United States Court of Appeals

For the Eighth Circuit

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No. 14-3739

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Paul T. Goodwin

lllllllllllllllllllllPetitioner - Appellant

v.

Troy Steele

lllllllllllllllllllllRespondent - Appellee

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No. 14-3743

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Paul T. Goodwin

lllllllllllllllllllllPetitioner

v.

Troy Steele

lllllllllllllllllllllRespondent

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Appeals from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: December 8, 2014

 Filed: December 9, 2014

[Published]

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Before MURPHY, COLLOTON, and GRUENDER, Circuit Judges.

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PER CURIAM.

Paul Goodwin, who is scheduled to be executed on December 10, 2014, has

filed an application for a certificate of appealability with respect to his Eighth

Amendment claim of intellectual disability. In the alternative, Goodwin has filed a

motion for authorization to file a second or successive application. In both of these

filings, Goodwin claims that he is intellectually disabled and that the Supreme Court

of Missouri issued a decision that was contrary to the United States Supreme Court’s

decision in Hall v. Florida, 134 S. Ct. 1986 (2014). We deny Goodwin’s application

for a certificate of appealability and deny his motion for authorization to file a second

or successive application. We also deny Goodwin’s related motions for stay.

Goodwin was convicted of first-degree murder and sentenced to death, and the

Supreme Court of Missouri affirmed his conviction and sentence. State v. Goodwin,

43 S.W.3d 805, 809 (Mo. 2001). A state motion court denied Goodwin’s request for

post-conviction relief, and the Supreme Court of Missouri affirmed. Goodwin v.

State, 191 S.W.3d 20, 23 (Mo. 2006). In rejecting Goodwin’s argument that he

established significantly sub-average intellectual functioning, the court noted that

“Goodwin has eight independent intelligence tests spread over twenty years that

indicated that Goodwin is not retarded.” Id. at 30. Based upon this record, the court

concluded that Goodwin’s single IQ score within the five-point margin of error for

the Wechsler scale of sub-average intellectual functioning was “inadequate to raise

a triable issue of fact.” Id. at 30-31. Goodwin thereafter filed a petition under 28

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U.S.C. § 2254, raising numerous claims. As Goodwin now admits, he asserted in one

of these claims that he was intellectually disabled, rendering his execution

unconstitutional under Atkins v. Virginia, 536 U.S. 304 (2002). The district court

denied relief on this claim and declined to issue a certificate of appealability. See

Goodwin v. Roper, No. 4:06CV848, 2009 WL 3228696, at *21, 26 (E.D. Mo. Sept.

30, 2009).

Shortly after his date of execution wasset, Goodwin filed a motion to recall the

mandate in the Supreme Court of Missouri, arguing that its earlier decision conflicts

with the Supreme Court’s decision in Hall. After the Supreme Court of Missouri

overruled this motion, Goodwin raised this claim before the district court in a

supplemental petition for a writ of habeas corpus. The district court found that

Goodwin’s Hall claim is barred by 28 U.S.C. § 2244(b)(1) and also concluded that

it fails on the merits. The district court declined to grant a certificate of appealability,

prompting Goodwin to file an application for a certificate of appealability and a

motion for authorization to file a second or successive application.

We state our conclusions briefly because of the exigency of time. We first

conclude that jurists of reason would not find debatable the correctness of the district

court’s conclusion that Goodwin’s claim is barred by 28 U.S.C. § 2244(b)(1). See

Slack v. McDaniel, 529 U.S. 473, 478 (2000). This provision providesthat “[a] claim

presented in a second orsuccessive habeas corpus application under section 2254 that

was presented in a prior application shall be dismissed.” § 2244(b)(1). Goodwin

concedes in his application that “[i]n his original habeas proceeding, [he] raised the

claim that he is mentally retarded and ineligible for execution under [sic] Adkins.” 

In particular, in Ground “I” of his initial habeas application, Goodwin asserted that

“[t]he Eighth Amendment precludes the execution of the mentally retarded” and that

“clear and convincing evidence exists that [Goodwin] is mentally retarded.” 

Goodwin seeks to distinguish this claim from his current claim, arguing only that the

latter claim is premised on Hall, not Atkins, and asserting that this difference matters. 

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This argument runs headlong into our decision in Thompson v. Nixon, 272 F.3d 1098

(8th Cir. 2001). There, the petitioner filed a motion to recall the mandate and claimed

that a recent Supreme Court decision allowed him to bypass the limit on second or

successive applications set forth in § 2244(b)(1). Id. at 1099. We rejected this

reading of § 2244(b)(1), concluding that the Supreme Court decision relied upon by

the petitioner “simply provides a new argument (the merits of which we need not

explore) in support of the same [constitutional] claim that has been presented twice

before.” Id. at 1101. Under Thompson, jurists of reason cannot debate the

correctness of the district court’s conclusion that Goodwin’s intellectual-disability

claim was presented in a prior application and therefore barred under § 2244(b)(1).1

Second, even if this proposition were reasonably debatable, Goodwin was

required to request authorization from us before pursuing a second or successive

habeas application under § 2244(b)(2). See 28 U.S.C. § 2244(b)(3)(A) (“Before a

second orsuccessive application permitted by thissection isfiled in the district court,

the applicant shall move in the appropriate court of appeals for an order authorizing

the district court to consider the application.” (emphasis added)). Because Goodwin

did not take this statutorily required step before filing his supplemental petition,

jurists of reason cannot debate the correctness of the district court’s dismissal of

Goodwin’s supplemental petition.

