claim are wholly irrelevant to

our inquiry as to whether [Thomas] has made a prima facie showing

of entitlement to proceed with his federal habeas application,

which is an inquiry distinct from the burden that [Thomas] must

bear in proving his claim in the district court.”4

      The    State      concedes      that     Thomas     satisfies        the     first   two

requirements,        that      is,   his     Atkins     claim       was   not     previously

presented in any prior application to this court, and Atkins

represents a new, retroactively applicable rule of constitutional

law that was previously unavailable.                    Therefore, the issue before

this court is whether Thomas has made a prima facie showing that he

is   mentally      retarded.          A    prima     facie     showing      is     “simply   a

sufficient       showing       of    possible       merit      to    warrant       a   fuller


      2
       28 U.S.C. § 2244(b)(3)(C).
      3
       See In re Johnson, 334 F.3d 403, 404 (5th Cir. 2003).
      4
       In re Wilson, 442 F.3d 872, 878 (5th Cir. 2006) (emphasis in original).

                                               3
exploration by the district court.”5                           If we determine that it

appears       “reasonably       likely”       that       the    motion     and    supporting

documents      indicate       that    the     application         meets    the    “stringent

requirement” for the filing of a successive petition, then we must

grant authority to file it.6

       Mental retardation is a disability characterized by three

criteria:       (1)     significantly          subaverage         general        intellectual

functioning, usually defined as an IQ of about 70 or below; (2)

accompanied by related limitations in adaptive functioning; (3) the

onset of which occurs prior to the age of 18.7

       We are persuaded that Thomas’s Atkins claim has sufficient

possible merit to warrant further exploration by the district

court.

       In his application, in addition to affidavits from friends and

family, Thomas relies on the testimony of Dr. Gilda Kessner and Dr.

Richard       Garnett     who    both     concluded        that    Thomas        is   mentally

retarded.      Dr. Kessner administered an IQ test to Thomas in 2003 in

which Thomas scored a 67.                    Based on this score, Dr. Kessner

concluded       that      Thomas      meets        the     standard       for    significant


       5
        In re Morris, 328 F.3d 739, 740 (5th Cir. 2003).
       6
        Id.
       7
        In re Salazar, 443 F.3d 430, 432 (5th Cir. 2006). Texas courts addressing Atkins claims
have followed the definition of mental retardation adopted by the American Association on
Mental Retardation (“AAMR”) and the almost identical definition contained in section
591.003(13) of the Texas Health & Safety Code. See Ex parte Briseno, 135 S.W.3d 1, 7-8 (Tex.
Crim. App. 2004).

                                               4
limitations         in     intellectual           functioning,          the      first      mental

retardation criteria cited above.                          Dr. Kessner further testified

that score inflation explains why Thomas achieved higher scores on

two previously administered IQ test (a 75 and a 77 respectively).8

       Dr. Garnett provided testimony regarding the two remaining

mental      retardation         criteria.             He    concluded      that      Thomas      has

significant limitations in adaptive behavior which had occurred

before age 18 as demonstrated by his limitations in the areas of

functional academics and social skills.                            Dr. Garnett based his

conclusions on a review of Thomas’s various test scores, school

records, TDCJ records, and the affidavits of relatives.

       Because Thomas has made a prima facie showing of mental

retardation, we grant his motion for authorization to file a

successive habeas petition.                 This grant is, however, “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 . . . .

The district court must conduct a thorough review to determine if


       8
         The defendant cites the work of James R. Flynn, Ph.D. which concludes that the rise in
general IQ scores of a population are attributable to the use of testing procedures outdated by
societal changes and advances. Flynn’s theory advocates for the periodic re-normalization of IQ
test standard deviations to compensate for inflation and that .3 IQ points is deducted from IQ test
scores for every year that has passed since a test was last normed. Applying Flynn’s theory to the
two previous IQ tests administered to Thomas would reduce the 75 IQ score by two points, to a
full scale score of 73, and would reduce the 77 score to by 10 points, resulting in a full scale score
of 67.

                                                  5
the motion conclusively demonstrates that it does not meet AEDPA’s

second or successive motion requirements.”9                      We express no opinion

on the merits of Thomas’s substantive claim that he is mentally

retarded.

                                             II.

     Accordingly, Thomas’s motion for authorization to file a

successive federal habeas petition is GRANTED.

GRANTED.




     9
      See In re Morris, 328 F.3d at 741 (internal citations and quotations omitted).

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