Filed: Oct. 27, 2020
Latest Update: Oct. 28, 2020
Summary: Case: 20-40663 Document: 00515617486 Page: 1 Date Filed: 10/27/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 20-40663 October 27, 2020 Lyle W. Cayce Clerk In re: Blaine Keith Milam, Movant. Motion for an Order Authorizing the United States District Court for the Eastern District of Texas to Consider a Successive 28 U.S.C. § 2244 Motion Before Elrod, Graves, and Higginson, Circuit Judges. Per Curiam:* Blaine Keith Milam was convic
Summary: Case: 20-40663 Document: 00515617486 Page: 1 Date Filed: 10/27/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 20-40663 October 27, 2020 Lyle W. Cayce Clerk In re: Blaine Keith Milam, Movant. Motion for an Order Authorizing the United States District Court for the Eastern District of Texas to Consider a Successive 28 U.S.C. § 2244 Motion Before Elrod, Graves, and Higginson, Circuit Judges. Per Curiam:* Blaine Keith Milam was convict..
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Case: 20-40663 Document: 00515617486 Page: 1 Date Filed: 10/27/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-40663 October 27, 2020
Lyle W. Cayce
Clerk
In re: Blaine Keith Milam,
Movant.
Motion for an Order Authorizing
the United States District Court
for the Eastern District of Texas
to Consider a Successive 28 U.S.C. § 2244 Motion
Before Elrod, Graves, and Higginson, Circuit Judges.
Per Curiam:*
Blaine Keith Milam was convicted of capital murder and sentenced to
death in 2010. After a decade of unsuccessful appeals and habeas
proceedings, Milam now asks for authorization to file a successive federal
habeas petition pursuant to 28 U.S.C. § 2244(b). For the reasons that follow,
we DENY the motion to file a successive habeas petition.
I.
In 2010, Blaine Keith Milam was convicted of capital murder of
thirteen-month-old Amora Bain Carson and sentenced to death in Texas
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40663 Document: 00515617486 Page: 2 Date Filed: 10/27/2020
No. 20-40663
state court. On direct appeal, the Texas Court of Criminal Appeals (“CCA”)
affirmed Milam’s conviction and sentence on May 23, 2012. Milam v. State,
No. AP-76,379, 2012 WL 1868458 (Tex. Crim. App. May 23, 2012).
On April 1, 2013, Milam filed a state habeas petition, which the CCA
denied on September 11, 2013. Ex parte Milam, No. WR-79,322-01, 2013 WL
4856200 (Tex. Crim. App. Sept. 11, 2013). On October 14, 2014, Milam filed
a federal habeas petition in the Eastern District of Texas. The district court
denied habeas relief on August 16, 2017. Milam v. Director, TDCJ-CID, No.
4:13-CV-545,
2017 WL 3537272 (E.D. Tex. Aug. 16, 2017). We declined to
grant a Certificate of Appealability on May 10, 2018. Milam v. Davis, 733 F.
App’x 781 (5th Cir. 2018), cert. denied,
139 S. Ct. 335 (2018). Neither habeas
petition included the claim that Milam was categorically ineligible from
execution due to his intellectual disability.
On January 7, 2019, represented by new counsel, Milam filed a
successive state habeas petition. A week later, the CCA stayed the execution
“[b]ecause of recent changes in the science pertaining to bite mark
comparisons and recent changes in the law pertaining to the issue of
intellectual disability.” Ex parte Milam, No. WR-79,322-02, 2019 WL
190209, at *1 (Tex. Crim. App. Jan. 14, 2019). On July 1, 2020, the CCA
again denied habeas relief. Ex parte Milam, No. WR-79,322-02,
2020 WL
3635921 (Tex. Crim. App. July 1, 2020).
On October 2, 2020, Milam filed the instant motion to file a successive
federal habeas petition raising the claim that he cannot be executed due to his
intellectual disability pursuant to Moore v. Texas, 137 S. Ct. 1039 (2017), or
alternatively, Atkins v. Virginia,
536 U.S. 304 (2002). His execution is
scheduled for January 21, 2021.
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II.
We review a motion for the filing of a successive habeas petition to
determine if the applicant makes a prima facie showing of satisfying the
requirements of 28 U.S.C. § 2244. See 28 U.S.C. § 2244(b)(3)(C); In re
Johnson, 935 F.3d 284, 291 (5th Cir. 2019). “A prima facie showing is simply
a sufficient showing of possible merit to warrant a fuller exploration by the
district court.”
Johnson, 935 F.3d at 291 (internal quotation marks and
citations omitted). “If we determine that it appears reasonably likely that the
motion and supporting documents indicate that the application meets the
stringent requirement for the filing of a successive petition, then we must
grant the filing.” In re Cathey,
857 F.3d 221, 226–27 (5th Cir. 2017) (internal
quotation marks and citation omitted).
A person in custody under a state-court judgment who moves to file a
successive habeas petition in federal court must satisfy these requirements,
as relevant here: (1) a claim presented in the second or successive habeas
petition has not previously been presented in a prior application to this court,
28 U.S.C. § 2244(b)(1); (2) 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,” § 2244(b)(2)(A); and (3) the claim has
merit. Johnson, 935 F.3d at 291, 294;
Cathey, 857 F.3d at 226. We must also
determine whether the claim is barred by the statute of limitations. See 28
U.S.C. § 2244(d).
III.
The State does not dispute the first element, that Milam’s intellectual
disability claim was not presented in his prior federal habeas petition. It does,
however, dispute that his claim relies on a new rule of constitutional law that
was previously unavailable and that his claim has merit. The State also argues
that the claim is untimely.
