                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2385
                                   ___________

Andrew Sasser,                        *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Western District of Arkansas.
Larry Norris, Director, Arkansas      *
Department of Corrections,            *
                                      *
            Appellee.                 *
                                      *
                                 ___________

                             Submitted: September 25, 2008
                                Filed: January 23, 2009
                                 ___________

Before RILEY, BRIGHT, and MELLOY, Circuit Judges.
                                  _________

RILEY, Circuit Judge.


       Andrew Sasser (Sasser) appeals the district court’s denial of his Second
Supplemental and Amended Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254. Sasser argues the district court erred by ruling Sasser is not entitled to an
evidentiary hearing on his claims that his death sentence (1) violates his Eighth
Amendment rights because he is mentally retarded, and (2) should be vacated because
his trial counsel was ineffective for failing to investigate and develop the mental
retardation issue at trial. We reverse and remand to the district court for an Atkins1
evidentiary hearing to adjudicate the merits of Sasser’s mental retardation claim. We
affirm the district court’s denial of relief on Sasser’s ineffective assistance of counsel
claim.

I.    BACKGROUND
      Sasser is an Arkansas state prisoner sentenced to death in 1994 for the July
1993 brutal murder of Jo Ann Kennedy, a convenience store clerk. In 1995, the
Arkansas Supreme Court affirmed Sasser’s conviction and sentence, Sasser v.
Arkansas, 902 S.W.2d 773, 779 (Ark. 1995), and in 1999 affirmed the denial of
Sasser’s application for state post-conviction relief, Sasser v. Arkansas, 993 S.W.2d
901, 903 (Ark. 1999). On July 7, 2000, Sasser filed a petition for writ of habeas
corpus in the United States District Court for the Western District of Arkansas
challenging his conviction and sentence. Sasser later filed an amended petition. The
Arkansas district court denied Sasser’s petition on May 28, 2002.

       On June 20, 2002, the United States Supreme Court issued its decision in
Atkins, “[c]onstruing and applying the Eighth Amendment in the light of our
‘evolving standards of decency,’” and concluding execution of mentally retarded
persons is cruel and unusual punishment in violation of the Eighth Amendment. 536
U.S. at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)). On June 27,
2002, Sasser filed his notice of appeal from the district court’s denial of his habeas
petition. On June 18, 2003, Sasser filed a motion in this court styled “Appellant’s
Supplemental Motion to Remand to the District Court or in the Alternative Motion to
File a Second or Successive Habeas Corpus Petition.” Sasser sought remand so the
district court could consider his claim that, under Atkins, he is mentally retarded and
ineligible for the death penalty. This court granted Sasser’s motion to remand on
August 15, 2003, stating, “[t]he issue on remand is limited to the question of whether


      1
       Atkins v. Virginia, 536 U.S. 304 (2002).
                                           -2-
Mr. Sasser is mentally retarded and whether pursuant to [Atkins], the Eighth
Amendment prohibits his execution.” We also explained the remand would be treated
as a successive habeas petition rather than as an amendment to Sasser’s earlier
petition, declaring, “[t]o the extent the request for remand is the functional equivalent
to an application to file a successive habeas petition, the motion to file such a
successive petition is granted.”

       On August 29, 2003, the government filed a motion for rehearing, arguing
Sasser had not yet exhausted his mental retardation claim in Arkansas state court. On
March 9, 2004, this court issued an amended judgment directing the district court to
first determine whether Sasser had exhausted his claim in Arkansas state court and,
if the district court determined Sasser had a viable state court remedy, to consider
holding the remanded petition in abeyance pending resolution of the claim by the
Arkansas state courts.

