    Case: 19-10979    Document: 00515109841    Page: 1   Date Filed: 09/09/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                             ___________________          United States Court of Appeals
                                                                   Fifth Circuit

                                                                 FILED
                                No. 19-10979              September 9, 2019
                             ___________________
                                                            Lyle W. Cayce
In re: MARK ANTHONY SOLIZ,                                       Clerk


            Movant

                          ________________________

                      Motion for an Order Authorizing
                   the United States District Court for the
                    Northern District of Texas to Consider
                  a Successive 28 U.S.C. § 2254 Application
                        and Motion to Stay Execution
                          ________________________



Before DENNIS, SOUTHWICK and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Mark Anthony Soliz, a Texas inmate whose scheduled execution looms,
filed two motions, one for authorization to file a successive application for a
writ of habeas corpus and the other to stay execution. We conclude that 28
U.S.C. § 2244(b) bars his successive application and DENY both motions.


              FACTUAL AND PROCEDURAL BACKGROUND
      Soliz was convicted in March 2012 of the murder of Nancy Weatherly in
the course of committing or attempting to commit burglary or robbery, and he
was sentenced to death. This court detailed the offense in Soliz v. Davis, 750
F. App’x 282 (5th Cir. 2018), cert. denied, 139 S. Ct. 1447 (2019). The Texas
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Court of Criminal Appeals affirmed Soliz’s conviction and sentence on direct
appeal. Soliz v. State, 432 S.W.3d 895 (Tex. Crim. App. 2014), cert. denied, 135
S. Ct. 1154 (2015).
      The Office of Capital Writs was appointed as Soliz’s state habeas counsel.
Soliz filed his initial state application for writ of habeas corpus on May 6, 2014,
while his direct appeal was pending. His state habeas claims were denied. Ex
parte Soliz, No. WR-82,429-01, 2014 WL 12713257 (Tex. Crim. App. Dec. 17,
2014). That application did not make a claim under Atkins v. Virginia, 536
U.S. 304 (2002), but it did argue that the reasoning of Atkins should be
extended to create a categorical exemption from death sentences for
individuals with Fetal Alcohol Spectrum Disorder (“FASD”). The argument
was that FASD is equivalent to the intellectual disability which Atkins
discusses. This opinion refers to this claim as an Atkins/FASD claim.
      Seth Kretzer and Carlo D’Angelo were appointed as Soliz’s federal
habeas counsel. Soliz filed his initial federal application on December 11, 2015.
On September 6, 2017, the district court denied all claims but granted a
certificate of appealability (“COA”) as to the Atkins/FASD claim. Soliz v. Davis,
No. 3:14-CV-4556-K, 2017 WL 3888817 (N.D. Tex. Sept. 6, 2017). We affirmed
the district court. Soliz, 750 F. App’x 282. The Supreme Court denied his
petition for a writ of certiorari. Soliz, 139 S. Ct. 1447.
      Kretzer and D’Angelo continued to represent Soliz in state and federal
successive habeas proceedings. Soliz returned to state court on August 9, 2019
and filed a successive application, again asserting the Atkins/FASD claim, and
a motion to stay the execution. On August 21, 2019, the Court of Criminal
Appeals denied the application as an abuse of the writ, did not review the
merits of the claim, and denied the motion. Ex parte Soliz, No. W R-82,429-02,
2019 WL 3958247 (Tex. Crim. App. Aug. 21, 2019).


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      On September 3, 2019, Soliz moved in this court under Section 2244 for
an order authorizing the district court to consider a second or successive
application for a writ of habeas corpus. For the fourth time, Soliz brings the
same Atkins/FASD claim seeking to extend the rationale of Atkins to
individuals with FASD. Texas responded the next day.


                                 DISCUSSION
      We review a motion to authorize the filing of a successive habeas
application to determine if it makes a prima facie showing of satisfying the
requirements of 28 U.S.C. § 2244(b)(3)(C). A prima facie showing is “simply a
sufficient showing of possible merit to warrant a fuller exploration by the
district court.” In re Morris, 328 F.3d 739, 740 (5th Cir. 2003) (quoting Bennett
v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).
      A person in custody under a state-court judgment who moves to file a
successive application for a writ of habeas corpus in federal court must satisfy
these requirements:
            (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.
            (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

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            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.
28 U.S.C. § 2244(b).
      Soliz argues that his current claim is not identical to his previous claims
about his FASD because of changes in the medical understanding of
intellectual disability. Texas argues that Soliz previously presented this same
claim about FASD and was rebuffed, and there is no new rule of constitutional
law that would support some new claim he says he is making.


