                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS
                         for the Fifth Circuit                     November 17, 2005

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 05-51310


                        In Re: BOBBY WAYNE WOODS,

                                                                       Movant.



         Motion for Authorization to File Successive Petition
                  in the United States District Court
                   for the Western District of Texas




Before BARKSDALE, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     Bobby Wayne Woods, a Texas inmate sentenced to death based

upon his conviction for capital murder, seeks authorization to file

a successive petition for writ of habeas corpus in the United

States District Court for the Western District of Texas on two

issues related     to   his   allegation   that   he   is   either   mentally

retarded and therefore cannot be executed under Atkins v. Virginia,

536 U.S. 304 (2002), or too mentally ill to be executed under the

Eighth and Fourteenth Amendments.          We grant in part and deny in

part his motion.

     We grant Woods permission to file before the district court


     *
      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this opinion should not be published and is not precedent except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.
his Atkins claim that his sentence of capital punishment violates

the United States Constitution because he is mentally retarded.

However, we make no evaluation of this claim other than to hold

that Woods has made the prima facie showing required under §

2244(b).   We deny the motion as to his remaining claims that: (1)

his mental illness is so severe that his execution would violate

the constitutional prohibition against cruel and unusual punishment

patently and (2) his conviction and death sentence were both

obtained in violation of the U.S. Constitution according to Jones,

Apprendi, Ring, Blakely, and Booker.

                 FACTUAL AND PROCEDURAL BACKGROUND

     In May 1998, Woods was convicted of kidnapping two children,

an approximately eight-year-old boy and a girl, age eleven, from

their home, and he was sentenced to death for the capital murder of

the kidnapped girl.    Woods’s conviction and sentence were appealed

to the Texas Court of Criminal Appeals (the “TCCA”) and affirmed on

June 14, 2000.   Woods v. State, No. 73,136, slip op. (Tex. Crim.

App. June 14, 2000).

     Woods filed his initial application for habeas relief in the

courts of Texas on September 15, 1999, and the TCCA adopted the

lower court’s findings and denied relief.      Ex parte Woods, No.

44,856-01, slip op. at 2 (Tex. Crim. App. Sept. 13, 2000) (per

curiam) (unpublished).     The Supreme Court of the United States

denied Woods’s petition for writ of certiorari on February 20,


                                  2
2001.   Woods v. Texas, 531 U.S. 1155 (2001).

     On December 11, 2000, Woods filed his initial federal habeas

application in the Northern District of Texas, alleging many of the

same claims presented for state postconviction relief.           See Woods

v. Johnson, No. 4:00-CV-1563-A (N.D. Tex. Dec. 11, 2000).                The

cause of action was transferred to the Western District of Texas

and was there denied.      Woods v. Cockrell, No. A:01-CA-055-SS (W.D.

Tex. Feb. 8, 2002).     Woods appealed the denial of federal habeas

relief to this Court, and a panel of this Court denied his request

for a certificate of appealability on certain claims and otherwise

affirmed the district court’s denial of relief. Woods v. Cockrell,

2003 WL 1202760 (5th Cir. Feb. 24, 2003) (unpublished).

     Woods   began   the   process    of   his   successive   petition   for

postconviction relief by filing an application with the TCCA on

April 8, 2003, that raised two claims: (1) that his death sentence

was unconstitutionally applied to him under Atkins v. Virginia, 536

U.S. 304 (2002), because he is mentally retarded and (2) that his

conviction and sentence violated the Fifth, Sixth, and Fourteenth

Amendments because the State failed “to allege all of the essential

elements of capital murder wherein the death penalty could be

imposed in the indictment.”          The TCCA held that Woods’s second

claim was an abuse of the writ under the Texas Code of Criminal

Procedure, article 11.071 § 5.            With respect to Woods’s Atkins

claim challenging only his sentence and not conviction, the TCCA


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remanded the application to the state trial court. Ex parte Woods,

No. 44,856-02, slip op. at 2 (Tex. Crim. App. May 21, 2003) (per

curiam) (unpublished).

