IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11374

In re: DAVID LEONARD WOOD, 

 Movant

Application for Leave to File a Second or Successive Habeas Corpus Petition, 

28 U.S.C. § 2244(b)

Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

David Leonard Wood, a death-row prisoner, contends that he is 

intellectually disabled and therefore is constitutionally ineligible for the death 

penalty under Atkins v. Virginia, 536 U.S. 304 (2002).1 He has filed with this 

court a motion for authorization to file a successive federal habeas corpus 

petition asserting his Atkins claim. Because we find that Wood’s Atkins claim 

was previously available to him within the meaning of 28 U.S.C. 

§ 2244(b)(2)(A), his motion for authorization is DENIED.

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

1 Wood uses the term “intellectual disability” instead of “mental retardation,” and we 

use that term here as well. See Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (using the term 

“intellectual disability”); Rosa’s Law, Pub.L. No. 111–256 (Oct. 5, 2010) (mandating the use 

of the phrase “intellectual disability” in place of “mental retardation” in all federal 

enactments and regulations). 

United States Court of Appeals

Fifth Circuit

FILED

May 12, 2016

Lyle W. Cayce

Clerk

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I

In 1992, Wood was convicted of murder and sentenced to death. Wood 

appealed the conviction to the Texas Court of Criminal Appeals (CCA), which 

affirmed his conviction and sentence. Wood v. State, No. 71,594 

(Tex.Crim.App. Dec. 13, 1995). Wood filed a state application for writ of habeas 

corpus on December 19, 1997, alleging that (1) his indictment was 

constitutionally defective, (2) trial and appellate counsel were ineffective for 

failing to object to the alleged defects in the indictment, and (3) the trial court 

erred in admitting evidence of an extraneous offense. The CCA denied relief 

in 2001. Ex Parte Wood, No. 45,746-01 (Tex.Crim.App. Sept. 19, 2001). 

After his state habeas petition was denied, Wood was appointed federal 

habeas counsel. On May 6, 2002, Wood filed an initial federal petition for writ 

of habeas corpus; he filed an amended petition on October 2, 2002. In his 

amended petition, he raised all three of his previously exhausted claims as well 

as several dozen unexhausted claims. Atkins was decided on June 20, 2002, 

after the filing of Wood’s original federal petition but before the filing of the 

amended federal petition on October 2, 2002; however, Wood did not raise an 

Atkins claim in the amended petition, nor did he seek to amend the petition a 

second time to include an Atkins claim. The district court denied each claim 

on the merits and subsequently denied a certificate of appealability (COA). 

Wood v. Dretke, 2006 WL 1519969 (N.D.Tex. Jun. 2, 2006). Wood filed a notice 

of appeal and applied to this court for a COA. In 2007, this court denied his 

application for a COA. Wood v. Quarterman, 503 F.3d 408 (5th Cir. 2007). The 

Supreme Court denied certiorari on April 14, 2008. Wood v. Quarterman, 552 

U.S. 1341 (2008). Shortly thereafter Wood’s habeas counsel withdrew, and his 

execution was set for August 20, 2009. 

Wood then obtained pro bono counsel, who obtained a stay of execution 

and conducted an expedited investigation into an Atkins claim. As a result of 

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the investigation, Wood filed a successive habeas application in state court 

raising an Atkins claim. The state court held an Atkins hearing in October 

2011. On October 1, 2013, the state court found that Wood was not 

intellectually disabled and denied his habeas application. The CCA affirmed 

in November 2014, and Wood moved for authorization to file a successive 

federal habeas petition on January 5, 2015.

II

Because Wood has previously filed a federal habeas petition, he must 

receive authorization from this court before he may file another. 28 U.S.C. 

§ 2244(b)(3)(A). Before this court can grant such authorization, Wood must 

make a prima facie showing that he satisfies the statutory prerequisites for a 

successive habeas petition. In re Campbell, 750 F.3d 523, 530 (5th Cir. 2014). 

In Campbell, the court set forth the appropriate level of analysis:

Our court has adopted the following definition of prima facie 

showing: We understand it to be simply a sufficient showing of 

possible merit to warrant a fuller exploration by the district court. 

If in light of the documents submitted with the application it 

appears reasonably likely that the application satisfies the 

stringent requirement for the filing of a second or successive 

petition, we shall grant the application. 

