### IN THE UNITED STATES C O URT OF APPEALS FOR THE FIFTH CIRCUIT

___________________ No. 19

- 10979

___________________ In re: MARK ANTHONY SOLIZ,

Movant

________________________ Motion for an O rder A uthorizing the United States District Court for the Northern District of Texas to C onsider

a S uccessive 28 U.S.C. § 2254 A pplication and Motion to Stay Execution

________________________

Before DENNIS, SOUTHWICK and HIGGINSON, Circuit Judges

. LESLIE H. SOUTHWICK, Circuit Judge: Mark Anthony Soliz , a Texas inmate whose scheduled execution looms , filed two motion s, one for authorization to file a successive application for a writ of habeas corpus and the other to stay execution

. We conclude that 28 U.S.C. § 224 4(b) bars his successive application and DENY both motions

.

FACTUAL AND PROCEDURAL BACKGROUND Soliz was con victed in March 2012 of the murder of Nancy Weatherly in the course of committing or attempting to commit burglary or robbery , and he was sentenced to death. This court detail ed the offense in Soliz v. Davis , 750 F. Ap p’ x 282 (5th Cir. 2018), cert. denied , 139 S. Ct. 1447 (2019)

. The Texas United States Court of Appeals Fifth Circuit 

### FILED September 9, 2019 Lyle W. Cayce Clerk Case: 19-10979 Document: 00515109841 Page: 1 Date Filed: 09/09/2019No. 19

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### 2 Court of Criminal Appeals affirmed Soliz’s conviction and sentence on direct appeal. Soliz v. State , 432 S.W.3d 895 (Tex. Crim. App. 2014) , cert. denied , 135 S. Ct. 1154 (2015). The Office of Capital Writs was appointed as Soliz’s state habeas counsel. Soliz filed his initial s t ate application for writ of habeas corpus on May 6, 2014, while his direct appeal was pending. His state habeas claims were denied. Ex

p arte Soliz , No. WR

- 82,429

- 01, 2014 WL 12713257 (Tex. Crim. App. Dec. 17, 2014)

. That application did not make a claim under Atkins v. Virginia , 536 U.S. 304 (2002) , but it did argue that the reasoning of Atkins should be extended to create a categorical exempt ion from death sentences for individuals with Fetal Alcohol Spectrum Disorder (“FASD”) . The argument

was that FASD is equivalent to the intellectual disability which Atkins discusses

. Th is opinion refers to this claim as an Atkins /FASD claim. Seth Kretzer and Carlo D’Angelo were appointed as Soliz’s federal habeas counsel. Soliz filed his initial federal application on December 11, 2015. On September 6, 2017, the district court denied all claims but granted a certificate of appealability (“COA”) as to the Atkins /FASD claim. Soliz v. Davis , No. 3:14

- CV

- 4556

- K, 2017 WL 3888817 (N.D. Tex. Sept. 6, 2017)

. We affirmed the district court. Soliz , 750 F. App ’ x 282

. The Supreme Court denied his petition for a writ of certiorari. Soliz , 139 S. Ct. 1447

. K re tzer and D’Angelo continued to represent Soliz in state and federal successive habeas proceedings. Soliz returned to state court on August 9, 2019 and filed a successive application, again asserting the Atkins /FASD claim , and a motion to stay the executio n

. On August 21, 2019, the Court of Criminal Appeals denied the application as an abuse of the writ , did not review the merits of the claim , and denied the motion. Ex p arte Soliz , No. W R

- 82,429

- 02, 2019 WL 3958247 (Tex. Crim. App. Aug. 21, 2019)

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### 3 On September 3, 2019 , Soliz moved in this court under Section 2244 for an order authorizing the district court to consider a second or successive application for a writ of habeas corpus

. For the fourth time, Soliz brings the

same Atkins /FASD claim seeking t o extend the rationale of Atkins to individuals with FASD. T exas responded the next day.

DISCUSSION We review a motion to authorize the filing of a successive habeas application to determine if it makes a prima facie showing of satisfying the requirements of 28 U.S.C. § 2244(b)(3)(C). A prima facie showing is “simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.” In re Morris , 328 F.3d 739, 740 (5th Cir. 2003) (quoting Bennett v. United Stat es , 119 F.3d 468, 469 (7th Cir. 1997)). A person in custody under a state

- court judgment who moves to file a successive application for a writ of habeas corpus in federal court must satisfy these requirements: (1) A claim presented in a second or successi ve habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless

- - (A) the applicant shows that 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; or (B)(i) the factual predicate for the claim c ould not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient Case: 19-10979 Document: 00515109841 Page: 3 Date Filed: 09/09/2019No. 19

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### 4 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. 28 U.S.C. § 2244(b). Soliz argues that his current claim is not identical to his previous claims about his FASD because of changes in the medical understanding of intellectual disability. Texas argues that Soliz previously presented t his same claim about FASD and was rebuffed, and there is no new rule of constitutional law that would support some new claim he says he is making.

