     Case: 14-20293       Document: 00512628609          Page: 1     Date Filed: 05/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                       No. 14-20293                                 FILED
                                                                               May 13, 2014
                                                                              Lyle W. Cayce
In re: ROBERT JAMES CAMPBELL,                                                      Clerk

                                                   Movant



                        On Motion for Authorization to File
                       Successive Petition for Writ of Habeas
                     Corpus in the United States District Court
                         for the Southern District of Texas


Before STEWART, Chief Judge, and DENNIS and ELROD, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
       Robert James Campbell, a death-row prisoner whose execution is
scheduled for Tuesday, May 13, 2014, contends that he is intellectually
disabled     (formerly      called    “mentally       retarded”)     and      is,      therefore,
constitutionally ineligible for the death penalty under Atkins v. Virginia, 536
U.S. 304 (2002). 1 He has filed with this court a motion for authorization to file



       1 Campbell uses the term “intellectual disability” (which he says is the medical
community’s current preferred term) instead of “mental retardation,” and we use that term
here as well. See Brumfield v. Cain, 744 F.3d 918, 920 n.1 (5th Cir. 2014) (“[T]he preferred
terminology for mental retardation is now ‘intellectual disability.’”); Henderson v. Thaler, 626
F.3d 773, 782 n.1 (5th Cir. 2010) (Wiener, J., dissenting) (“As did the Supreme Court in
Atkins, we have heretofore referred to ‘mental retardation.’ But, a recent act of Congress
mandates use of the phrase ‘intellectual disability’ in place of ‘mental retardation’ in all
federal enactments and regulations.”) (citing Rosa’s Law, Pub. L. No. 111-256 (Oct. 5, 2010));
but see Hernandez v. Stephens, 537 F. App’x 531, 533 n.1 (5th Cir. 2013) (“This court’s
changing terminology on its own serves little purpose other than to create ambiguity.”).
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                                       No. 14-20293
a successive federal habeas corpus petition asserting his Atkins claim and a
motion for stay of execution pending the resolution of that claim. For the
reasons that follow, we grant both motions.
                                              I.
       Campbell was born in 1972. In 1991, a few months after his eighteenth
birthday, he murdered Alexandra Rendon. Campbell and a friend kidnapped
Rendon while she was at a gas station, pumping gas. They drove her to a
remote area where Campbell eventually shot her in the back. 2                       He was
convicted of capital murder in 1992 in the District Court of Harris County,
Texas. The judgment was affirmed in the Texas Court of Criminal Appeals in
1995. Campbell v. State, 910 S.W.2d 475 (Tex. Crim. App. 1995) (partial
publication). During the following years, Campbell lodged several petitions for
habeas corpus in Texas state courts and one petition in federal district court.
None was successful.
       On June 20, 2002, the Supreme Court held in Atkins v. Virginia that the
death penalty, as imposed against the intellectually disabled, is excessive
punishment under the Eighth Amendment, and, therefore, “the Constitution
places a substantive restriction on the State’s power to take the life of a
mentally retarded offender.”          536 U.S. at 321 (internal quotation marks
omitted).
       Campbell’s attorney at the time, who believed but lacked proof that
Campbell was intellectually disabled, began investigating for evidence to
support Campbell’s assertion of an Atkins claim.                       According to the
representations and supporting evidence of Campbell’s current counsel (not
the attorney who represented him during the period immediately following



       2Campbell’s criminal conduct is described in detail in Campbell v. Dretke, 117 F. App’x
946 (5th Cir. 2004).
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                                       No. 14-20293
Atkins), Campbell’s attorney then contacted each of the schools Campbell had
attended and requested their records concerning him. 3 The schools provided
scant materials showing generally that Campbell had performed poorly in his
academics, but the records did not reflect any standardized intelligence testing.
What Campbell’s attorney did not know was that the Harris County District
Attorney’s office had, in 1991, subpoenaed Campbell’s school records,
specifically requesting “psychological testing” results, and, at that time,
received evidence that Campbell had taken at least two intelligence tests as a
child. When he was nine years old, Campbell received a “deviation IQ” of 68
on the “Otis-Lennon Mental Ability Test.” And, when he was seven years old,
he performed in the lowest range of the “Metropolitan Readiness Test.” In the
period immediately following Atkins, this evidence of intellectual disability
was, apparently, in the exclusive possession of the District Attorney’s office.
       In March 2003, Campbell’s attorney requested from the Texas
Department of Criminal Justice “results from any and all intellectual
functioning tests completed by Mr. Robert James Campbell.” 4 The department
responded, in a letter dated March 31, 2003:


