F I LED

United States Court of Appeals

Tenth Circuit

April 6, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GEORGE OCHOA,

Movant,

v.

MARTY SIRMONS, Warden,

Oklahoma State Penitentiary,

Respondent.

No. 06-6349

MOTION TO FILE SECOND OR SUCCESSIVE

PETITION FOR WRIT OF HABEAS CORPUS

James L. Hankins, Oklahoma City, Oklahoma, for Movant.

Jennifer B. Miller, Assistant Attorney General (W.A. Drew Edmondson,

Attorney General for Oklahoma, with her on the brief), Oklahoma City,

Oklahoma, for Respondent.

Before TACHA, Chief Judge, BALDOCK, and MURPHY, Circuit Judges.

PER CURIAM.

George Ochoa was convicted of first degree murder and sentenced to death

in 1996. See Ochoa v. State, 963 P.2d 583 (Okla. Crim. App. 1998). With the

denial of his first federal habeas petition still under review on appeal, he now
While 28 U.S.C. § 2244(b)(3)(D) provides that a motion for authorization 1

of a second or successive petition should be resolved within thirty days, this time

limit is “hortatory or advisory rather than mandatory.” Browning v. United

States, 241 F.3d 1262, 1263 (10th Cir. 2001) (en banc) (quotation omitted);

accord In re Williams, 330 F.3d 277, 280 (4th Cir. 2003) (collecting cases). 

This case “represents the more complex situation for which that limit is not

practicable.” Browning, 241 F.3d at 1264.

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seeks to challenge his sentence on the basis that he is mentally retarded and hence

ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). He

contends he is entitled to proceed on this new claim for two reasons: (1) because

his first habeas action has not been finally resolved, the claim is not “second or

successive” for purposes of 28 U.S.C. § 2244(b) and thus may be brought without

need of this court’s authorization under the statute; and (2) if such authorization

is necessary, he has made the “prima facie showing,” required by § 2244(b)(3)(C),

that his claim satisfies the conditions for proceeding on a second or successive

habeas petition under the new-rule-of-law provision in § 2244(b)(2)(A). After

review of Mr. Ochoa’s motion to proceed on the Atkins claim, we ordered formal

briefing and oral argument. We now hold that the pendency of an appeal from 1

the denial of a first petition does not obviate the need for authorization of newly

raised claims, but that Mr. Ochoa has made the prima facie showing required for

authorization to proceed under § 2244(b)(2)(A). 

Mr. Ochoa’s first habeas petition was denied in 2001. He appealed that

disposition to this court, but, following the Supreme Court’s 2002 decision in

Atkins, he returned to state court to pursue an Atkins claim while his first habeas
We accept the State’s concession on this point. The Supreme Court’s 2

anticipatory holding on the retroactivity of the Atkins rule in Penry v. Lynaugh,

492 U.S. 302, 329-30 (1989), has been thoroughly explained elsewhere. See, e.g.,

In re Holladay, 331 F.3d 1169, 1172-73 (11th Cir. 2003) (collecting cases); Davis

v. Norris, 423 F.3d 868, 879 (8th Cir. 2005).

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appeal was abated. Unlike defendants tried after Atkins, who can raise the issue

of mental retardation in their initial criminal prosecution, see Blonner v. State,

127 P.3d 1135 (Okla. Crim. App. 2006) (discussing procedure for resolving

Atkins defense), Mr. Ochoa had to pursue his claim in the post-conviction context.

On the basis of preliminary evidentiary proceedings, the Oklahoma Court of

Criminal Appeals ordered a trial on the issue of Mr. Ochoa’s mental retardation,

which ultimately resulted in the denial of his Atkins claim. See Ochoa v. State,

136 P.3d 661 (Okla. Crim. App.), cert. denied, 127 S. Ct. 680 (2006). The

procedural and substantive adequacy of that proceeding is contested, but that is

beyond the scope of our consideration here. With his state remedies exhausted,

Mr. Ochoa filed his motion for leave to pursue habeas relief under Atkins. 

Before turning to the issues raised by that motion, we emphasize that

Mr. Ochoa falls within a narrow category of habeas petitioners. Obviously only

those facing the death penalty may even invoke Atkins. And Atkins reflects one

of the rare instances in which the Supreme Court has announced a new rule of

constitutional law that it has also expressly made retroactively applicable to cases

on collateral review. Finally, Mr. Ochoa was not only convicted before Atkins 2

but had also filed and been denied relief on his first habeas petition by that time. 
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Our decision today authorizes the pursuit of a second or successive petition in

light of this unique combination of circumstances. 

