                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                          F I L E D
                   UNITED STATES COURT OF APPEALS                        November 13, 2003
                        For the Fifth Circuit
                                                                       Charles R. Fulbruge III
                                                                               Clerk

                                 No. 03-20700


                     In re ROBERT JAMES CAMPBELL,

                                 Petitioner.



On Motion for Authorization to File Successive Petition for Writ
    of Habeas Corpus in the United States District Court of the
                        Southern District of Texas.


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM*

      Movant   Robert    James    Campbell       has   asked    this     court    for

permission to file a Successive Petition for a Writ of Habeas

Corpus in the United States District Court of the Southern District

of Texas based on the Supreme Court’s recent decision in Atkins v.

Virginia, 536 U.S. 304 (2002), which bans the execution of the

mentally retarded.        He alleges that he has made a prima facie

showing that his application satisfies the requirements for filing

a   successive   habeas      petition       as    stated   in     28     U.S.C.      §



      *
     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this opinion should not be published and is not precedent except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.

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2244(b)(2)(A).1 We deny Campbell’s motion to file a successive

habeas brief.

     Our recent decision in In re Morris, 328 F.3d 739 (5th Cir.

2003),   provides   a    framework    for   analyzing   Campbell’s   claim.

Specifically, in Morris, we stated that a movant’s motion should be

granted if he makes a prima facie showing that (1) the claims to be

presented in the proposed successive habeas corpus application have

not previously been presented in any prior application to this

court; (2) the claim to be presented in the proposed successive

habeas corpus application relies on the new rule of constitutional

law announced in Atkins, made retroactive to cases on collateral

review by the Supreme Court and that was previously unavailable;

and (3) movant should be categorized as “mentally retarded” within

the understanding of Atkins.         See Morris, 328 F.3d at 740-41; see

also In re: Johnson, 334 F.3d 403, 404 (5th Cir. 2003).

     Campbell satisfies the first two categories of this prima

facie showing.    We conclude, however, that Campbell does not state

a prima facie case of mental retardation within the understanding

of Atkins.      Specifically, Campbell does not make “a sufficient

showing of possible merit to warrant a fuller explanation by the

district court.”        Morris, 328 F.3d at 740 (quoting Bennett v.



     1
       Movant also requests leave to file a reply brief in
support of his motion. We grant Campbell’s request to file a
reply brief and have considered it in deciding this motion.

                                       2
United States, 119 F.3d 468, 469-70 (7th Cir. 1997)).                      Campbell

contends that he suffered through severe poverty and child abuse

growing    up,   causing   him   to     leave    home    at   age    thirteen   and

subjecting him to extreme emotional disturbance as a teenager.

Campbell    also   contends      that    he     had    inadequate      educational

opportunities growing up and performed very poorly in school.

Campbell finally contends that his father was known around town as

“crazy,” and that, to the extent this condition was congenital, it

would constitute a risk factor for mental retardation for Campbell.

     In support of this motion, Campbell has attached affidavits

and school records supporting the contentions explained above.

Campbell also cites four categories of “risk factors,” published by

the 2002 American Association on Mental Retardation, that may

interact to cause mental retardation.                 Campbell argues that his

abusive and unstable childhood causes him to fit within all four of

these risk factors. Campbell contends, therefore, that he has made

the prima facie showing of mental retardation necessary for this

court to grant his motion.       However, as the Supreme Court stated in

Atkins, “not all people who claim to be mentally retarded will be

so impaired as to fall within the range of mentally retarded

offenders about whom there is a national consensus.”                   Atkins, 536

U.S. at 317.

     The evidence of childhood poverty and abuse, poor elementary

school     performance,    and     family       dysfunction         that   Campbell


                                         3
demonstrates in his motion is simply not enough to demonstrate that

his claim has any likelihood of success under Atkins.                        See Johnson,

334   F.3d    at    404.      Claims     of       mental    retardation       within   the

understanding       of     Atkins     present      individualized,      fact     specific

inquiries.         Accordingly,        we     cannot       articulate    any     specific

requirements that a movant must make in order to have a motion for

leave to file a successive habeas petition granted by this court.

We note, however, that in this motion Campbell has not alleged that

he has any mental impairment or cognitive dysfunction whatsoever.

Compare      Morris, 328 F.3d at 741 (Higginbotham, J., concurring)

(mentioning that the record demonstrated some evidence of movant’s

mental impairment). Additionally, Campbell does not allege that he

is mentally retarded within the understanding of Atkins, only that,

according     to    one    set   of    factors,       he    is   at   risk    for   mental

retardation.       Consequently, he has not made a prima facie showing

of mental retardation and is not entitled to file a successive

habeas petition in the district court.

      Campbell also contends that he was entitled to a judge and/or

jury determination of his mental retardation because, pursuant to

the Supreme        Court    decision     in       Atkins,    the   absence     of   mental

retardation is an element of capital murder that the state must

prove beyond a reasonable doubt.                  See Ring v. Arizona, 536 U.S. 584

(2002); Apprendi v. New Jersey, 530 U.S. 446 (2000).                           This court

has already considered and rejected this argument.                           See Johnson,


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334 F.3d at 405.   Campbell’s contention therefore fails.

     MOTION FOR LEAVE TO FILE A SUPPLEMENTAL BRIEF GRANTED; MOTION

FOR AUTHORIZATION TO FILE A SUCCESSIVE HABEAS PETITION DENIED.




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