Id. at 530 (internal quotations and citations omitted). In other words, this 

court should not, at this stage, rule on the merits, but merely determine 

whether Wood’s claim deserves further exploration by the district court.

Wood asserts that his successive petition falls within the exception of

§ 2244(b)(2)(A) for claims based on a new rule of constitutional law. In order 

to receive authorization, he must therefore first make a prima facie showing 

that his Atkins claim was “not presented” in his previous federal habeas 

petition. 28 U.S.C. § 2244(b)(1). Second, he must make a prima facie showing 

that his claim “relies on a new rule of constitutional law, made retroactive to 

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

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unavailable” at the time he filed his first federal habeas petition. 28 U.S.C. § 

2244(b)(2)(A); Mathis v. Thaler, 616 F.3d 461, 467 (5th Cir. 2010). Third, he 

“must make a prima facie showing that he ‘should be categorized as 

‘[intellectually disabled]’ within the understanding of Atkins.’” Id. (quoting In

Campbell, 82 Fed. App’x 349, 350 (5th Cir. 2003)). Finally, this court must 

determine whether Wood’s claim is barred by the statute of limitations. See 28

U.S.C. § 2244(d). 

As previously mentioned, there is no question here that Wood’s first 

petition did not present an Atkins claim. And it is undisputed that Atkins

created a new rule of law, “i.e., that the intellectually disabled are categorically 

ineligible for the death penalty,” that is retroactive to cases on collateral 

review. Campbell, 750 F.3d at 530. However, in order to obtain authorization 

for a successive habeas petition, Wood must also make a prima facie showing 

that his Atkins claim was previously unavailable, that he is intellectual 

disabled, and that his claim is not barred by the statute of limitations. Wood 

cannot make the requisite showing with respect to previous unavailability. As 

a result, we do not reach the remaining issues.

This court has apparently not directly ruled on whether a rule was 

“available” if, as in Wood’s case, it was announced while a defendant’s first 

federal habeas petition was pending. In Leal Garcia v. Quarterman, 573 F.3d 

214, 223 (5th Cir. 2009), the court suggested that a new constitutional rule 

that was announced while a petition was pending might, under certain 

circumstances, be considered to have been “previously available.” However, 

the court ultimately declined to rule on the issue, and, in a footnote, 

acknowledged that “other courts have considered the fact that a new claim 

arose during the pendency of a petitioner’s first petition relevant, but not 

determinative, of whether his later habeas petition was successive.” Id. at 

n.47. Indeed, it appears that every court that has been faced with this issue 

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has declined to adopt a categorical rule. For example, the Eleventh Circuit has 

created a standard that takes into account the particular circumstances of the 

previous habeas proceeding: “[i]f the new rule was announced while the 

original § 2254 petition was pending the applicant must demonstrate that it 

was not feasible to amend his or her pending petition to include the new claim.” 

In re Everett, 797 F.3d 1282, 1288 (11th Cir. 2015) (citing In re Hill, 113 F.3d 

181, 182-84 (11th Cir. 1997)). Similarly, in Davis v. Norris, 423 F.3d 868, 879 

(8th Cir. 2005), the Eighth Circuit held that the petitioner’s Atkins claim was 

previously available only after it determined, based on the record before it, that 

“he could have raised the issue while he was litigating his habeas petition in 

the district court.”

We agree with the Eleventh Circuit and adopt the feasibility standard. 

Under this test, Wood has not made a prima facie showing of previous 

unavailability. Wood argues that had he amended his petition to include an 

Atkins claim without first exhausting that claim in state court, his federal 

petition would have included both exhausted and unexhausted claims; 

therefore, his entire petition would have been dismissed without prejudice. 

Rose v. Lundy, 455 U.S. 509, 522 (1982) (“[A] district court must dismiss 

habeas petitions containing both unexhausted and exhausted claims.”). This 

dismissal would have jeopardized his exhausted claims, which would no longer 

have been protected by the tolling provisions of § 2244(d)(2). Additionally, he 

contends that he could not have sought a stay and abeyance in federal court to 

preserve his exhausted claims while he brought his Atkins claim in state court

because of Texas’s “two-forum rule.” Because these assertions overlook 

relevant changes in federal and state law, they are not sufficient to 

demonstrate that the claim was previously unavailable.