The Need for § 2244(b) Authorization

Mr. Ochoa argues as a threshold matter that authorization under § 2244(b)

is unnecessary so long as his first habeas action has not been finally adjudicated

on appeal. He relies on a Second Circuit case, Whab v. United States, 408 F.3d

116 (2d Cir. 2005), for this proposition. No other circuit has followed Whab, and

we decline to do so. While this court has not addressed the precise procedural

argument made here, it is clearly precluded by general principles in our case law

addressing various attempts to circumvent § 2244(b) requirements, particularly

following the Supreme Court’s decision in Gonzalez v. Crosby, 545 U.S. 524

(2005) (deeming Fed. R. Civ. P. 60(b) motion that interjects new claims into

habeas action a second or successive petition under § 2244(b)). 

In United States v. Nelson, 465 F.3d 1145, 1148-49 (10th Cir. 2006), we

held that a request to add new claims after the district court has adjudicated a

habeas action must be preceded by a motion to vacate under Rule 60(b) and that,

per Gonzalez, § 2244(b) applies to the Rule 60(b) motion as if it were a

stand-alone second or successive petition. See also United States v. Pedraza,

466 F.3d 932, 933-34 (10th Cir. 2006) (holding post-judgment effort to raise new

claim by motion under Rule 59(e) is likewise equivalent of second or successive

petition under § 2244(b)). Consistent with Nelson, Mr. Ochoa may pursue his
Indeed, § 2244(b) may not be circumvented by injecting new claims into a 3

habeas action even while it is still pending in the district court. In United States

v. Espinoza-Saenz, 235 F.3d 501 (10th Cir. 2000), we held that the district court

correctly “treat[ed] [a] supplemental [§ 2255] motion as a successive petition

instead of as an amendment which related back to his timely [original] motion,”

id. at 503, where it “was not clarifying, but instead sought to assert claims totally

separate and distinct . . . from those raised in [the] original motion,” id. at 505. 

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Atkins claim only by securing authorization through a motion under § 2244(b). 

Any other procedure used to raise the new claim, however ostensibly associated

with his initial habeas action, is properly deemed such a motion. 

Mr. Ochoa emphasizes that in Nelson, unlike here, no appeal was pending

in the first habeas action when new claims were raised by post-judgment motion.

But this procedural circumstance has nothing to do with the relevance of Nelson

to our analysis. The point is that § 2244(b) authorization is required whenever

substantively new claims are raised; procedural associations with prior habeas

matters must not obscure the fact that the petitioner is really pursuing a second or

successive petition. Given this basic point, nothing in Gonzalez, Nelson, or our

other cases suggests that whether a Rule 60(b) motion or other procedural vehicle

may be used to circumvent § 2244(b) depends on the incidental fact that an appeal

is or is not pending from the underlying habeas proceeding. 

3

The approach advocated by Mr. Ochoa would greatly undermine the policy

against piecemeal litigation embodied in § 2244(b). Multiple habeas claims could

be successively raised without statutory constraint for as long as a first habeas

case remained pending in the system. If the proper treatment of post-judgment
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proceedings in habeas, carefully explained in Gonzalez to prevent procedural

circumvention of § 2244(b), left open an exception this broad, that point would

have been made explicit in the statute or, at least, in the Supreme Court’s primary

decision implementing the statute. 

We conclude that Mr. Ochoa’s Atkins claim is second or successive within

the meaning of § 2244(b). Accordingly, we turn to his alternative argument that

his claim satisfies the conditions for authorization under § 2244(b)(2)(A). 

Second or Successive Authorization under § 2244(b)(2)(A)

The State concedes that Mr. Ochoa’s Atkins claim satisfies the conditions

stated in § 2244(b)(2)(A), i.e., the claim “relies on a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that

was previously unavailable.” Nevertheless, the State opposes authorization

because, it contends, Mr. Ochoa’s “prima facie showing” under § 2244(b)(3)(C)

must also include a preliminary demonstration of mental retardation that he has

not made. We find no basis in the plain language and functional structure of the

statute to expand our gatekeeping role to include such a merits review. Having

satisfied the conditions in § 2244(b)(2)(A), Mr. Ochoa is entitled to proceed on

his Atkins claim in the district court. 

