                                                                           FILED
                              FOR PUBLICATION                               FEB 28 2012

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROBERT HENRY MOORMANN,                           Nos. 08-99035, 12-15395

              Petitioner - Appellant,            D.C. No. 2:91-CV-01121-ROS

  v.
                                                 OPINION
DORA B. SCHRIRO,

              Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Arizona
                  Roslyn O. Silver, Chief District Judge, Presiding

                     Argued and Submitted February 27, 2012
                                Phoenix, Arizona




Before: SCHROEDER, McKEOWN, and RAWLINSON, Circuit Judges.

                  Opinion by Judge SCHROEDER, Circuit Judge:

       Robert Moormann applies for a stay of execution and permission to file a

second or successive habeas petition in federal district court. See 28 U.S.C.

§ 2244(b)(3). Moormann was convicted in 1985 of the first-degree murder of his

adoptive mother, Roberta Moormann, and sentenced to death. The murder took
place in a Florence, Arizona motel room while Moormann was on a furlough from

the state prison where he was serving a sentence of nine years to life for

kidnapping. After stabbing and suffocating Roberta to death, he dismembered the

body and disposed of it in trash bags. He is scheduled to be executed on February

29, 2012.

      His case has already been before us twice. The facts and procedural

background are fully contained in our prior opinions. See Moormann v. Ryan, 628

F.3d 1102 (9th Cir. 2010); Moormann v. Schriro, 426 F.3d 1044 (9th Cir. 2005).

We summarize what is relevant to this proceeding.

      In 2005, in Moormann v. Schriro, we considered an appeal from the denial

of Moormann’s first habeas petition pursuant to 28 U.S.C. § 2254, where he had

raised a number of claims of ineffective assistance of counsel in connection with

his state court trial and appeal. The claims had been considered procedurally

defaulted under Arizona law by the state courts, and by the district court, because

he had not raised them in his state court appeal. We affirmed with respect to most

of his claims, but observed that the claims of ineffective assistance of counsel were

not timely litigated in state court because of a conflict of interest that established

cause for the default. We remanded those that appeared colorable to the district




                                            2
court to determine whether there was prejudice to excuse the default. 426 F.3d at

1059-60.

      In our second opinion five years later, we considered the ineffectiveness

issues that the district court, after the remand, had certified for appeal. We held

there was no prejudice shown either for the claim that his counsel should have

pursued a defense that Moormann acted impulsively, or for the claim that his

counsel should have called more mitigation witnesses. 628 F.3d at 1114.

      Moormann has asked this court for permission to file a successive habeas

petition, or, in the alternative, to have this court recall the mandate of our 2010

opinion so that he can file a belated Rule 60(b) motion in the district court. The

district court in the meantime has considered the merits of his 60(b) motion and

denied it, so he has appealed that ruling. We consolidate the two proceedings for

purposes of decision.

      On February 27, 2012, the Arizona Supreme Court denied Moormann’s

February 26, 2012 motion for stay of execution and petition for review from the

Pinal County Superior Court’s February 22, 2012 order denying a hearing on

mental retardation and denying Moormann’s other claims as precluded. We are

satisfied that Moormann’s claims now before this Court are fully exhausted.




                                           3
      The standard Moormann must meet to file a second or successive petition is

very high. Under 28 U.S.C. § 2244(b)(2), this court must dismiss his request

unless:

      (A) [he] 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 [Moormann] guilty of the underlying
      offense.

28 U.S.C. § 2244(b)(2).

      It is similarly difficult to convince an appellate court to recall its mandate for

the filing of a new proceeding after an appeal has long become final. We do so

only in extraordinary circumstances. Carrington v. United States, 503 F.3d 888,

891 (9th Cir. 2007).

      The immediate relief requested is a stay of execution. A federal court will

only grant a stay of execution where the inmate seeking the stay can show a

significant possibility of success on the merits. Hill v. McDonough, 547 U.S. 573,

584 (2006).



                                           4
       For the following reasons, we conclude Moormann has not met these

exacting standards.

       Moormann’s current diligent and thorough counsel are, in essence, asking us

to reopen his case so that he can pursue a claim for habeas relief on two issues.