       3 We note that these “facts,” which are presented in Campbell’s motions to us, have
not been subjected to the adversarial process in any trial court. In other words, this narrative
has not been proven by a preponderance of the evidence. After the district court has
conducted its review, the facts may turn out to be different than those alleged here. Cf. In re
Morris, 328 F.3d 739, 741 (5th Cir. 2003) (after our grant of authorization for a successive
habeas petition, the district court must conduct a “thorough” review to determine
“conclusively” that the statutory requisites for a successive habeas petition are met).
       4 In March 2003, the one-year statute of limitations period for a federal habeas petition
raising an Atkins claim had not yet lapsed. Henderson v. Thaler, 626 F.3d 773, 777 (5th Cir.
2010) (“The constitutional right asserted by Henderson was recognized by the Supreme Court
in Atkins, which was decided on June 20, 2002. The limitations period commenced on that
date and expired on June 20, 2003.”); In re Wilson, 442 F.3d 872, 874 (5th Cir. 2006) (same).
        The State’s response incorrectly asserts that Campbell’s initial Atkins claim was time-
barred. However, Campbell filed his first Atkins state habeas application on May 28, 2003.
After it was dismissed, Campbell had until July 26, 2003 to file his federal habeas petition.
Campbell filed it on July 22, 2003, within the one-year limitations period.
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                                  No. 14-20293
            I am writing in response to your request dated March
            21, 2003 asking for any and all intellectual functioning
            tests completed by inmate Campbell while
            incarcerated on a previous conviction . . . . As you
            know, inmates sentenced to death receive no
            intellectual testing upon incarceration.
            Our records indicate that inmate Campbell was
            previously sentenced to a five-year term for robbery on
            April 23, 1990 and received by TDCJ in May 1990. The
            admission summary for that conviction indicates an
            IQ test score of 84. Because the actual IQ test
            instruments are kept for only a few months, any such
            test instrument for inmate Campbell would have been
            destroyed long ago.
      That letter contained two significant contentions.               First, the
department’s letter stated that “inmates sentenced to death receive no
intellectual testing upon incarceration.” According to the representations and
supporting evidence of Campbell’s current counsel, that statement was
incorrect or misleading. According to “clinical notes” of the Texas Department
of Criminal Justice’s Institutional Division which are in the record before us,
in 1992, Campbell was administered the “WAIS-R IQ Short Form” (that is, the
“Wechsler Adult Intelligence Scale-Revised Short Form”) test and scored 71.
According to the report of a psychologist, Dr. Leslie Rosenstein, that test, which
was “designed to be a quick, short screening tool developed to save time, and
not a comprehensive measure of intelligence,” tends to “overestimate”
intelligence. Thus, the 1992 test, which the department failed to disclose
following Campbell’s attorney’s request for “any and all intellectual
functioning tests,” was evidence of intellectual disability.
      Second, the department’s letter stated that, in 1990, during his earlier
incarceration on a robbery conviction, Campbell received an IQ test score of 84,
which would suggest that he was not intellectually disabled. Apparently,
nothing is known today about that score, including what test was
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                                 No. 14-20293
administered, what were the qualifications of the person who administered the
test, and, indeed, whether such a test had been administered at all.
      On May 28, 2003, Campbell’s attorney, without knowledge of the three
intelligence tests suggesting intellectual disability, filed in Texas state court
an application for a writ of habeas corpus alleging, “based upon a good faith
belief that Campbell may be mentally retarded,” that his execution would
violate Atkins. The attorney attached to the application two pages of school
records demonstrating Campbell’s failing grades and affidavits from
Campbell’s relatives and friends. The application requested an opportunity for
discovery and an evidentiary hearing in state trial court. In response, the
State argued that Campbell’s “sparse school records” were insufficient to
warrant further factual development and that the application should be
dismissed.   The Texas Court of Criminal Appeals agreed, held that the
application was “insufficient,” and dismissed it. Ex parte Campbell, No. WR-
44551-02, slip op. at 4 (Tex. Crim. App. July 2, 2003) (unpublished).
      Campbell, through his attorney, then requested from this court
authorization to file a successive habeas corpus petition asserting his Atkins
claim in federal district court. See 28 U.S.C. § 2244(b)(3)(A); Felker v. Turpin,
518 U.S. 651, 664 (1996) (“[A] habeas petitioner [is required] to obtain leave
from the court of appeals before filing a second habeas petition in the district
court.”). As with the state application, the attorney attached to the federal
motion for authorization the school records and affidavits. On November 13,
2003, this court held that the evidence was “simply not enough to demonstrate
that his claim has any likelihood of success under Atkins,” and, therefore, he
failed to make a “prima facie showing of mental retardation” and was “not
entitled to file a successive habeas petition in the district court.”        In re
Campbell, 82 F. App’x 349, 351 (5th Cir. 2003).


