     Case: 14-11374       Document: 00513503756         Page: 1    Date Filed: 05/12/2016




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

                                      No. 14-11374
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                               May 12, 2016
                                                                              Lyle W. Cayce
In re: DAVID LEONARD WOOD,                                                         Clerk


               Movant



Application for Leave to File a Second or Successive Habeas Corpus Petition,
                              28 U.S.C. § 2244(b)


Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       David Leonard Wood, a death-row prisoner, contends that he is
intellectually disabled and therefore is 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 a successive federal habeas corpus
petition asserting his Atkins claim. Because we find that Wood’s Atkins claim
was previously available to him within the meaning of 28 U.S.C.
§ 2244(b)(2)(A), his motion for authorization is DENIED.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 Wood uses the term “intellectual disability” instead of “mental retardation,” and we
use that term here as well. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (using the term
“intellectual disability”); Rosa’s Law, Pub.L. No. 111–256 (Oct. 5, 2010) (mandating the use
of the phrase “intellectual disability” in place of “mental retardation” in all federal
enactments and regulations).
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                                  No. 14-11374
                                         I
      In 1992, Wood was convicted of murder and sentenced to death. Wood
appealed the conviction to the Texas Court of Criminal Appeals (CCA), which
affirmed his conviction and sentence.            Wood v. State, No. 71,594
(Tex.Crim.App. Dec. 13, 1995). Wood filed a state application for writ of habeas
corpus on December 19, 1997, alleging that (1) his indictment was
constitutionally defective, (2) trial and appellate counsel were ineffective for
failing to object to the alleged defects in the indictment, and (3) the trial court
erred in admitting evidence of an extraneous offense. The CCA denied relief
in 2001. Ex Parte Wood, No. 45,746-01 (Tex.Crim.App. Sept. 19, 2001).
      After his state habeas petition was denied, Wood was appointed federal
habeas counsel. On May 6, 2002, Wood filed an initial federal petition for writ
of habeas corpus; he filed an amended petition on October 2, 2002. In his
amended petition, he raised all three of his previously exhausted claims as well
as several dozen unexhausted claims. Atkins was decided on June 20, 2002,
after the filing of Wood’s original federal petition but before the filing of the
amended federal petition on October 2, 2002; however, Wood did not raise an
Atkins claim in the amended petition, nor did he seek to amend the petition a
second time to include an Atkins claim. The district court denied each claim
on the merits and subsequently denied a certificate of appealability (COA).
Wood v. Dretke, 2006 WL 1519969 (N.D.Tex. Jun. 2, 2006). Wood filed a notice
of appeal and applied to this court for a COA. In 2007, this court denied his
application for a COA. Wood v. Quarterman, 503 F.3d 408 (5th Cir. 2007). The
Supreme Court denied certiorari on April 14, 2008. Wood v. Quarterman, 552
U.S. 1341 (2008). Shortly thereafter Wood’s habeas counsel withdrew, and his
execution was set for August 20, 2009.
      Wood then obtained pro bono counsel, who obtained a stay of execution
and conducted an expedited investigation into an Atkins claim. As a result of
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                                   No. 14-11374
the investigation, Wood filed a successive habeas application in state court
raising an Atkins claim. The state court held an Atkins hearing in October
2011.     On October 1, 2013, the state court found that Wood was not
intellectually disabled and denied his habeas application. The CCA affirmed
in November 2014, and Wood moved for authorization to file a successive
federal habeas petition on January 5, 2015.
                                         II
        Because Wood has previously filed a federal habeas petition, he must
receive authorization from this court before he may file another. 28 U.S.C.
§ 2244(b)(3)(A). Before this court can grant such authorization, Wood must
make a prima facie showing that he satisfies the statutory prerequisites for a
successive habeas petition. In re Campbell, 750 F.3d 523, 530 (5th Cir. 2014).
In Campbell, the court set forth the appropriate level of analysis:
        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. at 530 (internal quotations and citations omitted). In other words, this
court should not, at this stage, rule on the merits, but merely determine
whether Wood’s claim deserves further exploration by the district court.
        Wood asserts that his successive petition falls within the exception of
§ 2244(b)(2)(A) for claims based on a new rule of constitutional law. In order
to receive authorization, he must therefore first make a prima facie showing
that his Atkins claim was “not presented” in his previous federal habeas
petition. 28 U.S.C. § 2244(b)(1). Second, he must make a prima facie showing
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
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                                  No. 14-11374
unavailable” at the time he filed his first federal habeas petition. 28 U.S.C. §
2244(b)(2)(A); Mathis v. Thaler, 616 F.3d 461, 467 (5th Cir. 2010). Third, he
“must make a prima facie showing that he ‘should be categorized as
‘[intellectually disabled]’ within the understanding of Atkins.’” Id. (quoting In
