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United States Court of Appeals
Fifth Circuit
F I L E D
Revised July 1, 2003
June 10, 2003
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
_______________________
No. 03-50620
_______________________
IN RE: KIA LEVOY JOHNSON,
Movant
________________________________________________________________
On Motion for Authorization To File
Successive Petition for Writ of Habeas Corpus in the
United States District Court before the
Western District of Texas
________________________________________________________________
Before JONES, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:
Kia Levoy Johnson 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. He
alleges that he has made a prima facie showing that his application
satisfies the requirements of 28 U.S.C. § 2244(b)(3)(C), the
provision authorizing successive petitions. We disagree and
therefore deny the motion and his request for stay of execution.
In In re Morris, 328 F.3d 739, 740-41 (5th Cir. 2003),
this court recently and relevantly explained that a prima facie
showing embodies the characteristics that (1) a petitioner's claims
in a proposed successive habeas corpus application have not

previously been presented in any prior application to this court;
(2) the claim to be presented relies on Atkins v. Virginia, 536
U.S. 304, 122 S. Ct. 2242 (2002), a decision that stated a new,
retroactively applicable rule of constitutional law that was
previously unavailable to the petitioner; and (3) the applicant
could be categorized as "mentally retarded" within the
understanding of Atkins and Penry v. Lynaugh, 492 U.S. 302, 109 S.
Ct. 2934 (1989).
Measured by these standards, Johnson's motion must fail.
We conclude that Johnson's application does not state a prima facie
case of mental retardation under Atkins, which this court stated is
"simply a sufficient showing of possible merit to warrant a fuller
explanation by the district court. . ." In re Morris, 328 F.3d at
740 (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th
Cir. 1997)). In support of his application, Johnson attaches two
letters of a forensic psychologist, both dated within two weeks of
these events. These letters refer to "multiple areas of concern,"
a prior evaluation that "did not clearly reflect mental
incapacitation," a "belief" that Johnson's verbal intelligence
level may be as low as 62-65 and as high as 72-75. The
psychologist recommends further testing. The only evidence that
Johnson's condition existed in his youth is a seventh grade
transcript from the mid-1970s, which reflects that he failed all
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his academic courses that year, while passing in PE, Band and
Health with B's and C's.
Atkins cites definitions of mental retardation from the
American Association of Mental Retardation and the American
Psychiatric Association. Atkins, 536 U.S. 304, 309 n.3 and 22, 122
S. Ct. at 2245 n.3 and 22. The Court explicitly noted, however,
that "[n]ot 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." Id. at 317, 122 S. Ct.
at 2250. We are persuaded that the two letters and seventh grade
transcript offered by Johnson are simply insufficient to suggest
that further development of his claim has any likelihood of success
under the Atkins criteria.
Johnson's application also asserts that he was entitled
to a judge and/or jury determination of mental retardation pursuant
to the Court's recent decisions in Ring v. Arizona, 536 U.S. 584
(2002) and Apprendi v. New Jersey, 530 U.S. 466 (2000), read
together with Atkins, supra. Johnson's substantive contention
fails because neither Ring and Apprendi nor Atkins render the
absence of mental retardation the functional equivalent of an
element of capital murder which the state must prove beyond a
reasonable doubt. See Ring, 536 U.S. at 609 (noting that jury
finding required by the Sixth Amendment for aggravating factors
that operate as "the functional equivalent of an element of a
greater offense"). As the state points out, the absence of mental
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retardation is not an element of the sentence any more than sanity
is an element of an offense.1
Further, the Court in Atkins explicitly stated that it
left "to the States the task of developing appropriate ways to
enforce the constitutional restriction upon its execution of
sentences." Atkins, 536 U.S. 317, 122 S. Ct. at 2250 (quoting Ford
v. Wainwright, 477 U.S. 399, 405 (1986)). In light of this
direction by the Supreme Court, it would be wholly inappropriate
for this court, by judicial fiat, to tell the States how to conduct
an inquiry into a defendant's mental retardation.
For the foregoing reasons, the application for
authorization to file a successive habeas petition and the motion
for stay of execution are DENIED.
EDITH H. JONES, Circuit Judge, concurring:
1Although we need not reach the issue, we question whether
Johnson's claims based on Ring are available to him on collateral
review. This court has held that Apprendi did not announce a new
rule of substantive law and is not retroactively applicable to
convictions that became final before the decision was announced.
United States v. Brown, 305 F.3d 304, 309 (5th Cir. 2002), cert.
denied, 123 S. Ct. 1919 (2003); see also Teague v. Lane, 489 U.S.
288 (1989). Since the rule in Ring is essentially an application
of Apprendi, logical consistency suggests that the rule announced
in Ring is not retroactively available. See Ring, 536 U.S. at 620-
21 (O'Connor, J., dissenting)(Ring's impact would be lessened by
Teague's non-retroactivity principle).
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In addition to the reasons stated by the panel, I would
also hold that Johnson's Atkins claim is procedurally barred. The
Texas Court of Criminal Appeals held that his application seeking
relief pursuant to Atkins "fails to satisfy the pleading
requirement imposed by [Texas Code Crim. Proc.] art. 11.071, § 5(a)
. . .", and the court accordingly dismissed it as an abuse of the
writ under state law. That decision by Texas's highest court
states an adequate and independent state ground that bars federal
habeas review absent a showing of cause and prejudice. Coleman v.
Thompson, 501 U.S. 722, 729 (1991); Barrientes v. Johnson, 221 F.3d
741, 758-59 (5th Cir. 2000). Johnson has provided no reason why
federal courts are not bound by the procedural bar rule to deny him
federal habeas relief. Hence, Johnson's application for leave to
file a successive habeas petition does not make a prima facie case
in his favor.
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