                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               March 20, 2007
                        FOR THE FIFTH CIRCUIT
                        _____________________              Charles R. Fulbruge III
                                                                   Clerk
                            No. 07-10319


                        _____________________


In Re:   CHARLES ANTHONY NEALY,

                                                                 Movant.

------------------------------------------------------

                            No. 07-10320


CHARLES ANTHONY NEALY

                                            Petitioner - Appellant,



   v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                Respondent - Appellee.

_________________________________________________________________

      Transfer Order from the United States District Court
                for the Northern District of Texas
                                and
           Appeal from the United States District Court
                for the Northern District of Texas
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:*


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     Charles Anthony Nealy was convicted of capital murder and

sentenced to death in Texas for the 1997 murder of a convenience

store owner during the course of an armed robbery.                 His execution

is scheduled for today, March 20, 2007.              The facts and procedural

history are detailed in the opinion we filed earlier today, in

which   we   denied   Nealy’s      motion    for   authorization     to   file   a

successive federal habeas application in which he sought to raise

claims that (1) his due process rights were violated because the

State suppressed exculpatory evidence and knowingly relied on

perjured evidence to convict him, and (2) that his conviction is

unreliable under the Eighth Amendment.              In re Nealy, No. 07-10311

(5th Cir. March 20, 2007) (unpublished).

     On March 19, 2007, Nealy filed a Motion for Appointment of

Counsel and Stay of Execution in the United States District Court

for the Northern District of Texas.          He asked the district court to

appoint   counsel     and   stay   his   execution     so   that    counsel   can

investigate evidence of possible mental retardation and prepare and

file a motion in this court for authorization to file a successive

habeas application asserting a claim under Atkins v. Virginia, 536

U.S. 304 (2002), in which the Supreme Court held that mentally

retarded persons cannot be executed.               Today, the district court,

sua sponte, transferred Nealy’s motion for stay and appointment of

counsel to this court in the interest of justice, because of the

short time before Nealy’s scheduled execution.              Nealy has filed a



                                         2
notice of appeal of the district court’s transfer order.                    That

appeal is consolidated with the transferred motions.

     This court has held that where an unrepresented petitioner can

make a “colorable showing” of mental retardation, the petitioner is

entitled to a stay of execution and appointment of counsel.                 In re

Hearn (Hearn I), 376 F.3d 447, 455 (5th Cir. 2004).                    The court

subsequently clarified that such relief is available only to a

petitioner who has already completed the state and federal habeas

process    and   who   may   have   a    claim   based   on    the     previously

unavailable, new rule of Atkins, that is not time-barred.                  In re

Hearn (Hearn II), 389 F.3d 122, 123 (5th Cir. 2004).

     Hearn does not apply to Nealy’s situation.               The United States

District   Court   for   the   Northern     District     of    Texas   appointed

attorney John Nation to represent Nealy on February 25, 2002.

Nation continued to represent Nealy in June 2002, when Atkins was

decided by the Supreme Court.           Nation filed Nealy’s first federal

habeas petition in October 2002.             While Nealy’s federal habeas

petition was pending, the Texas Court of Criminal Appeals issued

its opinion in Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App.

2004) (modifying the Texas “two-forum” abstention rule to allow

consideration of a successive application for state habeas relief

if the federal court with jurisdiction over a parallel federal

habeas petition entered an order staying its proceedings to allow

the federal petitioner to pursue unexhausted claims in state

court).     After Soffar, Nealy could have sought a stay of his

                                        3
federal habeas proceedings and raised an Atkins claim in state

court   (unlike    Hearn,   whose   federal     proceedings    and   federal

counsel’s appointment ended before Soffar was decided). Nation

continued to represent Nealy following the district court’s denial

of his federal habeas petition on May 18, 2005, up until January

2007, when the Texas Defender Service was substituted as counsel

for Nealy.   Therefore, Nealy was not “unrepresented” and an Atkins

claim was not “unavailable” to him, within the meaning of Hearn.

     Nealy argues that his Atkins claim should nevertheless be

considered as previously “unavailable”, because his federal habeas

counsel at that time did not believe he could investigate or raise

new claims that had not been raised previously in state court.

This contention is without merit.          As the State pointed out in its

response in opposition to Nealy’s pending motions, it submitted

Nation’s affidavit along with its response to Nealy’s fourth state

habeas application (filed on March 14, 2007, asserting an Atkins

claim for the first time in state court).              In that affidavit,

Nation stated that he had represented Nealy continuously from 2002

until   January    9,   2007,   when       Nealy’s   present   counsel   was

substituted.      He stated that he understands the law of Atkins,

knows how to raise an Atkins claim when he has evidence suggesting

that a defendant may be mentally retarded, and that he has never

considered filing an Atkins claim for Nealy “for the simple reason

that I have no evidence or indication, through personal observation

or otherwise, that Charles Nealy might be mentally retarded.”            The

                                       4
Texas Court of Criminal Appeals dismissed Nealy’s Atkins claim as

an abuse of the writ.        Ex parte Nealy, No. WR-50,361-04 (Tex. Crim.

App. March 15, 2007) (unpublished).

      Finally, Hearn does not apply because any potential Atkins

claim by Nealy would be time-barred under 28 U.S.C. § 2244(d)(1)(C)

(petitioner     has    one   year   to   file     federal    habeas       application

following date on which constitutional right asserted was initially

recognized by Supreme Court and made retroactively applicable to

cases on collateral review).         Atkins was decided on June 20, 2002.

Thus, Nealy had until June 20, 2003 to assert a claim under Atkins.

Furthermore, he would have been entitled to claim equitable tolling

from June 20, 2003 until February 11, 2004, when Soffar modified

the Texas “two forum” rule to allow consideration of the merits of

a subsequent state habeas application if the federal court stayed

a   pending   federal    habeas     application      in     order   to     allow    the

petitioner to exhaust state court remedies.

      For the foregoing reasons, Nealy’s Motion for Appointment of

Counsel   and   Stay    of   Execution       is   DENIED,    and    the    appeal    is

DISMISSED.




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