                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                                                                                        July 6, 2004
                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT
                                                                                 Charles R. Fulbruge III
                                                                                         Clerk


                                          No. 04-10245



IN RE: YOKAMON LANEAL HEARN,

                      Movant.


                                          No. 04-70010

YOKAMON LANEAL HEARN,

                      Petitioner-Appellant,

  v.

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                      Respondent-Appellee.


                         Transfer Order from the United States District
                     Court and Appeal from the United States District Court
                               from the Northern District of Texas
                                       (No. 3:04-CV-450)



Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

       Yokamon Laneal Hearn, an indigent Texas inmate seeking to challenge his death sentence

pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), moves this Court to appoint counsel to prepare


                                                1
his application for authority to file a successive federal habeas corpus peti tion, and to stay his

execution pending the disposition of such petition. For the following reasons, the motions to appoint

counsel and stay the execution are GRANTED.

                                                I.

       Hearn was convicted of capital murder in Texas and sentenced to death. He appealed to the

Texas Court of Criminal Appeals, which affirmed both the conviction and sentence. Hearn v. State,

No. 73,371 (Tex. Crim. App. Oct. 3, 2001) (per curiam). The Supreme Court later denied Hearn’s

petition for writ of certiorari. Hearn v. Texas, 535 U.S. 991 (2002).

       After Hearn was denied state post-conviction relief, Ex parte Hearn, No. 50,116-01 (Tex.

Crim. App. Nov. 14, 2001), he filed a federal habeas petition pursuant to 28 U.S.C. § 2254 in the

United States District Court for the Northern District of Texas. On July 11, 2002, the district court

granted summary judgment on behalf of the Director of the Texas Department of Criminal Justice

(“Director”), thereby denying Hearn’s request for federal habeas relief. Hearn v. Cockrell, No. 3:01-

CV-2551-D, 2002 WL 1544815 (N.D. Tex. July 11, 2002). Both the district court and this Court

denied Hearn’s application for a certificate of appealability (“COA”), finding that he had failed to

make a substantial showing of the denial of a constitutional right. Hearn v. Cockrell, No. 02-10913,

2003 WL 21756441 (5th Cir. June 23, 2003). On November 17, 2003, the Supreme Court denied

Hearn’s petition for writ of certiorari. Hearn v. Dretke, 124 S. Ct. 579 (2003). The State of Texas

scheduled Hearn’s execution for March 4, 2004.

       On March 2, 2004, Hearn filed a successive application for state post-conviction relief,

claiming that he is mentally retarded and that his death sentence is cruel and unusual punishment

under the Eighth Amendment. See Atkins v. Virginia, 536 U.S. 304 (2002). On March 3, 2004, the


                                                 2
Texas Court of Criminal Appeals dismissed Hearn’s application on the ground that it constituted an

abuse of writ, finding that he failed to make a prima facie showing of mental retardation. Ex parte

Hearn, No. 50,116-02 (Tex. Crim. App. Mar. 3, 2004). Later that day, Hearn moved the United

States District Court for the Northern District of Texas for appointment of counsel pursuant to 21

U.S.C. § 848(q)(4)(B), and for a stay of execution under 28 U.S.C. § 2251. The district court sua

sponte transferred the motions to this Court, and Hearn filed a separate notice of appeal—asking us

to reverse the transfer order, appoint counsel, and enter a stay of execution.1 In order to thoroughly

address Hearn’s claim, we granted a temporary stay of execution, requested supplemental briefing,

and heard oral argument.

                                                  II.

A.      Appointment of Counsel

        The legality of Hearn’s detention was determined on a prior application for a writ of habeas

corpus. Hearn v. Dretke, 124 S. Ct. 579 (2003). “Before a second or successive application [for a

writ of habeas corpus] is filed in the district court, the applicant shall move in the appropriate court

of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. §

2244(b)(3)(A). In order to facilitate the preparation of his application for § 2244(b)(3)(A) authority,

Hearn now moves this Court to appoint counsel pursuant to 21 U.S.C. § 848(q)(4)(B).2


        1
         Hearn’s current lawyers, members of the Texas Defender Service, have volunteered their
services for the limited purpose of assisting Hearn in his effort to obtain permanent habeas counsel
pursuant to § 848(q)(4)(B).
        2
        As an initial matter, we decline to characterize Hearn’s motion for appointment of
counsel as a motion for actual § 2244(b)(3)(A) authority to file a successive federal writ petition.
Hearn has made it abundantly clear that he is not asking this Court for such authority, and we are
not persuaded that our precedent requires us to presume otherwise. United States v. Key, 205
F.3d 773, 774-75 (5th Cir. 2000), cited by the Director, is inapposite because it involves neither

                                                   3
(1)     Scope of § 848(q)(4)(B)

        The Director contends that § 848(q)(4)(B) does not authorize the appointment of counsel to

prepare an application for authority to file a successive habeas writ petition. We disagree.

        Section 848(q)(4)(B) provides that:

        In any post-conviction proceeding under section 2254 or 2255 of Title 28, seeking
        to vacate or set aside a death sentence, any defendant who becomes financially unable
        to obtain adequate representation or investigative, expert, or other reasonably
        necessary services shall be entitled to the appointment of one or more attorneys and
        the furnishing of other services in accordance with paragraphs (5), (6), (7), (8), and
        (9).

21 U.S.C. § 848(q)(4)(B) (emphasis added). Significantly, this provision expressly incorporates

subsection (q)(8), which states that

        each attorney so appointed shall represent the defendant throughout every subsequent
        stage of available judicial proceedings, including pre-trial proceedings, trial,
        sentencing, motions for new trial, appeals, applications for writ of certiorari to the
        Supreme Court of the United States, and all available post-conviction process,
        together with applications for stays of execution and other appropriate motions and
        procedures, and shall also represent the defendant in such competency proceedings
        and proceedings for executive or other clemency as may be available to the defendant.


21 U.S.C. § 848(q)(8) (emphases added). On their face, these statutes grant indigent capital prisoners

a mandatory right to qualified legal counsel and reasonably necessary legal services in all federal post-

conviction proceedings. Needless to say, this is not language of limitation.3


21 U.S.C. § 848(q)(4)(B), a capital prisoner, nor the Supreme Court’s ruling in McFarland v.
Scott, 512 U.S. 849 (1994).
        3
          The Director argues that we must deny the appointment of counsel on the ground that an
application for § 2244(b)(3)(A) certification is not a “post-conviction proceeding under section
2254 or 2255.” This argument is without merit. Section 2255, for example, provides that
motions filed by successor petitioners “must be certified as provided in section 2244.” This clause
in effect designates § 2244(b)(3)(A) certification as an element of § 2255 relief. As a result, we
find that a certification inquiry is a proceeding “under” § 2255. Further, this Court has on prior

                                                   4
       The expansive nature of § 848(q)(4)(B) is further evinced by the Supreme Court’s decision

in McFarland v. Scott, 512 U.S. 849 (1994). The question before the Court was whether a motion

to appoint counsel under § 848(q)(4)(B) qualified as a “post-conviction proceeding under section

2254 or 2255,” invoking the district court’s jurisdiction and allowing it to appoint counsel and grant

a stay of execution. The language of § 2254 and § 2255 make no reference to motions to appoint

counsel, and a simple reading of the habeas statutes would lead one to believe that a motion to

appoint counsel would not be a “post-conviction proceeding under section 2254 or 2255.” The

McFarland Court, however, heeded Congress’s concern for unrepresented capital prisoners and came

to the opposite conclusion, holding that the right to the appointment of counsel adheres before the

filing of a formal habeas corpus petition.

       This interpretation is the only one that gives meaning to the statute as a practical
       matter. Congress’ provision of a right to counsel under § 848(q)(4)(B) reflects a
       determination that quality legal representation is necessary in capital habeas corpus
       proceedings in light of “the seriousness of the possible penalty and . . . the unique and
       complex nature of the litigation.”
        ...
       [C]riminal defendants are entitled by federal law to challenge their conviction and
       sentence in habeas corpus proceedings. By providing indigent capital defendants with
       a mandat ory right to qualified legal counsel in these proceedings, Congress has
       recognized that federal habeas corpus has a particularly important role to play in
       promoting fundamental fairness in the imposition of the death penalty.

McFarland, 512 U.S. at 855, 859 (quoting 21 U.S.C. § 848(q)(7)). The McFarland Court’s

explanation of Congress’s intent to provide capital prisoners with habeas counsel, and its illustration


occasions characterized other § 2244 hearings as “post-conviction proceeding[s] under section
2254 or 2255.” See Cantu-Tzin v. Johnson, 162 F.3d 295, 302 (5th Cir. 1998) (discussing the
appointment of § 848(q)(4)(B) counsel for the limited purpose of preparing an equitable tolling
claim pursuant to § 2244(d)).




                                                  5
of how far it was willing to go to effectuate that intent, guide our analysis in this case.

