                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 10a0197p.06

               UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                  X
                                                   -
 In re: WILLIAM GARNER,
                                                   -
                                 Movant.
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                                                   ,
                                                          No. 10-3835
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                                                  N

                                    Filed: July 12, 2010
               Before: MARTIN, MOORE, and ROGERS, Circuit Judges.

                                    _________________

                                           ORDER
                                    _________________

        ROGERS, Circuit Judge. William Garner, an Ohio inmate sentenced to death, moves
this court to stay his impending execution, which is scheduled for July 13, 2010, at 10:00
a.m. Garner bases the stay motion on his application for permission to file a second or
successive habeas petition, an earlier petition having been fully litigated and ultimately
denied. His petition is based on Roper v. Simmons, 543 U.S. 551 (2005), in which the
Supreme Court held that the death penalty may not be imposed for crimes committed by
someone under 18 years of age. Garner was 19 years old at the time of the crime, but his
counsel urge that Roper extends to adults whose mental age is that of a juvenile. Roper was
decided five years before Garner’s counsel brought this claim to the state courts for the first
time. We deny the motion to stay.

                                              I

        The facts underlying Garner’s convictions are fully set forth in our earlier decision
upholding the denial of habeas relief. Garner v. Mitchell, 557 F.3d 257 (6th Cir. 2009) (en
banc). In 1992, Garner burglarized and set fire to an apartment in Cincinnati, Ohio, killing
five children who he knew were sleeping inside. Garner was convicted by a jury on, among
other charges, five counts of aggravated murder, and sentenced to death. The Ohio state



                                              1
No. 10-3835         In re Garner                                                      Page 2


courts affirmed Garner’s convictions and sentence on direct and collateral review. Garner
filed an initial habeas action under 28 U.S.C. § 2254 in federal district court, which the
district court denied. Sitting en banc, we ultimately affirmed the district court’s denial of
Garner’s initial petition for habeas relief. Id. at 258, 271.

        On February 2, 2010, the Supreme Court of Ohio granted the State of Ohio’s motion
to set Garner’s execution date and scheduled the execution for the morning of July 13, 2010.
State v. Garner, 124 Ohio St. 3d 1462 (2010). On June 28, 2010, Garner filed a “Motion for
Appropriate Relief” in the Hamilton County, Ohio, Court of Common Pleas, seeking to
vacate his five death sentences. See State v. Garner, No. B-9200826 (Ohio Ct. C. P. filed
July 6, 2010). After that court denied his motion in a summary order issued on July 6, 2010,
id., Garner sought review in the Ohio First District Court of Appeals, which in turn denied
his requests for relief on July 9, 2010, State v. Garner, No. C-100448 (Ohio Ct. App. filed
July 9, 2010). The Supreme Court of Ohio denied Garner leave to appeal, and denied his
motion for a stay as moot, on July 12, 2010. State v. Garner, No. 2010-1209 (Ohio filed
July 12, 2010).

        Garner then moved this court for a stay of his execution and for an order authorizing
him to file a successive habeas corpus petition in federal district court. In seeking
authorization to file a successive habeas petition, Garner argues that the United States
Supreme Court’s 2005 decision in Roper v. Simmons, 543 U.S. 551 (2005), precludes the
State of Ohio from carrying out his execution because, even though he was 19 years old
when he committed his offenses, “his developmental disabilities, limited IQ, and the horrors
of his life caused him to function on the level of a fourteen[-]year-old child.” In support of
this claim, Garner submitted a number of affidavits from his mother, older sister, and twin
brother, documenting the abuse that Garner had suffered as a child and his difficulties
learning in school, functioning in society, and controlling his impulsive behavior. Garner
also submitted the report of school psychologist Dr. Denis W. Keyes, who concluded that
“it is clear to a reasonable degree of scientific certainty, that William ‘PeeWee’ Garner’s
limited development was far less mature than that expected of a normal 19 year-old, and his
history of developmental issues, both adaptively and intellectually, make him more like a
young adolescent of 14 than like an adult.”
No. 10-3835         In re Garner                                                       Page 3


                                              II

                                              A

        Garner is not entitled to a stay of his execution because he cannot make a prima facie
showing that he is entitled to file a second or successive habeas petition, and permission to
file such a petition is necessary for him to obtain relief. Because Garner’s initial habeas
petition was decided “on the merits,” his recent filings in our court are properly deemed a
“second or successive” petition. See In re Cook, 215 F.3d 606, 607-08 (6th Cir. 2000). An
inmate who seeks to file a second or successive habeas application must “move in the
appropriate court of appeals for an order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A). However, “[t]he 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” one of two alternative statutory
requirements. Id. § 2244(b)(3)(C). Garner relies upon the first of these two alternatives,
asserting that his “claim relies on a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable.”                Id.
§ 2244(b)(2)(A).

        Garner purports to rely upon the United States Supreme Court’s holding in Roper
v. Simmons, 543 U.S. 551 (2005)—that the Eighth Amendment’s Cruel and Unusual
Punishment Clause proscribes the imposition of the death penalty upon an offender who was
under age 18 at the time of his or her offense, id. at 568-75—as the “new rule of
constitutional law” that supports his claim.             Although Garner concedes that
“[c]hronologically, . . . [he] was an adult at the time of the offense (he had just turned
nineteen),” he argues that “[h]is history of developmental issues, both adaptively and
intellectually, make him more like a person younger than 14 than like an adult.” In other
words, Garner contends that he cannot be executed because he had a developmental or
“mental age” of less than 18 at the time he committed his crimes.

