                   UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT
                                              United States Court of Appeals
                                                       Fifth Circuit
                                                    F I L E D
                               06-50838               July 19, 2006

                                                Charles R. Fulbruge III
                                                        Clerk
     MAURICEO MASHAWN BROWN,

                                          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, San Antonio




Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

     Mauriceo Brown is scheduled to be executed July 19, 2006.

Through counsel, on July 18, 2006, Brown filed a motion for

authorization to file a successive petition pursuant to 28 U.S.C.

§ 2244(b) and a motion for stay of execution.          We deny leave to

file the successive petition and the motion for stay of execution.

     I.     STANDARD TO FILE SUCCESSIVE PETITION

     Pursuant to 28 U.S.C. § 2244(b)(1), “[a] claim presented in a

second or successive habeas corpus application under section 2254

that was presented in a prior application shall be dismissed.”

Additionally, pursuant to section 2244(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.

     “This    standard       has    been   described   as    ‘a    strict    form   of

innocence,    .   .    .    roughly   equivalent    to      the    Supreme   Court’s

definition of innocence or manifest miscarriage of justice in

Sawyer v. Whitley [505 U.S. 333 (1992)].”                Johnson v. Dretke, 442

F.3d 901, 911 (5th Cir. 2006) (quoting 2 RANDY HERTZ & JAMES S.

LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE § 28.3e, at

1459-60 (5th ed. 2005)).

     II.     ANALYSIS



             A.   CONFRONTATION CLAUSE CLAIMS

                  1.        ADMISSION OF WITNESS’S STATEMENT

     Brown    first        argues   that   his   right    of      confrontation     as

guaranteed under the Sixth Amendment and interpreted in Crawford v.

Washington, 541 U.S. 36 (2004), was violated by the admission of

his non-testifying codefendant’s statement into evidence.                    We find

Brown’s reliance on Crawford misplaced.                Foster’s confession was

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admitted against Foster, and the jury was specifically admonished

that the evidence could not be considered against Brown. Thus, the

testimony as presented was not testimony against Brown and did not

violate the rule in Crawford.             Moreover, this Court has held that

Crawford does not apply retroactively on federal habeas.                       Lave v.

Dretke, 444 F.3d 333, 334-36 (5th Cir. 2006).1

                    2.   LIMITED CROSS-EXAMINATION

     Brown     next      argues    that     he     was     denied    his    right   of

confrontation       as    guaranteed       under     the     Sixth    Amendment     as

interpreted    by     Crawford     by   the     trial    court’s     limited    cross-

examination of Mary Patrick, the only witness who was not an

accomplice to the crime.          First, Crawford is not applicable to this

case.    Indeed, Brown was able to cross-examine Patrick in open

court.     Brown’s real complaint was that he was limited in his

cross-examination.        Second, because Brown previously raised this

supposed     confrontation        clause       violation     in     his    motion   for

certificate of appealability (COA), which was denied by this Court,

this claim must be dismissed.             28 U.S.C. § 2244(b)(1).            Third, as

the Director asserts, Brown does not proffer any newly discovered

evidence distinct from his prior claim, which we rejected.                           28


     1
        Although the Supreme Court has granted certiorari in a
Ninth Circuit case which holds that Crawford does apply
retroactively, see Whorton v. Bockting, 399 F.3d 1010 (9th Cir.
2005), cert. granted, 126 S.Ct. 2017 (2006), “[w]e are bound by our
precedent absent an intervening Supreme Court decision or a
subsequent en banc decision.” United States v. Nalasco-Amaya, 54
Fed.Appx. 412 (5th Cir. Nov. 6, 2002) (unpublished).

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U.S.C. § 2244(b)(2).    Fourth, assuming this constitutes a Crawford

claim, as set forth above, it does not apply retroactively on

federal habeas.     Lave, 444 F.3d at 336.



          B.      CLAIM OF FREESTANDING INNOCENCE

     Brown attempts to raise a freestanding claim of innocence.