        The Director asserts that the relief recognized in McFarland is limited to those capital

prisoners who have not yet filed an initial habeas petition. Such a contention is without merit. While

the petitioner in McFarland was indeed pursuing his first federal habeas writ, no language in the

Supreme Court’s opinion limits its holding to initial petitions. We note, however, that the Court did

place special emphasis on the necessity of counsel during the initial investigation of potential habeas

claims. McFarland explains that Congress, through § 848(q)(4)(B), granted indigent capital

prisoners the opportunity to investigate and research the factual bases of possible habeas claims. Id.

at 855 (discussing the right to “[t]he services of investigators and other experts that may be critical

in the pre-application phase of a habeas corpus proceeding, when possible claims and their factual

bases are researched and identified”); id. at 858 (recognizing the importance of the petitioner’s

“opportunity” to “meaningfully research and present [his] habeas claims”). The Court found that

McFarland—who was without counsel, and was pursuing previously unavailable habeas relief—was

denied this opportunity to investigate the factual bases of his potential habeas claims. It seems clear

to us that the McFarland Court would have been just as concerned with a capital prisoner in need

of investigating a successive habeas petition, based on a claim previously unavailable to the prisoner,

as it was with the capital prisoner seeking to file an initial petition. Under both scenarios, the prisoner

has been denied the opportunity to conduct an initial investigation into the factual bases of a potential

habeas claim.

        One of our cases, however, includes language suggesting that indigent capital prisoners are

never entitled to the appointment of counsel to prepare a successive habeas petition. See Kutzner v.

Cockrell, 303 F.3d 333, 338 (5th Cir. 2002) (“‘The McFarland Court was concerned only with that


                                                    6
period of time between the habeas petitioner’s motion for the appointment of counsel and the filing

of the initial petition.’ Thus, McFarland does not justify appointment of counsel or stay of execution

for the preparation of a second federal habeas petition.”) (quoting Turner v. Johnson, 106 F.3d 1178,

1182 (5th Cir. 1997)). 4 While such a statement, taken by itself, strongly supports the Director’s

position, its authoritative value is significantly diminished when read in the proper context.

       The issue before the Kutzner Court was whether the petitioner was entitled to counsel

pursuant to § 848(q)(4)(B) in light of McFarland. Kutzner begins its analysis by recognizing that the

“core concern of McFarland [is] that an un-counseled prisoner would be required to ‘proceed

without counsel in order to obtain counsel and thus would expose himself to the substantial risk that

his habeas claim never would be heard on the merits’ . . . .” 303 F.3d at 338 (quoting McFarland,

512 U.S. at 856). The Court then reviewed the facts of Kutzner’s case, and found that he was

equipped with competent counsel throughout the entire habeas process. Id. (“Kutzner was well-

represented by qualified counsel . . . [and] current counsel has represented Kutzner for over a year”).

The Court also reasoned that his “original § 2254 petition was fully litigated on the merits.” Id. at

338. The opinion takes particular note that Kutzner had been long-aware of the Brady material and

false testimony alleged in his proposed petition, and that he was not seeking relief pursuant to a new



       4
          The petitioner in Turner was seeking a stay—rather than the appointment of
counsel—pursuant to McFarland. Importantly, Turner’s habeas petition was pending in federal
court at the time of the Court’s decision. Seeing that the federal habeas corpus statute grants any
federal judge “before whom a habeas corpus proceeding is pending” power to stay an execution,
28 U.S.C. § 2251, the Turner Court’s observation that the “McFarland Court was concerned
only with that period of time between the habeas petitioner’s motion for the appointment of
counsel and the filing of the initial petition” is far from remarkable. Turner, 106 F.3d at 1182. It
is clear that such language does not concern McFarland’s applicability to successive petitions, but
instead restates the well-established rule that McFarland is the improper channel through which
to seek a stay of execution while a habeas petition is before the federal courts.

                                                  7
rule of constitutional law. Id. at 336, 337. Based on these findings, the Court ultimately concluded

that Kutzner’s situation did not implicate the “core concern” of McFarland, and that his request for

counsel should be denied accordingly.

       We read Kutzner as holding that the relief enunciated in McFarland does not apply to

successive habeas petitioners who had been afforded sufficient opportunities to investigate the factual

bases of their proposed claim. The statement of law cited by the Director, limiting McFarland to

initial petitions, is not an alternative rationale supporting this narrow fact-based holding.5 It would

be illogical to find otherwise, as this statement of law would wholly subsume, rather than facilitate,

the Court’s analysis of whether Kutzner enjoyed an opportunity to raise his habeas claim in an earlier

petition. Moreover, the contested statement of law does not stand by itself as an alternative holding.

The statement is found in the final sentence of a paragraph that addresses the wholly distinct subject

of Kutzner’s foregone opportunities to raise habeas claims. Further, the Court does not expressly

apply the contested statement of law to the facts of Kutzner’s case. This absence of analysis is

particularly striking in light of the Court’s detailed discussion, in the preceding sentences, whether

McFarland’s “core concern” is implicated by the petitioner’s situation.

       We find, after reading Kutzner in its proper context, that its limitation on McFarland does not



       5
          It is well-established that alternative holdings of this Court are binding on future panels.
See, e.g., McClendon v. City of Columbia, 305 F.3d 314, 327 n.9 (5th Cir. 2002) (en banc);
McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 925 n.20 (5th Cir. 1977) (en banc)
(stating that all alternative rationales for a given result have precedential value). Our en banc
Court in McClendon noted, however, that an “alternative analysis should be rare in qualified
immunity cases and should not be undertaken routinely by the panels of this court.” McClendon,
305 F.3d at 327 n.9. While we are mindful that this case does not involve a claim of qualified
immunity, McClendon clearly supports the proposition that alternative analyses should not be
common practice in this Circuit. In light of this principle, we find it improper for this Court to
infer alternative rationales or holdings where ones are not clearly expressed.

                                                   8
constitute an alternative rationale or an alternative holding, but rather a mere “judicial comment made

during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the

case and therefore not precedential.” Black's Law Dictionary 1100 (7th ed. 1999) (defining “obiter

dictum”); see also Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 385-86 (5th Cir.

1998) (“That which is ‘obiter dictum’ is stated only ‘by the way’ to the holding of a case and does

not constitute an essential or integral part of the legal reasoning behind a decision.”) (internal

quotations omitted). Further, we do not find such dictum persuasive because it contravenes

McFarland’s intent to provide indigent capital prisoners with the opportunity to conduct—at the very

least—a single, cursory investigation into the factual bases of each potential habeas claim.

        Upon review of the statutory language, McFarland, and the prior decisions of this Circuit,

we hold that courts are not barred from appointing § 848(q)(B)(4) counsel to prepare an application

for authority to file a successive habeas petition. We now proceed to a discussion of whether the

petitioner in the case sub judice is entitled to such relief.


(2)     Hearn’s opportunity to investigate the factual bases of his Atkins claim


        The Director asserts that Hearn’s motion for § 848(q)(4)(B) counsel should be denied on the

ground that Hearn, like the prisoner in Kutzner, had a sufficient opportunity to investigate the factual

bases of his proposed habeas claim. We disagree. Hearn’s proposed successive petition will seek

habeas relief pursuant to the new constitutional rule created in Atkins v. Virginia, 536 U.S. 304

(2002). Atkins, however, had not yet been decided when Hearn filed his initial habeas petition.

Although Atkins was issued while Hearn’s first petition was pending in federal court, Texas’s habeas-

abstention procedure—which barred the filing of a state petition while a habeas writ was pending in


                                                    9
federal court—effectively precluded him from seeking Atkins relief until his initial habeas petition was

disposed of by the federal courts. See discussion infra Part II.A(4).

       Upon the denial of his initial federal habeas pet ition, Jan Hemphill withdrew from her

representation of Hearn. Put plainly, Hearn lost his court-appointed habeas counsel on the very day

he became eligible to raise his Atkins claim. Hearn made various efforts to persuade Hemphill to file

a successive writ petition, and even dispatched family members to the federal district court and Texas

Attorney General’s Office in an effort to compel her to investigate a successive claim. When all else

failed, Hearn promptly contacted his current pro bono counsel, who conducted an expedited

investigation into Hearn’s records and brought such evidence before this Court. We find that Hearn

has made a sufficient showing that Texas’s habeas-abstention procedure, and the unavailability of

qualified habeas counsel after the dispo sition of his initial petition, denied him the opportunity to

sufficiently investigate the factual bases underlying his Atkins claim.

(3)    Hearn’s showing of mental retardation

       The Director maintains that, even if Hearn were, in fact, denied an opportunity to investigate

the factual bases of his Atkins claim, we should withhold § 848(q)(4)(B) counsel on the ground that

Hearn has failed to make the requisite prima facie showing of mental retardation.6 Such an assertion

is without merit. Because § 848(q)(4)(B)—read in conjunction with McFarland—affords counsel

       6
         The American Association on Mental Retardation defines mental retardation as: (1)
subaverage general intellectual functioning (i.e., an IQ of approximately 70 to 75 or below)
existing concurrently with (2) related limitations in adaptive functioning; and (3) onset before the
age of eighteen. AM. ASS’N ON MENTAL RETARDATION, MENTAL RETARDATION: DEFINITION,
CLASSIFICATION, AND SYSTEMS OF SUPPORTS 1 (9th ed. 1992). “Psychologists and other mental
health professionals are flexible in their assessment of mental retardation; thus, sometimes a
person whose IQ has tested above 70 may be diagnosed as mentally retarded.” Ex parte Briseno,
No. 29,819-03, WL 244826, at *7 n.24 (Tex. Crim. App. Feb. 11, 2004).

