Case: 15-60452     Document: 00513246696     Page: 1   Date Filed: 10/26/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                  No. 15-60452                   October 26, 2015
                                                                   Lyle W. Cayce
In re: RICKY R. CHASE,                                                  Clerk


             Movant




                        Motion for an order authorizing
                    the United States District Court for the
                  Southern District of Mississippi to consider
                   a successive 28 U.S.C. § 2254 application


Before JOLLY, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:
      Ricky Chase was convicted of capital murder and sentenced to death in
Mississippi. He requests authorization to file a successive 28 U.S.C. § 2254
application to assert claims that he is intellectually disabled and ineligible for
execution under Atkins v. Virginia, 

(2002), and that the
Mississippi courts denied due process to him in the adjudication of his Atkins
claim. In order to obtain authorization to file a second or successive habeas
application, Chase must make a prima facie showing that his application
satisfies the requirements of 28 U.S.C. § 2244(b), which provides:
            (1) A claim presented in a second or successive habeas corpus
      application under section 2254 that was presented in a prior
      application shall be dismissed.
            (2) A claim presented in a second or successive habeas corpus
      application under section 2254 that was not presented in a prior
      application shall be dismissed unless—
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                                     No. 15-60452
                    (A) 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; or
                   (B)(i) the factual predicate for the claim could not have
             been discovered previously through the exercise of due
             diligence; and
                   (ii) the facts underlying the claim, if proven and
             viewed in light of the evidence as a whole, would be sufficient
             to establish by clear and convincing evidence that, but for
             constitutional error, no reasonable factfinder would have
             found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b). A prima facie showing is “simply a sufficient showing of
possible merit to warrant a fuller exploration by the district court.” In re
Morris, 

, 740 (5th Cir. 2003) (quoting Bennett v. United States,

, 469 (7th Cir. 1997)).
      Chase asserts that he has made a prima facie showing that his
application satisfies the requirements of 28 U.S.C. § 2244(b)(2), because his
claims were not presented in a prior application, his intellectual disability
claim relies on Atkins, which stated a new, retroactively applicable rule of
constitutional law that was previously unavailable to him, and he has made a
prima facie showing that he is intellectually disabled. The State contends,
however, that Chase’s application must be dismissed under § 2244(b)(1),
because he presented the “mental retardation issue” in a prior application. 1
Alternatively, the State contends that Chase has not made a prima facie
showing of intellectual disability.




      1  The term “mental retardation” is used in this opinion only where it is a direct
quotation. Otherwise, we substitute the term “intellectual disability,” which has been
adopted by the Supreme Court and this circuit to describe the identical condition. See Hall
v. Florida, 

, 1990 (2014); Matamoros v. Stephens, 

, 213 n.1 (5th
Cir. 2015).
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                                 No. 15-60452
      We conclude that Chase has satisfied the prima facie standard for filing
a successive § 2254 application. Atkins had not been decided when Chase’s
first federal habeas petition was filed and decided in the district court.   The
“mental retardation” issue that Chase presented in his first federal habeas
petition was not an Atkins claim. Instead, he claimed that his trial counsel
rendered ineffective assistance by failing to investigate and present evidence
of intellectual disability during the consideration of the validity of his
confession and as mitigating evidence at the sentencing phase of his trial. The
question whether Chase is intellectually disabled and ineligible for execution
under Atkins was neither presented to nor decided by the district court when
it ruled on Chase’s first federal habeas petition.        In his state habeas
proceedings, Chase presented evidence that his IQ scores are within the range
of significantly subaverage general intellectual functioning, as well as evidence
of deficits in adaptive functioning and of the onset of intellectual disability
before the age of 18.
      Because Chase has made a prima facie showing that his application
satisfies the requirements of § 2244(b), his motion is GRANTED. The grant is,
however, “tentative” to the extent that the district court must dismiss Chase’s
§ 2254 application, without reaching the merits, if it determines that Chase
has failed to satisfy the requirements for filing such an application. In re

. We express no view on what decisions the district
court should make.
                                                          MOTION GRANTED.




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