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We begin with whether Milam’s claim “relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C. §
2244(b)(2)(A). Milam asserts that his new claim relies on Moore v. Texas, 137
S. Ct. 1039 (2017), or alternatively, Atkins v. Virginia,
536 U.S. 304 (2002).
Atkins categorically barred the execution of intellectually disabled persons
pursuant to the Eighth Amendment, and Moore later denounced the CCA’s
reliance on the Briseno factors for evaluating an Atkins claim.
First, Milam argues that Moore is a new retroactive rule of
constitutional law that was previously unavailable to him because it was
published in March 2017, two and a half years after the filing of his federal
habeas application (October 2014) and several months before its denial
(August 2017). The State claims that Moore is not retroactively applied, citing
to Shoop v. Hill, 139 S. Ct. 504, 508 (2019) (holding that Moore was not clearly
established law for the purposes of deciding whether a state court, whose
decision was reached before Moore was decided, had unreasonably applied
established law to a habeas claim).
We have not definitively rejected or supported the contention that
Moore is a new retroactive rule of constitutional law in the context of
successive habeas petitions sought under 28 U.S.C. § 2244. We previously
found the argument that a Moore claim supports a successive habeas petition
to “contradict[]” Shoop, but we did not fully reject it. In re Sparks, 939 F.3d
630, 632 (2019) (“This contention contradicts the Court’s holding in Shoop
. . . . But even if we count Moore as the starting date for Sparks’s realization
that the former Texas guidelines for intellectual disability would not stymie
his Atkins claim, the statutory time limit for asserting this claim is one year
following Moore.”). But in Johnson, we expressed that Shoop “concerned the
relitigation bar of Section 2254(d)(1), and it did not overrule Cathey, which
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concerned a prima facie showing under Section 2244.” Johnson, 935 F.3d at
293.
Irrespective of whether Moore is a new retroactive rule of
constitutional law, we are not convinced that Moore was previously
unavailable to Milam. Moore was decided approximately four and a half
months before Milam’s federal habeas petition was denied. Compare Moore
(issuing date of March 28, 2017), with Milam, 2017 WL 3537272 (issuing date
of August 16, 2017); see also In re Soliz,
938 F.3d 200, 204 (5th Cir. 2019)
(denying request to file successive habeas petition where court decision was
published four months before denial of initial habeas application). Milam had
the opportunity to seek amendment of his federal petition, stay federal
proceedings, and exhaust his Atkins claim in state court after Moore was
decided, but he failed to do so. See In re Wood, 648 F. App’x 388, 392 (5th
Cir. 2016). The district court even acknowledged Moore when denying
Milam’s habeas petition, noting that “since the trial court instructed the jury
on the three core elements of the definition of intellectual disability and none
of the additional Briseno factors, the additional requirements criticized in
Moore had no impact on the jury’s decision nor on the State courts’ various
decisions.” Milam,
2017 WL 3537272, at *13. Because a Moore claim was
available to Milam during his initial federal habeas application, we conclude
that Moore does not justify authorization to proceed in a second habeas
application.
Alternatively, Milam argues that his intellectual disability claim meets
the requirements of 28 U.S.C. § 2244(b)(2)(A) because Atkins is a new
retroactive rule of constitutional law that was previously unavailable to him.
We have authorized the filing of a successive habeas application where “an
Atkins claim is possibly meritorious when it had not previously been,” even
when the first habeas petition was filed post-Atkins, due to significant
changes in medical methodology for evaluating relevant disabilities and in
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courts’ recognition of those changes. Johnson, 935 F.3d at 294. We permitted
filing in Cathey due to the recognition of the Flynn Effect (i.e., the inflation
of IQ scores caused by certain reasons) and the Supreme Court’s rejection of
an IQ ceiling of 70 in Hall v. Florida,
572 U.S. 701 (2014). See
Cathey, 857
F.3d at 227. We also permitted filing in Johnson because of the release of
DSM-5, a new diagnostic manual for mental disorders recognizing that an
individual with an IQ score over 70 may still qualify as intellectually disabled.
See
Johnson, 935 F.3d at 293.
Milam asserts that an Atkins claim was previously unavailable to him
because Moore struck down the use of the Briseno factors under which his
claim would have failed. While we do not foreclose the possibility that the
barring of the Briseno factors might authorize a successive habeas petition,
Milam has not demonstrated that it would not have been “feasible” for him
to have raised an Atkins claim prior to Moore. Unlike Cathey and Johnson,
who made a prima facie showing that they could not have been previously
deemed intellectually disabled due to the courts’ rigid reliance on their
inaccurate IQ scores, Milam fails to establish that his Atkins claim was
previously foreclosed. Two of his IQ scores were within the range of an
intellectual disability finding (68 and 71 IQ scores on WAIS-IV). Milam also
presented evidence at trial of adaptive deficits and the onset of these deficits
while still a minor, and the jury did not consider the additional Briseno factors
when unanimously agreeing that Milam did not prove his intellectual
disability by a preponderance of the evidence. Milam, 2017 WL 3537272, at
*13. He also had sufficient opportunity to amend his habeas petition to
include an Atkins claim after Moore was decided, but failed to do so. See
Soliz,
938 F.3d at 204. It appears that an Atkins claim was previously available and
could have been pursued in prior habeas proceedings. We therefore decline
to permit successive filing here.
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IV.
For the foregoing reasons, IT IS ORDERED that Milam’s motion
for authorization is DENIED. IT IS FURTHER ORDERED that
Milam’s motion to certify question of law to the Supreme Court of the
United States is DENIED AS MOOT.
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