We also reject Goodwin’s argument that his Hall claim was not “ripe” until

1

the Supreme Court issued its decision in Hall. For this proposition, Goodwin relies

on Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), Panetti v. Quarterman, 551

U.S. 930 (2007), and Magwood v. Patterson, 561 U.S. 320 (2010). Stewart and

Panetti concerned competency claims brought under Ford v. Wainwright, 477 U.S.

399 (1986), that did not become ripe for federal review until the State established a

date of execution. Stewart, 523 U.S. at 643; Panetti, 551 U.S. at 947. Goodwin’s

Eighth Amendment claim, by contrast, ripened long ago. Nor does Magwood support

Goodwin’s ripeness argument, for the petitioner there, unlike Goodwin here, was

challenging a new judgment following the grant of habeasrelief. See Magwood, 561

U.S. at 326-28.

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This brings us to Goodwin’s motion for authorization to file a second or

successive habeas application. 28 U.S.C. § 2244(b)(3)(C) prescribes that we may

authorize the filing of such an application “only if [we] determine[] that the

application makes a prima facie showing that the application satisfies the

requirements of thissubsection.” In his motion for authorization, Goodwin contends

that his intellectual-disability claim is permitted by § 2244(b)(2)(A)—namely, that

the claim “was not presented in a prior application” and “the applicant showsthat 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.” Even

assuming Goodwin’s present claim was not presented in a prior application, we

conclude that Goodwin has not made this prima facie showing. In Tyler v. Cain, 533

U.S. 656 (2001), the Supreme Court interpreted § 2244(b)(2)(A) to conclude that a

new rule is not “made retroactive” unlessthe Supreme Court holds it to be retroactive. 

Id. at 663. Under Tyler, it is not enough for the Supreme Court merely to “establish[]

principles of retroactivity and leave[] the application of those principles to lower

courts.” Id. Justice O’Connor, who provided the decisive fifth vote in Tyler, further

explained that the Supreme Court can “‘ma[k]e’ a new rule retroactive through

multiple holdings that logically dictate the retroactivity of the new rule.” Id. at 668

(O’Connor, J., concurring).

Under Tyler, Goodwin has not made a prima facie showing that the Supreme

Court has held that Hall is retroactive. The Eleventh Circuit recently reached an

identical conclusion. See In re Henry, 757 F.3d 1151, 1153 (11th Cir. 2014) (denying

motion for authorization to file second orsuccessive application “because [petitioner]

cannot circumnavigate the stringent requirements for leave to file a second or

successive petition found in § 2244(b)”). As the Henry court explained, “Hall made

no mention of retroactivity. Nor has any subsequent Supreme Court case addressed

the issue, much less made Hall retroactive.” Id. at 1159. The dissent attempts to

overcome the Supreme Court’s total silence on the retroactivity of Hall by relying on

the Court’s other case law indicating that a substantive rule may be applied

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retroactively. The dissent characterizes Hall as a substantive rule that altered the

“class of persons that the law punishes.” Infra at 8 (quoting Schriro v. Summerlin,

542 U.S. 348, 353 (2004)). But “Hall merely provides new procedures for ensuring

that States do not execute members of an already protected group.” Henry, 757 F.3d

at 1161. Indeed, the dissent understands Hall to hold that “defendants with IQ scores

above 70 in Florida may be considered intellectually disabled under Atkins.” Infra

at 8 (emphasis added). Rather than announce a substantive rule, Hall “created a

procedural requirement that those with IQ test scores within the test’s standard of

error would have the opportunity to otherwise show intellectual disability.” Henry,

757 F.3d at 1161 (emphasisin original). This conclusion is borne out by the language

of Hall itself: “[W]hen a defendant’s IQ test score falls within the test’s

acknowledged and inherent margin of error, the defendant must be able to present

additional evidence of intellectual disability, including testimony regarding adaptive

benefits.” 134 S. Ct. at 2001 (emphasis added).

For these reasons, we deny Goodwin’s application for a certificate of

appealability and deny his motion for authorization to file a second or successive

habeas application. We also deny Goodwin’s related motions for stay of execution.

MURPHY, Circuit Judge, concurring in part and dissenting in part. 

