United States Court of Appeals
          For the Eighth Circuit
      ___________________________

              No. 14-3739
      ___________________________

               Paul T. Goodwin

    lllllllllllllllllllllPetitioner - Appellant

                         v.

                   Troy Steele

    lllllllllllllllllllllRespondent - Appellee
      ___________________________

              No. 14-3743
      ___________________________

               Paul T. Goodwin

           lllllllllllllllllllllPetitioner

                         v.

                   Troy Steele

          lllllllllllllllllllllRespondent
                  ____________

  Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
                ____________
                            Submitted: December 8, 2014
                              Filed: December 9, 2014
                                     [Published]
                                   ____________

Before MURPHY, COLLOTON, and GRUENDER, Circuit Judges.
                         ____________

PER CURIAM.

       Paul Goodwin, who is scheduled to be executed on December 10, 2014, has
filed an application for a certificate of appealability with respect to his Eighth
Amendment claim of intellectual disability. In the alternative, Goodwin has filed a
motion for authorization to file a second or successive application. In both of these
filings, Goodwin claims that he is intellectually disabled and that the Supreme Court
of Missouri issued a decision that was contrary to the United States Supreme Court’s
decision in Hall v. Florida, 

(2014). We deny Goodwin’s application
for a certificate of appealability and deny his motion for authorization to file a second
or successive application. We also deny Goodwin’s related motions for stay.

       Goodwin was convicted of first-degree murder and sentenced to death, and the
Supreme Court of Missouri affirmed his conviction and sentence. State v. Goodwin,

, 809 (Mo. 2001). A state motion court denied Goodwin’s request for
post-conviction relief, and the Supreme Court of Missouri affirmed. Goodwin v.
State, 

, 23 (Mo. 2006). In rejecting Goodwin’s argument that he
established significantly sub-average intellectual functioning, the court noted that
“Goodwin has eight independent intelligence tests spread over twenty years that
indicated that Goodwin is not retarded.” 

Based upon this record, the court
concluded that Goodwin’s single IQ score within the five-point margin of error for
the Wechsler scale of sub-average intellectual functioning was “inadequate to raise
a triable issue of fact.” 

Goodwin thereafter filed a petition under 28


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U.S.C. § 2254, raising numerous claims. As Goodwin now admits, he asserted in one
of these claims that he was intellectually disabled, rendering his execution
unconstitutional under Atkins v. Virginia, 

(2002). The district court
denied relief on this claim and declined to issue a certificate of appealability. See
Goodwin v. Roper, No. 4:06CV848, 

, at *21, 26 (E.D. Mo. Sept.
30, 2009).

         Shortly after his date of execution was set, Goodwin filed a motion to recall the
mandate in the Supreme Court of Missouri, arguing that its earlier decision conflicts
with the Supreme Court’s decision in Hall. After the Supreme Court of Missouri
overruled this motion, Goodwin raised this claim before the district court in a
supplemental petition for a writ of habeas corpus. The district court found that
Goodwin’s Hall claim is barred by 28 U.S.C. § 2244(b)(1) and also concluded that
it fails on the merits. The district court declined to grant a certificate of appealability,
prompting Goodwin to file an application for a certificate of appealability and a
motion for authorization to file a second or successive application.

        We state our conclusions briefly because of the exigency of time. We first
conclude that jurists of reason would not find debatable the correctness of the district
court’s conclusion that Goodwin’s claim is barred by 28 U.S.C. § 2244(b)(1). See
Slack v. McDaniel, 

, 478 (2000). This provision provides that “[a] claim
presented in a second or successive habeas corpus application under section 2254 that
was presented in a prior application shall be dismissed.” § 2244(b)(1). Goodwin
concedes in his application that “[i]n his original habeas proceeding, [he] raised the
claim that he is mentally retarded and ineligible for execution under [sic] Adkins.”
In particular, in Ground “I” of his initial habeas application, Goodwin asserted that
“[t]he Eighth Amendment precludes the execution of the mentally retarded” and that
“clear and convincing evidence exists that [Goodwin] is mentally retarded.”
Goodwin seeks to distinguish this claim from his current claim, arguing only that the
latter claim is premised on Hall, not Atkins, and asserting that this difference matters.

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This argument runs headlong into our decision in Thompson v. Nixon, 

(8th Cir. 2001). There, the petitioner filed a motion to recall the mandate and claimed
that a recent Supreme Court decision allowed him to bypass the limit on second or
successive applications set forth in § 2244(b)(1). 

We rejected this
reading of § 2244(b)(1), concluding that the Supreme Court decision relied upon by
the petitioner “simply provides a new argument (the merits of which we need not
explore) in support of the same [constitutional] claim that has been presented twice
before.” 

