                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4135
                                   ___________

Eric Randall Nance,                     *
                                        *
             Petitioner,                *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Arkansas.
Larry Norris, Director,                 *
Arkansas Department of                  *      [PUBLISHED]
Correction,                             *
                                        *
             Respondent.                *
                                   ___________

                             Submitted: November 25, 2005
                                Filed: November 28, 2005
                                 ___________

Before MELLOY, BEAM, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       On January 24, 2005, petitioner filed a motion to remand his previously denied
petition for writ of habeas corpus. The motion sought substantially the same relief as
requested in the motion presently before the court. We construed the pleading as a
second or successive habeas petition and denied the motion on February 9, 2005, for
failure to meet the requirements of 28 U.S.C. § 2244(b)(2).

     Now before the court is petitioner's further motion for stay of execution, and
motion for leave to file a successive habeas corpus petition again asserting
substantially the same relief as previously requested. Because petitioner cannot
satisfy the requirements of 28 U.S.C. § 2244(b)(2), we deny the motions.

MELLOY, Circuit Judge, dissenting.

      I respectively dissent from the denial of Nance's request to file a successive
habeas. I would grant the request to file a successive habeas to raise a claim under
Atkins v. Virginia, 536 U.S. 304 (2002) and would grant a stay of execution.

       I believe Nance makes a compelling argument that as a practical matter he
could not have amended his pending federal habeas action to raise the Atkins claim
when Atkins was decided in June 2002. Nance correctly argues that our then-existing
precedent regarding the treatment of mixed petitions placed him between a rock and
a hard place. He could not amend his petition to add an (unexhausted) Eighth
Amendment claim regarding mental retardation without risking the dismissal of his
entire federal habeas petition (including his exhausted claims). See Victor v. Hopkins,
90 F.3d 276, 282 (8th Cir. 1996) (holding that a district court could not address a
habeas petition that contained exhausted and unexhausted claims and that the district
court must either dismiss the mixed petition or strike the unexhausted claims). Had
he amended his petition, and had his amended petition been dismissed, a subsequent
attempt to renew his claims would have been barred by the AEDPA’s statute of
limitations. See Duncan v. Walker, 533 U.S. 167, 172 (2001) (holding that the
AEDPA’s statute of limitations is not tolled during the pendency of a first habeas
petition).

      This left Nance the Hobbesian Choice of (1) risking a complete loss of federal
review of all of his claims or (2) leaving his unexhausted Atkins claim to be raised in
a subsequent petition. Since then, the Supreme Court has loosened restrictions on the
treatment of mixed petitions. See Rhines v. Weber, 125 S.Ct. 1528, 1535 (2005)
(holding that district courts have discretion to hold petitions in abeyance pending state

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court proceedings to exhaust unexhausted claims and stating that our circuit had
“erred to the extent [we] concluded that stay and abeyance is always impermissible”).
In Rhines, the Supreme Court recognized that when it adopted the rule of complete
exhaustion in Rose v. Lundy, 455 U.S. 509, 522 (1982), there was no statute of
limitations on habeas petitions and “petitioners who returned to state court to exhaust
their previously unexhausted claims could come back to federal court to present their
perfected petitions with relative ease.” Rhines, 125 S.Ct. at 1533. The Court in
Rhines, therefore, recognized the draconian effect that a habeas corpus statute of
limitations imposed when combined with the rule of complete exhaustion.

       After Rhines, then, petitioners no longer must choose between risking complete
dismissal or failing to raise a newly available, unexhausted claim in a first petition.
In the present case, stay and abeyance is not at issue because the first habeas is closed.
Accordingly, to be consistent with Rhines, we should permit Nance the opportunity
to raise an Atkins claim in a subsequent petition. This is especially true in light of the
fact that Nance has presented evidence in the form of a psychologist’s affidavit that
tends to show his claims of mental retardation may have merit. See Rhines, 125 S.Ct.
at 1535 (stating that it may be an abuse of discretion for a district court to deny a stay
and dismiss a mixed petition if there was good cause for the failure to exhaust, the
unexhausted claims are potentially meritorious, and the petitioner has not engaged in
intentionally dilatory litigation tactics).

      In a very similar case, the Fifth Circuit granted the stay of execution and
appointed counsel to prepare a petition raising an Atkins claim. Hearn v. Dretke, 376
F.3d 447 (5th Cir. 2004). Although the Fifth Circuit did not address the issue of
whether a successive habeas would be allowed in that case, the court did discuss at
some length whether appointment of counsel to raise an Atkins claim wold be futile
under circumstances similar to ours. The Fifth Circuit found that if Hearn had
attempted to amend his pending habeas complaint to raise an Atkins claim, he
probably would have been required to dismiss the habeas action in order to return to

                                           -3-
state court to exhaust state remedies. The result would have been that under the then
state of the law, the dismissed claims would have been time barred. For the reasons
discussed above, I think a similar result would have occurred in the Eighth Circuit.



       Since Nance has made a prima facie showing of mental retardation (assuming
that such a showing is required for a successive habeas), he had a valid reason not to
amend his then-pending habeas petition to raise the Atkins claim and since Atkins had
been made retroactive to pending cases, we should grant permission to file a
successive habeas petition and stay the execution.
                          __________________________




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