1. Merits Review under §§ 2244(b)(2)(A) & 2244(b)(3)(C) 

Section § 2244(b)(3)(C) directs the appellate court to determine whether

the petitioner has “ma[d]e a prima facie showing that [his] application satisfies
In contrast, what is often referred to as the “innocence” component in 4

§ 2244(b)(2)(B) imposes a merits-type condition to which the prima facie

showing attaches (though even this does not directly concern the merit of the

constitutional claim itself but rather the extent to which its predicate facts

undercut the jury’s finding of guilt). This difference between § 2244(b)(2)(A)

claims resting on new rules of constitutional law, which require a showing only

that a rule is retroactively applicable on collateral review, and § 2244(b)(2)(B)

claims resting on rules of law previously available to the petitioner, which require

a showing of new facts compellingly demonstrating that, absent the alleged error,

no reasonable jury would have found the petitioner guilty of the offense, is

essential to keep in mind. Cases reflecting something akin to merits review in the

evaluation of claims under § 2244(b)(2)(B), such as Bennett v. United States,

119 F.3d 468, 469 (7th Cir. 1997) (holding prima facie showing must suggest

“possible merit to warrant a fuller exploration by the district court”), may be

correct in themselves, but they lead to error if reflexively imported into the

§ 2244(b)(2)(A) context. As noted later, this error undercuts case law cited by the

State for conducting merits review of Atkins claims under § 2244(b)(2)(A). 

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the requirements of this subsection.” (Emphasis added). This statutory mandate

does not direct the appellate court to engage in a preliminary merits assessment.

Rather, it focuses our inquiry solely on the conditions specified in § 2244(b) that

justify raising a new habeas claim, i.e., the claim relies on a new rule of law made

retroactive on collateral review by the Supreme Court, 28 U.S.C. § 2244(b)(2)(A),

or involves new facts clearly and convincingly showing that, but for the alleged

constitutional error, no reasonable jury would have found the petitioner guilty of

the offense, 28 U.S.C. § 2244(b)(2)(B). The conditions in § 2244(b)(2)(A), with

which we are concerned, look solely to temporal issues relating to the availability

of the constitutional authority invoked, not to any assessment regarding the

strength of the petitioner’s case. 

4
Under § 2244(b)(3)(E), the grant or denial of § 2244(b)(2) authorization is 5

not appealable and may not be the subject of a petition for rehearing or for a writ

of certiorari. If authorization is granted, of course, the case proceeds in the

district court, which under § 2244(b)(4) has final say regarding satisfaction of

§ 2244(b)(2) conditions, subject to ordinary appellate review following the entry

of judgment in the event a certificate of appealability is granted with respect to

the issue, see LaFevers v. Gibson, 238 F.3d 1263, 1266-67 (10th Cir. 2001). 

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Nor is the authorization process structured to suggest an inquiry beyond the

conditions specified in § 2244(b)(2). The typical authorization proceeding is an

ex parte matter, with little if any factual record, that is to be decided–conclusively,

if denied –in thirty days. These parameters indicate a streamlined procedure with 5

a narrow focus on a fixed set of pre-specified and easily assessed criteria, which

would be disrupted by engaging the manifold merits issues raised by potentially

complex, fact-bound constitutional claims. Moreover, the authorization process is

assigned to an appellate court, whose institutional role ordinarily excludes

evidence-gathering and fact-finding of the sort implicated, for example, in the

State’s demand that we make a determination in the first instance whether

Mr. Ochoa is in fact mentally retarded. The distribution of judicial responsibility

reflected in the plain language of the statute–by which the appellate court makes

an expedited assessment of whether a new habeas claim falls within a formally

defined category and, if it does, then leaves the adjudication of that claim to the

district court in the first instance–is clearly in keeping with the respective roles of

appellate and trial courts in our system. 
-9-

We have never directly addressed the broad question whether § 2244(b)

review includes a merits-screening of proposed second or successive claims. But

our decision in Hatch v. Oklahoma, 92 F.3d 1012 (10th Cir. 1996), overruled on

other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10th Cir.

2001), excluding exhaustion issues from the authorization inquiry strongly implies

that merits review is not a part of our gatekeeping role in the process:

This claim [a § 2244(b)(2)(A) claim based on the Supreme Court’s

then-recent abrogation of Oklahoma’s scheme for handling trial

competency issues in Cooper v. Oklahoma, 517 U.S. 348 (1996)] is

not exhausted. . . . Exhaustion is not, however, a precondition to our

consideration of this Application for Order Authorizing a Successive

Petition for Habeas Corpus Relief. Were we to grant this application,

the district court would then have before it the merits of Hatch’s

habeas petition, and in that context the district court would need to

decide whether the claim was exhausted or whether waiver of the

exhaustion requirement is warranted. In this proceeding, however, we

are merely performing a gatekeeping function. Exhaustion of the

Cooper claim is not a prerequisite to our consideration of the question

whether a successive application is appropriate [under the conditions

specified in . . . 28 U.S.C. § 2244(b)(2)]. 