Under Thompson, jurists of reason cannot debate the
correctness of the district court’s conclusion that Goodwin’s intellectual-disability
claim was presented in a prior application and therefore barred under § 2244(b)(1).1

       Second, even if this proposition were reasonably debatable, Goodwin was
required to request authorization from us before pursuing a second or successive
habeas application under § 2244(b)(2). See 28 U.S.C. § 2244(b)(3)(A) (“Before a
second or successive application permitted by this section is filed in the district court,
the applicant shall move in the appropriate court of appeals for an order authorizing
the district court to consider the application.” (emphasis added)). Because Goodwin
did not take this statutorily required step before filing his supplemental petition,
jurists of reason cannot debate the correctness of the district court’s dismissal of
Goodwin’s supplemental petition.


      1
        We also reject Goodwin’s argument that his Hall claim was not “ripe” until
the Supreme Court issued its decision in Hall. For this proposition, Goodwin relies
on Stewart v. Martinez-Villareal, 

(1998), Panetti v. Quarterman, 

(2007), and Magwood v. Patterson, 

(2010). Stewart and
Panetti concerned competency claims brought under Ford v. Wainwright, 

(1986), that did not become ripe for federal review until the State established a
date of execution. 

; 

. Goodwin’s
Eighth Amendment claim, by contrast, ripened long ago. Nor does Magwood support
Goodwin’s ripeness argument, for the petitioner there, unlike Goodwin here, was
challenging a new judgment following the grant of habeas relief. See 

.

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        This brings us to Goodwin’s motion for authorization to file a second or
successive habeas application. 28 U.S.C. § 2244(b)(3)(C) prescribes that we may
authorize the filing of such an application “only if [we] determine[] that the
application makes a prima facie showing that the application satisfies the
requirements of this subsection.” In his motion for authorization, Goodwin contends
that his intellectual-disability claim is permitted by § 2244(b)(2)(A)—namely, that
the claim “was not presented in a prior application” and “the applicant shows that 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.” Even
assuming Goodwin’s present claim was not presented in a prior application, we
conclude that Goodwin has not made this prima facie showing. In Tyler v. Cain, 

(2001), the Supreme Court interpreted § 2244(b)(2)(A) to conclude that a
new rule is not “made retroactive” unless the Supreme Court holds it to be retroactive.

Under Tyler, it is not enough for the Supreme Court merely to “establish[]
principles of retroactivity and leave[] the application of those principles to lower
courts.” 

who provided the decisive fifth vote in Tyler, further
explained that the Supreme Court can “‘ma[k]e’ a new rule retroactive through
multiple holdings that logically dictate the retroactivity of the new rule.” 

(O’Connor, J., concurring).

       Under Tyler, Goodwin has not made a prima facie showing that the Supreme
Court has held that Hall is retroactive. The Eleventh Circuit recently reached an
identical conclusion. See In re Henry, 

, 1153 (11th Cir. 2014) (denying
motion for authorization to file second or successive application “because [petitioner]
cannot circumnavigate the stringent requirements for leave to file a second or
successive petition found in § 2244(b)”). As the Henry court explained, “Hall made
no mention of retroactivity. Nor has any subsequent Supreme Court case addressed
the issue, much less made Hall retroactive.” 

The dissent attempts to
overcome the Supreme Court’s total silence on the retroactivity of Hall by relying on
the Court’s other case law indicating that a substantive rule may be applied

                                         - 5-
retroactively. The dissent characterizes Hall as a substantive rule that altered the
“class of persons that the law punishes.” Infra at 8 (quoting Schriro v. Summerlin,

, 353 (2004)). But “Hall merely provides new procedures for ensuring
that States do not execute members of an already protected group.” 

. Indeed, the dissent understands Hall to hold that “defendants with IQ scores
above 70 in Florida may be considered intellectually disabled under Atkins.” Infra
at 8 (emphasis added). Rather than announce a substantive rule, Hall “created a
procedural requirement that those with IQ test scores within the test’s standard of
error would have the opportunity to otherwise show intellectual disability.” 

(emphasis in original). This conclusion is borne out by the language
of Hall itself: “[W]hen a defendant’s IQ test score falls within the test’s
acknowledged and inherent margin of error, the defendant must be able to present
additional evidence of intellectual disability, including testimony regarding adaptive

(emphasis added).

      For these reasons, we deny Goodwin’s application for a certificate of
appealability and deny his motion for authorization to file a second or successive
habeas application. We also deny Goodwin’s related motions for stay of execution.

MURPHY, Circuit Judge, concurring in part and dissenting in part.

