Case: 08-70018 Document: 00511295537 Page: 1 Date Filed: 11/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 16, 2010
No. 08-70018 Lyle W. Cayce
Clerk
JAMES LEE HENDERSON,
Petitioner - Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before JOLLY, WIENER, and GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This court authorized James Lee Henderson, a Texas death row inmate,
to file a successive federal habeas petition to assert a claim that he is mentally
retarded and thus ineligible for execution under Atkins v. Virginia, 536 U.S. 304
(2002). In our order authorizing the filing, we noted that, unless the doctrine of
equitable tolling applies, Henderson’s successive petition is time-barred. In re
Henderson, 462 F.3d 413, 417 (5th Cir. 2006). We left “it for the district court to
decide whether Henderson’s case presents the ‘rare and exceptional
circumstances’ that would entitle him to the benefit of equitable tolling.” Id.
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The district court held that Henderson is not entitled to equitable tolling
and did not reach the question whether the state court unreasonably determined
that Henderson is not mentally retarded. The district court granted a certificate
of appealability (COA) for two issues that are now before us for resolution: (1)
whether Henderson’s mental retardation claim is time-barred because he is not
entitled to equitable tolling; and (2) whether the court nevertheless should reach
the merits of Henderson’s mental retardation claim because he is “innocent” of
the death penalty.
I.
Henderson was convicted and sentenced to death for the October 1993
capital murder of Martha Lennox in Clarksville, Texas. His conviction and
sentence were affirmed on direct appeal. Henderson v. State, No. 71,928 (Tex.
Crim. App. 1996) (unpublished). He did not file a petition for a writ of certiorari.
On March 5, 1997, the trial court appointed Pamela Campbell to represent
Henderson in state habeas proceedings. In Henderson’s first state habeas
application, filed on August 28, 1997, he raised claims of ineffective assistance
of counsel. On July 8, 1998, the Texas Court of Criminal Appeals denied relief.
Ex parte Henderson, No. 37,658-01 (Tex. Crim. App. July 8, 1998), cert. denied,
525 U.S. 1004 (1998).
On August 7, 1998, Henderson filed a motion for appointment of counsel
in federal district court. The district court granted the motion on August 24,
appointing Clifton Holmes and Eric Albritton (who currently represents
Henderson on his Atkins claim) to represent Henderson. On October 27, 1998,
the district court entered a scheduling order setting a deadline of January 4,
1999, for Henderson to file his federal habeas petition. The district court also
stayed Henderson’s execution, which was set for December 2, 1998.
In December 1998, Henderson’s federal habeas counsel’s investigator
obtained a series of sworn statements from Deon Williams, who had testified
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against Henderson at trial, in which Williams recanted much of his trial
testimony. On December 31, 1998, Henderson filed a motion in federal court to
vacate the scheduling order. That same day, he filed a successive state habeas
application in the trial court, raising claims of perjured testimony based on
Williams’s recantation. The state habeas application was prepared by Clifton
Holmes and Eric Albritton, the same attorneys the district court had appointed
to represent Henderson in the federal habeas proceedings. On January 12, 1999,
the district court entered an order granting Henderson’s motion to vacate the
scheduling order. In that order, the court stated that it expected Henderson to
inform the court of the status of his state habeas application (which at that time
was pending before the Texas Court of Criminal Appeals) by January 27, 1999.
Henderson complied by filing his federal habeas petition on January 27,
1999. It was held in abeyance pending the Texas court’s ruling on Henderson’s
successive state habeas application. On October 27, 1999, the Texas Court of
Criminal Appeals dismissed Henderson’s second state habeas application as an
abuse of the writ. Henderson next filed an amended federal habeas petition on
March 1, 2000, asserting the claims regarding Deon Williams’s recantation, that
he had exhausted in his second state habeas application.
The district court conducted an evidentiary hearing in March 2001, and
denied Henderson’s petition for federal habeas relief that September. It granted
a certificate of appealability on November 30, 2001.
On June 20, 2002, while Henderson’s appeal of the district court’s denial
of habeas relief was pending in this court, the Supreme Court of the United
States issued its opinion in Atkins, barring execution of mentally retarded
prisoners.
On June 9, 2003, this court affirmed the district court’s denial of habeas
relief and denied Henderson’s request to expand the COA. Henderson v.