                                                  10
to prisoners to prepare federal habeas petitions, “a substantive, merits assessment of the petition is

irrelevant to the appointment of counsel.” Weeks v. Jones, 100 F.3d 124, 127 (11th Cir. 1996); see

Barnard v. Collins, 13 F.3d 871, 879 (5th Cir. 1994) (“On its face, § 848(q)(4)(B) does not condition

the appointment of counsel on the substantiality or non-frivolousness of petitioner’s habeas claim.”).

As a result, a prisoner’s motion for counsel to investigate and prepare a successive Atkins claim need

only be supported by a colorable showing of mental retardation.7

       We hold that Hearn has met this modest evidentiary threshold. For instance, Hearn has

presented school records showing that he failed first grade, and that his marks often hovered in the

50s (or below) despite his regular attendance. He further proffered evidence that his score on the

state-administered Weschler Adult Intelligence Scale-Revised (“WAIS-R”) Short-form test—taking

into account its inherent band of error—falls within the upper range of scores indicating mild mental

retardation.8 Hearn also presents a note from Hemphill st ating her belief that he was “not very




       7
          Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) with the intent to curb the vast number of habeas filings in the federal courts. In
furtherance of this objective, AEDPA requires that potential successive petitioners present the
merits of their habeas writ to the courts of appeals before such claim is filed in district court. 28
U.S.C. § 2244(c). We think it concomitant with this Congressional intent to withhold §
848(q)(4)(B) counsel for certification proceedings absent some colorable showing by the prisoner
that he is, in fact, entitled to habeas relief.
       8
          Hearn scored an 82 on the WAIS-R Short-form test. “The basic requirement for any
short-form is a minimum correlation of .90 with the full administration. . . . [W]ith a .90
correlation, two-thirds of the IQs will fall within 9 points of a person’s actual IQ and a full one-
third will be 10 or more points away from the actual IQ.” GARY GROTH-MARNAT, HANDBOOK
OF PSYCHOLOGICAL ASSESSMENT 200 (3d ed. 1999). Due to the Short-form’s substantial margin
of error, we find that Hearn may have an IQ “between 70 and 75 or lower, which is typically
considered the cutoff IQ score for the intellectual function prong of the mental retardation
definition.” Atkins, 536 U.S. at 309 n.5.

                                                 11
intelligent—maybe below normal.”9 He further cites the trial testimony of a family member to

demonstrate his compromised social skills.10 We find that this evidence, while certainly insufficient

to establish a prima facie case of mental retardation, nonetheless presents a colorable claim of mental

retardation sufficient to justify the appointment of counsel to investigate and prepare a §

2244(b)(3)(A) application.

(4)    Hearn’s showing of rare and equitable circumstances

       The Director lastly contends that Hearn’s motion for counsel should be denied because his

eventual Atkins claim will be time-barred. It is true that potential procedural bars may be so

conclusive that the right to counsel under § 848(q)(4)(B) becomes unavailable. See Cantu-Tzin v.

Johnson, 162 F.3d 295, 298-99 (5th Cir. 1998); Barnard, 13 F.3d at 879. This Court in Cantu-Tzin

explained that the “[a]ppointment of counsel for a capital-convicted defendant would be a futile

gesture if the petitioner is time-barred from seeking federal habeas relief.” 162 F.3d at 299. Hearn

cannot bring his Atkins claim within the one-year statute of limitations dictated by the Anti-Terrorism

and Effective Death Penalty Act of 1996 (“AEDPA”).11 The AEDPA limitations period, however,


       9
         To show that Hearn has not established a colorable claim of mental retardation, the
dissent points to Hearn’s “long, personalized request for a pen pal via a web site.” The dissent
quite ably finds that the request “used complete sentences.” If this request were in fact
transcribed by Hearn, it may well be relevant to the ultimate issue of whether Hearn is in fact
mentally retarded. Unlike the dissenting judge, however, we refuse to accord such weight to
mere hearsay evidence.
       10
          Hearn’s aunt testified that he was a “follower” who tended to be “influenced by the
wrong type of people,” and that when he left home at age 18, she was still “concerned [sic] about
if he was being taken care of.”
       11
          AEDPA tolls the limitations period for one-year after a new retroactive constitutional
rule is enunciated. 28 U.S.C. § 2244(d)(1)(C). The retroactive rule in Atkins was issued on June
20, 2002; the AEDPA one-year limitations period for filing an Atkins claim therefore expired on

                                                  12
is subject to equitable tolling in “rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d

806, 811 (5th Cir. 1998). Hearn contends that Texas’s habeas-abstention procedure, known as the

“two-forum rule,” presented a rare and exceptional circumstance that precluded him from raising an

Atkins claim.

       Texas state law has traditionally barred prisoners from having pending habeas litigation in both

state and federal courts. Through its judicially-created two-forum rule, Texas prevented petitioners

from lodging a mixed petition in federal court and simultaneously returning to state court, or having

a federal court hold a petition in abeyance while further state court rem edies were sought. See

generally Ex parte Green, 548 S.W.2d 914, 916 (Tex. Crim. App. 1977) (“A petitioner must decide

which forum he will proceed in, because [the Texas Court of Criminal Appeals] will not, and a trial

court in this State should not, consider a petitioner’s application so long as the federal courts retain

jurisdiction over the same matter.”).12

       On February 11, 2004, the Texas Court of Criminal Appeals expressly modified the two-

forum rule, enabling Texas courts to consider the merits of a subsequent writ application once a

federal court stays the federal habeas proceedings. Ex parte Soffar, No. 29,890, 2004 WL 245190

(Tex. Crim. App. Feb. 11, 2004). The court in Soffar reasoned:




June 20, 2003. Hearn has not yet raised his Atkins claim in federal court.
       12
           Other states have traditionally permitted petitioners to file a mixed petition in federal
court, and subsequently litigate the unexhausted claims in state court while the federal petition
was held in abeyance. See, e.g., Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001) (holding that
a federal court, presented with a mixed petition, should dismiss the unexhausted claims and stay
the exhausted claims to avoid the AEDPA time bar); Freeman v. Page, 208 F.3d 572, 577 (7th
Cir. 2000) (noting that the proper action for petitioner was “filing in both courts” and requesting
that the district judge stay the federal proceedings).

                                                  13
        Because of the strict one-year statute of limitations in the Anti-Terrorism and
        Effective Death Penalty Act of 1996 (“AEDPA”), the application of [the two-forum
        rule], combined with the federal exhaustion requirement, may lead to unintended and
        unfortunate consequences. The problematic situation is when the Supreme Court
        announces a “watershed” procedural or substantive change in the law which applies
        retroactively to all cases, even those on collateral review. Atkins v. Virginia seems
        to be one such case.

Id. at *3.

        By June 20, 2003, the date the AEDPA limitations period for Atkins claims expired, Hearn

had already filed his initial federal habeas petition, and he was awaiting this Court’s ruling on his

application for a COA. If Hearn had petitioned for Atkins relief in Texas court, he would have been

compelled to move the federal court to dismiss without prejudice his then-pending federal petition.

Such a dismissal likely would have time-barred Hearn from later asserting the claims in his pending

federal petition. See Duncan v. Walker, 533 U.S. 167, 172 (2001) (stating that the AEDPA

limitations period is not tolled during the pendency of a federal habeas petition). On the other hand,

because Hearn waited to file his Atkins claim until the disposition of his then-pending federal habeas

proceeding, he faced Texas’s assertion of a time bar on his Atkins claim. The two-forum rule appears

to have effectively forced Hearn to choose between federal review of his pending writ petition and

his right to pursue successive habeas relief under Atkins.

        The Director contends that equitable tolling is improper because—four months prior to

Soffar—the Texas Court of Criminal Appeals implicitly negated the two-forum rule when it remanded

a petitioner’s Atkins claim for review on the merits even though that petitioner had a writ pending in

federal court. Ex parte Smith, No. 40,874-02 (Tex. Crim. App. Oct. 8, 2003). This argument is

without merit. One petitioner’s willingness to jeopardize review of his pending federal habeas petition



                                                  14
in order to file an Atkins claim does not mean that all others must. For instance, it is plausible that

the petitioner in Smith was prepared to sacrifice review of his federal writ peti tion because it was

comprised of frivolous claims. Moreover, the Texas Court of Criminal Appeals’s decision to remand

one case for review on the merits, absent any express criticism of the governing two-forum rule, does

not undermine decades of Texas precedent reinforcing the preclusive effect of that rule. Although

it is not apparent that the AEDPA limitations period must be equitably tolled on Hearn’s behalf, we

find that the facts relevant to this analysis are in dispute such that Hearn is entitled to counsel to

investigate and prepare a tolling claim.