The first issue is that both of his lawyers in state court, the first having been

counsel for the direct appeal and the first postconviction proceeding, and the

second the counsel for the second state postconviction petition, failed so utterly to

raise a colorable claim that either one or both of them effectively “abandoned”

Moormann. The Supreme Court has only recently recognized that complete

abandonment of representation can justify a belated reopening of a matter

considered closed. Maples v. Thomas, 132 S.Ct. 912 (2012).

       Moormann contends that he could not previously have argued

“abandonment,” because the Supreme Court only recently recognized it as

establishing cause for default, and in this he is correct. He further argues that his

lawyers’ conduct was similar to the conduct of the lawyers in Maples, and in this

he is incorrect.

       In Maples, the lawyers ceased acting as Maples’ attorneys without telling

him; they did not serve as his agents in any meaningful sense, and left him in a

situation where he lacked the assistance of any authorized attorney, so “that, in


                                            5
reality, he had been reduced to pro se status.” Id. at 927. Significantly, they failed

to file a notice of appeal on his behalf. The Court did not state whether this

holding should apply retroactively. See 28 U.S.C. § 2244(b)(2)(A) (new rule must

be made retroactive by the Supreme Court). But we assume, for purposes of this

opinion, that it should.

      Even assuming that Maples applies retroactively, Moormann cannot make a

prima facie showing that his postconviction counsel abandoned him within the

meaning of Maples. Moormann concedes that he was represented by two lawyers

in his state postconviction proceedings. The first, who had been counsel on direct

appeal and the first postconviction petition, withdrew, so that the second could

assert claims that the first lawyer was ineffective on direct appeal, in addition to

other claims of constitutional violations. Moormann was thus always represented

by active counsel. The fault Moormann attributes to the second lawyer is that he

did not conduct investigations that would have revealed additional evidence

supporting Moormann’s mitigation claims of a difficult childhood, mental

disabilities, and a possibly incestuous relationship with the victim. Such alleged

failure to investigate may be a claim of serious negligence, but it is not

“abandonment.” See Maples, 132 S.Ct. at 923. For this reason, Moormann fails to

state a prima facie claim under Maples.


                                           6
      Moreover, we actually considered the merits of essentially the same claim in

his first federal habeas petition, where he argued that counsel on the direct appeal

was ineffective because he failed to conduct investigations that would have

revealed mitigating evidence. See Moormann v. Schriro, 426 F.3d 1044. We

remanded for the district court to consider the claim and then held, on the merits,

that “[t]he new material would not have affected the result” of Moormann’s

sentencing. Moormann v. Ryan, 628 F.3d at 1114. Moormann is not now entitled

to renew the same claim on the theory that he was “abandoned” in the state court.

Our analysis is thus not affected by the pending Supreme Court decision in

Martinez v. Schriro, 623 F.3d 731 (9th Cir. 2010), cert. granted sub nom. Martinez

v. Ryan, 131 S.Ct. 2960 (2011).

      The second issue that Moormann seeks to pursue is that he is now mentally

retarded and cannot be executed for that reason. He relies on Atkins v. Virginia,

536 U.S. 304 (2002), where the Supreme Court held that a person who is mentally

retarded may not be sentenced to death. Moormann’s trial defense of insanity was

rejected by the jury. The state, in its responses to this petition and to Moormann’s

petitions in the state courts, has supplied documentation from the record that shows

that Moormann was diagnosed as having an IQ well above 70 or as not mentally




                                          7
retarded in his early twenties in 1972, at the time of his trial in 1985, and again in

1998.

        In support of his claim, he now relies on the affidavit of a psychologist

stating that one of two recently administered tests shows Moormann’s IQ to be

below 70. The psychologist expressed the opinion that “if the time and resources

are obtained to conduct a formal assessment” Moormann would qualify for the

mental retardation diagnosis. Moormann seeks more time for further tests that

might more conclusively establish that his IQ has been diminished by recent

surgery and a stroke in 2007.

