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
DENNIS, SOUTHWICK and HIGGINSON, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE.
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
AND PROCEDURAL BACKGROUND
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
Fed.Appx. 282 (5th Cir. 2018), cert. denied, 139
S.Ct. 1447 (2019). The Texas 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).
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.
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 Fed.Appx.
282. The Supreme Court denied his petition for a writ of
certiorari. Soliz, 139 S.Ct. 1447.
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).
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
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)).
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