Cockrell, 333 F.3d 592 (5th Cir. 2003). Henderson filed a petition for rehearing
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en banc on June 30, which this court denied on July 15, 2003. The Supreme
Court denied Henderson’s petition for a writ of certiorari on January 26, 2004.
Henderson v. Dretke, 540 U.S. 1163 (2004).
On January 16, 2004, ten days before the Supreme Court denied certiorari,
Henderson was evaluated by a psychologist, Dr. Susana Rosin. Dr. Rosin
completed her report on March 19, 2004. Five days later, on March 24 (fifty-
seven days after the Supreme Court denied certiorari), Henderson filed a third
state habeas application in which he presented his Atkins claim. On April 24,
2004, the Texas Court of Criminal Appeals remanded the case to the trial court,
finding that Henderson had presented facts which, if true, might entitle him to
relief. Ex parte Henderson, No. 37,658-03 (Tex. Crim. App. 2004) (unpublished).
On remand, the trial court conducted a hearing and entered findings of
fact and conclusions of law, recommending that Henderson’s Atkins claim be
denied. On January 25, 2006, the Texas Court of Criminal Appeals denied relief,
holding that Henderson had failed to show by a preponderance of the evidence
that he is mentally retarded. Ex parte Henderson, No. WR-37,658-03 (Tex. Crim.
App. Jan. 25, 2006) (unpublished).
About forty days later, on March 6, 2006, Henderson filed with this court
a motion for authorization to file a successive habeas petition, attaching a copy
of the proposed petition. On August 23, 2006, this court granted Henderson’s
motion to file a successive habeas petition. In re Henderson, 462 F.3d 413. In
our order granting the motion, we noted that neither party had presented us
with a complete transcript of the testimony presented at the state habeas
evidentiary hearing. Id. at 416 n.3. We concluded, based on the limited
materials available to us, that Henderson had made a prima facie showing of
mental retardation. Id. at 417. We noted that, unless equitable tolling applies,
Henderson’s successive habeas petition is time-barred. Id. We left “it for the
district court to decide whether Henderson’s case presents the ‘rare and
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exceptional circumstances’ that would entitle him to the benefit of equitable
tolling.” Id.
Henderson filed his successive federal habeas petition in the district court
the following day, August 24, 2006.
On March 31, 2008, the district court denied relief, holding that
Henderson’s petition is barred by the statute of limitations. Henderson v.
Quarterman, No. 1:06-CV-507, 2008 WL 906259 (E.D. Tex. 2008). The district
court assumed that the Texas “two-forum rule”1 presented a rare and exceptional
circumstance for the purposes of equitable tolling. The court concluded,
however, that Henderson did not pursue his claim diligently and was not
entitled to equitable tolling because (1) fifty-seven days passed between the
denial of certiorari (which ended the two-forum rule impediment to filing) and
the filing of his state Atkins petition, (2) Henderson did not file anything in
federal court while his state petition was pending, even after the two-forum rule
was modified; and (3) forty days passed between the Court of Criminal Appeals
denying the state Atkins writ and Henderson’s filing of the motion for
authorization to file a successive federal habeas petition.
The district court granted a COA for two issues:
(1) whether Henderson’s Atkins claim is time-barred because he is not
entitled to equitable tolling; and
(2) whether the court should reach the merits of Henderson’s Atkins claim
because he is “innocent” of the death penalty.
1
Between 1972 and February 2004, Texas courts applied the “two-forum rule” to
dismiss state habeas applications filed while federal habeas applications challenging the same
conviction were pending. See Ex parte Powers, 487 S.W.2d 101 (Tex. Crim. App. 1972). The
two-forum rule was modified on February 11, 2004, in Ex parte Soffar, 143 S.W.3d 804, 806-07
(Tex. Crim. App. 2004). Under the modified rule, the Texas Court of Criminal Appeals will
“permit consideration of the merits of a subsequent writ . . . if the federal court having
jurisdiction over a parallel writ enters an order staying all of its proceedings for the applicant
to return to the appropriate Texas court to exhaust his state remedies.” Id. at 807.
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We heard oral argument on these issues in November 2009. At that time,
the parties noted that the Supreme Court had granted certiorari in Holland v.