       On remand, Sasser filed a motion for extension of time, which the district court
granted, and on September 3, 2004, Sasser filed a “Second Supplemental and
Amended Petition” setting forth his mental retardation claim. Sasser also presented
several other claims, including a claim his attorney was constitutionally ineffective for
failing to investigate and develop the mental retardation issue at Sasser’s trial. On
August 22, 2005, the United States Supreme Court denied certiorari in Engram v.
Arkansas, 200 S.W.3d 367 (Ark. 2004), thereby establishing Sasser did not have a
viable Arkansas state court remedy.2




      2
        In Engram, the Arkansas Supreme Court held the defendant was not entitled
to have a mandate affirming his death sentence recalled based on the Supreme Court’s
subsequent decision in Atkins. The court reasoned the defendant could have raised
the mental retardation issue at trial by availing himself of an Arkansas statute in effect
at the time of trial that prohibited the execution of mentally retarded individuals.
Engram, 200 S.W.3d at 371.
                                           -3-
       On November 22, 2005, the district court entered a scheduling order, stating,
“the Court has determined that any outstanding issues concerning the presentation of
evidence on the issue of mental retardation need to be resolved in a timely fashion.”
The district court ordered any motions regarding mental evaluations of Sasser be filed
by January 13, 2006. On January 13, 2006, Sasser filed a discovery motion indicating
he needed to prepare a complete social history so he could identify which experts
would be needed to evaluate him. Sasser also requested permission to serve a
subpoena duces tecum on various entities and individuals. The district court granted
Sasser’s motion to conduct discovery, stating discovery would “allow facts to be
presented to the Court to assist with the question of whether an evidentiary hearing
is warranted.” On June 14, 2006, the district court ordered that discovery be
completed by July 31, 2006, and any additional motions (including motions for an
evidentiary hearing) be filed by August 31, 2006. The court warned, “Petitioner’s
failure to file the above mentioned motions will constitute notice to the Court that
Petitioner does not intend to present additional evidence regarding his mental
retardation claim.” Sasser filed no additional motions.

       On January 9, 2007, without holding an evidentiary hearing, the district court
denied Sasser’s Second Supplemental and Amended Petition in its entirety. The
district court determined Sasser’s claim that his death sentence violates the Eighth
Amendment was procedurally defaulted because Sasser did not raise the issue in state
court. The district court found Sasser did not satisfy the “cause and prejudice”
exception to procedural default because he could have raised the retardation issue
during trial under an Arkansas statute prohibiting execution of mentally retarded
persons. The district court also found Sasser did not satisfy the “actual innocence”
exception to procedural default because he failed to present sufficient evidence of his
mental retardation.

       With respect to Sasser’s ineffective assistance of counsel claim, the district
court concluded, “[t]he Eighth Circuit limited the issue on remand to ‘the question of

                                          -4-
whether Mr. Sasser is mentally retarded and whether pursuant to [Atkins], the Eighth
Amendment prohibits his execution’. . . . [Therefore] [t]he only proper claim before
the Court is whether Petitioner is mentally retarded and whether his execution is
prohibited by the Eighth Amendment.”

       On appeal, Sasser maintains his mental retardation claim was not procedurally
defaulted by his failure to raise the claim in Arkansas state court. Sasser argues he is
entitled to an evidentiary hearing to present evidence in support of his claim that he
is mentally retarded and the Eighth Amendment prohibits his execution. Sasser also
contends the district court erred by denying an evidentiary hearing on Sasser’s claim
that his trial counsel was ineffective for failing to investigate and present evidence of
Sasser’s mental retardation during the penalty phase of Sasser’s trial.

II.   DISCUSSION
      A.     Eighth Amendment Claim
      “We review a district court’s finding of procedural default de novo.”
Schawitsch v. Burt, 491 F.3d 798, 802 (8th Cir. 2007) (citing Kerns v. Ault, 408 F.3d
447, 449 (8th Cir. 2005)).