       Paul Goodwin, who is scheduled to be executed on December 10, 2014, has
filed a motion for authorization to file a second or successive habeas application. He
claims that the Missouri Supreme Court issued a decision that was contrary to Hall
v. Florida, 

(2014), when it declined to consider his adaptive
functioning despite the fact that he presented evidence of an IQ score of 72. See
Goodwin v. State, 

, 30–31 (Mo. banc 2006). While acknowledging the
IQ score of 72 to be within the five point margin of error for the Wechsler scale of
subaverage intellectual functioning, the Missouri Supreme Court nonetheless
characterized that score as "inadequate to raise a triable issue of fact." 

       The panel majority concludes that Hall is not retroactive to cases on collateral
review and that Goodwin's petition is barred as second or successive under 28 U.S.C.
§ 2244. I concur in the panel's denial of Goodwin's application for a certificate of
appealability. I dissent from the panel's denial of the authorization to file a second
or successive habeas application because Goodwin has made "a prima facie showing
that the application satisfies the requirements" of § 2244, namely that his second or
successive habeas petition 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).

       In her controlling concurring opinion in Tyler v. Cain Justice O'Connor
reasoned that the Court can make "a new rule retroactive through multiple holdings
that logically dictate the retroactivity of the new rule." 

, 669 (2001).
And in Penry v Lynaugh the Court expressly stated that "if [it] held, as a substantive
matter, that the Eighth Amendment prohibits the execution of mentally retarded
persons . . . regardless of the procedures followed, such a rule would fall under the
first exception to the general rule of nonretroactivity and would be applicable to
defendants on collateral review." 

, 330 (1989), abrogated on other
grounds by 

.

       The Supreme Court held in Atkins v. Virginia, that the Eighth Amendment
prohibits a state from taking the life of a mentally retarded offender. 

,
321 (2002). The Court noted that "an IQ between 70 and 75 or lower" is "typically
considered the cutoff IQ score for the intellectual function prong of the mental
retardation definition." 

n.5.

       Then in Hall, the Court held unconstitutional a Florida law that, as interpreted
by that state's supreme court, required a defendant to show an IQ score of 70 or lower
before presenting additional evidence of intellectual 

.
The Court held that "when a defendant's IQ test score falls within the test's

                                         - 7-
acknowledged and inherent margin of error, the defendant must be able to present
additional evidence of intellectual disability, including testimony regarding adaptive
deficits." 

rule the Supreme Court announced in Hall is substantive in nature and
therefore applies retroactively. Under Atkins, defendants with IQ scores above 70 in
Florida were not protected from capital punishment because they were not
intellectually disabled. Now, under Hall, defendants with IQ scores above 70 in
Florida may be considered intellectually disabled under Atkins. See 

. By invalidating Florida's definition of the mentally retarded, the Supreme
Court in Hall altered the "class of persons that the law punishes." Schriro v.
Summerlin, 

, 353 (2004). It thus announced a substantive rule that
applies retroactively. See 

reasons, Goodwin now presents a new
claim that was not raised in his previous habeas application.

       In reaching the opposite conclusion, the majority relies upon the Eleventh
Circuit's decision in In re Henry. 

, 1163–64 (11th Cir. 2014). As the
dissent in Henry pointed out, the panel majority came to this hasty conclusion a mere
three weeks after Hall was decided, and as is the case here, under the time pressure
of an "imminent execution" rather than in the normal course with a benefit of full
briefing. 

      Goodwin has made a prima facie showing that the Missouri Supreme Court's
refusal to consider his adaptive functioning was contrary to Hall. The evidentiary
record before the Supreme Court in Hall showed the defendant had undergone seven
admissible IQ evaluations, with one test score of 71, and a range of scores between
71 and 

. Here, Goodwin presented eight IQ evaluations taken
before he reached the age of eighteen with one score of 72 and a range between 72
and 84.



                                         - 8-
      These numbers required Missouri courts to consider evidence of Goodwin's
adaptive functioning in order to determine whether he is within the class of people
about whom there is a national consensus forbidding their execution, as the Supreme
Court required of the Florida courts in 

, 2001. This is
especially true given the Court's instruction that "[c]ourts must recognize, as does the
medical community, that the IQ test is imprecise," and caution that "[a] State that
ignores the inherent imprecision of these tests risks executing a person who suffers
from intellectual disability." 

      In my view the prudent course would be to recognize the retroactivity of Hall
and the viability of Goodwin's claim that his rights under that decision have been
denied. I would therefore grant Goodwin authorization to file his habeas application,
grant the related application for stay of execution, and permit Goodwin an
opportunity to litigate his claim.
                        ______________________________




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