Florida, 539 F.3d 1334 (11th Cir. 2008), cert. granted, 130 S.Ct. 398 (Oct. 13,
2009). We held this case in abeyance, pending the Supreme Court’s decision in
Holland, which was handed down on June 14. 130 S. Ct. 2549 (2010). At our
direction, the parties filed supplemental letter briefs addressing the application
of Holland to the facts of Henderson’s case.
We now turn to address Henderson’s argument that he is entitled to
equitable tolling.
II.
A.
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a
one-year limitations period for filing habeas applications. 28 U.S.C. § 2244(d)(1).
In cases such as Henderson’s, the one-year period commences on “the date on
which the constitutional right asserted was . . . newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review.” 28 U.S.C.
§ 2244(d)(1)(C). The constitutional right asserted by Henderson was recognized
by the Supreme Court in Atkins, which was decided on June 20, 2002. The
limitations period commenced on that date and expired on June 20, 2003.
Henderson did not file his Atkins petition until August 24, 2006. Accordingly,
unless equitable tolling applies, it plainly is time-barred.
At the time the district court ruled on Henderson’s equitable tolling claim,
the Supreme Court had not decided whether the AEDPA limitations period may
be equitably tolled. In Lawrence v. Florida, 549 U.S. 327, 336 (2007), the Court
assumed without deciding that equitable tolling is available. The Court stated
that, to be entitled to equitable tolling, the petitioner “must show (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Id. (internal
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quotation marks and citation omitted); see also Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005) (same). In Lawrence, a death penalty case, the petitioner argued
that his attorney’s mistake in calculating the limitations period entitled him to
equitable tolling. 549 U.S. at 336. The Supreme Court rejected that contention,
noting that, “[i]f credited, this argument would essentially equitably toll
limitations periods for every person whose attorney missed a deadline.” Id. The
Court stated that “[a]ttorney miscalculation is simply not sufficient to warrant
equitable tolling, particularly in the postconviction context where prisoners have
no constitutional right to counsel.” Id. at 336–37.
In Holland, the Supreme Court held specifically for the first time that
AEDPA’s statute of limitations “is subject to equitable tolling in appropriate
cases.” 130 S. Ct. at 2560. In doing so, the Court reiterated the requirements
for equitable tolling that it had stated in Lawrence and Pace: “[A] petitioner is
entitled to equitable tolling only if he shows (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Id. at 2562 (internal quotation marks and citations
omitted).
The Court stated that “[t]he diligence required for equitable tolling
purposes is reasonable diligence, not maximum feasible diligence.” Id. at 2565
(internal quotation marks and citations omitted). The Court held that the
district court’s conclusion, which rested on a finding of a lack of diligence, was
incorrect, because:
Holland not only wrote his attorney numerous letters seeking
crucial information and providing direction; he also repeatedly
contacted the state courts, their clerks, and the Florida State Bar
Association in an effort to have [his attorney]—the central
impediment to the pursuit of his legal remedy—removed from his
case. And, the very day that Holland discovered that his AEDPA
clock had expired due to [his attorney’s] failings, Holland prepared
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his own habeas petition pro se and promptly filed it with the District
Court.
Id.
With respect to the extraordinary circumstances prong, the Court rejected
as “too rigid” the standard applied by the Eleventh Circuit, which had held that
“even attorney conduct that is ‘grossly negligent’ can never warrant tolling
absent ‘bad faith, dishonesty, divided loyalty, mental impairment or so forth on
the lawyer’s part.’” Id. at 2563 (quoting Holland, 539 F.3d at 1339). The
Supreme Court explained that the Eleventh Circuit’s rule failed “to recognize
that, at least sometimes, professional misconduct that fails to meet the Eleventh
Circuit’s standard could nonetheless amount to egregious behavior and create
an extraordinary circumstance that warrants equitable tolling.” Id. The Court
reiterated that “a garden variety claim of excusable neglect” would not be
sufficient to warrant equitable tolling. Id. at 2564 (internal quotation marks and
citation omitted).
The Court emphasized that its precedent requires that a court of equity
exercise its powers on a case-by-case basis:
[C]ourts of equity can and do draw upon decisions made in other
similar cases for guidance. Such courts exercise judgment in light
of prior precedent, but with awareness of the fact that specific
circumstances, often hard to predict in advance, could warrant
special treatment in an appropriate case.
Id. at 2563.