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      Next, in federal district court, on November 25, 2003, Campbell’s
attorney sought funds for intellectual-function testing, and, on December 9,
the request was denied. Campbell v. Cockrell, No. 4:00-CV-3844 (S.D. Tex.
Dec. 9, 2003). A year later, on December 9, 2004, this court denied Campbell’s
request for the certificate of appealability needed to appeal the funding denial.
Campbell v. Dretke, 117 F. App’x 946, 959 (5th Cir. 2004).
      Throughout this litigation in the state and federal courts regarding
Campbell’s ability to assert an Atkins claim on the merits, the State never
disclosed that it was in possession of evidence of three intelligence tests
suggesting that Campbell was intellectually disabled.
      Years passed. At some point, it is not clear from the record when,
Campbell obtained new counsel, the attorneys representing him now. The new
attorneys tell us that, in March 2014, they realized that the District Attorney’s
office subpoenaed Campbell’s school records back in 1991. The new attorneys
requested that the District Attorney’s office provide copies of the records that
had been produced to them. The District Attorney’s office complied with the
request. According to Campbell’s counsel, upon receiving the records, the
attorneys discovered that the District Attorney’s office had received from the
school two pages of documents that were not provided to Campbell’s prior
attorney when he made his request: the two pages reflecting the two
intelligence tests. Later, it is not clear exactly when, or how, Campbell’s
counsel discovered the Department of Criminal Justice short form intelligence
test that the department had failed to disclose when requested by Campbell’s
prior attorney.




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                                      No. 14-20293
       In April 2014, Dr. Rosenstein, a board certified psychologist on referral
from Campbell’s counsel, evaluated Campbell for intellectual disability. 5 Dr.
Rosenstein’s evaluation included her administration of a series of intelligence
tests and review of historical information about Campbell, including his school
records and prior intelligence tests. Dr. Rosenstein’s tests showed Campbell
to have a full scale IQ of 69. Dr. Rosenstein diagnosed Campbell with “mild
mental retardation.” 6
       With the May 13, 2014, execution date fast approaching, on May 5,
Campbell filed a subsequent application for writ of habeas corpus in Texas
courts, attaching the new and newly discovered evidence, including the two
intelligence test results from Campbell’s childhood, the test result from the
Department of Criminal Justice, and Dr. Rosenstein’s report. On May 8, the
Texas Court of Criminal Appeals dismissed the application as an “abuse of the
writ” without further explanation. Ex parte Campbell, No. WR-445511-05, slip
op. at 3 (Tex. Crim. App. May 8, 2014) (citing Tex. Code Crim. Proc. art. 11.071
§ 5). Four members of the court dissented, contending that relevant evidence
of Campbell’s Atkins claim “was unavailable to him at the time that he filed
his [earlier] application because he was given misinformation by one
governmental entity, the Texas Department of Criminal Justice,” and, with the
new application, Campbell had presented “compelling evidence to show that he