I.    Claim not presented in prior federal application
      Soliz must show that this claim was not presented in a prior federal
application, or else it will be dismissed. 28 U.S.C. § 2244(b)(1). “If the prisoner
asserts a claim that he has already presented in a previous federal habeas
petition, the claim must be dismissed in all cases.” Tyler v. Cain, 533 U.S. 656,
661 (2001). Soliz acknowledges that “this claim was previously raised,” but he
argues the current claim is sufficiently new because the standard “for
assessing whether one meets the Atkins threshold for intellectual function has
been modified” by the Diagnostic and Statistics Manual-Fifth Edition (“DSM-
5”). Soliz contends that this Court accepted that reasoning in a recent decision.
See In re Johnson, -- F.3d – , 2019 WL 3814384 (5th Cir. 2019). Something of
the same point, he also argues that Atkins “is a constantly evolving doctrine
that merits further consideration by this Court.” For support, Soliz says he is
presenting the same issue that recently led this court to grant a motion to file
a successive application in Johnson. We examine that precedent.
      Johnson had not previously raised an Atkins claim because trying to
show intellectual disability would have been futile under previous methods of
diagnosis. In his motion for authorization to file a successive application,

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Johnson presented undisputed evidence that “new diagnostic guidelines
included significant changes in the diagnosis of intellectual disability, which
changed the focus from specific IQ scores to clinical judgment.” Id. at *5. As
we quoted in that opinion, the Supreme Court stated that “[r]eflecting
improved understanding over time, . . . current manuals offer ‘the best
available description of how mental disorders are expressed and can be
recognized by trained clinicians.’” Id. at *5 n.2 (quoting Moore v. Texas, 137 S.
Ct. 1039, 1053 (2017)) (ellipsis in original).
       We held that Johnson had to show two things. First was that he had not
previously made this claim and had it rejected; if that had occurred, Section
2244(b)(1) would be a bar. The State conceded Johnson had not previously
made an Atkins claim. Id. at *5. Second, Johnson needed to convince us that
Atkins was a new rule of constitutional law made retroactive by the Supreme
Court.    Id.   There was no doubt that Atkins satisfies that requirement
generally, but because Atkins preceded Johnson’s earlier applications for
habeas relief, he needed to show that the case was retroactive for some reason
as to him. Id. We will discuss that requirement next.
       Soliz does make the argument that his current claim should be viewed
as different from his earlier one. That argument is better understood in our
next section when we discuss whether recent precedents make this claim
available to him for the first time.


II.    New rule of constitutional law that was previously unavailable
       We held in Johnson that Atkins had previously been unavailable because
under earlier medical understandings of intellectual disability relevant to
Johnson’s condition, an Atkins claim would have been futile. Id. at *6. Recent
changes in the methodology for assessing intellectual disability removed a


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clear barrier to the claim, arguably making Atkins available to him for the first
time. Id. (discussing In re Cathey, 857 F.3d 221 (5th Cir. 2017)). We repeat
that Johnson also overcame the bar we have held Soliz has not, that Johnson
must not have previously brought the same claim. Id. at *5.
      In the present case, Soliz embraces Johnson and Cathey. Nonetheless,
all he has done is recharacterized a claim that he has long been making. His
claim still is that “those afflicted with FASD should be categorically ineligible
for the death penalty just as the intellectually disabled are.” In order to show
the applicability of at least this part of the Cathey and Johnson analysis, he
needed to show a meaningful change in the manner in which the medical field
diagnoses FASD and that his disorder is now medically equated to intellectual
disability as defined in Atkins.
      We conclude that Soliz’s latest filing does not present a new claim of a
retroactive constitutional right recognized by the Supreme Court that was
previously unavailable to him.
      To the extent Soliz argues that he has now raised an actual Atkins claim
for the first time, it would nevertheless be barred. Soliz again relies on this
court’s recent decision in Johnson to argue that his claim was not previously
available.   Soliz argues that the modified professional standards for
determining intellectual disability and his recently-scored IQ of 75
constitutionally require a finding that he is functionally equivalent to the
Atkins standard.
      In evaluating this argument, we return to Johnson. We see that the
Atkins claim there was previously unavailable because the DSM-5 was
published in May 2013, just 17 days before the district court denied his
application, which made an amendment to the application infeasible. Johnson,
2019 WL 3814384, at *5. In contrast, Soliz filed his amended application in


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February 2016, years after the DSM-5 was published. Soliz, 2017 WL 3888817,
at * 1. Furthermore, Cathey, which the Court relied on in Johnson, was issued
four months before the district court denied Soliz’s initial application.
Compare id. (issuing date of September 6, 2017), with Cathey, 857 F.3d 221
(issuing date of May 11, 2017). Thus, any claim similar to what we discussed
in Johnson and earlier in Cathey was available to Soliz at the time of his earlier
application for a writ of habeas corpus.
                                      ***
      Texas addresses other requirements for filing a successive application
and argues Soliz falls short in various ways. We need not discuss any of those,
for at most they would be additional reasons for our denial of relief.
      Soliz’s motion that requests authority to file a successive application in
district court is DENIED. The motion for a stay of execution is also DENIED.




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