United States Court of Appeals
                                                                                     Fifth Circuit
                                                                                  F I L E D
                          UNITED STATES COURT OF APPEALS
                                                                                  October 19, 2004
                               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
______________________________________________________________________________

                                 ORDER ON REHEARING
                           (Opinion 7/6/04, 5th Cir., 

)

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

       The petition for panel rehearing is DENIED, and no judge in regular active service having

requested that the court be polled on rehearing en banc, the petition for rehearing en banc is

DENIED. The court, having considered the request for rehearing, clarifies the panel opinion as

follows:
1.   The panel decision is limited to a petitioner who:

     (i)     has already filed state and federal petitions;

     (ii)    presently lacks §848(q)(4)(B) counsel;

     (iii)   may have a §2244(b)(2)(A) claim based on the previously unavailable, new

             Supreme Court rule in Atkins; and

     (iv)    to whom Atkins may apply.

2.   Consequently, this decision does not imply that all defendants are entitled to

     §848(q)(4)(B) counsel for all successive habeas actions. McFarland v. Scott, 

(1994), must be harmonized with Congress’s later determination in AEDPA

     that the grounds for successive habeas petitions are narrowly circumscribed. Cf.

     Cantu-Tzin v. Johnson, l62 F.3d 295, 296 (5th Cir. 1998) (“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”).

3.   Equitable tolling applies in this case because of the combination of the problem

     created by the Texas two-forum rule, which Texas has overturned, and the withdrawal

     of petitioner’s counsel.

4.   This is a fact-bound case. In the ordinary case, e.g., In re Holladay, 

     (11th Cir. 2003), where the issue of mental retardation was explored at trial for

     Penry mitigation purposes, there will likely be a state court record from which to

     determine whether a prima facie case of mental retardation exists. Counsel may be

     appointed for a successive petition, but the appointment alone does not grant capital

     defendants a right to an automatic stay of execution. 

.


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               Under such circumstances, t he defendant will have sufficient time to file a petition

               conforming to the prima facie standard mandated by 28 U.S.C. 2244(b)(3)(C) prior

               to his scheduled execution. A federal court need not grant a state where a dilatory

               capital defendant ignores this opportunity to file timely and flouts the available

               processes. 

the panel opinion made clear, while Hearn made a colorable showing of

               entitlement to §848(q)(4)(B) counsel for the limited purpose of investigating and

               preparing his successive habeas petition, we have not decided the merits of his claim

               of mental retardation.



Jerry E. Smith, Circuit Judge, dissenting from the denial of panel rehearing:

       I respectfully dissent from the denial of rehearing. Although I appreciate the majority's

well-meaning effort to address portions of its initial opinion, Hearn v. Dretke (In re Hearn), 

(5th Cir. 2004), the majority’s clarifications, which are generally helpful, do not cure the

fundamental deficiencies on which I focused in dissent, 

(Smith, J., dissenting).

       Fortunately, in its order on rehearing, the majority states that “[t]his is a fact-bound case” and

that “[t]he facts of this case do not presently demonstrate that Hearn ‘is in fact mentally retarded.’”

Unfortunately, however, the majority still clings to its notion that “Hearn has made a colorable

showing of entitlement to . . . counsel.”

       The majority seems now to recognize that once newly-appointed counsel has presented his

or her case for Hearn on remand, the district court will surely find that Hearn meets none of the

standards for retardation and will deny relief. As Judge Higginbotham observed, “If there is nothing


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there, as the dissent seems to know, the district court will so conclude.” 

(Higginbotham,

J., concurring).

       The majority’s clarification somewhat explains the majority’s assertion that this petitioner,

having shown no substantial facts in support of retardation, is nonetheless entitled to counsel. The

majority’s position on retardation remains in error, but at least there is a way of understanding how

the majority can attempt to justify appointing counsel in a case such as this, where the attempted

showing of retardation is meritless if not downright disingenuous.

       I respectfully dissent.




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