       5 According to her curriculum vitae that is in the record, Dr. Rosenstein has a Ph.D.
in Psychology from the University of Texas and specializes in Clinical Psychology,
Neuropsychology, and Quantitative Methods. She has over 25 years of experience practicing
and teaching psychology and neuropsychology and is certified by the American Board of
Clinical Neuropsychology. She is a certified member of a comprehensive diagnostic and
evaluation team for intellectual disability and is certified in advanced certified forensic
evaluation. She has authored dozens of scholarly articles.
       6 On May 4, Dr. Rosenstein filed an addendum to the evaluation describing her review
of certain new and clarified information. Her original diagnosis of mild mental retardation
did not change.
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                                  No. 14-20293
is ineligible for execution under Atkins.” Id. at 2, 3 (Alcala, J., dissenting). The
dissenters admonished the court that it “should not base its decisions that
determine whether a person will live or be executed based on misinformation
or wholly inadequate information.” Id. at 5. Only “[b]y reviewing [Campbell’s]
claim on the merits,” the dissent concluded, would the court “fulfill its ultimate
obligation to ensure that Texas abides by the constitutional prohibition against
the execution of a mentally retarded person.” Id.
      On May 10, Campbell filed his motions for authorization to file a
successive federal habeas petition and for a stay of execution with us.
                                        II.
      We first address Campbell’s motion for authorization for a successive
habeas petition. Because Campbell has filed a federal habeas petition before,
he must receive authorization from us to file another.             See 28 U.S.C.
§ 2244(b)(3)(A); Felker, 518 U.S. at 664. For us to grant such authorization, we
must determine that Campbell has made a “prima facie showing” that he
satisfies the statutory prerequisites for a successive habeas petition. See In re
Morris, 328 F.3d 739, 740 (5th Cir. 2003) (quoting 28 U.S.C. § 2244(b)(3)(C)).
“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.” Id. (quoting Bennett v. United States, 119 F.3d
468, 469-70 (7th Cir. 1997)) (alterations omitted).
      If we grant such authorization, it is “‘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
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                                  No. 14-20293
district court then is the second ‘gate’ through which the petitioner must pass
before the merits of his or her motion are heard.” Id. at 741 (quoting Reyes-
Requena v. United States, 243 F.3d 893, 899 (5th Cir. 2001), and citing 28
U.S.C. § 2244(b)(4)). The district court must conduct a “‘thorough’ review” to
determine that the successive habeas petition is proper. Id. (quoting Reyes-
Requena, 243 F.3d at 899).
      In the circumstances of this case, Campbell must make a prima facie
showing, first, that his Atkins claim was “not presented” in a prior federal
habeas petition. 28 U.S.C. § 2244(b)(1); see In re Morris, 328 F.3d at 740. There
is no question that Campbell’s first federal habeas petition did not present an
Atkins claim. See Petition for Writ of Habeas Corpus, Campbell v. Johnson,
No. 4:00-CV-3844 (S.D. Tex. Nov. 11, 2000).
      Second, Campbell must make a prima facie showing that his Atkins
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); see In re Morris, 328 F.3d at 740. There is no question
that Atkins created a new rule of constitutional law (i.e., that the intellectually
disabled are categorically ineligible for the death penalty), made retroactive to
cases on collateral review by the Supreme Court. See Mathis v. Thaler, 616
F.3d 461, 467 (5th Cir. 2010) (citing Morris v. Dretke, 413 F.3d 484, 486-87 (5th
Cir. 2005)). And it is obvious that, at the time when Campbell filed his first
federal habeas petition in 2000, which was before Atkins was decided in 2002,
the rule of Atkins was “unavailable” then.           See id. (the new rule of
constitutional law must have been “unavailable” “at the time [the petitioner]
filed his first federal habeas application”).
      And third, Campbell must make a prima facie showing that he “should
be categorized as ‘mentally retarded’ within the understanding of Atkins.” In
re Campbell, 82 F. App’x at 350. “A prima facie showing of mental retardation
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                                       No. 14-20293
is simply a sufficient showing of possible merit to warrant a fuller exploration
by the district court.’” In re Hearn, 418 F.3d 444, 445 (5th Cir. 2005) (internal
quotation marks, alteration, and citation omitted). Here, Campbell has made
out a prima facie case.
       Intellectual disability (or “mental retardation,” see supra, note 1) “is
characterized by: (1) ‘significantly subaverage’ general intellectual functioning;
(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) (citing American Association of Mental Retardation, Mental
Retardation: Definition, Classification, and Systems of Supports (10th ed.
2002)) (footnotes omitted). “Significantly subaverage intellectual functioning
is defined as an IQ of about 70 or below.” Id. at 7 n.24 (quoting American
Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders
(Text Revision, 4th ed. 2000)). 7 “Impairments in adaptive behavior are defined
as significant limitations in an individual’s effectiveness in meeting the
standards of maturation, learning, personal independence, and/or social
responsibility that are expected for his or her age level and cultural group, as
determined by clinical assessment and, usually, standardized scales.” Id. at 7
n.25 (quoting American Association on Mental Deficiency, Manual on
Terminology and Classification in Mental Retardation (Grossman ed., 1983)).
       Here, the evidence in the record reflects two intelligence tests from
Campbell’s      childhood      indicating     significantly     subaverage       intellectual