        As discussed above, Hearn has made sufficient showings that he was not afforded an

opportunity to investigate his Atkins claim, that he is in fact mentally retarded, and that his potential

Atkins claim is not time-barred. This case therefore implicates the “core concern of McFarland . .

. ‘that an un-counseled prisoner would be required to proceed without counsel in order to obtain

counsel and thus would expose himself to the substantial risk that his claim would never be heard on

the merits’ . . . .” Kutzner, 303 F.3d at 338 (quoting McFarland, 512 U.S. at 856). As a result, we

hold that Hearn is entitled to the appointment of counsel and reasonably necessary services under §

848(q)(4)(B) to investigate and prepare his application for authority to file an Atkins claim.

B.      Stay of Execution

        Hearn also moves this Court for a stay of execution to provide his appointed counsel with

sufficient time to prepare an application for authority to file his Atkins claim. The Director contends

that this Court is not authorized to grant a stay of execution because a writ of habeas corpus is

currently not pending before this Court as required by 28 U.S.C. § 2251. The Director’s claim is



                                                   15
meritless. The Supreme Court in McFarland held that a habeas proceeding is pending before a court,

for the purposes of staying an execution, once a capital prisoner moves for the appointment of habeas

counsel pursuant to § 848(q)(4)(B). 512 U.S. at 856. The McFarland Court explained that the pre-

application appointment of counsel alone, without the time to adequately develop the facts and brief

the claims, renders the statutory guarantee of counsel an empty promise. Id.

       In accordance with the reasoning of McFarland, we find that a stay of execution is imperative

to ensure the effective presentation of Hearn’s application for authority to file his Atkins claim.

Because Hearn was not dilatory in his search for counsel, and the stay of execution will not

substantially harm the State of Texas, the preliminary stay ordered March 4, 2004, is hereby extended

to provide Hearn’s counsel with sufficient time to prepare an application for § 2244(b)(3)(A)

authority.

                                                III.

       For the reasons stated above, Hearn’s motions for the appointment of counsel and for stay

of execution are GRANTED. Accordingly, we REMAND to the district court to appoint counsel

and furnish reaso nably necessary services to help Hearn present his application for authority,

and—should such authority be granted—his formal Atkins petition. Hearn shall file his completed

application for § 2244(b)(3)(A) authority no later than six months from today. Accordingly, Hearn’s

execution is STAYED pending the resolution of proceedings consistent with this order.




                                                 16
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring.




     I concur fully in Judge Clement’s opinion.    Hearn is on

death row in Texas.   He does not have counsel.   The Texas

Defender Service, lacking the resources to undertake the

representation of Hearn and aware that Hearn’s date of execution

was looming, asked the federal district court to stay the

execution and appoint counsel to develop his claim that he is

mentally retarded and ineligible for execution.    This case

reached the panel only hours before the execution.    We granted a

stay to allow sufficient time to properly decide the request.    We

found the case sufficiently complex and uncertain that additional

briefs and oral argument were requested.   The dissent now

“regrets” not dissenting from that stay.

     I remain convinced that the stay was proper and that this

prisoner is entitled to a lawyer and an opportunity to

investigate and present any claim of retardation that he may

have.   I am not prepared to hold that he must first make a prima

facie case that he is retarded to be entitled to a lawyer to make

that case.   The dissent argues just that and is prepared to

disregard a filed affidavit as incompetent evidence.    This

approach has it backwards.   We don’t have enough evidence to peg

Hearn’s ability.   What little “evidence” that has been presented

is equivocal and needs explanation.   If the record before us is


                                17
all that Hearn can produce    before the district court with the

assistance of a lawyer, I would quickly agree that it falls far

short of a prima facie showing. There is enough, however, to

warrant development as Judge Clement explains.    As best I sift

from its rhetoric, the dissent would hold that a prisoner on

death row with no lawyer must make a prima facie case that he is

so retarded that he cannot be executed in order to have the

benefit of counsel.

     We are instructed that we must take this approach or face

the fact that every person on death row with no lawyer but with

colorable claims of retardation would be entitled to a lawyer.      I

do not see that as a frightening possibility.    Rather, that it is

being urged by the dissent as such is a chilling comment on the

confused state of the law of capital punishment in this circuit.

     The dissent would run the one year clock on Hearn during the

time he had no lawyer.    If there is a doctrine of equitable

tolling, it must not tolerate a limitations bar to a retarded

prisoner awaiting execution and without counsel.    It is no answer

to assert that Hearn is not retarded unless we are prepared to

dispense with lawyers and hearings.

        But, it is argued, Hearn did have counsel for part of the

time.    The dissent has no answer for the fact that during that

period of representation a claim of retardation could not have

been filed, given the two-forum rule Texas then adhered to.     The


                                 18
dissent in a footnote asserts, with no authority, that Texas was

never serious about that rule, passing over the fact that much

later, Texas, recognizing the plight it created for petitioners

such as Hearn, abandoned it.   The dissent says the two-forum rule

was   never real.

      The dissent accuses the majority of ignoring circuit

precedent, Judge Davis’s opinion in Kutzner and Judge Politz’s

opinion in Turner.    It bears mention that neither petitioner in

these cases had an available writ path.       The panel in Kutzner

pointedly observed that the petitioner had no right to pursue a

successive writ with a claim that did not rely upon a new rule of

constitutional law.   Petitioners had counsel in both cases at all

relevant times and neither petitioner presented Akins claims.

      This is not an easy case.   The state has been represented at

all times by counsel and has full access to prisoner records and

other resources to reply to this claim.       I cannot be so

dismissive of Hearn’s statutory right as to refuse him a lawyer

when at the least there is enough to warrant examination.       If

there is nothing there, as the dissent seems to know, the

district court will so conclude.       In the end I have more

confidence in facts decided by an Article III trial judge with

competent counsel before him than those determined on appeal by

appellate judges.




                                  19
JERRY E. SMITH, Circuit Judge, dissenting:




       Even by his own lawyer’s estimation, petitioner Hearn is not

retarded.          He has made good grades off and on throughout his aca-

demic career.           He helped orchestrate a multi-stage crime ending in

murder.         He has scored well above the retardation threshold on

standardized tests.               Yet, on the thin assertion that he “may be re-

tarded,” the majority has allowed him to succeed in a last-minute

petition for stay, filed two days before his scheduled execution,

and has done so in blatant violation of governing Fifth Circuit

law.13

       The majority has seriously undermined this court’s capital

habeas jurisprudence.                  In much the same way as a good advocate

would do, the majority has painted a roadmap for virtually any

capital habeas petitioner to obtain an indefinite delay in his ex-

ecution by raising a frivolous, eleventh-hour claim of possible

retardation.14           In the process, the majority has clouded the claims

of those inmates who may be truly retarded and are properly en-

titled to benefit from the Supreme Court’s recent attention to

their plight.

       The majority certainly reaches a happy result for petitioner



       13
            I regret not having dissented from the initial order granting a stay of execution.
       14
          The majority opinion might thus be aptly described as “a triumph of lawyering from the
bench.” Kennedy v. Lockyer, No. 01-55246, 2004 U.S. App. LEXIS 11585, at *47, *70-*71 (9th
Cir. June 14, 2004) (O’Scannlain, J., dissenting).
Hearn:       He receives an attorney and the resources to investigate a

last-minute and totally meritless claim of mental retardation.

Courts, however, typically encounter and analyze such things as

precedents and statutory language. They do not merely plow precip-

itously through binding caselaw, sidestep a Congressionally-enacted

habeas regime, and declare that the equities mandate a different

result.       Unfortunately, the majority here, acting with the best of

intentions, has engaged in just such an enterprise.                              Accordingly,

I respectfully dissent.




                                                I.

       The majority ignores precedential language from a binding

opinion of this circuit.                  In McFarland v. Scott, 512 U.S. 849

(1994), the Court offered a broad interpretation of the attorney

appointment provision of 21 U.S.C. § 848(q)(4)(B)15 and granted the

petitioner an attorney to investigate grounds for an initial peti-

tion.       Hearn, by contrast, requests an attorney to investigate and

develop a record for a successive petition.                        Congress, through the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

has    created      a   plain      distinction        between       those     two     types        of




       15
          “On its face, [§ 848(q)(4)(B)] grants indigent capital defendants a mandatory right to
qualified legal counsel and related services ‘in any [federal] post conviction proceeding.’”
McFarland, 512 U.S. at 854 (footnote omitted) (brackets in original).
                                                21
investigations.16

       Although McFarland’s use of broad language arguably could, on

its own, prompt one to apply its “core concerns” to a successive

setting, two binding Fifth Circuit opinions bar the majority’s

application of § 848(q)(4)(B).                   One discusses the context in which

McFarland operated:             “The McFarland Court was concerned only with

that period of time between the habeas petitioner’s motion for the

appointment of counsel and the filing of the initial petition.”

Turner v. Johnson, 106 F.3d 1178, 1182 (5th Cir. 1997).                                 The other

flatly forecloses the appointment of habeas counsel to prepare a

successive petition:               “McFarland does not justify appointment of

counsel or stay of execution for the preparation of a second

federal habeas petition.”                 Kutzner v. Cockrell, 303 F.3d 333, 338

(5th Cir. 2002) (citing Turner, 106 F.3d at 1182).




