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In re Soliz

United States Court of Appeals, Fifth Circuit

September 9, 2019

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 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).

         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 Fed.Appx. 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).

         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 ...

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