Campbell, 82 Fed. App’x 349, 350 (5th Cir. 2003)). Finally, this court must
determine whether Wood’s claim is barred by the statute of limitations. See 28
U.S.C. § 2244(d).
      As previously mentioned, there is no question here that Wood’s first
petition did not present an Atkins claim. And it is undisputed that Atkins
created a new rule of law, “i.e., that the intellectually disabled are categorically
ineligible for the death penalty,” that is retroactive to cases on collateral
review. Campbell, 750 F.3d at 530. However, in order to obtain authorization
for a successive habeas petition, Wood must also make a prima facie showing
that his Atkins claim was previously unavailable, that he is intellectual
disabled, and that his claim is not barred by the statute of limitations. Wood
cannot make the requisite showing with respect to previous unavailability. As
a result, we do not reach the remaining issues.
      This court has apparently not directly ruled on whether a rule was
“available” if, as in Wood’s case, it was announced while a defendant’s first
federal habeas petition was pending. In Leal Garcia v. Quarterman, 573 F.3d
214, 223 (5th Cir. 2009), the court suggested that a new constitutional rule
that was announced while a petition was pending might, under certain
circumstances, be considered to have been “previously available.” However,
the court ultimately declined to rule on the issue, and, in a footnote,
acknowledged that “other courts have considered the fact that a new claim
arose during the pendency of a petitioner’s first petition relevant, but not
determinative, of whether his later habeas petition was successive.” Id. at
n.47. Indeed, it appears that every court that has been faced with this issue
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                                  No. 14-11374
has declined to adopt a categorical rule. For example, the Eleventh Circuit has
created a standard that takes into account the particular circumstances of the
previous habeas proceeding:      “[i]f the new rule was announced while the
original § 2254 petition was pending the applicant must demonstrate that it
was not feasible to amend his or her pending petition to include the new claim.”
In re Everett, 797 F.3d 1282, 1288 (11th Cir. 2015) (citing In re Hill, 113 F.3d
181, 182-84 (11th Cir. 1997)). Similarly, in Davis v. Norris, 423 F.3d 868, 879
(8th Cir. 2005), the Eighth Circuit held that the petitioner’s Atkins claim was
previously available only after it determined, based on the record before it, that
“he could have raised the issue while he was litigating his habeas petition in
the district court.”
      We agree with the Eleventh Circuit and adopt the feasibility standard.
Under this test, Wood has not made a prima facie showing of previous
unavailability. Wood argues that had he amended his petition to include an
Atkins claim without first exhausting that claim in state court, his federal
petition would have included both exhausted and unexhausted claims;
therefore, his entire petition would have been dismissed without prejudice.
Rose v. Lundy, 455 U.S. 509, 522 (1982) (“[A] district court must dismiss
habeas petitions containing both unexhausted and exhausted claims.”). This
dismissal would have jeopardized his exhausted claims, which would no longer
have been protected by the tolling provisions of § 2244(d)(2). Additionally, he
contends that he could not have sought a stay and abeyance in federal court to
preserve his exhausted claims while he brought his Atkins claim in state court
because of Texas’s “two-forum rule.”        Because these assertions overlook
relevant changes in federal and state law, they are not sufficient to
demonstrate that the claim was previously unavailable.
      Until 2004, “the Texas Court of Criminal Appeals dismissed any state
habeas application without prejudice if the applicant had a parallel application
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                                      No. 14-11374
arising from the same conviction pending in federal court, even if the federal
court stayed its own proceeding.” Mathis v. Thaler, 616 F.3d 461, 468 (5th Cir.
2010). Wood is correct that this “two-forum rule” would have “prevented [him]
from lodging a mixed petition in federal court and simultaneously returning to
state court, or having a federal court hold a petition in abeyance while further
state court remedies were sought.” In re Hearn (Hearn I), 376 F.3d 447, 456
(5th Cir.), decision clarified on other grounds on denial of reh’g by In re Hearn
(Hearn II), 389 F.3d 122 (2004). However, on February 11, 2004, the CCA
effectively abrogated the two-forum rule by agreeing to consider the merits of
a subsequent state petition where the federal court with jurisdiction over the
parallel petition enters an order “staying all of its proceedings for the applicant
to return to the appropriate Texas court to exhaust his state remedies.” Ex
parte Soffar, 143 S.W.3d 804, 807 (Tex. Crim. App. 2004). And on March 30,
2005, the Supreme Court held that district courts have discretion to stay and
abey habeas proceedings in situations where “the petitioner had good cause for
his failure to exhaust, his unexhausted claims are potentially meritorious, and
there is no indication that the petitioner engaged in intentionally dilatory
litigation tactics.” Rhines v. Weber, 544 U.S. at 278.
       The district court did not rule on Wood’s initial federal habeas petition
until April 4, 2006. 2 Between the Supreme Court’s announcement of Rhines
on March 30, 2005, and the district court’s ruling on April 4, 2006, Wood had
more than a year in which to seek amendment of his federal petition, stay of
federal proceedings, and the pursuit of his Atkins claim in state court. And in
fact Wood did seek, unsuccessfully, to stay federal proceedings so that he could