Until 2004, “the Texas Court of Criminal Appeals dismissed any state

habeas application without prejudice if the applicant had a parallel application 

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arising from the same conviction pending in federal court, even if the federal 

court stayed its own proceeding.” Mathis v. Thaler, 616 F.3d 461, 468 (5th Cir. 

2010). Wood is correct that this “two-forum rule” would have “prevented [him] 

from lodging a mixed petition in federal court and simultaneously returning to 

state court, or having a federal court hold a petition in abeyance while further 

state court remedies were sought.” In re Hearn (Hearn I), 376 F.3d 447, 456 

(5th Cir.), decision clarified on other grounds on denial of reh’g by In re Hearn 

(Hearn II), 389 F.3d 122 (2004). However, on February 11, 2004, the CCA 

effectively abrogated the two-forum rule by agreeing to consider the merits of 

a subsequent state petition where the federal court with jurisdiction over the 

parallel petition enters an order “staying all of its proceedings for the applicant 

to return to the appropriate Texas court to exhaust his state remedies.” Ex 

parte Soffar, 143 S.W.3d 804, 807 (Tex. Crim. App. 2004). And on March 30, 

2005, the Supreme Court held that district courts have discretion to stay and 

abey habeas proceedings in situations where “the petitioner had good cause for 

his failure to exhaust, his unexhausted claims are potentially meritorious, and 

there is no indication that the petitioner engaged in intentionally dilatory 

litigation tactics.” Rhines v. Weber, 544 U.S. at 278. 

The district court did not rule on Wood’s initial federal habeas petition 

until April 4, 2006.2 Between the Supreme Court’s announcement of Rhines

on March 30, 2005, and the district court’s ruling on April 4, 2006, Wood had 

more than a year in which to seek amendment of his federal petition, stay of 

federal proceedings, and the pursuit of his Atkins claim in state court. And in 

fact Wood did seek, unsuccessfully, to stay federal proceedings so that he could 

 

2 The district court entered an order denying Wood’s petition on April 4, 2006; 

however, several of his claims were dismissed without prejudice. The state filed a motion to 

amend the judgment, seeking that all grounds for relief be dismissed with prejudice, and on

June 2, 2006, the district court granted the state’s motion and amended the judgment.

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return to state court to litigate claims other than an Atkins claim: on May 19, 

2006, in response to the state’s motion to amend the judgment to dismiss all of 

the claims with prejudice, Wood filed a request for stay and abeyance so that 

he could return to state court to exhaust his previously unexhausted claims.3

Wood has not demonstrated that his representation in the initial federal 

habeas proceedings was so deficient as to render the Atkins claim functionally 

unavailable; nor has he given any other explanation that could excuse his 

failure to amend his petition to include an Atkins claim and seek a stay and 

abeyance thereof. 

Atkins was not available to Wood as soon as it was decided. However, 

Soffar and Rhines lifted the procedural barrier that made the Atkins rule 

inaccessible, and Wood has not alleged any other circumstances that made 

amendment of his complaint unfeasible between March 30, 2005, and April 4, 

2006. He has thus not made a prima facie showing of unavailability. See, e.g.,

In re Everett, 797 F.3d at 1288; Felker v. Turpin, 83 F.3d 1303, 1306 (11th Cir. 

1996) (rejecting an attempt to include a claim in a successive habeas petition 

based in part upon the petitioner’s failure to seek amendment of a petition that 

was pending when the particular Supreme Court decision relied upon was 

issued). 

III

Because Wood theoretically had more than a year in which he could have 

sought to amend his initial habeas petition to include his Atkins claim, stay 

federal proceedings, and return to state court to exhaust it, it does not appear 

reasonably likely that his application satisfies the stringent requirement for 

the filing of a successive habeas petition. See Campbell, 750 F.3d at 530. His 

 

3 This request was denied because the district court determined that Wood had failed 

to establish good cause for his failure to exhaust. Memorandum Opinion and Order, Wood v. 

Dretke, No. 3:01-cv-02103-L, *4 (June 2, 2006).

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motion for authorization to file a successive habeas petition is therefore 

DENIED. 

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