Id. at 1016 (citation omitted).

The broader point implied in Hatch received more explicit recognition by

the Fourth Circuit in In re Williams, 330 F.3d 277 (4th Cir. 2003), which stated

that authorization under § 2244(b)(2) turns on “the possibility that the claims in

a successive application will satisfy the stringent requirements for the filing of a

second or successive petition, not the possibility that the claims will ultimately

warrant a decision in favor of the applicant.” Id. at 282 (citations and quotation
-10-

omitted). Other circuits have issued decisions touching on this point as well. 

See, e.g., In re Joshua, 224 F.3d 1281, 1282 n.2 (11th Cir. 2000) (noting apparent

merits deficiencies of claim raised under § 2244(b)(2)(A), but excluding them

from authorization inquiry “because they are not relevant to whether [the movant]

can obtain permission to bring a second or successive § 2255 motion to vacate”);

In re Salazar, 443 F.3d 430, 434 n.2 (5th Cir. 2006) (raising question “whether, in

our role as ‘gatekeeper’ under [§ 2244(b)] we have the statutory authority to deny

a motion for authorization” on basis that underlying claim is time-barred). 

The State nevertheless argues that the “prima facie showing” required by

§ 2244(b)(3)(C) must refer to the merits of the underlying claim because there is

nothing else it could refer to and statutory language should not be construed to be

meaningless. We disagree. The point of the language is to make it clear that the

authorization provided by an appellate court under § 2244(b)(3)(C) is only a

preliminary determination that a claim satisfies the statutory conditions; it is for

the district court, under § 2244(b)(4), to confirm that “the petition d[oes], in fact,

satisfy the requirements of § 2244(b)” when it hears the case (and to summarily

dismiss if the requirements are not met). LaFevers v. Gibson, 238 F.3d 1263,

1265 (10th Cir. 2001). This assessment–when done preliminarily by an appellate

court or conclusively by the district court–is not meaningless simply because it

precedes consideration of the merits of the claim. To say that it is meaningless is

to say that the statutory constraints on second or successive petitions are toothless,
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a point belied by the denial of countless motions under § 2244(b). And while there

is a more in-depth, evidentiary inquiry for the authorization of an innocence claim

under § 2244(b)(2)(B), see supra note 4, the authorization of a new-rule-of-law

claim under § 2244(b)(2)(A) requires us to determine that (a) the rule relied on

reflects a sufficient departure from precedent to entail a new rule; (b) the Supreme

Court has made the rule retroactive to cases on collateral review (by no means

always a cut-and-dried matter, see, e.g., cases discussing Atkins’ retroactivity

supra note 2); and (c) the nature and timing of the new rule and the petitioner’s

procedural history show that the rule was “previously unavailable” within the

meaning of the statute. As both the substance and frequent consequence of this

inquiry reflect, our implementation of the prima facie showing requirement is not

meaningless. 

In sum, the plain language of the statute directs us to focus solely on the

conditions Congress has designated as controlling with respect to the authorization

of second or successive habeas petitions. And those conditions specified in

§ 2244(b)(2)(A) for the pursuit of claims resting on new rules of constitutional law

do not involve the appellate court in any preliminary assessment of the merit of

the claims for which second or successive authorization is sought. 
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2. Showing of Mental Retardation for Atkins Claim

Our conclusion that Congress did not include a preliminary merits review in

the authorization inquiry under § 2244(b)(2)(A) directly undercuts the State’s

opposition to Mr. Ochoa’s Atkins claim. The State insists that Mr. Ochoa must

make a prima facie showing of mental retardation before he may proceed on this

claim. That is a paradigmatic example of injecting the merits of a claim into the

authorization inquiry: the petitioner’s mental retardation is the Atkins claim; the

constitutional validity of a petitioner’s capital sentence hinges entirely on that

single premise. For the reasons explained above, resolving Mr. Ochoa’s motion

for § 2244(b) authorization on the basis that he has or has not demonstrated the

strength of this central element of his case would take us outside the authority with

which we are invested by the statute. Development and resolution of the mental

retardation issue is, rather, the province of the district court in the proceedings we

properly authorize on the distinct grounds specified in § 2244(b)(2)(A). 

We are aware of some case authority, relied on by the State, requiring a

prima facie showing of mental retardation before allowing a petitioner to proceed

on an Atkins claim under § 2244(b)(2)(A). As explained below, this case law

derives from a misapplication of an innocence-related principle derived from a

seminal § 2244(b)(2)(B) case, a confusion we have carefully tried to avoid. See

supra note 4. More fundamentally, this case law focuses singularly on Atkins

claims, to the exclusion of the larger implications of merits review in the second
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or successive context, and as a consequence does not address the broader textual

and structural considerations underpinning our decision here. 

