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United States Court of Appeals
Fifth Circuit
F I L E D
April 15, 2003
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
For the Fifth Circuit
No. 03-20373
IN RE: KENNETH WAYNE MORRIS,
Applicant,
-------------------------------------------
ORDER
AUTHORIZING THE DISTRICT COURT TO CONSIDER
A SUCCESSIVE HABEAS CORPUS APPLICATION
AND GRANTING A STAY OF EXECUTION
-------------------------------------------
Before HIGGINBOTHAM, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:
Kenneth Wayne Morris(hereinafter "Applicant") has moved
this Court for permission to file a successive petition for writ
of habeas corpus in the United States District Court for the
Southern District of Texas, Houston Division. The authority of
this Court to act on such motion is stated in 28 U.S.C
§2244 (b)(3)(C) as follows:
The court of appeals may authorize the filing of a
second or successive application only if it
determines that the application makes a prima facie
showing that the applicant satisfies the requirements
of this subsection.
In Reyes-Requena v. United States, our Court followed the
Seventh Circuit's definition of prima facie showing explained
in its opinion in Bennett v. United States as follows:

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.
Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997);
see Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th
Cir. 2001) (quoting Bennett). W e h a v e c a r e f u l l y r e v i e w e d
Applicant's motion and the documents appended as exhibits
thereto and the Response filed by the State. We find that
Applicant has made 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 a new
rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable, see Penry v. Lynaugh, 492
U.S. 302, 109 S. Ct. 2934 (1989) and Atkins v.
Virginia,536 U.S. 304, 122 S. Ct. 2242 (2002); and
(3) applicant should be categorized as "mentally
retarded" as defined in these cases.
Accordingly, we authorize Applicant to file a successive habeas
corpus petition with the district court. This grant is,
however, "`tentative in the following sense: the district court
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must dismiss the motion that we have allowed the applicant to
file, without reaching the merits of the motion, if the court
finds that the movant has not satisfied the requirements for the
filing of such a motion.' The district court then is the second
`gate' through which the petitioner must pass before the merits
of his or her motion are heard." Reyes-Requena, 243 F.3d at 899
(quoting Bennett, 119 F.3d at 470); see also 28 U.S.C.
§ 2244(b)(4). The district court "must conduct a `thorough'
review to determine if the motion `conclusively' demonstrates
that it does not meet AEDPA's second or successive motion
requirements." Reyes-Requena, 243 F.3d at 899 (citing United
States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000)).
Applicant has also moved this Court for a stay of his
execution now set for after 6:00 p.m. on Tuesday, April 15,
2003. We see nothing upon which we could determine that "the
granting of the stay would substantially harm other parties,"
including the State of Texas. Furthermore, we think Applicant
has made a sufficient showing of likelihood of success on the
merits that the public interest would be served by granting the
stay. Accordingly, Applicant's execution now scheduled for
after 6:00 p.m. on Tuesday, April 15, 2003, is hereby stayed
pending final determination of the successive habeas petition
whose filing we have authorized herein.
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PATRICK E. HIGINBOTHAM, Circuit Judge, concurring:
I join in the grant of permission to file a successive writ
because there is here enough merit to warrant further
exploration by the district court. I am confessedly dubitate
on that point, but I am persuaded to join given the "tentative"
process this court had borrowed from the Seventh Circuit. See
Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997),
and Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th
Cir. 2001).
There is a conflict between the family's description of
Morris's impairment in his childhood and school days and "other"
evidence in this record, and we have no I.Q. test. As the brief
of the Harris County District Attorney's office ably points out,
the testifying expert at Morris's trial did not think that he
was retarded. On the other hand, that had not been his focus.
And the trial psychologist never tested for mental retardation.
While now vital school records, scant as they are, do not use
the term "retarded," that is not worth much, given the wide
practice of social promotions and the reluctance of school
officials' use of the stigmatizing term "retarded." There are
more uncertainties. The family offers unqualified assertions
that Morris could not read and write, but that evidence is cast
4

in doubt by records in the file purporting to be in his writing
and reflecting an ability to read.
It is difficult to make informed judgments without the
development of the facts in some form of hearing. While
skeptical of Morris's ability to do so at a hearing, I will not
dissent from an order allowing the district court to make a more
informed judgment than is available to us, as a second gate to
leave to file a successive writ.
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