        The Supreme Court in Atkins did not define mental retardation as a matter of

federal law. With respect to mental retardation, as with respect to the related issue

of insanity, see Ford v. Wainwright, 477 U.S. 399, 416-17 (1986), the Supreme

Court left to the states “the task of developing appropriate ways to enforce the

constitutional restriction upon [their] execution of sentences.” Atkins, 536 U.S. at

317 (quotation marks omitted); see also Schriro v. Smith, 546 U.S. 6, 6-8 (2005)

(summarily vacating a Ninth Circuit order remanding a habeas petition to the

Arizona courts for a jury to make the Atkins determination, and emphasizing that

Atkins left enforcement to the states).




                                            8
      Moormann presented his mental retardation claim to the Arizona Supreme

Court last week. On February 24, 2012, the Arizona Supreme Court denied

Moormann’s motion for a stay of execution. In that order, the Arizona Supreme

Court expressly noted that under Arizona law, a “defendant is not statutorily

deemed to have mental retardation unless he has a full scale IQ of 70 or lower, and

the onset of that condition occurs before age eighteen.” A.R.S. § 13-753(K)(3),

(5). That court looked to Arizona’s statutory definition of mental retardation, now

termed “intellectual disability,” as a condition entailing, among other things, the

onset of an IQ below 70 before the age of 18. A.R.S. § 13-753(K). The Arizona

Supreme Court examined Moormann's medical history and determined that there

was little likelihood that Moormann could meet the state’s definition of mental

retardation. State v. Moormann, No. CR-85-0115-AP, Order at *4-*5 (Ariz. Feb.

24, 2012) (“Mental retardation, as defined in § 13-753(K)(3) begins in childhood

and cannot develop later in life.”). Arizona requires clear and convincing evidence

in this instance. See A.R.S. § 13-753(G) (a defendant with an IQ of 70 or lower

(but above 65) must prove intellectual disability by clear and convincing

evidence); State v. Moormann, No. CR-85-0115-AP, Order at *4 (Ariz. Feb. 24,

2012) (“Because Dr. Weinstein intends to testify that Moormann’s recent IQ scores

were affected by his post-trial medical conditions, even if credited, Dr. Weinstein’s


                                           9
affidavit does not constitute clear and convincing evidence that Moormann had

mental retardation in childhood, only that his recent medical problems have

lowered his IQ.”). We must defer to that conclusion under Atkins. See Atkins, 536

U.S. at 317.

      Arizona’s definition is by no means unique. Both the American Association

on Mental Retardation (“AAMR”) and the American Psychiatric Association

(“APA”) define mental retardation as requiring that the onset or manifestation of

the condition occur before the age of eighteen. See Atkins at 308, n.3.

      Finally, even if Moormann could now conclusively show that he is currently

mentally retarded, he would be entitled to habeas relief only if, at a minimum, the

Arizona court violated clearly established federal law. See 28 U.S.C. § 2254(d).

There is no clearly established federal law that a person who was not mentally

retarded at the time of the crime or the trial may nevertheless be exempted from the

death penalty pursuant to Atkins, because of subsequent mental deterioration. The

law appears to be to the contrary and does not indicate retardation is a product of

changing circumstances. See Heller v. Doe, 509 U.S. 312, 323 (1993) (“Mental

retardation is a permanent, relatively stable condition . . . .”). We therefore cannot

say that the Arizona Supreme Court’s decision is “contrary to,” or “an

unreasonable application of,” clearly established Supreme Court precedent. 28


                                          10
U.S.C. § 2254(d). See also Ochoa v. Workman, 2012 WL 130718, at *4-*5 (10th

Cir. 2012) (holding that Oklahoma’s determination that mental retardation is a

static condition is neither contrary to, nor an unreasonable application of, Atkins).

      For the foregoing reasons, we DENY Moormann's request to file a second

habeas petition and his motion to recall the mandate. We AFFIRM the district

court’s denial of the Rule 60(b) motion. We find that Moormann has failed to

show a strong likelihood of relief on the merits and so we DENY his motion for a

stay of execution.

      AFFIRMED and relief DENIED.




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                                   COUNSEL

Julie Hall, Oracle, Arizona, for petitioner-appellant Robert Henry Moormann.

John Pressly Todd, Deputy Attorney General, Phoenix, Arizona, for respondent-
appellee Dora B. Schriro.




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