In Re: Kenneth Wayne Morris, Applicant
328 F.3d 739
5th Cir.
2003
Check Treatment
Docket

*1 preference, only itself, prefer- protected is a position veterans’ ence, only play has which comеs into he property interest once the veter- job. “requisite qualifications” “requisite qualifications.”7 an has met the (“We Cаrter, caution See of the District Court will interest not in plaintiffs] here that is [the be affirmed.8 in a promotion per being given se but рreference promotion is consid- when

ered.”) original). in (emphasis sum, ‍​‌‌‌​‌‌‌​‌​​‌‌‌​‌​‌​‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌​​​​‍property interest require that

preference does not an meaning

cant informed of the veteran be “requisite qualifications.” Gikas has he

property only after has demon- interest has met the “requisite stratеd that he In re: MORRIS, qualifications”; the does ‍​‌‌‌​‌‌‌​‌​​‌‌‌​‌​‌​‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌​​​​‍not create a VPA Applicant. helping property interest the veteran rеquirements. achieve those In other No. 03-20373.

words, required by District is not due Appeals, States Court process applicаnt veterans give notice of Fifth Circuit. “requisite requirements” advance of hiring because the veteran does not have a 2003. property pur- at that time. The interest 7104(a) place pose §of is not to veterans applicants

in a than other position better veterans;

simply they are because preference,

entitled to the independently

veteran qualified. must be (“[V]eter- Brickhouse,

See 656 A.2d at are preferred assign-

ans not to be merely public jobs strength

ment of on the being They be, in some veterans.”

sense, procedure “qualified”). The advocates, requiring

Gikas District to qualifications” “requisite

delineate the of a

position hiring process begins, before the far

is too removed the consti-

tutionally рrotected property Moreover, "requisite qualifi- to set forth we note that the District in advance teaching position teaching posi- to draft for a cations” for each different case-by-case available. basis becomes also serves function, though legitimate even the result of may impact to reduce the argued function five 8. The District аlso "requisite preference. qual- the veterans' individuals named as ‍​‌‌‌​‌‌‌​‌​​‌‌‌​‌​‌​‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌​​​​‍defendants Gikas ifications” to teach at the levеl of skill de- were were not liable not mem- because employer vary greatly will manded bers of the at the time the al- sсhool board area, size, depending subject leged place. on the class took no need violations such, grade affirming appear it would to address since we are level. As this issue grounds. quite require the District Court on other burdensome *2 appeals may

Thе court authorize the filing of a applica- second or successive only if it tion determines prima showing cation makes a facie satisfies the of this subsection. Reyes-Requena v. United

States, our Court followed the Seventh prima showing Circuit’s dеfinition of ‍​‌‌‌​‌‌‌​‌​​‌‌‌​‌​‌​‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌​​​​‍facie explained opinion its Bennett v. Unit ed States as follows: adopted

Our court has prima showing: definition of facie We understand be a sufficient [it to] showing possible merit to warrant a exploration by fuller court.... If in light of the documеnts application appears submitted with the it reasonably likely that application stringent satisfies requirement peti- of a second or successive tion, application. shall States, 468, Bennett v. United 119 F.3d (7th Cir.1997); Reyes-Requena 893, Cir.2001) Bennett). have carefully reviewed motion and Charlton, Houston, TX, B. Michael appended the documents as exhibits there- Morris. Response by to and the filed the State. THE ORDER AUTHORIZING DIS- Applicant We find that prima has made a A TRICT COURT TO CONSIDER SUC- showing that: facie APPLI- CESSIVE HABEAS CORPUS (1) presented the claims to CATION AND GRANTING A STAY OF рroposed ap- successive habeas corpus EXECUTION plication previously pre- have not any prior application sented in to this Before DeMOSS Court; DENNIS, Judges. and (2) presented the claim to PER CURIAM: proposed corpus ap suсcessive habeas (hereinafter plication on a relies new rule of constitu Morris law, tional made retroaсtive to cases on “Applicant”) per- has moved this Court for Court, collateral Supreme mission to file a review thе for writ unavailable, corpus previously of habeas was United States Dis- Penry Lynaugh, v. Court for the Southern District of 492 U.S. Texas, (1989) authority Houston Division. The S.Ct. 106 L.Ed.2d 256 to act on such Virginia, Court motion is stated Atkins v. 536 ‍​‌‌‌​‌‌‌​‌​​‌‌‌​‌​‌​‌​​​‌​‌‌‌​​​‌‌‌‌‌‌​​​​​‌​​​​‍U.S. 2244(b)(3)(C) (2002); in 28 U.S.C as follows: S.Ct. 153 L.Ed.2d 335 (3) as the district I am categorized should be confess in these “mentally edly retarded” defined point, dubitante am cases. persuaded given the “tentative” process this court had borrowed we authorize file *3 Circuit. See Bennett v. Seventh United corpus petition with a successive habeas (7th however, Stаtes, is, grant This the Cir. district “ 1997), the dis ‘tentative sense: and Reyes-Requena that we (5th must dismiss the motion court F.3d 243 Cir. file, have allowed the without 2001). motiоn, if the merits of the reaching the family’s There is a conflict between not satis court finds that the movant has description impаirment Morris’s his filing fied of such days childhood and school and “other” evi- The district court then is motion.’ record, no IQ. dence this and wе have through petitioner ‘gate’ second County test. As the brief of the Harris or her the merits of his pass before Attorney’s out, аbly points District office 243 Reyes-Requena, motion are heard.” expert testifying at Morris’s trial did Bennett, F.3d at 899 not think that he On was retаrded. 2244(b)(4). 470); also 28 U.S.C. hand, other not had focus. ‘thorough’ district court “must conduct a psychologist And the trial never tested for motion ‘conclu review to determine mental retardation. now vital While sively’ that it does not meet demonstrates records, are, scant as do not or motion re AEDPA’s second successive “retarded,” that is not use the term worth at quirements.” Reyes-Requena, 243 F.3d much, given practice wide social (citing States v. Villa-Gonza promotions and the reluctance of school Cir.2000)). lez, F.3d stigmatizing use of the term officials’ “re- Applicant has also moved tarded.” are more uncertainties. stay of his now set Court for a execution family offers unqualified assertions p.m. Tuesday, April 6:00 on after write, could that Morris not read nothing upon whiсh we is cast in records in that evidence doubt granting could that “the determine writing in his purporting the file stay substantially par harm other would ability reflecting an to read. ties,” including the Fur State of Texas. thermore, think has made judg- It is difficult make informed showing of success sufficient likelihood of of the development without the facts ments public on the merits skeptical of hearing. in some form While stay. granting would be served hearing, ability at a I of Morris’s to do so now execution will not dissent an order p.m. Tuesday, 6:00 scheduled for after court to a more informed make 15, 2003, hereby stayed pending us, than is as a available habe determination successive final gate to leave to file second whose we have autho writ. rized herein. E.

PATRICK concurring: Judge, to file permission is here successive writ because there

enough explora- merit to warrant further