        Sasser contends this court’s decision in Simpson v. Norris, 490 F.3d 1029 (8th
Cir. 2007), requires the district court hold an evidentiary hearing on the merits of
Sasser’s mental retardation claim. We agree. In Simpson, the district court denied the
petitioner an evidentiary hearing on his Atkins claim in part “because ‘before trial, at
trial, or in his post-conviction petition,’ [the petitioner] did not present a mental
retardation defense to the death penalty (a defense that was available to him under
state law, see Ark. Code. § 5–4–618).” Id. at 1034. The Simpson petitioner argued
the district court erred by holding his Eighth Amendment mental retardation claim
under Atkins was defaulted by an omission that occurred before Atkins was decided.
Id. at 1032. We reversed, explaining,



                                           -5-
      We think, contrary to the district court’s holding, that the availability of
      a similar claim under Arkansas law is irrelevant to our consideration
      here: Mr. Simpson is raising a previously unavailable federal claim, and
      that claim is separate and distinct. . . . Since Atkins created a previously
      unavailable claim based on the unconstitutionality of executing the
      mentally retarded, Mr. Simpson can hardly be said to have lacked
      diligence in developing the factual basis of that claim in state court.

Id. at 1035.

        We further explained, “[w]here the facts are in dispute, the federal court in
habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive
a full and fair evidentiary hearing in state court.” Id. (citing Townsend v. Sain, 372
U.S. 293 (1963)) (emphasis added). “Mr. Simpson has alleged that he is mentally
retarded as Atkins defines that condition, which would entitle him to relief, and that
matter remains in dispute.” Id.3 We therefore directed the district court to “give Mr.
Simpson the chance to develop the factual basis of his claim and present it at an
evidentiary hearing.” Id. (emphasis added). We recently reaffirmed our Simpson
holding. See Jackson v. Norris, 256 Fed. Appx. 12 (8th Cir. 2007) (per curiam)
(unpublished).

       Like the petitioner in Simpson, the district court in Sasser’s case concluded
Sasser’s Atkins claim was procedurally defaulted because Sasser did not raise the
issue in state court under state law, and did not satisfy the “cause and prejudice”
exception to procedural default because he could have raised the retardation issue
under the same Arkansas statute prohibiting execution of mentally retarded persons.
This reasoning is now invalid under Simpson, 490 F.3d at 1035 (declaring, “the
availability of a similar claim under Arkansas law is irrelevant to our consideration
here”).


      3
       Atkins actually does not define mental retardation, leaving the development of
the new constitutional restriction to the states. Atkins, 536 U.S. at 317.
                                          -6-
       The district court further found Sasser did not satisfy the “actual innocence”4
exception to procedural default because he failed to present sufficient evidence of his
mental retardation. This reasoning is contrary to Simpson, which found Simpson’s
pleading adequate when Simpson “alleged that he is mentally retarded as Atkins
defines that condition” in order to be allowed to present evidence in support of his
claim at an evidentiary hearing. Id. at 1035. Sasser’s petition alleges (1) he meets the
diagnostic criteria for mental retardation promulgated by the American Association
on Mental Retardation and the American Psychiatric Association; (2) his IQ is 79,
which Sasser asserts places him in the mentally retarded range, taking into account the
margin of error; (3) he was incapable of graduating from high school despite being
enrolled in school for twelve years; (4) he was never able to live independently and
was 29 at the time of Kennedy’s murder and still living with his mother (Sasser claims
he once attempted to leave home, living in an abandoned truck in the woods near his
mother’s home, and sneaking into his mother’s house to get food from the
refrigerator); (5) he was incapable of paying bills or maintaining a checking account;
(6) he was capable of only the simplest, manual-labor jobs; and (7) he manifests
significant deficits in intellectual and adaptive functioning. While Simpson may not
mandate an evidentiary hearing in every conceivable set of circumstances, there is no
question the allegations in Sasser’s petition are as adequate as Simpson’s pleading
threshold where the petitioner “alleged that he is mentally retarded as Atkins defines
that condition” in order to obtain an evidentiary hearing on his mental retardation
claim. Id. Nothing in Sasser’s case precludes the need for an Atkins evidentiary
hearing.