                                                 A.

       The majority skips past Kutzner by making two flawed argu-

ments.      First, it attempts to limit Kutzner largely to its facts.17



       16
          Compare 28 U.S.C. § 2254 (describing the procedures for filing a habeas petition on
behalf of a “person in custody pursuant to the judgment of a State court”) with 28 U.S.C. §
2244(b) (describing additional hurdles a party must satisfy if it presents a claim in a second or suc-
cessive habeas petition).
       17
          “We read Kutzner as holding that the relief enunciated in McFarland does not apply to
successive habeas petitioners who had been afforded sufficient opportunities to investigate the
factual bases of their proposed claim.”
                                                 22
The majority also refers to the quoted language from Kutzner as a

“narrow fact-based holding.”18                   The majority’s stated factual dif-

ferences do not distinguish Kutzner from the instant case.

       One factual difference apparently involves the presence and

competence of counsel.19 As discussed infra, Hearn cannot challenge

the quality of his habeas counsel.                       See 28 U.S.C. § 2254(i).                 His

counsel never abandoned him but merely determined that she could

not help him because he had no further claims.                              Moreover, any al-

leged abandonment or withdrawal occurred well after the time during

which Hearn could have filed his petition.

       A second factual difference centers on the probability that

the Kutzner petitioner could have known of the claim contained in

the successive petition.20                 Although Hearn could not have known of




       18
          The majority also makes the surprising assertion that Kutzner contains language only
“suggesting” that indigent capital prisoners are never entitled to the appointment of counsel to
prepare a successive habeas petition” (emphasis added). There is nothing merely “suggestive”
about Kutzner’s explicit holding that “McFarland does not justify appointment of counsel or stay
of execution for the preparation of a second federal habeas petition.” Kutzner, 303 F.3d at 338.
Thus, Kutzner makes an emphatic statement, not just a hint, about the law, and the majority’s des-
perate description of it as a “suggestion” is transparent.
       19
      “The [Kutzner] Court then reviewed the facts of Kutzner’s
case, and found that he was equipped with competent counsel
throughout the entire habeas process.”
       20
           Kutzner, 303 F.3d at 336 (stating that Kutzner, who claimed that the government
withheld forensics evidence, “knew of the [skin] scrapings, blot, and first hair at trial, on appeal,
during his state habeas petition and during the federal habeas petition. He never requested its
testing.”).
                                                  23
an Atkins21 claim during his trial or through portions of his direct

appeal,22 he certainly knew of it when the Supreme Court decided

Atkins.         Hearn could have acted on it within the one-year window

that AEDPA grants to petitioners who pursue some newly-announced

Constitutional claims that the Supreme Court applies retroac-

tively.23

       Even if the specific circumstances of Kutzner have some dif-

ferences with the facts of this case, the larger circumstances to

which the quoted language refers are identical:                               “McFarland does

not justify appointment of counsel or stay of execution for the

preparation of a second federal habeas petition.”                               In both cases,

party       has    requested        an    attorney       to    help    prepare      and    file   a

successive habeas petition; in both, procedural default bars their

consideration.




                                                   B.

       The majority, however, parries the Kutzner language by invok-

ing the mantra of “dictum” and concluding that Kutzner has no ef-




       21
            Atkins v. Virginia, 536 U.S. 304 (2002).
       22
            The Atkins claim, of course, did not exist at that time.
       23
          28 U.S.C. § 2244(d)(1)(C). Additionally, as discussed infra, Hearn has offered
insufficient evidence to suggest either the presence of mental retardation or the effect of the
alleged retardation on his ability to press an Atkins claim during the one-year period.
                                                   24
fect on future panels facing the same situation.24 The majority in-

correctly characterizes the Kutzner statement and its relationship

to Kutzner’s holding.

       As part of its discussion of McFarland, this court in Kutzner

provided alternative rationales for denying the petitioner’s re-

quest for an attorney and a stay. Both justifications independent-

ly blocked the petitioner in Kutzner, and one has direct applica-

tion in the instant case.                   Neither reason, therefore, functions

only as dictum.25

       The first justification looked to “[t]he core concern of Mc-

FarlandSSthat an un-counseled prisoner would be required to ‘pro-

ceed without counsel in order to obtain counsel and thus would ex-

pose him to the substantial risk that his habeas claims never would

be heard on the merits.’”               Kutzner, 303 F.3d at 338 (quoting McFar-

land, 512 U.S. at 856).               The opinion noted that Kutzner’s attorney

served adequately and helped prepare a petition pursuant to § 2254.

Id.

       After stating that Kutzner’s “current” counsel had “represent-



       24
           “We find, after reading Kutzner in its proper context, that its limitation on McFarland . .
. constitute[s] a mere ‘judicial comment made during the course of delivering a judicial opinion,
but one that is unnecessary to the decision in the case and therefore not precedential.’” (quoting
the definition of “obiter dictum” from BLACK’S LAW DICTIONARY 1100 (7th ed. 1999)).
       25
          By way of contrast, a rationale explained by way of analogy to a situation different from
that presented in the case at issue is dictum and not an alternative holding. E.g., Shepherd v. Int’l
Paper Co., No. 03-20721, 2004 U.S. App. LEXIS 10592, at *11-*12 (5th Cir. May 28, 2004).
                                                 25
ed Kutzner for more than one year,” the opinion took a dramatic

two-sentence turn.              Specifically, it moved from a fact-specific

analysis of Kutzner’s claim to a more general analysis of McFarland

and its impact on successive petitions in this circuit.                                The opin-

ion quoted the aforementioned language from Turner, 106 F.3d at

1178, and quickly applied it to all successive petitions:                                  “Thus,

McFarland does not justify appointment of counsel or stay of exe-

cution for the preparation of a second federal habeas petition.”

Kutzner, 303 F.3d at 338.

       Either justification articulated in Kutzner would block that

petitioner’s request for an attorney.                      “When confronting decisions

of prior panels[,] we are bound by ‘not only the result but also

those portions of the opinion necessary to that result.’” Gochicoa

v. Johnson, 238 F.3d 278, 286 n.11 (5th Cir. 2000) (quoting Semin-

ole Tribe v. Florida, 517 U.S. 44, 67 (1996)).                           Furthermore, “‘the

principle of stare decisis directs us to adhere not only to the

holdings of our prior cases, but also to their explications of the

governing rules of law.’”                Id. (quoting County of Allegheny v. Am.

Civil Liberties Union, 492 U.S. 573, 668 (1989) (Kennedy, J., con-

curring in part and dissenting in part)).26

       26
          Chief Justice Rehnquist has defined “dicta” as a court’s consideration of “abstract and
hypothetical situations not before it.” Connecticut v. Doehr, 501 U.S. 1, 30 (1991) (Rehnquist,
C.J., concurring). See also BLACK’S LAW DICTIONARY 1100 (7th ed. 1999) (defining “obiter
dictum” as “A judicial comment . . . that is unnecessary to the decision in the case and therefore
not precedential”).
                                                                                       (continued...)
                                                 26
       Either rationale advanced in Kutzner would control the outcome

of that case.                Neither rationale considers “unnecessary” matters,

because each addresses an element of the petitioner’s situation.

The Kutnzer petitioner both (1) had adequate counsel for an extend-

ed period of time and (2) wished to file a successive petition.

The petitioner filed a request for an attorney as part of prepara-

tion of a successive federal habeas petition.

       Thus, although the second reason for denying the petitioner’s

request addresses a broader issue than does the fact-intensive

reason, it produces the identical resolution.27                               Because “alterna-

tive holdings are binding precedent,” Kutzner has bound subsequent

panels with respect both to the “core concern” fact-intensive in-

quiry and to the broader successive petition analysis. Williams v.

Cain, 229 F.3d 468, 474 n.5 (5th Cir. 2000) (internal citations and

quotations omitted).28

       26
            (...continued)

       27
          In essence, the Kutzner panel told the petitioner that (1) the facts do not line up with the
core concerns of McFarland; and (2) even if your facts did align with McFarland, your general
situationSSfiling a successive petitionSSlies outside of McFarland.
       28
            See also Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 574 (5th Cir. 2004):

                . . .”[I]t is the firm rule of this circuit that one panel may not overrule the
       decisions of another.” United States v. Taylor, 933 F.2d 307, 313 (5th Cir. 1991)
       . . . . See, e.g., United States v. Adamson, 665 F.2d 649, 656 n.19 (5th Cir. 1982)
       (holding that decisions on issues that were fully presented and litigated, and likely
       to arise on retrial, are not dictum and are still binding precedent even if the de-
       cision was not necessary to support the ultimate ruling, such as an alternative
                                                                                            (continued...)
                                                  27
                                                C.

       The panel provides a third spurious reason to ignore Kutzner:

“Further, we do not find such dictum persuasive because it contra-

venes McFarland’s holding.”                  A subsequent panel cannot determine

that a prior panel’s binding decision undermines or conflicts with

a Supreme Court decision issued before that of the prior panel.