Paul Goodwin, who is scheduled to be executed on December 10, 2014, has

filed a motion for authorization to file a second or successive habeas application. He

claims that the Missouri Supreme Court issued a decision that was contrary to Hall

v. Florida, 134 S. Ct. 1986 (2014), when it declined to consider his adaptive

functioning despite the fact that he presented evidence of an IQ score of 72. See

Goodwin v. State, 191 S.W.3d 20, 30–31 (Mo. banc 2006). While acknowledging the

IQ score of 72 to be within the five point margin of error for the Wechsler scale of

subaverage intellectual functioning, the Missouri Supreme Court nonetheless

characterized that score as "inadequate to raise a triable issue of fact." Id. 

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The panel majority concludes that Hall is not retroactive to cases on collateral

review and that Goodwin's petition is barred assecond orsuccessive under 28 U.S.C.

§ 2244. I concur in the panel's denial of Goodwin's application for a certificate of

appealability. I dissent from the panel's denial of the authorization to file a second

or successive habeas application because Goodwin has made "a prima facie showing

that the application satisfies the requirements" of § 2244, namely that his second or

successive habeas petition relies "on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable." Id. at § 2244(b)(2)(A). 

In her controlling concurring opinion in Tyler v. Cain Justice O'Connor

reasoned that the Court can make "a new rule retroactive through multiple holdings

that logically dictate the retroactivity of the new rule." 533 U.S. 656, 669 (2001). 

And in Penry v Lynaugh the Court expressly stated that "if [it] held, as a substantive

matter, that the Eighth Amendment prohibits the execution of mentally retarded

persons . . . regardless of the procedures followed, such a rule would fall under the

first exception to the general rule of nonretroactivity and would be applicable to

defendants on collateral review." 492 U.S. 302, 330 (1989), abrogated on other

grounds by Atkins, 536 U.S. at 307.

The Supreme Court held in Atkins v. Virginia, that the Eighth Amendment

prohibits a state from taking the life of a mentally retarded offender. 536 U.S. 304,

321 (2002). The Court noted that "an IQ between 70 and 75 or lower" is "typically

considered the cutoff IQ score for the intellectual function prong of the mental

retardation definition." Id. at 309 n.5. 

Then in Hall, the Court held unconstitutional a Florida law that, as interpreted

by that state's supreme court, required a defendant to show an IQ score of 70 or lower

before presenting additional evidence of intellectual disability. 134 S. Ct. at 1992. 

The Court held that "when a defendant's IQ test score falls within the test's

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acknowledged and inherent margin of error, the defendant must be able to present

additional evidence of intellectual disability, including testimony regarding adaptive

deficits." Id.

The new rule the Supreme Court announced in Hall issubstantive in nature and

therefore applies retroactively. Under Atkins, defendants with IQ scores above 70 in

Florida were not protected from capital punishment because they were not

intellectually disabled. Now, under Hall, defendants with IQ scores above 70 in

Florida may be considered intellectually disabled under Atkins. See Hall, 134 S. Ct.

at 1990. By invalidating Florida's definition of the mentally retarded, the Supreme

Court in Hall altered the "class of persons that the law punishes." Schriro v.

Summerlin, 542 U.S. 348, 353 (2004). It thus announced a substantive rule that

applies retroactively. See id. For similar reasons, Goodwin now presents a new

claim that was not raised in his previous habeas application. 

In reaching the opposite conclusion, the majority relies upon the Eleventh

Circuit's decision in In re Henry. 757 F.3d 1151, 1163–64 (11th Cir. 2014). As the

dissent in Henry pointed out, the panel majority came to this hasty conclusion a mere

three weeks after Hall was decided, and as is the case here, under the time pressure

of an "imminent execution" rather than in the normal course with a benefit of full

briefing. Id. at 1163–64. 

Goodwin has made a prima facie showing that the Missouri Supreme Court's

refusal to consider his adaptive functioning was contrary to Hall. The evidentiary

record before the Supreme Court in Hall showed the defendant had undergone seven

admissible IQ evaluations, with one test score of 71, and a range of scores between

71 and 80. 134 S. Ct. at 1992. Here, Goodwin presented eight IQ evaluations taken

before he reached the age of eighteen with one score of 72 and a range between 72

and 84. 

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These numbers required Missouri courts to consider evidence of Goodwin's

adaptive functioning in order to determine whether he is within the class of people

about whom there is a national consensus forbidding their execution, as the Supreme

Court required of the Florida courts in Hall. 134 S. Ct. at 1998, 2001. This is

especially true given the Court'sinstruction that "[c]ourts must recognize, as doesthe

medical community, that the IQ test is imprecise," and caution that "[a] State that

ignores the inherent imprecision of these tests risks executing a person who suffers

from intellectual disability." Id. at 2001. 

In my view the prudent course would be to recognize the retroactivity of Hall

and the viability of Goodwin's claim that his rights under that decision have been

denied. I would therefore grant Goodwin authorization to file his habeas application,

grant the related application for stay of execution, and permit Goodwin an

opportunity to litigate his claim.

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