     The state court held a hearing on the issue of Woods’s

intellectual and functional capacity during which both Woods and

the State   presented    testimony   and   evidence.   In   addition   to

submitted evidence of Woods’s scores on multiple intelligence

tests, the state court heard testimony from Woods’s former grade

school principal and two teachers who testified that while Woods

suffered from learning disabilities, he was not mentally retarded.

The state court found that Woods was not mentally retarded and

recommended that relief under Atkins be denied.        The TCCA adopted

those findings and recommendations and denied relief.          Ex parte

Woods, No. WR-44,856-02, slip op. at 2 (Tex. Crim. App. Apr. 27,

2005).   Woods submitted his successive federal habeas application

to the district court on September 27, 2005, and he now moves this

Court for authorization to file that petition, which raises two

claims for relief, in the district court.

                              DISCUSSION

     Because Woods filed his federal habeas application after the

effective date of the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), his initial habeas petition was subject to the

provisions of that Act.     See Penry v. Johnson, 532 U.S. 782, 792

(2001); Graham v. Johnson, 168 F.3d 762, 775 (5th Cir. 1999).


                                     4
Woods’s instant motion for authorization to file a successive

petition is likewise subject to AEDPA’s requirements.   See Graham,

168 F.3d at 775; see also In re Morris, 328 F.3d 739, 740 (5th Cir.

2003).

     Under AEDPA, this Court may authorize such a filing only if we

determine that “the application makes a prima facie showing that

the applicant satisfies the requirements” of   28 U.S.C. § 2244(b).

28 U.S.C. § 2244(b)(3)(C) (2000).2

     In the Fifth Circuit, a prima facie showing is “simply a



     2
      In relevant part, § 2244(b) provides,

     (b) . . .
     (2) A claim presented in a second or successive habeas
     corpus application under section 2254 that was not
     presented in a prior application shall be dismissed
     unless—
     (A) 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; or
     (B) (i) the factual predicate for the claim could not
     have been discovered previously through the exercise of
     due diligence; and
     (ii) the facts underlying the claim, if proven and
     viewed in light of the evidence as a whole, would be
     sufficient to establish by clear and convincing
     evidence that, but for constitutional error, no
     reasonable factfinder would have found the applicant
     guilty of the underlying offense.
     (3) . . .
     (C) 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 application satisfies the requirements of this
     subsection.

28 U.S.C. § 2244(b)(2)-(3).

                                5
sufficient    showing     of    possible      merit    to   warrant         a     fuller

exploration by the district court.”            In re Morris, 328 F.3d at 740

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

1997)); see also Reyes-Requena v. United States, 243 F.3d 893, 898-

99 (5th Cir. 2001).       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 the filing.                    In re Morris,

328 F.3d at 740 (citation omitted).

     Woods presents two claims for habeas relief in his successive

petition,    arguing    each    meets   the   requirements        of    §    2244(b).3

First, Woods claims he is mentally retarded and therefore cannot be

executed under Atkins.         We have carefully reviewed Woods’s motion

and the putative petition attached in support, as well as Texas’s

response in opposition.

     We find that Woods has made a prima facie showing that the

Atkins claim of his proposed successive petition for writ of habeas

corpus raises    a     claim   not   previously       presented    in       his    prior

application to this Court.           We also find Woods has raised, as to



     3
      In his motion for authorization to file his successive
petition, Woods restructures his claims into five separate
issues, but this altered organization does not affect our
analysis because in both the petition and the motion, only one
claim meets the requirement of § 2244(b) such that it may be
presented to the district court on successive petition. As
discussed herein, that issue is Woods’s challenge to his death
penalty sentence under Atkins.

                                        6
his Atkins challenge to his sentence only, an issue that relies “on

a new rule of constitutional law, made retroactive to cases on

collateral    review   by    the   Supreme   Court,    that    was   previously

unavailable.”    See 28 U.S.C. § 2244(b)(2); In re Morris, 328 F.3d

at 740.    Finally, we conclude Woods has made a prima facie showing

that he could be categorized as mentally retarded under Atkins v.

Virginia, 536 U.S. 304 (2002).         See 28 U.S.C. § 2244(b)(3)(C); In

re Morris, 328 F.3d at 740.        However, we express no opinion on the

merits of his substantive claim that he is mentally retarded.