Instead, we assume the prior panel took all pre-existing Supreme

Court precedent into account.

       “Our rule of orderliness prevents one panel from overruling

the decision of a prior panel.”                      Teague v. City of Flower Mound,

173 F.3d 377, 383 (5th Cir. 1999).                     Rather, if a panel identifies



       28
        (...continued)
       holding).

In its frantic attempt to escape the bounds of Kutzner, the majority, while acknowledging that
alternative holdings are both binding on future panels, observes that in McClendon v. City of
Columbia, 305 F.3d 314, 327 n.9 (5th Cir. 2002) (en banc), cert. denied, 537 U.S. 1232 (2003),
the court warned that in qualified immunity cases, panels should not routinely announce
alternative holdings. From that, the majority concludes that we should not infer that the two
rationales in Kutzner are both holdings. The obvious flaw in that theory is that Kutzner was
decided before McClendon, so the Kutzner panel could not possibly have known about the
warning in McClendon when it issued its alternative holdings.
         The majority also announces, out of whole cloth, that under McClendon it is “improper
for this Court to infer alternative rationales or holdings where ones are not clearly expressed.” As
the majority admits, however, McClendon was addressing only the peculiar methodology used in
qualified immunity cases, see Siegert v. Gilley, 500 U.S. 226, 232-34 (1991), so footnote 9 of
McClendon does not apply here. Outside the context of qualified immunity, no opinion of this
court has ever suggested that alternative holdings are improper. The majority’s bold assertion to
the contrary is handy for it to use in its attack on Kutzner but finds no support in our
jurisprudence.
                                                28
a purported conflict, it must acknowledge the binding circuit opin-

ion and recommend taking the matter to the en banc court.                                Because

the Kutzner language is a binding holding, not dictum, the majori-

ty, remarkably, has attempted to hurdle our regular procedures for

reconciling allegedly conflicting or important caselaw.                                   FED. R.

APP. P. 35(a).29          Such nimble methodology is easy and convenient,

and it may turn out to be effective advocacy, but it is not right.




                                                D.

       Curiously, despite the majority’s desire to distinguish the

facts and to dismiss the language of Kutzner, it cites that very

opinion in support of a broader point regarding the “core concern

of McFarland” (quoting Kutzner, 303 F.3d at 338).                               The quotation

serves little purpose but to parrot language from McFarland.                                     The

citation of an opinion that the majority has otherwise disregarded

factually and doctrinally suggests that the majority cares what the

prior panel stated only when it suits the majority’s general out-

look. Apparently, the line between precedential authority and dic-

tum lies in the eye of the majority.

       Consequently, McFarland does not stretch as far as the major-

ity would like.          Kutzner cabins McFarland in this circuit and                            di-


       29
          “An en banc hearing or rehearing is not favored and ordinarily will not be ordered
unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court's
decisions; or (2) the proceeding involves a question of exceptional importance.”
                                                29
rectly forecloses the application of § 848(q)(4)(B) to a successive

petition.   Hearn is not entitled to      the appointment of an attorney

to investigate and prepare a successive petition.




                                  II.

     Even if Kutzner did not apply, and even if § 848(q)(4)(B) al-

lowed Hearn to request an attorney to prepare a successive habeas

petition, Hearn faces another problem: on-point statutory language

that blocks any habeas relief.

          A 1-year period of limitation shall apply to an ap-
     plication for a writ of habeas corpus by a person in cus-
     tody pursuant to the judgment of a State court. The lim-
     itation period shall run from the latest of . . . the
     date on which the constitutional right asserted was ini-
     tially recognized by the Supreme Court, if the right has
     been newly recognized by the Supreme Court and made re-
     troactively applicable to cases on collateral review[.]


28 U.S.C. § 2244(d)(1)(C).       Both Hearn and his purported Atkins

claim fit the statute’s requirements.

     Although   the   majority    makes    the   broad   statement   that

§ 848(q)(4)(B) and (8) “grant indigent capital prisoners a manda-

tory right to qualified legal counsel . . . in all federal post-

conviction proceedings,” § 848(q)(8) limits that right to “avail-

able judicial proceedings” (emphasis added).          Section 848(q)(8)

states only that an attorney will represent the defendant through

“every subsequent stage of available judicial proceedings” (empha-

sis added).     Though a petitioner theoretically has any motion

                                   30
available to him, some motions do not articulate cognizable claims

and have no chance of success.30                     For example, “neither McFarland

nor § 848(q)(4)(B) requires appointment of counsel for the wholly

futile enterprise of addressing the merits of a time-barred habeas

petition.”          Cantu-Tzin v. Johnson, 162 F.3d 295, 296 (5th Cir.

1998).

       The majority concedes that the one-year period has passed and

that Hearn cannot file a successive writ based on Atkins.31                              The ma-

jority, however, applies the unusual device of equitable tolling to

allow       Hearn    “sufficient        time     to    prepare       an    application         for

§ 2244(b)(3)(A) authority.”                 Although courts may equitably toll a

statute of limitations under AEDPA, a court cannot take such action

lightly.       Rather, as the majority admits, “[e]quitable tolling [is

permitted[ ‘in rare and exceptional circumstances.’”32

       The majority cites a number of inadequate reasons to toll lim-

itations.       Two of those reasonsSSHearn’s alleged abandonment at the

hands of his counsel and his showing of a “colorable” claim of men-


       30
         See, e.g., Washington v. Alaimo, 934 F. Supp. 1395 (S.D. Ga. 1996) (discussing
whether to impose rule 11 sanctions in response to an inmate’s self-titled “Motion To Kiss My
Ass”).
       31
           Contrary to the claim made in the concurrence, I do not take issue with the notion that
“every person on death row with no lawyer but with colorable claims of retardation would be
entitled to a lawyer.” Hearn’s problem is that he (1) had a capable lawyer for many months and
(2) began proceedings for an out of time, successive petition and has presented hardly a shred of
evidence to suggest that his claim is anything more than frivolous.
       32
          United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 1999) (emphasis added) (quoting
Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
                                                31
tal retardationSSoffer nothing rare or exceptional to warrant the

temporary invalidation of a carefully-drafted habeas regime.33




                                                A.

       Although we have applied equitable tolling on behalf of defen-

dants as a result of attorney misbehavior, we have granted tolling

only in very specific situations involving egregious and deceptive

behaviorSSfor example, where a petitioner alleged that his attorney

actively misled him into believing that the attorney filed a timely

§ 2255 petition, United States v. Wynn, 292 F.3d 226, 230 (5th Cir.

2002).34     “Equitable tolling applies principally when the plaintiff

is actively misled by the defendant . . . or is prevented in some



       33
           The majority also discusses the Texas “two forum” rule of comity, under which a
“petitioner must decide which forum he will proceed in, because this Court will not, and a trial
court in this State should not, consider a petitioner's application so long as the federal courts
retain jurisdiction of the same matter.” Ex parte Green, 548 S.W.2d 914, 916 (Tex. Crim. App.
1977). Texas courts have rarely applied the rule, and it was recently amended so that state courts
could entertain a petitioner’s Atkins claim while that same petitioner had a federal habeas writ
pending. Ex parte Soffar, No. 29,980-02, 2004 Tex. Crim. App. LEXIS 200, at *9 (Tex. Crim.
App. Feb. 11, 2004).

        Hearn did not investigate his possible Atkins claim while his federal claim worked its way
through the Fifth Circuit and the Supreme Court. He also did not even attempt to file anything in
state court to challenge the traditional application of the rule. Even if the two forum rule
prevented Hearn from filing his Atkins claim, the factors discussed infraSSespecially the absolute
lack of any evidence to support Hearn’s retardation claimSSrender equitable tolling entirely
inappropriate.
       34
           “We agree with the district court that Wynn's allegation that he was deceived by his
attorney into believing that a timely § 2255 motion had been filed on his behalf presents a ‘rare
and extraordinary circumstance’ beyond petitioner’s control that could warrant equitable tolling
of the statute of limitations.” Wynn, 292 F.3d at 230.
                                                32
extraordinary way from asserting his rights.”                          Coleman v. Johnson,

184 F.3d 398, 402 (5th Cir. 1999)

       Hearn has not alleged that Jan Hemphill, his appointed habeas

counsel, engaged in any kind of deceit, and the record does not re-

motely support any such contention.                      Rather, any conceivable lack

of attention by Hemphill did not affect the timeliness or legiti-

macy of Hearn’s possible Atkins claim.                          Hemphill did not “with-

dr[a]w her representation of Hearn” until well after the one-year

statute of limitations had ended. Although Hemphill could have in-

vestigated a possible Atkins claim while she awaited the decisions

of this court and the Supreme Court, she chose not to do so.

