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Click here for the full text of this decision FACTS:On Dec. 15, 1998, Chris Lentsch heard gunshots in his home and turned to see Milton Mathis exiting Travis Brown’s room with a gun in his hand. Mathis claimed that Brown had just shot himself. Lentsch told Mathis to put the gun down, but Mathis shot 15-year-old Melanie Almaguer in the head, leaving her alive but paralyzed from the neck down. Mathis then shot Daniel Hibbard in the head, causing his death. Mathis finally pointed the gun at Esmerelda Lester, whereupon he discovered he was out of bullets. Mathis thereafter rummaged through the house, set fire to Brown’s room, threatened Lester and Lentsch, and finally left in Brown’s car. Mathis was later apprehended and indicted for murder. A jury convicted Mathis and sentenced him to death. The Court of Criminal Appeals affirmed his conviction and sentence on direct appeal on Feb. 13, 2002. The CCA denied Mathis’ first state petition for a writ of habeas corpus on April 3, 2002. Mathis filed his first federal habeas petition on April 3, 2003, and a federal district court denied the petition on Feb. 2, 2004. While his federal habeas petition was pending, Mathis filed a successive state habeas claim on June 20, 2003, raising his mental retardation claim under the U.S. Supreme Court’s 2002 case Atkins v. Virginia for the first time. On March 3, 2004, the CCA dismissed Mathis’ Atkins application because “he had not shown that the federal court stayed its proceedings” as required by the CCA’s 2004 case Ex Parte Soffar. On Feb. 17, 2004, Mathis filed a motion for reconsideration with the federal district court and at the same time requested that the district court hold the case in abeyance pending the United States Supreme Court’s decision in Atkins v. Virginia. The district court denied the motion on March 11, 2004, and Mathis appealed on April 8, 2004, seeking a certificate of appealibility (COA), which the lower court denied. Mathis then applied for a COA from the 5th Circuit on Aug. 10, 2004, seeking a stay of the federal proceedings so he could return to state court and raise his Atkins claim. This court denied both Mathis’ application for a COA and his motion for a stay of execution on March 11, 2005. Mathis then filed a successive habeas application in state court on April 15, 2005, also seeking a stay of execution. The CCA granted the stay and remanded the case to the trial court for consideration of Mathis’ Atkins claim. The state trial court held an evidentiary hearing in September 2005. On Jan. 5, 2006, it recommended that Mathis be denied habeas relief. The CCA adopted the trial court’s findings and conclusions and denied relief on Sept. 20, 2006. Mathis then sought to file a successive federal habeas petition raising his Atkins claim. HOLDING:The 5th Circuit granted Mathis permission to file a successive federal habeas application. The 5th Circuit stated that it may authorize the filing of a second or successive habeas application under 28 U.S.C. �2244(b)(3)(C) and Atkins only if: the Atkins claim has not yet been presented in previous habeas corpus applications; 2. the Atkins claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the U.S. Supreme Court, that was previously unavailable; and 3. Mathis demonstrates that he should be categorized as mentally retarded as defined in Atkins. A prima facie showing of mental retardation, the court stated, is made in this context if Mathis makes “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” The 5th Circuit noted that if it granted the motion, the district court would then conduct its own independent review of whether or not Mathis met the requirements of �2244(b). Whether Mathis has made a prima facie showing of mental retardation must be judged by the American Association on Mental Retardation’s definition and associated factors. Mental retardation, the court stated, is a disability characterized by three criteria: significant limitation in intellectual functioning, significant limitation in adaptive behavior and functioning, and onset of these limitations before the age of 18. First, Mathis alleged that Dr. Gilda Kessner administered the Weschler Adult Intelligence Scale (WAIS) test to him in 2005, and his score was 64, which placed him in the range of “mild mental retardation.” Mathis also presented two other IQ tests, a Weschler Intelligence Scale for Children-Revised (WISC-R) test given in 1991 on which he scored a 79 and another WAIS given in 2000, before the Atkins decision, on which he scored a 62. Typically, a person’s IQ must be measured at 70 or below to qualify as mentally retarded. Second, Mathis presented the affidavits of several lay witnesses who opined on Mathis’ abilities in the so-called “adaptive skill areas.” Mathis alleged that he was placed in “special education” classes in the eighth grade and failed the ninth grade. Additionally, Mathis noted his lifelong difficulties counting money and following simple commands. Lay witnesses testified to his poor hygiene and odd sartorial habits. Finally, the court noted Mathis’ difficulty forming social relationships because of his reluctance to communicate and his gullibility. Lay witnesses also noted their belief that Mathis was retarded. Based on all of the above, Mathis stated that Kessner diagnosed him with mental retardation, applying the AAMR criteria. The state put forth contrary evidence, but the court concluded that Mathis presented enough evidence to this court to warrant the district court’s consideration of his Atkins claim. The court noted that it expressed no view on “whether Mathis will or ultimately should prevail on his claim of retardation” in the district court. OPINION:Stewart, J.; Smith, DeMoss and Stewart, J.J.

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