       7 “Psychologists and other mental health professionals are flexible in their assessment
of mental retardation; thus, sometimes a person whose IQ has tested above 70 may be
diagnosed as mentally retarded while a person whose IQ tests below 70 may not be mentally
retarded. Furthermore, IQ tests differ in content and accuracy.” Id. (citations omitted); see
also Ex parte Hearn, 310 S.W.3d 424, 428 (Tex. Crim. App. 2010) (“There is a measurement
error of approximately 5 points in assessing IQ, which may vary from instrument to
instrument. Thus, any score could actually represent a score that is five points higher or five
points lower than the actual IQ.”) (internal quotation marks and citations omitted).
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                                  No. 14-20293
functioning. When he was nine years old, he received an IQ score of 68 on the
Otis-Lennon Mental Ability Test and, when he was seven years old, he
performed in the lowest range of the Metropolitan Readiness Test.             The
evidence further shows a third “short form” test from 1992 in which Campbell’s
IQ was estimated at 71. Taking into account Dr. Rosenstein’s explanation that
the short form test tends to “overestimate” intelligence, Campbell’s results
from   that   test   likewise   evince   significantly   subaverage   intellectual
functioning. Finally, we have the results from the intelligence testing that Dr.
Rosenstein administered just last month (which, we are told, was administered
using the “gold standard” instrument for such testing, the “Wechsler Adult
Intelligence Scale IV”), in which Campbell’s full scale composite IQ score was
69. In short, the record evidence contains the results from four intelligence
tests administered during multiple periods of Campbell’s life, including his
childhood, each indicating significantly subaverage intellectual functioning.
Further, Campbell’s school records, which show that he failed almost all of his
classes, are corroborative.
       Regarding adaptive functioning, Dr. Rosenstein’s report concludes that,
although there are limits to the information available regarding Campbell’s
adaptive functioning because, among other reasons, Campbell has been
imprisoned essentially his entire adult life, the information available is
sufficient to warrant a diagnosis for intellectual disability. Dr. Rosenstein
considered, among other things, that Campbell did not complete high school,
received failing grades throughout his education, never received a driver’s
license, never received formal employment, and, as for his crime, appears to
have never attempted to evade authorities and in fact took actions that made
his apprehension more likely. Dr. Rosenstein also reviewed statements from
individuals who knew Campbell during his childhood and adolescence stating
that Campbell was “mentally slow/impaired,” was “teased” about his
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                                       No. 14-20293
“behavior,” “spent time with children much younger than he,” and “was a
follower,” “not a leader.” Dr. Rosenstein’s report states that, during her testing
of Campbell, he displayed difficulty accurately “calculating change from a
purchase,” “failed to accurately add time on a clock,” and “could not answer
simple questions about measurements or money savings.” Similarly, there is
also evidence in the record that, although Campbell did not have a driver’s
license, he drove cars at times and, at those times, was unable to read the gas
gauge and had to ask others to explain whether the car had fuel. And, although
Campbell wore a watch, he could not read it. 8
       As for the requirement that intellectual disability manifest before the
age of 18, Dr. Rosenstein notes the intelligence tests from Campbell’s childhood
revealing significantly subaverage intelligence and Campbell’s “long history
throughout childhood of academic failures.” As noted, the record has other
corroborating evidence about Campbell’s childhood                       manifestations of
intellectual disability, i.e., the statements from persons who knew him.
Following Dr. Rosenstein’s evaluation of the available information and her
administration of the tests discussed in her report, Dr. Rosenstein diagnosed
Campbell with “mild mental retardation.”
       The evidence in the record before us is more than sufficient to satisfy
Campbell’s burden of making out a prima facie showing of intellectual
disability sufficient to warrant a successive habeas petition. Cf. In re Morris,
328 F.3d at 741 (Higginbotham, J., concurring) (joining order authorizing