Because the district court in Holland incorrectly found a lack of diligence
and the Eleventh Circuit “erroneously relied on a overly rigid per se approach”
in considering whether there were extraordinary circumstances, the Supreme
Court observed that “no lower court has yet considered in detail the facts of this
case to determine whether they indeed constitute extraordinary circumstances
sufficient to warrant equitable relief.” Id. at 2565. The Court also “recognize[d]
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the prudence, when faced with an equitable, often fact-intensive inquiry, of
allowing the lower courts to undertake it in the first instance.” Id. (internal
quotation marks and citation omitted). Accordingly, the Court left “it to the
Court of Appeals to determine whether the facts in this record entitle Holland
to equitable tolling, or whether further proceedings, including an evidentiary
hearing, might indicate that [the State] should prevail.” Id.
With respect to the case now before us, the district court assumed that the
Texas two-forum rule constituted an extraordinary circumstance, but concluded
that Henderson is not entitled to equitable tolling because he did not pursue his
Atkins claim diligently. The district court based this ruling on the facts that (1)
fifty-seven days passed between the denial of certiorari (which ended the two-
forum rule impediment to filing) and the filing of his state Atkins petition; (2)
Henderson did not file any Atkins related document or pleading in federal court
while his state petition was pending, even though he certainly could have after
the Texas Court of Criminal Appeals abandoned the two-forum rule; and (3)
forty days passed between the Court of Criminal Appeals denying the state
Atkins writ and Henderson’s filing of his motion for authorization to file a
successive federal habeas petition.
In his supplemental letter brief, Henderson challenges this holding of the
district court by arguing that it erroneously applied a “maximum feasible
diligence” standard rather than the “reasonable diligence” standard that the
Supreme Court announced in Holland. The State counters in its supplemental
letter brief that Holland does nothing more than reaffirm this court’s prior
equitable tolling jurisprudence.
Henderson also argues for a de novo standard of review. However, review
of a district court’s decision not to apply equitable tolling is controlled by our
precedent, which requires that we review the district court’s decision for abuse
of discretion. Flores v. Quarterman, 467 F.3d 484, 485 (5th Cir. 2006); Fisher v.
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Johnson, 174 F.3d 710, 713 (5th Cir. 1999). Because the decision to apply
equitable tolling is discretionary, and because the district court has not had an
opportunity to exercise its discretion in the light of Holland, we conclude that it
is appropriate here to vacate the district court’s judgment and remand this case
to the district court to allow it to consider, in the first instance, whether the facts
of this case warrant equitable tolling under the Holland standards. See Jones
v. Thaler, No. 09-70019, 2010 WL 2464998, at *1 (5th Cir. June 17, 2010)
(unpublished) (vacating and remanding “[i]n order to permit the district court
first consideration of Jones’s petition in light of the Court’s holding in Holland”).
B.
We now turn to consider the second issue presented in this appeal:
whether the merits of Henderson’s mental retardation claim must be considered
because he is actually innocent of the death penalty.
The district court granted a COA for Henderson’s alternative claim that,
irrespective of any procedural bar, the court should reach the merits of his
Atkins claim because he is actually innocent of the death penalty. Thus,
Henderson argues that, irrespective of equitable tolling, the court must address
the merits of his mental retardation claim because failing to do so would
constitute a fundamental miscarriage of justice. In support of this claim,
Henderson relies on Sawyer v. Whitley, 505 U.S. 333, 346–47 (1992), to argue
that such a miscarriage of justice would occur in a case in which the petitioner
is actually innocent of the death penalty because he is mentally retarded and
thus, under the Eighth Amendment of the Constitution, ineligible for capital
punishment. He acknowledges that the Fifth Circuit has not so held, but cites
for support Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). In Souter, the Sixth
Circuit held that “where an otherwise time-barred habeas petitioner can
demonstrate that it is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt, the petitioner should be allowed to
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pass through the gateway and argue the merits of his underlying constitutional
claims.” Id. at 602. Henderson contends that, under this exception, the district
court should have reached the merits of his Atkins claim and granted relief.