Thus, we permit the filing of Woods’s claim that he is mentally

retarded and therefore ineligible for the death penalty under

Atkins.4

     As to Woods’s remaining claims, we deny authorization to

present them to the district court.          Woods challenges his sentence

because he    claims   the    determination     that   he     is   not   mentally

retarded was determined by a judge rather than by a jury.                  Woods

argues the burden of proof with respect to mental retardation was

improperly placed upon him as petitioner rather than upon the

State. Woods challenges the sufficiency of the evidence to support

the state court findings that he is not mentally retarded and

argues that, even if he is not mentally retarded, the Eighth and

Fourteenth Amendments bar his execution because he is so mentally



     4
      This claim is a portion of, but not the entirety of, Issue
One in Woods’s petition.

                                       7
ill as to make the death penalty cruel and unusual punishment.

Each of these claims fails to meet the requirements of § 2244(b).

       The Supreme Court has clarified recently that the factfinder

with respect to a determination of mental retardation need not be

a jury as opposed to judge when it vacated a Ninth Circuit order

directing a federal habeas petitioner to institute proceedings in

the courts of Arizona for jury determination of the question of

mental retardation.          Schriro v. Smith, 126 S. Ct. 7, 8-9 (2005)

(stating “[t]he Ninth Circuit erred in commanding the Arizona

courts    to    conduct      a       jury   trial   to   resolve   Smith’s   mental

retardation claim” and reiterating the statement from Atkins, 536

U.S. at 317, that the method for determining whether a defendant is

mentally retarded is left to the States).

       Woods claims that he was denied a jury determination of his

status as mentally retarded under Ring v. Arizona, 536 U.S. 584

(2002).      This claim does not meet the requirements of § 2244(b)

because the claim that a jury must determine mental retardation

does   not     rely   upon       a    new   rule    of   constitutional   law   made

retroactive by the Supreme Court.                   On the contrary, the Supreme

Court has squarely stated that Ring is not retroactive.                   Schriro v.

Summerlin, 542 U.S. 348, 358, 159 L. Ed. 2d 442, 124 S. Ct. 2519,

2526 (2004).      Therefore, § 2244(b)(2) precludes Woods’s filing of

such a claim.     See United States v. Webster, 421 F.3d 308, 312 (5th

Cir. 2005).


                                              8
       Woods argues the burden of proof with respect to mental

retardation was improperly placed upon him as petitioner rather

than upon the State to prove beyond a reasonable doubt.             Again, no

Supreme    Court   case   created       such   a    rule    and   applied   it

retroactively, as is required.      Moreover, our Circuit has rejected

this    precise    argument   on    a     request     for    certificate    of

appealability.     Webster, 421 F.3d at 311.         Woods cannot make the

prima facie showing required by § 2244(b) on a claim that is

foreclosed.    See id.

       We also reject Woods’s argument that he should be permitted to

present his claim that he is mentally ill and, for that reason,

cannot be executed in accordance with the Constitution.               Section

2244(b) orders the dismissal of a successive petition insofar as a

claim presented does not meet at least one of several requirements,

in short, a new rule of constitutional law made retroactive by the

Supreme Court.     Atkins did not cover mental illness separate and

apart from mental retardation, and Woods points to no Supreme Court

case creating such a rule. Therefore, his mental illness claim may

not be presented to the district court because it does not satisfy

§ 2244(b)(2)(A). Moreover, Woods failed to raise this claim before

the state courts of Texas.

       Accordingly, we authorize the filing in district court of the

Successive Petition for Writ of Habeas Corpus attached to Woods’s

motion only with respect to a portion of Issue One, that is,


                                     9
whether Woods is mentally retarded and therefore ineligible for the

death penalty according to Atkins.          For the reasons stated above,

we deny the motion as to the remaining claims.

     The district court, in its role as second gatekeeper, “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

(citation omitted); see also 28 U.S.C. § 2244(b)(4). In this case,

the district court must conduct such thorough review as to Woods’s

claim related to his factual allegation of mental retardation and

must dismiss the claim if it determines the stringent requirements

of AEDPA are not met.      See 28 U.S.C. § 2244(b)(4).

MOTION GRANTED IN PART; DENIED IN PART.




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