Brown’s claim of innocence is based on the theory that he took the

blame for the murder because he was threatened.        However, it is

apparent that, if such threats were made, Brown would have been

acutely aware of them even before his trial.        Thus, the basis of

his actual innocence claim could hardly be said to be newly

discovered evidence. Very recently, the Supreme Court has declined

to resolve whether such a claim exists.      House v. Bell, 126 S.Ct.

2064, 2086-87 (2006).       Nonetheless, the Court concluded that

“whatever burden a hypothetical freestanding innocence claim would

require, this petitioner has not satisfied it.”      Id. at 2087.   The

threshold for such a claim would be “‘extraordinarily high.’”       Id.

(quoting Herrera v. Collins, 506 U.S. 390, 417 (1993)).        Brown’s

evidence falls far short of any such threshold.



          C.      EIGHTH AMENDMENT CLAIM

     Relying on Atkins v. Virginia, 536 U.S. 304 (2002), which

categorically bars the execution of mentally retarded persons,

Brown argues that his execution would be in violation of the Eighth


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Amendment.      This Court has explained that to obtain permission to

file a successive petition based on the new constitutional rule

announced in Atkins, a petitioner 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) that he is mentally

retarded.”      In re Hearn, 418 F.3d 444, 444-45 (5th Cir. 2005).

     Brown did not raise an Atkins claim in his previous COA to

this Court.     With respect to whether an Atkins claim was available

to him, Brown filed his initial federal petition in district court

on February 2, 2002, and the Supreme Court issued its decision in

Atkins on June 20, 2002.                The district court denied Brown's

petition   in    2004.      Under       these   circumstances,    our   case   law

indicates that an Atkins claim was not available to Brown.                  In In

re Wilson, 442 F.3d 872 (5th Cir. 2006), this Court explained that

Texas   courts     abided    by     a    “two-forum   rule”      that   prevented

consideration of claims pending at the same time in federal court.

Thus, “[n]ot only did the two-forum rule prevent Wilson from filing

his Atkins claim in state court, it also kept him from amending his

federal application to include an Atkins claim because it would

have been dismissed as unexhausted.”             Id. at 876.   Thus, it appears

that Brown has made a prima facie showing on the first two

requirements for obtaining permission to file a successive Atkins

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claim.

     The next question is whether Brown has made a prima facie

showing of mental retardation.   Subsequent to Atkins, Texas courts

have followed the definition of mental retardation adopted by the

American Association on Mental Retardation and the nearly identical

definition set forth in section 591.003(13) of the Texas Health &

Safety Code.   In re Salazar, 443 F.3d 430, 432 (5th Cir.), cert.

denied, 126 S.Ct. 1467 (2006).   Pursuant to this test, a petitioner

claiming mental retardation must demonstrate 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.”

Id. (quoting Ex parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App.

2004)) (internal quotation marks omitted).

     Brown has failed to make a prima facie showing of mental

retardation.   In this regard, Brown fails to make a prima facie

showing   of   either:   significantly     subaverage   intellectual

functioning; a deficit in adaptive functioning; or onset of mental

retardation before the age of 18.        The report Brown relies on

indicates that his I.Q. is significantly above the range of mental

retardation.   Also, the report does not demonstrate deficits in

specific areas of adaptive functioning.      See In re Salazar, 443

F.3d at 432 (“Salazar offers no affirmative evidence tending to


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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.”);        In re Johnson, 334 F.3d 403, 404 (5th Cir. 2003)

(denying      leave   to   file     a    successive     Atkins       claim    where    the

petitioner offered only two letters from a forensic psychologist

listing areas of concern and a seventh-grade transcript reflecting

failed courses).

       Finally, as previously set forth, the motion for stay of

execution      was    filed   one       day    prior   to    the    scheduled    day    of

execution.       We note additionally that, in contradiction of our

local rules, counsel failed to attach a statement providing a

detailed explanation under oath detailing the reason for the late

filing.       See Fifth Circuit Local Rule 8.10                    (requiring such an

explanation if permission to file a successive petition is filed

within 5 days of the scheduled execution).                   Accordingly, we direct

the Clerk to issue the mandate instanter.                   Fifth Circuit Local Rule

8.8.    The request for leave to file a successive petition is

DENIED.    The motion for stay of execution is DENIED.




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