                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                         REVISED JUNE 2, 2006
                                                            March 17, 2006
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                Clerk


                             No. 06-10243



       In re: Robert Madrid Salazar

                               Movant,


               On Motion for Authorization to File
             Successive Petition for Writ of Habeas
           Corpus in the United States District Court
         Before the Northern District of Texas, Lubbock



Before KING, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:

     In March 1999, death-row inmate Robert Madrid Salazar was

convicted of capital murder for the 1997 beating death and sexual

assault of his girlfriend’s two-year-old daughter.   Having

exhausted his initial state and federal habeas claims, Salazar

faces execution, scheduled for March 22, 2006.

     On February 14, 2006, Salazar filed a subsequent state

application for writ of habeas corpus with the Texas Court of

Criminal Appeals based on Atkins v. Virginia, 536 U.S. 304

(2002), which categorically bars the execution of mentally

retarded persons.    The Texas Court of Criminal Appeals dismissed

his application as an abuse of the writ, rejecting Salazar’s

assertion that he is mentally retarded and therefore exempt from
execution under Atkins.   Ex parte Salazar, No. WR-49,210-02 (Tex.

Crim. App. Mar. 9, 2006) (per curiam).

     Salazar, maintaining that he is mentally retarded, now moves

in this court pursuant to 28 U.S.C. § 2244(b)(3)(A) for

authorization to file a successive application for writ of habeas

corpus with the United States District Court based on the new

constitutional rule announced in Atkins.     Salazar also moves for

a stay of execution.   Because we hold that Salazar has failed to

establish a prima facie case of mental retardation, we DENY his

motions.

I. THE AEDPA STANDARD FOR AUTHORIZING THE FILING OF A SUCCESSIVE
   APPLICATION FOR WRIT OF HABEAS CORPUS IN THE DISTRICT COURT

     The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

strictly limits the ability of federal habeas applicants to file

successive applications for writ of habeas corpus in federal

court, directing courts to dismiss any claim presented in a

successive application unless, inter alia, “the applicant shows

that the claim relies on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable.”     28 U.S.C. § 2244(b)(2)(A).   An

applicant wishing to file a successive federal habeas application

with a district court must first “move in the appropriate court

of appeals for an order authorizing the district court to

consider the application.”   Id. § 2244(b)(3)(A).    Under this

statutory scheme, this court serves a “gatekeeping” function,


                                -2-
Felker v. Turpin, 518 U.S. 651, 657 (1996), and “may authorize

the filing of a second or successive application only if it

determines that the application makes a prima facie showing that

the application satisfies the requirements of” § 2244(b).   28

U.S.C. § 2244(b)(3)(C).   A prima facie showing is “simply a

sufficient showing of possible merit to warrant a fuller

exploration by the district court.”   In re Morris, 328 F.3d 739,

740 (5th Cir. 2003) (quoting Bennett v. United States, 119 F.3d

468, 469 (7th Cir. 1997)).

     Because Salazar bases his application on the new

constitutional rule announced in Atkins, to obtain authorization

to file a successive claim, 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.”   In re Hearn, 418 F.3d 444,

444-45 (5th Cir. 2005).   Because Salazar has met the first two

requirements of his prima facie case--i.e., that his claim has

not previously been presented before this court and that his

claim relies on a new, retroactively applicable rule of

constitutional law not available to him when he filed his initial

habeas application--we must determine only whether he has made a

prima facie case of mental retardation.



                                -3-
            II. PRIMA FACIE CASE OF MENTAL RETARDATION

     While the Supreme Court in Atkins categorically barred the

execution of mentally retarded persons, it declined to announce a

uniform definition of mental retardation, noting 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.”    536 U.S. at 317.   The Court

therefore left “to the State[s] the task of developing

appropriate ways to enforce the constitutional restriction upon

[their] execution of sentences,” id., but cited with approval the

American Association on Mental Retardation (“AAMR”) definition of

mental retardation.   Id. at 309 n.3.

     Since the Atkins decision, Texas courts addressing Atkins

claims have followed the definition of mental retardation adopted

by the AAMR and the almost identical definition contained in

section 591.003(13) of the Texas Health & Safety Code.     Under

this standard, an applicant claiming mental retardation must show

that he suffers from a disability characterized by “(1)

‘significantly subaverage’ general intellectual functioning,”

usually defined as an I.Q. 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.”    Ex parte Briseno, 135

S.W.3d 1, 7 (Tex. Crim. App. 2004); see also TEX. HEALTH & SAFETY

CODE § 591.003(13) (Vernon 2003) (defining “mental retardation”



                                -4-
as “significantly subaverage general intellectual functioning

that is concurrent with deficits in adaptive behavior and

originates during the developmental period”); Morris v. Dretke,

413 F.3d 484, 490 (5th Cir. 2005) (applying the AAMR standard

adopted in Briseno to a federal habeas claim based on Atkins).