       Hemphill provides a simple reason for her inaction:                                “During

the time I represented Mr. Hearn I did not believe him to be men-

tally retarded.           This is based on my dealings with him and in rep-

resenting him.”35           Importantly, Hearn has not alleged, and cannot

allege, that his counsel offered deficient performance during the

time in which he could have raised an Atkins claim.36

       Although the majority flatly states that “Upon the denial of

his initial federal habeas petition, Jan Hemphill[, Hearn’s court-



       35
          Hemphill subsequently moderated her statement in a declaration given on March 10,
2004: “At the time, I did not consider mental retardation one way or the other.” Both statements
show, at the least, that the possibility that Hearn is retarded never entered Hemphill’s mind.
       36
          28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising
under section 2254.”).
                                                 33
appointed habeas counsel,] withdrew from her representation of

Hearn[,]” it does not inform the reader of Hemphill’s specific

conduct in representing Hearn.                    After sending her certiorari peti-

tion to the Supreme Court, Hemphill sent a letter to Hearn inform-

ing him that “[f]or all practical purposes, this is the last ser-

vice I can give you as my client.”                     She also told him to “let [her]

know” if she could answer any questions he might have.                             When Hearn

contacted Hemphill to file more appeals, Hemphill “told him [she]

was not aware of any claims that he could raise in a successive

petitions [sic] and that if he wanted to file other appeals, he

should obtain other counsel.”

     Consequently, Hemphill did not “withdraw from her representa-

tion of” Hearn in any meaningful sense.                         She filed every claim and

pursued every ground37 of appeal that she considered valid.                             When

asked about other claimsSSwhich may or may not have included an

Atkins claimSSshe did not walk away and refuse to talk to Hearn,

but instead told him merely that she did not see any other valid

grounds of habeas relief. The majority’s allegations and claims of

attorney failure function as another means of considering the “in-

effectiveness or incompetence of counsel during Federal or State

collateral post-conviction proceedings.”                             28 U.S.C. § 2254(i).

AEDPA, however, proscribes such a consideration.

     Moreover, assuming arguendo that Hemphill’s behavior is ques-


     37
          Hemphill’s initial habeas petition listed nineteen grounds for relief.
                                                  34
tionable, any inadequate service on her part occurred after the

time in which Hearn could have pursued his Atkins claim.                                    The Su-

preme Court decided Atkins in June 2002.                           Hemphill sent her final

letter to Hearn fifteen months laterSSin September 2003.                                 Had Hemp-

hill not “withdrawn” her representation of Hearn, his alleged evi-

dence of retardation would not have given him the chance to file an

Atkins claim beyond the one-year statute of limitations.38                                     Thus,

the majority has taken Hemphill’s judgment that Hearn had no other

valid       claimsSSsomething           a   petitioner         may     not    challenge        under

AEDPASSand used it to provide Hearn with an opportunity he would

not otherwise have had to pursue an out-of-time, and totally frivo-

lous, claim of mental retardation.39




       38
          I should also note that in its apparent rush to grant Harris relief, the majority has unfairly
besmirched Ms. Hemphill’s reputation as a competent attorney. Hemphill filed a thorough and
reasonable initial habeas petition that contained nineteen separate grounds for relief. Contrary to
the majority’s cheap implication, Hemphill did not pass her time by eating crayons and blowing
bubbles at the ceiling. The majority should not allow its zeal in trying to establish a point to be
expressed at the unfair expense of a diligent attorney.
       39
           As part of equitable tolling, we have looked to the incentives such a grant may create.
Larry v. Dretke, 361 F.3d 890, 898 (5th Cir. 2004) (“Finally, to grant equitable tolling in these
kinds of situations would invite the premature filing of state habeas petitions[.] This would allow
applicants to circumvent the exhaustion requirement and would undermine the system of comity
established by federal law.”). Under the majority’s rule, an attorney’s purported “withdrawal”
gives life to claims otherwise procedurally barred. Such a rule certainly could invite some less-
than-scrupulous parties to manipulate the majority’s good intentions and to withdraw so as to
resurrect defaulted claims.
                                                  35
                                               B.

     As part of its weighing of the equities, the majority finds

that Hearn has offered sufficient evidence to present “a colorable

claim of mental retardation sufficient to justify the appointment

of counsel[.]”          Hearn’s proffered evidence does not remotely sup-

port such a conclusion.

     In reaching its result, the majority makes two contradictory

statements.         First, it quotes Weeks v. Jones, 100 F.3d 124, 127

(11th Cir. 1996), to assert that “a substantive, merits assessment

of the petition is irrelevant to the appointment of counsel.”40 The

sentence and accompanying footnote that follow the Weeks citation,

however, indicate that a petitioner has to offer some arguable evi-

dence to support an Atkins claim.

     The majority correctly understands that AEDPA is meant “to

curb the vast number of habeas filings in the federal courts.”                  It

also rightly observes that it should “withhold § 848(q)(4)(B) coun-

sel for certification proceedings absent some colorable showing by

the prisoner that he is, in fact, entitled to habeas relief.”                  Id.

Something “colorable” “appear[s] to be true, valid, or right.”

BLACK’S LAW DICTIONARY (7th ed. 1999).               As shown, infra, Hearn has of-

fered no evidence that satisfies the “colorable claim” standard.

     The majority has fashioned a new evidentiary standard, then



     40
          See also Barnard v. Collins, 13 F.3d 871, 879 (5th Cir. 1994).
                                               36
has craftily viewed Hearn’s evidence as satisfying that standard.

The result, effectively, is that any petitionerSSregardless of the

procedural defaults or the inadequacy of offered evidenceSSmay

receive an attorney to pursue an Atkins claim.                             He needs only to

file a petition containing the magic words “mental retardation” and

to include some evidence that he underachieved at some point early

in life. In oral argument, Hearn’s counsel admitted that he wished

for such a ruling from this court.

       Indeed, the panel majority has given counsel pretty much

everything he has asked for. The majority describes the “colorable

showing of mental retardation” standard as a “modest evidentiary

threshold.” Indeed, if Hearn’s proffered “evidence” is deemed suf-

ficient, the majority’s standard is no real threshold at all; the

mere mention of slowness in school, or poor grades, triggers the

right to a panoply of rights, including counsel and other assis-

tance.

       The majority has attempted to moderate the effect of this rul-

ing by creating the “colorable showing” requirement.                               The paucity

of Hearn’s evidence, however, suggests that, in reality, almost

every prisoner will meet that threshold.41

       In Texas, a party suffers from mental retardation if he sat-


       41
           Additionally, neither the majority nor the concurrence remotely addresses the fact that
Hearn filed his request for an attorney a scant two days before his long-scheduled execution.
Obviously if Hearn knew of his claim and believedSSbased on his anemic evidenceSSthat it was
valid, he could have filed something weeks earlier.
                                                37
isfies three requirements.42 First, he must exhibit “‘significantly

subaverage general intellectual functioning’ (an IQ of about 70 or

below)[.]”43        Secondly, he must have “‘related limitations in adap-

tive functioning.”44            Finally, both the intelligence and adaptation

problems must have manifested themselves before age eighteen.45




                                                1.

       Although the majority quotes these three requirements,46 it

focuses almost entirely on the intelligence prong.                            The majority’s

evidence, in summary, is this:                   Hearn performed poorly in school.

He failed first grade, he regularly did not succeed in his classes,

and he placed 174th out of 200 students in the tenth grade.                                    The

majority does not note that Hearn regularly performed well in some

classes.          In some semesters, he passed every course.47

       One might attribute some of Hearn’s worst grades to apparent

       42
         Hall v. State, No. 73,787, 2004 Tex. Crim. App. LEXIS 817, at *32 (Tex. Crim. App.
May 5, 2004)
       43
         Id. (quoting Ex parte Briseno, No. 29,819-03, 2004 Tex. Crim. App. LEXIS 199,
at *15 (Tex. Crim. App. Feb. 11, 2004)).
       44
            Id.
       45
            Id.
       46
          In truth, the majority ignores Hall’s threshold of sub-par intelligence by stating that a
party with “an IQ of approximately 70 to 75 or below” satisfies the first prong. The person must
show “an IQ of about 70 or below.” Hall, 2004 Tex. Crim. App. LEXIS 817, at *32.
       47
          In the spring of 1994, Hearn passed every class at Horizons Alternative School. In the
spring of 1996, he passed every class but one.
                                                38
zeroes on a number of final exams.                     The zeroes do not represent a

calculated number grade but represent some sort of unexcused ab-

sence.      The explanation of poor attendance would correlate with

Hearn’s withdrawal from the tenth grade. The school district list-

ed his reason for withdrawal as “non-attendance.”48

       Hearn offers nothing to suggest a need for further testing,

beyond the opinion of a witness who submitted an affidavit in his

behalf but whose lack of a Texas license prevents him from offering

any expert testimony in a trial.49                   That evidence, on which the ma-

jority heavily relies, is incompetent as a matter of law and should

have been stricken.50

       That “expert” admits that “the results of the IQ testing . . .

indicated an IQ above the cut-off typically associated with mental

retardation” and cannot provide any reason to conduct further test-



       48
           Wanda Bell, who obtained custody of Hearn in 1995, testified in the punishment phase
of the trial that Hearn “worked to a certain degree. I guess, you know, you get moody and you
don’t want to do what the teachers tell you to do.” Bell also recounted that Hearn stopped
attending school in the tenth grade: “I dropped them off [at school] that morning, and Yokamon
didn’t come home that evening.” Hearn returned in January of the next year.
       49
          Although James Patton has authored a number of books and articles focusing on mental
retardation, he cannot, for purposes of a Texas trial, diagnose someone as having mental
retardation. TEX. HEALTH & SAFETY CODE § 591.003(16) (defining “Person with mental
retardation” as “a person determined by a physician or psychologist licensed in this state or certi-
fied by the department to have subaverage general intellectual functioning with deficits in adaptive
behavior”).
       50
          The majority chides me for relying cumulatively on website hearsay in pointing out that
Hearn writes articulately. See infra. This is bizarre in light of the majority’s heavySSindeed,
almost total reliance on testimony from an “expert” who is not even authorized to render profes-
sional opinions in Texas.
                                                39
ing other than the “gravity of the current situation (i.e., the im-

portance of the decisions that have been made in regard to Mr.

