In Re: Moore

United States Court of Appeals
Fifth Circuit
F I L E D
May 12, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
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
DENNIS, Circuit Judges.
PER CURIAM:*
Eric Moore applies for permission to file a
second petition for writ of habeas corpus in
the district court. See 28 U.S.C. § 2244(b)(3).
Because we conclude that Moore has made a
prima facie showing of entitlement to relief,
we grant his motion.1
Section 2244(b)(3)(C) states that “[t]he
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 We grant Moore’s motions to proceed in
forma pauperis and for appointment of counsel
under 21 U.S.C. § 848(q)(4)(B).

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court of appeals may authorize the filing of a
second or successive application only if it de-
termines that the application makes a prima
facie showing that the application satisfies the
requirements of this subsection.” 28 U.S.C.
§ 2244(b)(3)(C). Although this provision
speaks in discretionary terms, we have ex-
plained the circumstances under which we
exercise our discretion:
By “prima facie showing,” we under-
stand simply a sufficient showing of pos-
sible merit to warrant a fuller explora-
tion 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) (alterations and ci-
tations omitted) (emphasis added).
Moore has made a prima facie showing
that he satisfies the requirements of subsection
(b). See In re Morris, No. 03-20373, 2003
U.S. App. LEXIS 7595, at *2-*3 (5th Cir.
Apr. 15, 2003). First, Moore has not present-
ed, in a prior application, the claim that his ex-
ecution would violate the rule of Atkins v. Vir-
ginia, 536 U.S. 304 (2002). 28 U.S.C.
§ 2244(b)(2). Second, Moore’s Atkins claim
was previously unavailable and was made re-
troactive to cases on collateral review by the
Supreme Court. 28 U.S.C. § 2244(b)(2)(A);
see Bell v. Cockrell, 310 F.3d 330, 332 (5th
Cir. 2002) (citing Penry v. Lynaugh, 492 U.S.
302, 330 (1989)). Third, Moore’s proffered
evidence makes a prima facie showing that he
is “mentally retarded” under these authorities.
Therefore, we authorize Moore to file, in
the district court, a second habeas petition pre-
senting his Atkins claim. This grant, however,
is
tentative in the following sense: the dis-
trict court must dismiss the motion that
we have allowed [Moore] to file, with-
out reaching the merits of the motion, if
the court finds that [Moore] has not sat-
isfied the requirements for the filing of
such a motion. The district court then is
the second “gate” through which
[Moore] must pass before the merits of
his . . . motion are heard.
In re Morris, 2003 U.S. App. LEXIS 7595,
at *3 (citation omitted); see also 28 U.S.C.
§ 2244(b)(4). “The district court must con-
duct a thorough review to determine if the
motion conclusively demonstrates that it does
not meet AEDPA’s second or successive mo-
tion requirements.” In re Morris, 2003 U.S.
App. LEXIS 7595, at *3.
The state argues that Moore is not retarded
and that his Atkins claim is procedurally de-
faulted. The facts surrounding Moore’s al-
leged retardation have not been developed,
and the parties have presented scant factual or
legal grounds for us to assess the procedural
default issue. Without such information, “[i]t
is difficult to make informed judgments” on
these questions. Id. at *5 (Higginbotham, J.,
concurring). Our decision thus “allow[s] the
district court to make a more informed judg-
ment than is available to us” on Moore’s claim
and on the state’s defenses that Moore is not
retarded and that his claim is procedurally de-
faulted. Id. (Higginbotham, J., concurring).
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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