Shortly after passage of the statutory scheme under review, the Seventh

Circuit addressed the “prima facie showing” language in § 2244(b)(3)(C) and,

consistent with what we have said, related it to whether “it appears reasonably

likely the application satisfies the stringent requirements for the filing of a second

or successive petition.” Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir.

1997) (emphasis added). Moreover, in discussing the district court’s confirmation

of that determination under § 2244(b)(4), Bennett disassociated it from the merits

of the claim for which authorization is sought: “[T]he 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 of such a motion.” Id. at 470 (emphasis added). But the claim in

Bennett involved new evidence of innocence, so the court properly assessed the

strength of that evidence to determine whether it made “a sufficient showing of

possible merit to warrant a fuller exploration by the district court.” Id. at 469. It

is this formulation of the prima facie showing requirement, divorced from the rest

of the court’s discussion and imported into the § 2244(b)(2)(A) context where

there is no evidentiary component, that has given rise to the anomalous treatment

of Atkins claims in some cases. 
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When the Fifth Circuit was presented with a motion seeking authorization

for a newly recognized Atkins claim under § 2244(b)(2)(A), it relied on Bennett to

require the petitioner not only to satisfy the conditions specified in the statute but

also to make an evidentiary showing that he was in fact mentally retarded. In re

Morris, 328 F.3d 739, 740-41 (5th Cir. 2003). The Morris court did not offer any

rationale tied to the statute for adding the merits component to the authorization

inquiry. Rather, it just cited Bennett’s definition of the prima facie showing

language as requiring a “sufficient showing of possible merit to warrant a fuller

exploration by the district court.” Id. at 740 (quotation omitted). The Eleventh

Circuit promptly followed Morris, adopting Bennett’s formulation and holding that

authorization for an Atkins claim was proper only “if petitioner’s proofs, when

measured against the entire record in this case, establish a reasonable likelihood

that he is in fact mentally retarded.” In re Holladay, 331 F.3d at 1174. The Sixth

Circuit adopted the same approach, following Holladay and Bennett, in In re

Bowling, 422 F.3d 434, 436 (6th Cir. 2005), cert. denied, 126 S. Ct. 1353 (2006).

As explained above, Bennett’s formulation regarding a “showing of possible

merit to warrant a fuller exploration by the district court” had an apt referent in the

context of § 2244(b)(2)(B), i.e., the condition that new evidence demonstrates the

petitioner’s innocence. But the Bennett formulation is misused if relied on in the

§ 2244(b)(2)(A) context as the premise for a preliminary merits inquiry having no

basis in the conditions set out in that section. 
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We recognize that there is another concern underlying efforts to inject a

merits-related element in the authorization inquiry for Atkins claims: “otherwise,

then literally any prisoner under a death sentence could bring an Atkins claim in a

second or successive petition regardless of his or her intelligence.” In re

Holladay, 331 F.3d at 1173 n.1. But, as a policy rationale for including merits

review as part of the § 2244(b) authorization process (albeit peculiarly limited to

Atkins claims), this is an argument for amendment of the statute, which is the

province of Congress, not the courts. Moreover, it is not a very compelling point,

given the narrow category of cases our decision today affects. It would have more

weight if carried to its logical conclusion, i.e., to a broad proposal for merits

screening per se. But in that event it would seem a redundant measure, since

under Rule 4 of the Rules Governing § 2254 Cases the district courts already

engage in a merits screening of all habeas petitions. And reassigning that role to

the appellate courts seems ill-conceived as an institutional matter, as we lack the

means that a trial court has to develop and dispose of often fact-intensive claims.

Indeed, the extensive analyses required of courts that engage in merits screening

of Atkins claims, often difficult to distinguish from full-scale merits review, belies

the idea that this is a simple threshold inquiry appropriate for summary treatment

by an appellate court. See, e.g., In re Salazar, 443 F.3d at 432-34; In re Bowling,

422 F.3d at 437-39; In re Holladay, 331 F.3d at 1174-76. 
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Based on satisfaction of the conditions specified in § 2244(b)(2)(A), we

GRANT Mr. Ochoa authorization to pursue a second or successive habeas petition

raising an Atkins challenge to his death sentence. This decision is not appealable

and may not be the subject of a petition for rehearing or for a writ of certiorari.

28 U.S.C. § 2244(b)(3)(E).