      The government attempts to distinguish Simpson in two ways. First, the
government argues Sasser’s petition should be subject to more stringent standards
because, unlike the first-time habeas petitioner in Simpson, Sasser’s petition is a


      4
        A petitioner is “actually innocent” of the death penalty where he is ineligible
for the death penalty. See Sawyer v. Whitley, 505 U.S. 333, 345 (1992).
                                          -7-
successive habeas petition.5 This distinction has no effect on whether Sasser is
entitled to an evidentiary hearing. The government contends Sasser’s petition fails to
meet 28 U.S.C. § 2244(b)(2)(A)’s requirement that a successive petition asserting
claims not presented in a prior application be dismissed, unless “the applicant shows
that the claim relies on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.” As Sasser
correctly notes, we expressly recognized in Simpson, “Atkins created a previously
unavailable claim based on the unconstitutionality of executing the mentally
retarded.” Simpson, 490 F.3d at 1035 (emphasis added). Because Atkins teaches us
Sasser’s future execution would violate the Eighth Amendment if Sasser were
mentally retarded, the application of Atkins to Sasser’s petition actually is prospective.
Sasser meets the requirement of § 2244(b)(2)(A).

       The government also attempts to distinguish Simpson by arguing, unlike the
petitioner in Simpson, the district court afforded Sasser a “remand procedure.” Sasser
failed to comply with the district court’s directive that any additional motions
(including motions for an evidentiary hearing) be filed by August 31, 2006. The
district court warned, “Petitioner’s failure to file the above mentioned motions will
constitute notice to the Court that Petitioner does not intend to present additional
evidence regarding his mental retardation claim.” Sasser was not obligated to expand
the record with additional evidence showing he was entitled to a hearing, nor was he
obligated to file another motion requesting a hearing—Sasser already requested a
hearing in his “Second Supplemental and Amended Petition.” Simpson explains
Sasser is entitled to a hearing simply by virtue of “alleg[ing] that he is mentally


      5
        Sasser argues his petition should be treated as an amendment to his first habeas
petition rather than a successive petition. This Court expressly stated in its remand
order, “[t]o the extent the request for remand is the functional equivalent to an
application to file a successive habeas petition, the motion to file such a successive
petition is granted.” Thus, we will treat Sasser’s petition as a successive habeas
petition.
                                           -8-
retarded as Atkins defines that condition.” Simpson, 490 F.3d at 1035. Given the
circumstances and factual allegations in Sasser’s case, Simpson expressly requires an
Atkins evidentiary hearing, not some other type of “remand procedure” crafted by the
district court. Id. We therefore reverse and remand to the district court for an
evidentiary hearing to adjudicate the merits of Sasser’s mental retardation claim.

       B.    Ineffective Assistance of Counsel
       Sasser asserts the district court erred by concluding his ineffective assistance
of counsel claim was not properly before the court. Sasser claims he is entitled to a
hearing on the issue of whether his counsel was ineffective for failing to investigate
and develop Sasser’s alleged mental retardation at trial. This argument flatly
contradicts Sasser’s Eighth Amendment argument. On one hand, Sasser argues his
failure to pursue the retardation issue should be excused because the claim was
“previously unavailable” until Atkins. On the other hand, Sasser’s argues his trial
counsel was constitutionally ineffective for failing to pursue what Atkins characterizes
as a “previously unavailable” claim. Trial counsel’s failure to anticipate new law does
not constitute ineffective assistance of counsel. See Schawitsch, 491 F.3d at 804
(citing Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999)).