       8 However, we also note that the State indicates that the trial record contains evidence
that Campbell did not exhibit deficits in adaptive functioning. The jury heard evidence that
Campbell was an “average child.” Campbell could drive stick shift, mowed yards for money,
and was even entrusted to babysit. According to the State, the evidence developed at trial
showed that, in the criminal world, Campbell was not a follower, but a leader. In the crime
at issue, Campbell, not his co-defendant, was the one who shot Rendon. Campbell was also
the one to appropriate Rendon's car and possessions.
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                                     No. 14-20293
successive habeas petition asserting Atkins claim even though the evidence
regarding intellectual disability was “conflict[ing]” and “we have no IQ test”).
Indeed, four members of the Texas Court of Criminal Appeals found
Campbell’s evidence of intellectual disability “compelling.” Ex parte Campbell,
supra, at 2 (Alcala, J.). We reiterate, of course, that the evidence in the record
before us has not been subjected to the rigors of the adversarial process and it
may ultimately appear differently than it does now. See supra, note 3. We
find, however, that, from our vantage, the evidence shows more than sufficient
“possible merit to warrant a fuller exploration by the district court.” In re
Morris, 328 F.3d at 740 (citation omitted).
       However, Campbell’s claim of ineligibility for the death penalty was filed
more than ten years after the date the Supreme Court decided Atkins. See 28
U.S.C. § 2244(d)(1)(C) (providing a one-year statute of limitations for a claim
based on a decision of the Supreme Court made retroactively applicable to
cases on collateral review). 9       Therefore, unless equitable tolling applies,
Campbell’s petition is time-barred. In re Henderson, 462 F.3d 413, 417 (5th
Cir. 2006) (citing 28 U.S.C. § 2244(d)(1)). Equitable tolling is to be “applied
restrictively” and should be “entertained only in cases presenting ‘rare and
exceptional circumstances where it is necessary to preserve a plaintiff’s claims
when strict application of the statute of limitations would be inequitable.’” In




       9 We have the authority to deny a motion to authorize based on timeliness. See In re
Lewis, 484 F.3d 793, 795–96 (5th Cir. 2007). See also In re Vassell, No. 13–284, 2014 WL
1779039, at *4 (4th Cir. May 6, 2014). But see In re McDonald, 514 F.3d 539, 543 (6th Cir.
2008) (“[I]nvestigating compliance with the one-year statute of limitations outlined in 28
U.S.C. § 2244(d) . . . is not within the purview of the court of appeals’ consideration of
applications requesting authorization to file a second or successive habeas corpus petition
pursuant to 28 U.S.C. § 2244(b).”).


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                                         No. 14-20293
re Wilson, 442 F.3d 872, 875 (5th Cir. 2006) (quoting Fierro v. Cockrell, 294
F.3d 674, 682 (5th Cir. 2002)).
         The delay gives us pause, but we conclude that, under the applicable law
and these circumstances, we are not precluded from authorizing the filing of a
successive habeas petition here. It would not be appropriate to deny the motion
to authorize where Campbell has brought forth a viable basis for equitable
tolling that merits further factual development. 10
         The evidence presented by Campbell at this stage indicates that, in 2003,
the District Attorney’s office had in its possession evidence reflecting
Campbell’s IQ score of 68, yet the State opposed Campbell’s 2003 motion to
authorize a successive habeas claim based on Atkins on the basis that the
“sparse” school records failed to establish intellectual disability. The State also
asserted that there was no “credible evidence” of intellectual disability. Also
in 2003, Campbell sought funds for intellectual-function testing, which the
State opposed even though the District Attorney had evidence of the IQ score
of 68.
         Moreover, according to Campbell, the Texas Department of Criminal
Justice informed Campbell’s prior attorney that, during Campbell’s earlier
robbery incarceration, he received an IQ test result of 84. As Campbell now
argues, that was not true and contrary to the actual evidence. It is not facially
unreasonable that Campbell’s prior attorney relied upon the department’s


