IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 19-10979

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In re: MARK ANTHONY SOLIZ,

 Movant

________________________ 

Motion for an Order Authorizing

the United States District Court for the

Northern District of Texas to Consider

a Successive 28 U.S.C. § 2254 Application

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 motions, 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. § 2244(b) bars his successive application and DENY both motions. 

FACTUAL AND PROCEDURAL BACKGROUND

Soliz was convicted 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 detailed the offense in Soliz v. Davis, 750 

F. App’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

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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 state application for writ of habeas corpus on May 6, 2014, 

while his direct appeal was pending. His state habeas claims were denied. Ex 

parte 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 exemption 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. This 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.

Kretzer 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 execution. 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 parte Soliz, No. W R-82,429-02, 

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

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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 to extend the rationale of Atkins to 

individuals with FASD. Texas 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 States, 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 successive 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 could 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 

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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 this 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 dismissed 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 (“DSM5”). 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 successive 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, 

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Johnson presented undisputed evidence that “new diagnostic guidelines 

included significant changes in the diagnosis of intellectual disability, which 

changed the focus from specific IQ scores to clinical judgment.” Id. at *5. As 

we quoted in that opinion, the Supreme Court stated that “[r]eflecting 

improved understanding over time, . . . current 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 that 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 

Court. 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 different 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 in 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 assessing intellectual disability removed a 

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clear barrier to the claim, arguably making Atkins available to him for the first 

time. Id. (discussing In re Cathey, 857 F.3d 221 (5th Cir. 2017)). We repeat 

that Johnson also overcame 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 should 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, he

needed to 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 would nevertheless be barred. Soliz again relies on this 

court’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-scored IQ of 75 

constitutionally require a finding that he is functionally equivalent to the 

Atkins standard. 

In evaluating this argument, we return to Johnson. We 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 

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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), with 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.

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