                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                                                           May 12, 2003
                                                   In the
                                                                                     Charles R. Fulbruge III
                          United States Court of Appeals                                     Clerk
                                        for the Fifth Circuit
                                             _______________

                                               m 03-40207
                                             _______________




                                             IN THE MATTER OF:

                                          ERIC LYNN MOORE,

                                                                 Movant.



                                    _________________________

                              Motion for an Order Authorizing the
                  United States District Court for the Eastern District of Texas
              To Consider a 28 U.S.C. § 2254 Successive Habeas Corpus Application
                                 _________________________




Before SMITH, EMILIO M. GARZA, and                      second petition for writ of habeas corpus in
  DENNIS, Circuit Judges.                               the district court. See 28 U.S.C. § 2244(b)(3).
                                                        Because we conclude that Moore has made a
PER CURIAM:*                                            prima facie showing of entitlement to relief,
                                                        we grant his motion.1
   Eric Moore applies for permission to file a
                                                            Section 2244(b)(3)(C) states that “[t]he

   *
     Pursuant to 5TH CIR. R. 47.5, the court has
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determined that this opinion should not be pub-             We grant Moore’s motions to proceed in
lished and is not precedent except under the limited    forma pauperis and for appointment of counsel
circumstances set forth in 5TH CIR. R. 47.5.4.          under 21 U.S.C. § 848(q)(4)(B).
court of appeals may authorize the filing of a              Therefore, we authorize Moore to file, in
second or successive application only if it de-          the district court, a second habeas petition pre-
termines that the application makes a prima              senting his Atkins claim. This grant, however,
facie showing that the application satisfies the         is
requirements of this subsection.” 28 U.S.C.
§ 2244(b)(3)(C). Although this provision                    tentative in the following sense: the dis-
speaks in discretionary terms, we have ex-                  trict court must dismiss the motion that
plained the circumstances under which we                    we have allowed [Moore] to file, with-
exercise our discretion:                                    out reaching the merits of the motion, if
                                                            the court finds that [Moore] has not sat-
   By “prima facie showing,” we under-                      isfied the requirements for the filing of
   stand simply a sufficient showing of pos-                such a motion. The district court then is
   sible merit to warrant a fuller explora-                 the second “gate” through which
   tion by the district court. Therefore, if                [Moore] must pass before the merits of
   from the application and its supporting                  his . . . motion are heard.
   documents, it appears reasonably likely
   that the application satisfies the stringent          In re Morris, 2003 U.S. App. LEXIS 7595,
   requirements for the filing of a second               at *3 (citation omitted); see also 28 U.S.C.
   or successive petition, the application               § 2244(b)(4). “The district court must con-
   shall be granted.                                     duct a thorough review to determine if the
                                                         motion conclusively demonstrates that it does
Reyes-Requena v. United States, 243 F.3d                 not meet AEDPA’s second or successive mo-
893, 899 (5th Cir. 2001) (alterations and ci-            tion requirements.” In re Morris, 2003 U.S.
tations omitted) (emphasis added).                       App. LEXIS 7595, at *3.

    Moore has made a prima facie showing                    The state argues that Moore is not retarded
that he satisfies the requirements of subsection         and that his Atkins claim is procedurally de-
(b). See In re Morris, No. 03-20373, 2003                faulted. The facts surrounding Moore’s al-
U.S. App. LEXIS 7595, at *2-*3 (5th Cir.                 leged retardation have not been developed,
Apr. 15, 2003). First, Moore has not present-            and the parties have presented scant factual or
ed, in a prior application, the claim that his ex-       legal grounds for us to assess the procedural
ecution would violate the rule of Atkins v. Vir-         default issue. Without such information, “[i]t
ginia, 536 U.S. 304 (2002). 28 U.S.C.                    is difficult to make informed judgments” on
§ 2244(b)(2). Second, Moore’s Atkins claim               these questions. Id. at *5 (Higginbotham, J.,
was previously unavailable and was made re-              concurring). Our decision thus “allow[s] the
troactive to cases on collateral review by the           district court to make a more informed judg-
Supreme Court. 28 U.S.C. § 2244(b)(2)(A);                ment than is available to us” on Moore’s claim
see Bell v. Cockrell, 310 F.3d 330, 332 (5th             and on the state’s defenses that Moore is not
Cir. 2002) (citing Penry v. Lynaugh, 492 U.S.            retarded and that his claim is procedurally de-
302, 330 (1989)). Third, Moore’s proffered               faulted. Id. (Higginbotham, J., concurring).
evidence makes a prima facie showing that he
is “mentally retarded” under these authorities.             We are hopeful that the district court will
                                                         rule on this matter well in advance of the


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scheduled execution date, which is May 21,
2003. Moore’s motion for stay of execution is
DENIED, but without prejudice to its being
renewed in the district court or this court, as
circumstances warrant. The promptness with
which Moore files his successive habeas appli-
cation should be a factor in whether any mo-
tion for stay of execution is favorably consid-
ered.




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