       2 The district court entered an order denying Wood’s petition on April 4, 2006;
however, several of his claims were dismissed without prejudice. The state filed a motion to
amend the judgment, seeking that all grounds for relief be dismissed with prejudice, and on
June 2, 2006, the district court granted the state’s motion and amended the judgment.
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                                     No. 14-11374
return to state court to litigate claims other than an Atkins claim: on May 19,
2006, in response to the state’s motion to amend the judgment to dismiss all of
the claims with prejudice, Wood filed a request for stay and abeyance so that
he could return to state court to exhaust his previously unexhausted claims. 3
Wood has not demonstrated that his representation in the initial federal
habeas proceedings was so deficient as to render the Atkins claim functionally
unavailable; nor has he given any other explanation that could excuse his
failure to amend his petition to include an Atkins claim and seek a stay and
abeyance thereof.
      Atkins was not available to Wood as soon as it was decided. However,
Soffar and Rhines lifted the procedural barrier that made the Atkins rule
inaccessible, and Wood has not alleged any other circumstances that made
amendment of his complaint unfeasible between March 30, 2005, and April 4,
2006. He has thus not made a prima facie showing of unavailability. See, e.g.,
In re Everett, 797 F.3d at 1288; Felker v. Turpin, 83 F.3d 1303, 1306 (11th Cir.
1996) (rejecting an attempt to include a claim in a successive habeas petition
based in part upon the petitioner’s failure to seek amendment of a petition that
was pending when the particular Supreme Court decision relied upon was
issued).
                                           III
      Because Wood theoretically had more than a year in which he could have
sought to amend his initial habeas petition to include his Atkins claim, stay
federal proceedings, and return to state court to exhaust it, it does not appear
reasonably likely that his application satisfies the stringent requirement for
the filing of a successive habeas petition. See Campbell, 750 F.3d at 530. His


      3  This request was denied because the district court determined that Wood had failed
to establish good cause for his failure to exhaust. Memorandum Opinion and Order, Wood v.
Dretke, No. 3:01-cv-02103-L, *4 (June 2, 2006).
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                              No. 14-11374
motion for authorization to file a successive habeas petition is therefore
DENIED.




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