                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                           Revised July 1, 2003
                                                                    June 10, 2003
                     UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                Charles R. Fulbruge III
                         _______________________                       Clerk

                              No. 03-50620
                        _______________________


                       IN RE: KIA LEVOY JOHNSON,

                                                                      Movant

________________________________________________________________

               On Motion for Authorization To File
      Successive Petition for Writ of Habeas Corpus in the
             United States District Court before the
                    Western District of Texas
________________________________________________________________



Before JONES, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:

            Kia Levoy Johnson has moved this court for permission to

file a Successive Petition for Writ of Habeas Corpus in the United

States District Court for the Western District of Texas.                    He

alleges that he has made a prima facie showing that his application

satisfies the requirements of 28 U.S.C. § 2244(b)(3)(C), the

provision    authorizing   successive     petitions.    We   disagree      and

therefore deny the motion and his request for stay of execution.

            In In re Morris, 328 F.3d 739, 740-41 (5th Cir. 2003),

this court recently and relevantly explained that a prima facie

showing embodies the characteristics that (1) a petitioner’s claims

in   a   proposed   successive   habeas   corpus   application    have     not
previously been presented in any prior application to this court;

(2) the claim to be presented relies on Atkins v. Virginia, 536

U.S. 304, 122 S. Ct. 2242 (2002), a decision that stated a new,

retroactively       applicable        rule    of    constitutional         law   that   was

previously unavailable to the petitioner; and (3) the applicant

could   be      categorized        as    “mentally            retarded”      within     the

understanding of Atkins and Penry v. Lynaugh, 492 U.S. 302, 109 S.

Ct. 2934 (1989).

              Measured by these standards, Johnson’s motion must fail.

We conclude that Johnson’s application does not state a prima facie

case of mental retardation under Atkins, which this court stated is

“simply a sufficient showing of possible merit to warrant a fuller

explanation by the district court. . .”                    In re Morris, 328 F.3d at

740 (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th

Cir. 1997)).        In support of his application, Johnson attaches two

letters of a forensic psychologist, both dated within two weeks of

these events.       These letters refer to “multiple areas of concern,”

a   prior     evaluation        that    “did       not     clearly        reflect    mental

incapacitation,” a “belief” that Johnson’s verbal intelligence

level   may    be    as   low    as    62-65       and   as    high   as    72-75.      The

psychologist recommends further testing.                      The only evidence that

Johnson’s     condition     existed      in      his     youth   is   a    seventh    grade

transcript from the mid-1970s, which reflects that he failed all




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his academic courses that year, while passing in PE, Band and

Health with B’s and C’s.

           Atkins cites definitions of mental retardation from the

American   Association   of    Mental   Retardation   and   the   American

Psychiatric Association.      Atkins, 536 U.S. 304, 309 n.3 and 22, 122

S. Ct. at 2245 n.3 and 22.       The Court explicitly noted, however,

that “[n]ot all people who claim to be mentally retarded will be so

impaired as to fall within the range of mentally retarded offenders

about whom there is a national consensus.”      Id. at 317, 122 S. Ct.

at 2250.   We are persuaded that the two letters and seventh grade

transcript offered by Johnson are simply insufficient to suggest

that further development of his claim has any likelihood of success

under the Atkins criteria.

           Johnson’s application also asserts that he was entitled

to a judge and/or jury determination of mental retardation pursuant

to the Court’s recent decisions in Ring v. Arizona, 536 U.S. 584

(2002) and Apprendi v. New Jersey, 530 U.S. 466 (2000), read

together with Atkins, supra.        Johnson’s substantive contention

fails because neither Ring and Apprendi nor Atkins render the

absence of mental retardation the functional equivalent of an

element of capital murder which the state must prove beyond a

reasonable doubt.    See Ring, 536 U.S. at 609 (noting that jury

finding required by the Sixth Amendment for aggravating factors

that operate as "the functional equivalent of an element of a

greater offense").   As the state points out, the absence of mental

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retardation is not an element of the sentence any more than sanity

is an element of an offense.1

           Further, the Court in Atkins explicitly stated that it

left “to the States the task of developing appropriate ways to

enforce   the    constitutional   restriction   upon   its   execution   of

sentences.”     Atkins, 536 U.S. 317, 122 S. Ct. at 2250 (quoting Ford

v. Wainwright, 477 U.S. 399, 405 (1986)).              In light of this

direction by the Supreme Court, it would be wholly inappropriate

for this court, by judicial fiat, to tell the States how to conduct

an inquiry into a defendant’s mental retardation.

           For     the   foregoing   reasons,    the    application      for

authorization to file a successive habeas petition and the motion

for stay of execution are DENIED.




EDITH H. JONES, Circuit Judge, concurring:

     1
      Although we need not reach the issue, we question whether
Johnson’s claims based on Ring are available to him on collateral
review. This court has held that Apprendi did not announce a new
rule of substantive law and is not retroactively applicable to
convictions that became final before the decision was announced.
United States v. Brown, 305 F.3d 304, 309 (5th Cir. 2002), cert.
denied, 123 S. Ct. 1919 (2003); see also Teague v. Lane, 489 U.S.
288 (1989). Since the rule in Ring is essentially an application
of Apprendi, logical consistency suggests that the rule announced
in Ring is not retroactively available. See Ring, 536 U.S. at 620-
21 (O’Connor, J., dissenting)(Ring’s impact would be lessened by
Teague’s non-retroactivity principle).

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          In addition to the reasons stated by the panel, I would

also hold that Johnson’s Atkins claim is procedurally barred.         The

Texas Court of Criminal Appeals held that his application seeking

relief   pursuant   to   Atkins   “fails   to   satisfy   the    pleading

requirement imposed by [Texas Code Crim. Proc.] art. 11.071, § 5(a)

. . .”, and the court accordingly dismissed it as an abuse of the

writ under state law.      That decision by Texas’s highest court

states an adequate and independent state ground that bars federal

habeas review absent a showing of cause and prejudice.          Coleman v.

Thompson, 501 U.S. 722, 729 (1991); Barrientes v. Johnson, 221 F.3d

741, 758-59 (5th Cir. 2000).      Johnson has provided no reason why

federal courts are not bound by the procedural bar rule to deny him

federal habeas relief.    Hence, Johnson’s application for leave to

file a successive habeas petition does not make a prima facie case

in his favor.




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