                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                                                                       April 15, 2003

                UNITED STATES COURT OF APPEALS                   Charles R. Fulbruge III
                     For the Fifth Circuit                               Clerk



                                No. 03-20373


                    IN RE:      KENNETH WAYNE MORRIS,

                                                                     Applicant,

         -------------------------------------------
                              ORDER
            AUTHORIZING THE DISTRICT COURT TO CONSIDER
              A SUCCESSIVE HABEAS CORPUS APPLICATION
                 AND GRANTING A STAY OF EXECUTION
           -------------------------------------------

Before HIGGINBOTHAM, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:

       Kenneth Wayne Morris(hereinafter “Applicant”) has moved

this Court for permission to file a successive petition for writ

of habeas corpus in the United States District Court for the

Southern District of Texas, Houston Division.             The authority of

this   Court   to    act   on    such   motion   is   stated    in    28   U.S.C

§2244 (b)(3)(C) as follows:

       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.

       In Reyes-Requena v. United States, our Court followed the

Seventh Circuit’s definition of prima facie showing explained

in its opinion in Bennett v. United States as follows:
           Our court has adopted the following definition
      of prima facie showing: We understand [it to] be
      simply a sufficient showing of possible merit to
      warrant a fuller exploration by the district
      court....   If in light of the documents submitted
      with the application 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 468, 469-70 (7th Cir. 1997);

see Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th

Cir. 2001) (quoting Bennett). W e h a v e c a r e f u l l y r e v i e w e d

Applicant’s    motion   and   the   documents    appended   as   exhibits

thereto and the Response filed by the State.                We find that

Applicant has made a prima facie showing that:

      (1)   the claims to be presented in the proposed
      successive habeas corpus application have not
      previously been presented in any prior application to
      this Court;

      (2)   the claim to be presented in the proposed
      successive habeas corpus application relies on a new
      rule of constitutional law, made retroactive to cases
      on collateral review by the Supreme Court, that was
      previously unavailable, see Penry v. Lynaugh, 492
      U.S. 302, 109 S. Ct. 2934 (1989) and Atkins v.
      Virginia,536 U.S. 304, 122 S. Ct. 2242 (2002); and

      (3) applicant should be categorized as              “mentally
      retarded” as defined in these cases.


Accordingly, we authorize Applicant to file a successive habeas

corpus petition with the district court.                This grant is,

however, “‘tentative in the following sense: the district court


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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 then is the second

‘gate’ through which the petitioner must pass before the merits

of his or her motion are heard.” Reyes-Requena, 243 F.3d at 899

(quoting    Bennett,   119   F.3d   at   470);   see   also   28   U.S.C.

§ 2244(b)(4).    The district court “must conduct a ‘thorough’

review to determine if the motion ‘conclusively’ demonstrates

that it does not meet AEDPA’s second or successive motion

requirements.”    Reyes-Requena, 243 F.3d at 899 (citing United

States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000)).

        Applicant has also moved this Court for a stay of his

execution now set for after 6:00 p.m. on Tuesday, April 15,

2003.    We see nothing upon which we could determine that “the

granting of the stay would substantially harm other parties,”

including the State of Texas.       Furthermore, we think Applicant

has made a sufficient showing of likelihood of success on the

merits that the public interest would be served by granting the

stay.     Accordingly, Applicant’s execution now scheduled for

after 6:00 p.m. on Tuesday, April 15, 2003, is hereby stayed

pending final determination of the successive habeas petition

whose filing we have authorized herein.


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PATRICK E. HIGINBOTHAM, Circuit Judge, concurring:

     I join in the grant of permission to file a successive writ

because   there    is   here   enough   merit   to   warrant    further

exploration   by the district court.      I am confessedly dubitate

on that point, but I am persuaded to join given the “tentative”

process this court had borrowed from the Seventh Circuit.            See

Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997),

and Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th

Cir. 2001).

     There is a conflict between the family’s description of

Morris’s impairment in his childhood and school days and “other”

evidence in this record, and we have no I.Q. test.       As the brief

of the Harris County District Attorney’s office ably points out,

the testifying expert at Morris’s trial did not think that he

was retarded.     On the other hand, that had not been his focus.

And the trial psychologist never tested for mental retardation.

While now vital school records, scant as they are, do not use

the term “retarded,” that is not worth much, given the wide

practice of social promotions and the reluctance of school

officials’ use of the stigmatizing term “retarded.”            There are

more uncertainties.      The family offers unqualified assertions

that Morris could not read and write, but that evidence is cast


                                   4
in doubt by records in the file purporting to be in his writing

and reflecting an ability to read.

     It is difficult to make informed judgments without the

development of the facts in some form of hearing.         While

skeptical of Morris’s ability to do so at a hearing, I will not

dissent from an order allowing the district court to make a more

informed judgment than is available to us, as a second gate to

leave to file a successive writ.




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