Opinion · Court of Appeals for the Fifth Circuit
In Re: Kia Levoy Johnson, Movant
334 F.3d 403
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 2003-06-10
- Topic
- general
concluding that "neither Ring and Apprendi nor Atkins render the absence of mental retardation the functional equivalent of an element of capital murder which the state must prove beyond a reasonable doubt" | concluding that "neither Ring and Apprendi nor Atkins render the absence of mental retardation the functional equivalent of an element of capital murder which the state must prove beyond a reasonable doubt” | holding that defendant’s evidence of mental retardation made him innocent of the death penalty | stressing that a mitigating analysis of intellectual disability—required by the Eighth Amendment, per Atkins—was not the functional equivalent of an element of a greater offense | stressing that a mitigating analysis of intellectual disability— required by the Eighth Amendment, per Atkins—was not the functional equivalent of an element of a greater offense | noting that Atkins explicitly left the procedures governing its implementation to the states | noting that Atkins explicitly left the procedures governing its implementation to the states | noting that Atkins explicitly left the procedures governing its implementation to the states | noting that Atkins explicitly left the procedures governing its implementation to the states | denying a motion for authorization to file a successive habeas application based on Atkins where the applicant offered only two letters from psychologists and a seventh-grade transcript showing poor grades | "[T]he absence of mental retardation is not an element of the sentence any more than sanity is an element of an offense.” | "[T]he absence of mental retardation is not an element of the sentence any more than sanity is an element of an offense." | "[T]he absence of mental retardation is not an element of the sentence any more than sanity is an element of an offense.” | "[N]either Ring and Apprendi nor Atkins render the absence of mental retardation the functional equivalent of an element of capital murder which the state must prove beyond a reasonable doubt." | "[T]he absence of mental retardation is not an element of the sentence any more than sanity is an element of the offense."
Citator
- Cited by
- 35 opinions
InIn re Morris,328 F.3d 739,740-41(5th Cir. 2003), this court recently and relevantly explained that aprima facieshowing embodies the characteristics that (1) a petitioner's claims in a proposed successive habeas corpus application have not previously been presented in any prior application to this court; (2) the claim to be presented relies onAtkins v.Virginia,536 U.S. 304,122 S.Ct. 2242,153 L.Ed.2d 335(2002), a decision that stated a new, retroactively applicable rule of constitutional law that was previously unavailable to the petitioner; and (3) the applicant could be categorized as "mentally retarded" within the understanding ofAtkinsandPenry v. Lynaugh,492 U.S. 302,109 S.Ct. 2934,106 L.Ed.2d 256(1989).
Measured by these standards, Johnson's motion must fail. We conclude that Johnson's application does not state aprimafaciecase of mental retardation underAtkins,which this court stated is "simply a sufficient showing of possible merit to warrant a fuller explanation by the district court . . ."In reMorris,328 F.3d at 740(quotingBennett v. United States,119 F.3d 468,469-70(7th Cir. 1997)). In support of his application, Johnson attaches two letters of a forensic psychologist, both dated within two weeks of these events. These letters refer to "multiple areas of concern," a prior evaluation that "did not clearly reflect mental incapacitation," a "belief" that Johnson's verbal intelligence level may be as low as 62-65 and as high as 72-75. The psychologist recommends further testing. The only evidence that Johnson's condition existed in his youth is a seventh grade transcript from the mid-1970s, which reflects that he failed all his academic courses that year, while passing in PE, Band and Health with B's and C's.Atkinscites definitions of mental retardation from the American Association of Mental Retardation and the American Psychiatric Association.Atkins,536 U.S. at 309n. 3, 317 n. 22,122 S.Ct. at 2245n. 3, 2250 n. 22. The Court explicitly noted, however, that "[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus."Id.at 317,122 S.Ct. at 2250. We are persuaded that the two letters and seventh grade transcript offered by Johnson are simply insufficient to suggest that further development of his claim has any likelihood of success under theAtkinscriteria.
Johnson's application also asserts that he was entitled to a judge and/or juryPage 405determination of mental retardation pursuant to the Court's recent decisions inRing v. Arizona,536 U.S. 584,122 S.Ct. 2428,153 L.Ed.2d 556(2002) andApprendi v. New Jersey,530 U.S. 466,120 S.Ct. 2348,147 L.Ed.2d 435(2000), read together withAtkins, supra.Johnson's substantive contention fails because neitherRingandApprendinorAtkinsrender the absence of mental retardation the functional equivalent of an element of capital murder which the state must prove beyond a reasonable doubt.See Ring,536 U.S. at 609,122 S.Ct. 2428(noting that jury finding required by the Sixth Amendment for aggravating factors that operate as "the functional equivalent of an element of a greater offense"). As the state points out, the absence of mental retardation is not an element of the sentence any more than sanity is an element of an offense.1
Further, the Court inAtkinsexplicitly stated that it left "to the States the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences."Atkins,536 U.S. at 317,122 S.Ct. at 2250(quotingFord v.Wainwright,477 U.S. 399,405,106 S.Ct. 2595,91 L.Ed.2d 335(1986)). In light of this direction by the Supreme Court, it would be wholly inappropriate for this court, by judicial fiat, to tell the States how to conduct an inquiry into a defendant's mental retardation.
For the foregoing reasons, the application for authorization to file a successive habeas petition and the motion for stay of execution are DENIED.
- Although we need not reach the issue, we question whether Johnson's claims based onRingare available to him on collateral review. This court has held thatApprendidid not announce a new rule of substantive law and is not retroactively applicable to convictions that became final before the decision was announced.United States v. Brown,305 F.3d 304,309(5th Cir. 2002),cert. denied,___ U.S. ___,123 S.Ct. 1919,155 L.Ed.2d 840(2003);see also Teague v. Lane,489 U.S. 288,109 S.Ct. 1060,103 L.Ed.2d 334(1989). Since the rule inRingis essentially an application ofApprendi,logical consistency suggests that the rule announced inRingis not retroactively available.See Ring,536 U.S. at 620-21,122 S.Ct. 2428(O'Connor, J., dissenting) (Ring's impact would be lessened byTeague's non-retroactivity principle). ↩