          Moreover, in the context of considering a request for certificate of appealability, this
         10

court may “determine whether the facts in th[e] record entitle [the petitioner] to equitable
tolling, or whether further proceedings” are necessary. Henderson v. Thaler, 626 F.3d 773,
779 (5th Cir. 2010) (citing Holland v. Florida, 560 U.S. 631 (2010)). Yet we have also
recognized that in certain circumstances, it is best to “‘leave it for the district court to decide
whether [a petitioner’s] case presents the ‘rare and exceptional circumstances’ that would
entitle him to the benefit of equitable tolling.’” In re Mathis, 483 F.3d 395, 400 (5th Cir. 2007)
(quoting In re Henderson, 462 F.3d at 417)).


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statement and was persuaded that it was fruitless to pursue this claim further.
Indeed, as Judge Alcala of the Texas Court of Criminal Appeals stated in her
dissent, “it would be unjust to penalize an applicant for not uncovering such a
falsehood previously when he had no basis to believe that a falsehood had been
conveyed to him.” Ex parte Campbell, supra, at 5. 11
       Accordingly, “based on the record in this case, it is unclear if equitable
tolling is warranted.” In re Mathis, 483 F.3d 395, 400 (5th Cir. 2007). Under
these circumstances, “it is premature for us to address [equitable tolling],” In
re Henderson, 462 F.3d at 417, and the district court will be best-positioned to
resolve whether equitable tolling applies.
       Campbell has made the requisite prima facie showing for authorization
to file a successive federal habeas petition asserting his claim of ineligibility
for execution under Atkins. His motion for authorization will be granted.




       11  See also Coleman v. Thompson, 184 F.3d 398, 402 (5th Cir. 1999) (“Equitable tolling
applies principally where the plaintiff is actively misled by the defendant about the cause of
action or is prevented in some extraordinary way from asserting his rights.”) (internal
quotation marks and citation omitted); Munchinski v. Wilson, 694 F.3d 308, 330 (3d Cir.
2012) (holding that state habeas court’s dismissal of petitioner’s state habeas petition, “with
its implicit [erroneous] suggestion that [the petitioner] refile once his federal appeal was
resolved, was sufficiently misleading as to constitute an extraordinary circumstance because
‘it later operate[d] to prevent [the petitioner] from pursuing his rights’”) (quoting Urcinol v.
Cathel, 546 F.3d 269, 275 (3d Cir. 2008) (third alteration in original); Williams v. Thaler, 400
F. App’x 886, 893 (5th Cir. 2010) (unpublished) (holding that the petitioner was entitled to
equitable tolling when he repeatedly inquired about status of his state habeas petition and
Texas Court of Criminal Appeals affirmatively misled him by stating that the petition was
still pending when in fact it had already been denied); Spottsville v. Terry, 476 F.3d 1241,
1245 (11th Cir. 2007) (holding that equitable tolling was permissible when state court misled
the petitioner); Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005), aff'd on other
grounds 549 U.S. 327 (2007) (stating that “extraordinary circumstances” include “when the
State’s conduct prevents the petitioner from timely filing”); Curtiss v. Mt. Pleasant Corr.
Facility, 338 F.3d 851, 855 (8th Cir. 2003) (equitable tolling warranted when “the
[government’s] conduct has somehow lulled the petitioner into inaction”); Knight v. Schofield,
292 F.3d 709, 712 (11th Cir. 2002) (granting equitable tolling when petitioner was misled by
state habeas court).
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                                 No. 14-20293
                                      III.
      Now, having authorized Campbell to file a successive federal habeas
petition asserting his Atkins claim, the question is whether we should stay his
execution, scheduled for Tuesday, May 13, pending resolution of the authorized
Atkins claim. “In deciding whether to issue a stay of execution, we are required
to consider four factors: (1) whether the movant has made a showing of
likelihood of success on the merits, (2) whether the movant has made a showing
of irreparable injury if the stay is not granted, (3) whether the granting of the
stay would substantially harm the other parties, and (4) whether the granting
of the stay would serve the public interest.” Buxton v. Collins, 925 F.2d 816,
819 (5th Cir. 1991); accord Nken v. Holder, 556 U.S. 418 (2009). Or, if the
movant does not show a “‘probability’ of success on the merits, he must ‘present
a substantial case on the merits when a serious legal question is involved and
show that the balance of the equities (i.e., the other three factors) weighs
heavily in the favor of granting the stay.” O’Bryan v. Estelle, 691 F.2d 706, 708
(5th Cir. 1982) (quoting Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982)).
      Here, “we think [Campbell] has made a sufficient showing of likelihood
of success on the merits that the public interest would be served by granting
the stay.” In re Morris, 328 F.3d at 741. As discussed, Campbell’s evidence
supporting his Atkins claim, which includes multiple intelligence tests
administered during various periods of Campbell’s life and consistently
suggesting intellectual disability, is strong. See Ex parte Campbell, supra, at
2 (Alcala, J.) (“compelling”); cf. In re Morris, 328 F.3d at 741 (Higginbotham,
J.) (joining order staying execution despite the “conflict[ing]” evidence of
intellectual disability). “We see nothing upon which we could determine that
‘the granting of the stay would substantially harm the other parties,’ including
the State of Texas.” Id. at 741 (per curiam).