To state a successful claim, an applicant must satisfy all three

prongs of this test.     See Hall v. Texas, 160 S.W.3d 24, 36 (Tex.

Crim. App. 2004) (en banc).

     We are convinced that Salazar’s Atkins claim does not have

sufficient possible merit to warrant further exploration by the

district court.   Salazar offers no affirmative evidence tending

to show that he suffers from significantly subaverage general

intellectual functioning or that any such intellectual

functioning has been accompanied by related limitations in

adaptive functioning.    Specifically, he provides no proof in the

form of test scores, school records, doctor reports, affidavits

from teachers or family members, or any similar documentation

indicating that he has ever been suspected of being mentally

retarded, diagnosed with any other disability, or placed in a

special needs program.    In fact, the only two professionals ever

personally to evaluate Salazar have concluded that he is not

mentally retarded, and his scores on two separate I.Q. tests are

above the cutoff for mental retardation, which Texas recognizes

as a score of 70 or below.     See Briseno, 135 S.W.3d at 7 n.24

(noting that “[s]ignificantly subaverage intellectual functioning

                                  -5-
is defined as an IQ of about 70 or below (approximately 2

standard deviations below the mean)”).

     In 1978, Salazar, who was eight years old at the time,

scored a 102 on a Slosson Intelligence Test administered by Dr.

Michael Ratheal.   Dr. Ratheal, who administered several other

tests to Salazar and performed a lengthy psychological

evaluation, noted that Salazar’s I.Q. score “suggests functioning

in the Average range of intelligence.”    Ratheal Report at 2.

Although Salazar did receive low scores on the Vineland Adaptive

Behavior test administered during the same session, Dr. Ratheal

noted that the “scores indicate extremely low functioning in the

areas of adaptive behavior, especially in consideration of

Robert’s average intellectual ability.”    Ratheal Report at 5.

Based on the totality of her examination, Dr. Ratheal did not

conclude that Salazar was mentally retarded.    Moreover, in 1999,

while Salazar was twenty years old and awaiting trial for capital

murder, he scored an 87 on the WAIS-R intelligence test

administered by Dr. Antolin Llorente, who spent two days

examining Salazar and administering a total of twenty-five tests.

Like Dr. Ratheal, Dr. Llorente did not conclude that Salazar was

mentally retarded based on his examination, noting in his report

that Salazar’s scores indicated that Salazar was “currently

functioning within the upper end of the Low Average to low end of

the Average range of intelligence.”   Llorente Report at 5.

      Attempting to cast doubt on the reliability of these

                                -6-
assessments, Salazar offers the lone statement of Dr. Richard

Garnett, a frequent expert witness in Texas capital cases who has

experience in diagnosing and working with people with mental

retardation.   Dr. Garnett, who reviewed Salazar’s medical records

and I.Q. scores at the request of Salazar’s attorney, asserts

that the Slosson Test “should not be considered a valid indicator

of Mr. Salazar’s intellectual functioning” and that the test

results “must be followed by a more formal and in-depth

evaluation and diagnosis.”   Garnett Report at 3.   However, Dr.

Garnett fails to note in his analysis that, in addition to

administering the Slosson Test, Dr. Ratheal did perform an in-

depth evaluation of Salazar, and her nine-page psychological

evaluation report never suggested that Salazar might be mentally

retarded, instead describing him as “a bright youngster” and

“functioning in an average range of intellectual ability.”

Ratheal Report at 6.

     Dr. Garnett also posits that Salazar’s later score of 87 on

the WAIS-R test might have been artificially inflated because of

a phenomenon called the “Flynn Effect.”   This theory attributes

the general rise of I.Q. scores of a population over time to the

use of outdated testing procedures, emphasizing the need for the

repeated renormalization of I.Q.-test standard deviations over

time.   Although Dr. Garnett describes the effect of this

phenomenon on the average I.Q. score in the general population,

he does not indicate what effect it would have had on Salazar’s

                                -7-
score in particular or even whether it is appropriate to adjust

an individual’s score based on this theory.1

     Finally, Dr. Garnett emphasizes that Salazar scored poorly

on the Vineland Adaptive Behavior Test administered by Dr.