Hearn)[.]”           Essentially, Hearn’s expert would like Hearn to have

further tests based not on evidence but on the seriousness of the

capital sentence.              The expert advances a policy argument that lies

outside our properly-understood and limited judicial role.51

       Furthermore, the one test52 Hearn has taken places his I.Q.

at 82.         The majority emphasizes the variability inherent in the

score and places Hearn’s I.Q. somewhere between 70 and 75.                                   Even if

Hearn’s “real” I.Q. score lies at the remote low ends that the ma-

jority has listed,53 such a score does not satisfy the threshold

that Texas has adopted, namely, an I.Q. of 70 or below.                                 Hall, 2004

Tex. Crim. App. LEXIS 817, at *32.

       Some scattered evidence suggests that Hearn has, at the least,

an adequate level of intelligence. He wrote a coherent and lengthy

request for clemency to the Texas Board of Pardons and Paroles:

“My Execution date is set for March 4, 2004.                               And I am trying to


       51
           The concurrence makes the amazing statement that requiring a petitioner to shoulder the
burden of offering sufficient evidence to justify equitable tolling is a “backwards” approach.
Apparently, by that logic, offering an inadmissible statement from someone who offers no reason,
beyond the gravity of the death sentence, to conduct further investigation places the burden on the
state to disprove Hearn’s claims. That theory, in fact, stands the burden of proof on its head; the
burden to obtain a stay is always on the petitioner, not the respondent.
       52
        Upon entering state custody, Hearn took the Weschler Adult Intelligence Scale-Revised
(“WAIS-R”) Short-Form test, which serves a screening function to help determine whether an
inmate warrants additional treatment or counseling.
       53
            Of course, Hearn’s “real” I.Q. could also lie at the high end of the purported variability.
                                                   40
get the help of you ladies and gentlemen in getting my sentence

commuted to life.”           He submitted a long, personalized request for

a pen pan via a web site.               In the request, he used complete sen-

tences and told the reader he “enjoy[s] reading novels (horror,

Western, Suspense) [and] doing drawings.”54

       Neither the majority nor Hearn has made an arguable showing

that Hearn has the degree of sub-par intelligence associated with

mental retardation.             Although he certainly did not achieve the

greatest educational success, he did not languish in the public

school system.        At times, he performed well; at other times, it ap-

pears that he did not attend class with sufficient regularity to

achieve a laudable score.              He had ample chance to provide greater

details regarding his educational problems but has not presented

any information beyond a list that includes some unimpressive

grades.

       To hold that a few poor grades constitute a “colorable show-

ing” of mental retardation gives no limiting principle and offers

no guidance to district courts who will entertain similar claims.

Undoubtedly, almost every individual sentenced to death will have

shown, at some point in his life, some underachieving or deviant

behavior.

       We have an obligation to set some sort of meaningful eviden-



       54
         Voices From Inside, http://www.alive-abolish-deathpenalty.org/-
death_penalty/voices_tx_hearn.htm (visited June 8, 2004).
                                              41
tiary threshold and to articulate fairly transparent criteria for

satisfying that mark.               The majority’s decision to accept some bad

grades as satisfactory evidence of sub-par intelligence does not

meet that obligation and invites standardless review.55




                                                2.

       The majority also errs in deciding that Hearn has satisfied

the second prong of the Texas definition of mental retardation.

Though a party must prove all three prongs, the majority merely

winks at the adaptive-functioning prong:56                        “H[earn] further cites

the trial testimony of a family member to demonstrate his compro-

mised social skills.”              The majority offers nothing else.                    With re-

spect to the family member, an aunt57 of Hearn’s named Wanda Bell,

the majority notes only that she “testified that he was a ‘fol-

lower’ who tended to be ‘influenced by the wrong type of people,’

and that when he left home at age 18, she was still ‘concerned

[sic] about if he was being taken care of.’”



       55
           If slowness in school is enough to meet the requirements of McFarland, a large percent-
age of death row inmates will be entitled to virtually automatic stays as a result of the majority’s
action in this case. That may be an unintended result, but it is a very real one.
       56
          The majority does not even discuss the third prong. Hearn has not cited a specific or
even general time when his alleged retardation began. He was, however, below the age of
eighteen during the time during which evidence of his mental retardation allegedly appeared. If
the school records satisfy the first prong of mental retardation, Hearn presumably will satisfy the
third prong, as well.
       57
            Bell received permanent custody of Hearn beginning in 1995.
                                                42
     In making such a statement, Bell may well have described a

large proportion of American teenagers. Although her testimony may

reflect genuine concern regarding Hearn, it cannot possibly, on its

own, reasonably lead to the conclusion that Hearn has problems with

adaptive functioning. The majority’s reliance on Bell’s statement,

however, conflicts with two other matters relating to her.   First,

the family court that awarded permanent custody to Bell noted that,

after Hearn stayed with Bell permanently, “[h]e followed all the

rules and did quite well in school.” Hearn responded positively to

a functional, stable home.

     Secondly, Bell’s testimony in the punishment phase of Hearn’s

trial indicates that Hearn understood right from wrong, could suc-

ceed when he applied himself, and possessed the ability to live on

his own.   As part of her testimony, Bell stated that “[w]ell when

[Hearn] applied hisself [sic].    HeSShe wasSShe’s good head on him

and, you know, when you apply yourself to your studies, you do

well.”   Bell responded “Yes” to the question “if he would work, he

could do okay?”     Bell twice affirmed that Hearn “knew right from

wrong” by age seventeen.    She noted that Hearn left her care when

he turned eighteen and apparently took care of himself adequately

during that time.

     Furthermore, the majority’s lone citation to Bell’s testimony

is somewhat out of context.   Bell did not attribute Hearn’s desire

to follow others to a mental defect, but instead to a desire to


                                  43
compensate for his poor socioeconomic standing:     “It’s just like

kids develop this when they’reSSsome kids, when they’re young.

They’re not proud of the environment that they’re in.”     Bell did

not suggest that Hearn possessed any kind of adaptive problem.

     Additionally, the facts of the crime suggest that Hearn func-

tioned rather well with others.    He participated in the carjacking

and shooting of an individual.    Testimony and evidence showed that

he drove the victim’s car to an isolated area and shot the victim

in the head multiple times.   He bragged of his exploits and pro-

vided details of the killing to three others not associated in the

crime.

     Hearn also understood that he needed to dispose of the evi-

dence to avoid prosecution.   Two witnesses testified that he asked

about where to locate a “chop shop” to dispose of the victim’s car.

When the police questioned him, he provided a coherent but false

explanation as to how his fingerprints appeared on the victim’s

car’s steering wheel.   Hearn functioned well enough to kidnap a

man, drive a stolen car, shoot a victim multiple times, brag about

his exploits, and create an untruthful, exculpatory story.       If

Hearn had not functioned so well, the victim would not have died.

Thus, the majority’s lone citation to one statement from a relative

cannot possibly satisfy the adaptive-functioning prong of mental

retardation.




                                  44
                                             III.

       Thus, in its apparent zeal to grant Hearn an attorney and a

stay of execution,58 the majority neglects and unpersuasively re-

sponds to two significant problems that are fatal to its spirited

position. First, it cannot factually distinguish, and cannot logi-

cally dismiss as dictum, the binding language of Kutzner that

forecloses       the    application        of    McFarland       to   successive           habeas

petitions.

       Secondly, the one-year statute of limitations bars Hearn’s ap-

plication.        The majority has apparently lowered the standard of

“rare and exceptional” circumstances required to grant equitable

tolling so that anyone may obtain an attorney, at any stage of lit-

igation, by simply claiming mental retardation.                            Hearn, and the

majority on his behalf, offer a dearth of evidence to suggest that

Hearn has satisfied any of the three prongs of Texas’s definition

of mental retardation.

       Without precedential basis, a supportive statute of limita-

tions, or evidence justifying equitable tolling, the panel must re-

ly on good intentions and an unreasonably generous reading of

everything that Hearn has alleged and submitted.                              The majority

opinion brings this panel squarely in conflict with binding prece-

dent and does not assist district courts in considering the similar


       58
          Because Hearn should not be appointed an attorney, I likewise dissent from the
majority’s stay of execution.
                                                45
claims that will undoubtedly follow from this opinion.   I respect-

fully dissent.




                               46