       Regardless of the merit of Sasser’s ineffective assistance of counsel claim, the
district court properly concluded Sasser’s ineffective assistance of counsel claim was
not properly before it. We expressly limited the issue in our prior remand “to the
question of whether Mr. Sasser is mentally retarded and whether pursuant to [Atkins],
the Eighth Amendment prohibits his execution.” Sasser cites Pediatric Specialty Care,
Inc. v. Arkansas Dept. of Human Servs., 364 F.3d 925, 931 (8th Cir. 2004) for the
proposition that the district court may “decide any issue not expressly or impliedly
disposed of on appeal.” Id. at 931 (quotation marks and citation omitted). Pediatric
Specialty Care is not on point. In Sasser’s case, there were no lingering issues we
failed to dispose of on appeal. We expressly limited the district court to consideration
of one issue. By doing so, we impliedly prohibited the district court’s consideration

                                          -9-
of any other issue. Our remand order did not give Sasser license to raise whatever
other claims he wished, so long as those claims had some relationship to his alleged
mental retardation. The district court correctly decided Sasser’s ineffective assistance
claim was not properly before it.

       C.    Statute of Limitations
        The government argues, for the first time on appeal, that Sasser’s successive
petition is barred by the statute of limitations. The statute at issue, 28 U.S.C.
§ 2244(d)(1)(C), provides,

      [a] 1-year period of limitation shall apply to an application for a writ of
      habeas corpus by a person in custody pursuant to the judgment of a State
      court. The limitation period shall run from the latest of [various events,
      including] the date on which the constitutional right asserted was initially
      recognized by the Supreme Court, if the right has been newly recognized
      by the Supreme Court and made retroactively applicable to cases on
      collateral review[.]6

The statute of limitations in Sasser’s case began to run on June 20, 2002, when Atkins
was decided. Sasser filed his application in this court for authorization to file a
successive habeas petition on June 19, 2003, less than one year after Atkins.
However, Sasser did not actually file his successive habeas petition in the district
court until September 3, 2004.7




      6
       The parties agree Atkins is retroactively applicable to cases on collateral
review.
      7
       We express no opinion on whether Sasser’s petition was timely filed.
                                         -10-
       Sasser protests the government is not entitled to raise the statute of limitations
issue for the first time on appeal.8 In its brief, the government offers no justification
for, or even acknowledgment of, its failure to raise the statute of limitations issue at
any time before its appellate brief. “The [Federal] Rules [of Civil Procedure] provide
that [statute of] limitations defenses are forfeited unless pleaded in an answer or an
amendment to the answer.” Barnett v. Roper, 541 F.3d 804, 807 (8th Cir. 2008)
(citing Day v. McDonough, 547 U.S. 198, 207 (2006) (in turn citing Fed. R. Civ. P.
8(c), 12(b), and 15(a)) (addressing one-year statute of limitations in habeas case); see
also Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006) (addressing the merits
of a habeas petition because, while it was “doubtful that Trussell filed his petition
within the one-year limitations period. . . . the statute of limitations [does not]
constitute[] a jurisdictional bar to our review”). District courts may consider sua
sponte the timeliness of a habeas petition, but because the statute of limitations
defense is not regarded as jurisdictional, district courts are under no obligation to raise
the issue sua sponte. Day, 547 U.S. at 202, 205 (citations omitted). The discretion
to consider the statute of limitations defense sua sponte does not extend to the
appellate level. Barnett, 541 F.3d at 807. Because the government did not timely
assert the statute of limitations defense, the statute of limitations defense is forfeited,
and we will not address the defense any further.

III.   CONCLUSION
       We reverse and remand to the district court for an Atkins evidentiary hearing
to adjudicate the merits of Sasser’s mental retardation claim. We affirm the district
court’s denial of relief on Sasser’s ineffective assistance of counsel claim. If the
mental retardation issue returns to us on appeal after the district court adjudicates the


       8
        The government mentioned the statute of limitations issue for the first time
after the district court denied Sasser’s successive petition in a footnote to the
government’s response to Sasser’s motion to alter or amend the district court’s
judgment. The government did not argue Sasser’s petition was time-barred until its
appellate brief.
                                           -11-
merits, we direct that Sasser’s mental retardation claim be consolidated with the other
unresolved claims Sasser raised in his initial habeas petition.
                         ______________________________




                                         -12-