Ratheal and that these scores could be indicative of mental

retardation.    Although this fact, standing alone, might be

troubling, the definition for mental retardation adopted by the

AAMR and by the state of Texas requires us to consider the data

in context.    Thus, Dr. Ratheal’s note that Salazar’s adaptive

behavior “scores indicate extremely low functioning in the areas

of adaptive behavior, especially in consideration of Robert’s

average intellectual ability” indicates that, while Salazar might

have suffered from limitations in adaptive behavior as a child,


     1
          Even assuming that the Flynn Effect is a valid
scientific theory and is applicable to Salazar’s individual I.Q.
score--and we express no opinion as to whether this is actually
the case--Salazar’s score readjusted to account for score
inflation is still above the cutoff for mental retardation. Dr.
Garnett explains that, under the Flynn Effect theory, the passage
of time has inflated test scores by approximately one-third to
two-thirds of a point per year since the normalization of the
particular test in question. Therefore,

     one can establish a range of estimated score inflation by
     taking the number of years that has [sic] passed since
     the standardization norms were established and the date
     of test admission, and then multiply .3 and .6 to get the
     range of inflation. Those amounts are subtracted from
     the IQ score to obtain the range of effect.

Garnett Report at 5. Salazar took his WAIS-R test in 1999,
twenty-one years after it was normalized; thus, using the above
equation, his readjusted score would range from 80.7 to 74.4,
both of which are above the cutoff score of 70.

                                 -8-
it was not accompanied by the significantly subaverage general

intellectual functioning required under the definition.       Ratheal

Report at 5 (emphasis added); see TEX. HEALTH & SAFETY CODE

§ 591.003(13) (defining mental retardation as subaverage general

intellectual functioning that is “concurrent with” deficits in

adaptive behavior); Hall, 160 S.W.3d at 36 (requiring that all

three prongs of the definition be satisfied for a successful

claim of mental retardation).

     In short, no professional who has ever personally evaluated

Salazar has labeled him mentally retarded, and Salazar offers no

support for his claim other than the statement of Dr. Garnett,

who never personally evaluated or tested Salazar.     Dr. Garnett’s

statement, without more, “is simply insufficient to suggest that

further development of [Salazar’s] claim has any likelihood of

success under the Atkins criteria.”    In re Johnson, 334 F.3d 403,

404 (5th Cir. 2003) (denying a motion for authorization to file a

successive habeas application based on Atkins where the applicant

offered only two letters from psychologists and a seventh-grade

transcript showing poor grades); In re Campbell, 82 F. App’x 349,

350 (5th Cir. 2003) (denying a motion for authorization where the

applicant did not provide any evidence of mental impairment or

cognitive dysfunction).   Because Salazar has failed to state a

prima facie case of mental retardation, we cannot grant his

motion for authorization to file a successive habeas application



                                 -9-
in district court.2

                          III. CONCLUSION

     For the foregoing reasons, we DENY Salazar’s motion for

authorization to file a successive habeas application based on

Atkins.   His motion for a stay of execution is also DENIED.




     2
          We also note that, even if we were to grant Salazar’s
motion for authorization to file a successive habeas application,
his application would be time barred in district court under the
AEDPA one-year limitations provision unless equitable tolling
were deemed appropriate. See 28 U.S.C. § 2244(d)(1)(C) (limiting
the period for filing a successive habeas application based on a
new rule of retroactively applicable constitutional law to one
year from “the date on which the constitutional right asserted
was initially recognized by the Supreme Court”). The Supreme
Court issued its decision in Atkins on June 20, 2002; therefore,
the AEDPA limitations period expired on June 20, 2003, more than
two and a half years ago. See In re Hearn, 376 F.3d 447, 456
n.11 (5th Cir. 2004).
          The state urges us to deny Salazar’s motion solely on
the ground that the successive application would be time barred
under § 2244(d)(1)(C) without addressing whether Salazar has made
a sufficient prima facie showing as required for authorization
under 28 U.S.C. § 2244(b)(3)(C). However, we need not make this
determination--or answer the open question of 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)--because we hold that Salazar
has failed to make a prima facie showing that the application
satisfies the requirements of § 2244(b). Cf. In re Wilson, ---
F.3d ----, 2006 WL 574273 (5th Cir.) (granting a motion for
authorization to file a successive habeas application based on
Atkins after holding that the applicant had made a prima facie
case of mental retardation and determining that equitable tolling
would apply to save his application from being untimely in the
district court under § 2244(d)(1)(C)); In re Elizalde, No. 06-
20072 (5th Cir. Jan. 31, 2006) (denying a similar motion on the
ground that the applicant had failed to establish a prima facie
case of mental retardation and also noting in dicta that his
application would likely be time barred in district court).

                               -10-