The State contends that Henderson’s reliance on Souter is misplaced,
because the actual innocence exception addressed in that case is factual
innocence of the charged crime itself, and not legal innocence of the death
penalty. Even if the court were to establish such an exception to the AEDPA
statute of limitations, the State argues, Henderson cannot show by clear and
convincing evidence that no reasonable juror could find that he is not mentally
retarded. The State contends further that, in this circuit, a claim of actual
innocence does not constitute a rare and exceptional circumstance permitting
equitable tolling. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000)
(holding that a claim of actual innocence “does not constitute a ‘rare and
exceptional’ circumstance [permitting equitable tolling], given that many
prisoners maintain they are innocent.”); Cousin v. Lensing, 310 F.3d 843, 849
(5th Cir. 2002) (same). Henderson replies that Felder recognized that a
showing, as opposed to a mere claim, of actual innocence would be sufficient to
justify equitable tolling. See Felder, 204 F.3d at 171 n.8 (“Felder has not made
a showing of actual innocence, as the district court noted.”).
In Flanders v. Graves, 299 F.3d 974, 977 (8th Cir. 2002), the Eighth
Circuit rejected, “as a broad concept,” the contention that actual innocence could
be used to excuse a habeas petitioner’s failure to file his petition within the
limitations period. The court explained:
It is our duty to apply statutes as written. The statute fixes a one-
year period of limitations, and says nothing about actual innocence,
even though other parts of AEDPA, enacted at the same time, do
refer to this doctrine. It is not our place to engraft an additional
judge-made exception onto congressional language that is clear on
its face.
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Id. (citations omitted). The court said that “[f]or such a claim to be viable, . . .
a petitioner would have to show some action or inaction on the part of the
respondent that prevented him from discovering the relevant facts in a timely
fashion, or, at the very least, that a reasonably diligent petitioner could not have
discovered these facts in time to file a petition within the period of limitations.”
Id. at 978. The Ninth Circuit recently decided, likewise, that there is not “an
actual innocence exception that serves as a gateway through the AEDPA statute
of limitations to the merits of a petitioner’s claims.” Lee v. Lampert, 610 F.3d
1125, 1133, 1136 (9th Cir. 2010).
Henderson has not cited any authority holding that there is an “actual
innocence of the death penalty” exception to the AEDPA statute of limitations.
We decline to create such an exception.
C.
The district court did not reach the merits of Henderson’s mental
retardation claim and did not grant a COA for it. The State asserts that this
court may nevertheless affirm on any basis supported by the record and argues
that, even assuming that Henderson is entitled to equitable tolling, Henderson’s
claim fails on the merits, because he has failed to show by clear and convincing
evidence that he is mentally retarded. In the light of our decision to remand to
the district court for a determination of whether Henderson is entitled to
equitable tolling under the standards announced in Holland, and also in the
light of the fact that the district court has not addressed the merits of
Henderson’s mental retardation claim, we think it is premature for us to
consider that claim at this stage of the proceedings. Because there is no special
exception from the AEDPA statute of limitations based on actual innocence of
the death penalty, it is only if the district court finds that, in the light of
Holland, these facts justify the tolling of the AEDPA limitations period, that the
district court would need to address the merits of Henderson’s Atkins claim.
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III.
For the foregoing reasons, the judgment of the district court is AFFIRMED
with respect to its holding that there is no actual innocence exception to the
AEDPA statute of limitations. The district court’s holding that Henderson is not
entitled to equitable tolling is VACATED, and the case is remanded to the
district court for further consideration of that holding in the light of Holland v.
Florida. If the district court finds that Henderson is entitled to equitable tolling,
it will need to address the merits of his Atkins claim.2
2
Unlike the dissent, the majority opinion addresses the arguments that Henderson
has made and the issue for which the district court granted a COA. Henderson has never
argued that the AEDPA statute of limitations does not apply to Atkins claims. In his brief, he
acknowledges the applicability of the statute of limitations:
Mr. Henderson’s petition is based on Atkins v. Virginia, 536 U.S. 304 (2002),
which was decided on June 20, 2002. Thus, the limitations period commenced
on June 20, 2002 and expired June 20, 2003.
Brief of Appellant, August 22, 2008, at p. 13.
In his request for a COA from the district court, Henderson stated:
The district court failed to reach the alternative basis for overcoming the
statute of limitations bar, that is, it would be a fundamental miscarriage of
justice not to reach the merits because Mr. Henderson is ineligible for the death
penalty because he is mentally retarded. See Sawyer v. Whitley, 505 U.S. 333
(1992). Jurists of reason would find it debatable whether the district court was
correct in its procedural ruling in light of the fact that Mr. Henderson has
established that he is innocent of the death penalty.