I. Claim not presented in prior federal application Soliz must show that this claim was not presented in a prior federal application , or else it will be dismissed . 28 U.S.C. § 2244(b)(1)

. “If the prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dis missed in all cases.” Tyler v. Cain , 533 U.S. 656, 661 (2001)

. Soliz acknowledges that “ this claim was previously raised , ” but he

argues the current claim is sufficiently new because the standard “ for assessing whether one meets the Atkins threshold for intellectual function has been modified” by the Diagnostic and Statistics Manual

- Fifth Edition (“DSM

5”). Soliz contends that this Court accepted that reasoning in a recent decision. See In re Johnson , -- F.3d

– , 2019 WL 3814384 (5th Cir. 2019)

. Something of the same point, he also argues that Atkins “is a constantly evolving doctrine that merits further consideration by this Court.” For support , Soliz says he is presenting the same issue that recently led this court to grant a motion to file

a s uccessive application in Johnson

. We examine that precedent

. Johnson had not previously raised an Atkins claim because trying to show intellectual disability would have been futile under previous methods of diagnosis

. In his motion for authorization to file a successive application, Case: 19-10979 Document: 00515109841 Page: 4 Date Filed: 09/09/2019No. 19

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### 5 Johnson presented undisputed evidence that “ new diagnostic guidelines included significant changes in the diagnosis of intellectual disability, which changed the focus from specific IQ sco res to clinical judgment .” Id. at *5. As we quoted in that opinion, the Supreme Court stated that “[r]eflecting improved understanding over time, . . . c urrent manuals offer ‘the best available description of how mental disorders are expressed and can be recognized by trained clinicians .’” Id. at *5 n.2 (quoting Moore v. Texas , 137 S. Ct. 1039, 1053 (2017) ) (ellipsis in original)

. We held that Johnson had to show two things. First was that he had not previously made this claim and had it rejected ; if t hat had occurred , Section 2244(b)(1) would be a bar. The State conceded Johnson had not previously made an Atkins claim. Id. at *5. Second, Johnson needed to convince us that Atkins was a new rule of constitutional law made retroactive by the Supreme Co urt. Id. There was no doubt that Atkins satisfies that requirement generally, but because Atkins preceded Johnson’s earlier applications for habeas relief, he needed to show that the case was retroactive for some reason as to him. Id. We will discuss that requirement next. Soliz does make the argument that his current claim should be viewed as diff erent from his earlier one. That argument is better understood in our next section when we discuss whether recent precedents make this claim available to him for the first time.

II. New rule of constitutional law that was previously unavailable We held i n Johnson that Atkins had previously been unavailable because under earlier medical understandings of intellectual disability relevant to Johnson’s condition, an Atkins claim would have been futile. Id. at *6 . Recent changes in the methodology for assess ing intellectual disability removed a Case: 19-10979 Document: 00515109841 Page: 5 Date Filed: 09/09/2019No. 19

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### 6 clear barrier to the claim, arguably making Atkins availab le to him for the first time. Id. ( discussing In re Cathey , 857 F.3d 221 (5th Cir. 2017) ). We repeat that Johnson also overc a me the bar we have held Soliz has not, that Johnson must not have previously brought the same claim. Id. at *5. In the present case, Soliz embraces Johnson and Cathey. Nonetheless, all he has done is recharacterized a claim that he has long been making. His claim still is that “those afflicted with FASD sh o uld be categorically ineligible for the death penalty just as the intellectually disabled are.” In order to show the applicability of at least this part of the Cathey and Johnson analysis, h e needed t o show a meaningful change in the manner in which the medical field diagnoses FASD and that his disorder is now medically equated to intellectual disability as defined in Atkins

. We conclude that Soliz’s latest filing does not present a new claim of a retroactive constitutional right recognized by the Supreme Court that was previously unavailable to him. To the extent Soliz argues that he has now raised an actual Atkins claim for the first time, it woul d nevertheless be barred. Soliz again relies on this

c ourt’s recent decision in Johnson to argue that his claim was not previously available. Soliz argues that the modified professional standards for determining intellectual disability and his recently

- s cored IQ of 75 constitutionally require a finding that he is functionally equivalent to the Atkins standard

. In evaluating this argument, we r eturn to Johnson

. W e see that the Atkins claim there was previously unavailable because the DSM

- 5 was published in May 2013, just 17 days before the district court denied his application, which made an amendment to the application infeasible. Johnson , 2019 WL 3814384 , at *5. In contrast, Soliz filed his amended application in Case: 19-10979 Document: 00515109841 Page: 6 Date Filed: 09/09/2019No. 19

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### 7 February 2016, years after the DSM

- 5 was published. Soliz , 2017 WL 3888817 , at * 1

. Furthermore, Cathey , which the Court relied on in Johnson , was issued four months before the district court denied Soliz’s initial application

. Compare id

. (issuing date of September 6, 2017), wit h Cathey , 857 F.3d 221 (issuing date of May 11, 2017). Thus, any claim similar to what we discussed
in Johnson and earlier in Cathey was available to Soliz at the time of his earlier application for a writ of habeas corpus. * * * Texas addresses other requirements for filing a successive application and argues Soliz falls short in various ways. We need not discuss any of those, for at most they would be additional reasons for our denial of relief. Soliz’s motion that requests authority to file a successive application in district court is DENIED. The motion for a stay of execution is also DENIED. Case: 19-10979 Document: 00515109841 Page: 7 Date Filed: 09/09/2019