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                                      No. 14-20293
       It is regrettable that we are now reviewing evidence of intellectual
disability at the eleventh hour before Campbell’s scheduled execution.
However, from the record before us, it appears that we cannot fault Campbell
or his attorneys, present or past, for the delay. According to Campbell, in the
period immediately after Atkins was decided, his attorney diligently searched
for evidence of intellectual disability. 12 And, when the Texas Department of
Criminal Justice failed to turn over the results of the intelligence test they had
administered on Campbell upon the attorney’s request for “any and all
intellectual functioning tests,” the State gave the attorney incorrect and
incomplete information. Thus, although the delay is regrettable, we do not see
it as militating against a stay of execution in this case. Compare Walker v.
Epps, 287 F. App’x 371, 376-77 (5th Cir. 2008) (King, J., dissenting) (collecting
cases in which this circuit has disfavored stays of execution “when inmates
have been aware of their potential claims but delayed filing suit”), with In re
Hearn, 376 F.3d 447, 458 (5th Cir. 2004) (staying execution to allow assertion
of Atkins claim where, inter alia, the petitioner was “not dilatory” in searching
for an attorney to represent him in asserting the claim).
       “[T]he Constitution places a substantive restriction on the State’s power
to take the life of a mentally retarded offender.” Atkins, 536 U.S. at 321. We
have been presented with evidence that Campbell, who will soon be executed
unless we intervene, may not constitutionally be executed. “In a capital case,
we must be particularly certain that the legal issues have been sufficiently
litigated, and the criminal defendant accorded all the protections guaranteed
him by the Constitution of the United States.” O’Bryan, 691 F.2d at 708.



       12 Regarding Campbell’s attorney’s diligence, we note that he also sought funding for
intelligence testing and was denied. Campbell v. Cockrell, No. 4:00-CV-3844 (S.D. Tex. Dec.
9, 2003); Campbell, 117 F. App’x at 959.
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                                 No. 14-20293
Because of the unique circumstances of this case, Campbell and his attorneys
have not had a fair opportunity to develop Campbell’s claim of ineligibility for
the death penalty. In light of the evidence we have been shown, we believe
that Campbell must be given such an opportunity. The motion for a stay of
execution pending resolution of Campbell’s Atkins claim will be granted.
                                     ***
      IT IS ORDERED that movant’s motion for authorization to file a
successive habeas corpus petition is GRANTED.
      IT IS FURTHER ORDERED that movant’s motion for stay of execution
scheduled for Tuesday, May 13, 2014 is GRANTED.




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