        The rule upon which Garner relies to advance his successive habeas petition is not
the new rule of constitutional law handed down by the Supreme Court in Roper. The Roper
Court did not hold that the Eighth Amendment prohibits a death sentence for an offender
with a “mental age” of less than 18. Rather, the Roper Court clearly held that a sentence of
No. 10-3835          In re Garner                                                        Page 4


death may not be imposed upon an offender with a chronological age of less than 18. See,
e.g., id. at 574. Although the Roper Court acknowledged that “[d]rawing the line at 18 years
of age is subject . . . to the objections always raised against categorical rules,” the Court
concluded, nonetheless, that “a line must be drawn.” Id. The Court did note that “[t]he
qualities that distinguish juveniles from adults do not disappear when an individual turns
18.” Id. But, “[b]y the same token, some under 18 have already attained a level of maturity
some adults will never reach.” Id. Reasoning that “[t]he age of 18 is the point where society
draws the line for many purposes between childhood and adulthood,” however, the Court
concluded that 18 is “the age at which the line for death eligibility ought to rest” as well. Id.

        Although policy arguments may support an extension of the law to prohibit a death
sentence for an offender who is developmentally juvenile, see Henyard v. McDonough, 459
F.3d 1217, 1248-49 (11th Cir. 2006) (Barkett, J., concurring) (“The mere fact of a
defendant’s chronological age should not qualify a defendant for death where the measures
of capacity render him lacking in culpability.”), in this analysis we are confined to a
consideration of constitutional law as it presently stands. And there is no new rule of
constitutional law that supports Garner’s successive habeas application. Similarly, the Fifth
Circuit in In re Neville, 440 F.3d 220, 221 (5th Cir. 2006) (per curiam), denied permission
to file a second or successive habeas petition where the petitioner relied on Roper and Atkins
v. Virginia, 536 U.S. 304 (2002), as creating a new rule of constitutional law making the
execution of mentally ill persons unconstitutional. The Fifth Circuit reasoned that “[n]o such
rule of constitutional law was created . . . by either Atkins or Roper.” Because Garner cannot
make the requisite prima facie showing to justify an order authorizing him to file his
successive habeas petition, he cannot obtain federal habeas relief on that theory, and a stay
of his execution is not warranted.

                                               B

        Even if Roper could be read to extend to persons with a mental age of less than 18
years, no stay is warranted because Garner is very unlikely to succeed on the merits of his
claim. In considering whether to grant a stay, this court balances the following factors:

        (1) whether [Garner] has demonstrated a strong likelihood of success on the
        merits; (2) whether he will suffer irreparable injury in the absence of
No. 10-3835         In re Garner                                                        Page 5


        equitable relief; (3) whether the stay will cause substantial harm to others;
        and (4) whether the public interest is best served by granting the stay.
Cooey (Beuke) v. Strickland, 604 F.3d 939, 943 (6th Cir. 2010) (quoting Cooey (Biros) v.
Strickland, 589 F.3d 210, 218 (6th Cir. 2009)); see also Mich. Coal. of Radioactive Material
Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991).

        If Garner were given the opportunity to pursue his claim in district court, he would
be unlikely to succeed on the merits because his claim is facially untimely under the AEDPA
statute of limitations. An individual in state custody has a one-year statute of limitations to
file a habeas corpus petition in federal court; the limitations period runs from the latest of
four statutorily prescribed events. 28 U.S.C. § 2244(d)(1)(A)-(D). Because Garner’s
successive habeas petition purports to rely upon “a new rule of constitutional law,” the
statute of limitations in this case began to run at the latest when the Supreme Court decided
Roper, i.e., on March 1, 2005. See 28 U.S.C. § 2244(d)(1)(C); Roper, 543 U.S. 551. Garner
did not seek to raise his claim for the first time in federal court until July 12, 2010—well
outside of the one-year statute of limitations. Even assuming that Garner’s attempts to
present the Roper issue to the state courts tolled the statute of limitations, those attempts
were not initiated until June 2010, still more than five years after Roper was decided.
Accordingly, Garner’s claim appears untimely.

        Because Garner’s claim is likely barred by the one-year statute of limitations, Garner
has not shown a likelihood of success on the merits to warrant the issuance of a stay.

                                             III

        Garner’s motion for a stay of execution is denied.
No. 10-3835         In re Garner                                                       Page 6


        KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur
in the judgment denying a stay of execution because William Garner cannot show a strong
likelihood of success. As Judge Rogers indicates in part II.B, Garner’s current claim is likely
barred by the one-year AEDPA statute of limitations. Therefore, I concur in the judgment
denying a stay of execution.

        BOYCE F. MARTIN, JR., Circuit Judge, joins Judge Moore’s opinion.

                                         ENTERED BY ORDER OF THE COURT


                                                         /s/ Leonard Green

                                                               Clerk
