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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 03-50200
IN RE: MICHAEL DEWAYNE JOHNSON,
Applicant,
-------------------------------------------
ORDER
AUTHORIZING THE DISTRICT COURT TO CONSIDER
A SUCCESSIVE HABEAS CORPUS APPLICATION
AND GRANTING A STAY OF EXECUTION
-------------------------------------------
February 25, 2003
Before DeMOSS, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:
Michael DeWayne Johnson (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 Western
District of Texas, Waco Division. The form of such proposed
successive petition for writ of habeas corpus is included within
the papers filed by Applicant with this Court. 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.
The precedent of this Court clearly establish that by the term
"prima facie showing we understand ... simply a sufficient showing

of possible merit to warrant a fuller exploration by the district
court." Therefore, if from the application and its supporting
documents, `it appears reasonably likely that the application
satisfies the stringent requirements for the filing of a second or
successive petition,' the application shall be granted." Reyes-
Requena v. United States, 243 F.3d 893, 899 (5th Cir. 2001) (citing
Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).
We have carefully reviewed Applicant's motion and the
documents appended as exhibits thereto and those filed therewith
and we find that Applicant has made a prima facie showing that:
(1) the claims presented in the proposed successive
habeas corpus application have not previously been
presented in any prior application to this Court;
(2) the factual predicates for the claims asserted in
the proposed successive habeas corpus application could
not have been discovered previously through the exercise
of due diligence;
(3) the facts underlying the claims in the proposed
successive habeas corpus application, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence
that, but for the constitutional errors asserted therein,
no reasonable fact finder would have found the applicant
guilty of the underlying offense.
Accordingly, we authorize Applicant to file the proposed successive
habeas corpus petition with the district court named therein. This
grant is, however, "`tentative in the following sense: the district
court 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
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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 Wednesday, February 26,
2003. We see nothing in the response by the State of Texas which
would support a determination on our part that Applicant is
attempting to "manipulate the judicial process and secure a stay of
execution by unjustifiably delaying the presentation of
constitutional challenges to a capital conviction or sentence until
immediately before a scheduled execution;" and likewise 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
Wednesday, February 26, 2003, is hereby stayed pending final
determination of the successive habeas petition whose filing we
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have authorized herein.
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FORTUNATO P. BENAVIDES, Circuit Judge, DISSENTING:
I believe that the applicant has failed to make a prima facie
showing either: that "the factual predicate for the claim could not
have been discovered previously through the exercise of due
diligence," or that "the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would be sufficient 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."1 Therefore, I would
deny leave to file a successive habeas petition. Accordingly, I
would also deny the motion for stay of execution.
1 28 U.S.C. § 2244(b)(2)(B)(i) & (ii).
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