(Emphasis added.)
In its order granting the COA requested by Henderson, the district court stated:
Henderson contends that the Court failed to consider whether it would be a
fundamental miscarriage of justice not to reach the merits of his claim because
his status as a mentally retarded individual makes him ineligible for the death
penalty under Atkins. Put another way, Henderson asserts that because he is
mentally retarded he is innocent of the death penalty. . . .
Acknowledging that the Fifth Circuit has not so held, Henderson argues
that there is an actual innocence exception to the AEDPA’s one-year statute of
limitations, citing Souter v. Jones, 395 F.3d 577, 599 (6th Cir. 2005). . . .
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While Souter deals with actual innocence of the crime, the Court is
convinced that the issue of an actual innocence exception to the AEDPA’s
statute of limitations is debatable among jurists of reason or, at the very least,
adequate to deserve encouragement to proceed further. . . .
Henderson v. Quarterman, Order on Certificate of Appealability, p. 2 (E.D. Tex. May 28, 2008)
(emphasis added).
Henderson devotes only one paragraph of his brief to his argument that his claim falls
within an exception to the statute of limitations. It states, in full:
II. THE DISTRICT COURT ERRED BY FAILING TO REACH THE
MERITS OF MR. HENDERSON’S ATKINS CLAIM BECAUSE HE
IS “INNOCENT” OF THE DEATH PENALTY.
The Supreme Court has recognized that a court must address the merits
of a defaulted or otherwise barred claim if failing to do so would constitute a
fundamental miscarriage of justice. One such circumstance is present where
the petitioner is “actually innocent” of the death penalty, that is, he is ineligible
for capital punishment. Sawyer v. Whitley, 505 U.S. 333, 346-47 (1992). A
mentally retarded prisoner is ineligible for the death penalty under the
Supreme Court’s Atkins decision. Thus, a mentally retarded prisoner is actually
innocent of the death penalty. Although the Fifth Circuit has not so held, there
is an actual innocence exception to AEDPA’s one-year statute of limitations.
See Souter v. Jones, 395 F.3d 577, 599 (6th Cir. 2005) (noting that the
Constitution requires an actual innocence exception to AEDPA’s statu[t]e of
limitations). Under this exception, the district court should have reached the
merits of Mr. Henderson’s Atkins claim and granted him relief.
Appellant’s Brief, August 22, 2008, at p. 26. The dissent does not address this argument, but
instead creates an unasserted, unargued, unbriefed, and unraised argument for Henderson.
Furthermore, this court has always—and often with the dissenting judge joining—
treated Atkins claims as being subject to the AEDPA statute of limitations. See, e.g., In re
Johnson, 325 F. App’x 337 (5th Cir. 2009) (holding that Atkins claim was time-barred); In re
Lewis, 484 F.3d 793 (5th Cir. 2007) (same). Opinions applying the AEDPA statute of
limitations to Atkins claims, which the dissenting judge has joined, include Rivera v.
Quarterman, 505 F.3d 349 (5th Cir. 2007) (remanding for determination of whether equitable
tolling applied to Atkins claim and acknowledging that “the statute of limitations remains
potentially dispositive”); and In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006) (stating that
Wilson’s habeas application asserting an Atkins claim “is clearly barred by AEDPA’s statute
of limitations and must be denied, unless he has demonstrated that he is entitled to equitable
tolling of the limitations period”). To be sure, in this very case, the dissenting judge joined our
opinion granting Henderson leave to file a successive habeas petition, in which we noted “that,
unless the doctrine of equitable tolling applies, Henderson’s successive petition is time-
barred.” In re Henderson, 462 F.3d 413, 417 (5th Cir. 2006). The dissent fails to explain how
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AFFIRMED in part; VACATED in part; and REMANDED.
its new found friend is compatible company with the precedents that it has so recently
embraced.
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WIENER, Circuit Judge, dissenting.
I respectfully dissent. I do not do so because of any disagreement with the
panel majority’s post-Holland analysis of the role of equitable tolling in the
AEDPA’s one-year time bar. In fact, I remain hopefully confident that, in light
of the timely and diligent performance of pro bono counsel, the district court will
hold on remand that Henderson qualifies for equitable tolling and will afford
him an evidentiary hearing on his Atkins claim. Rather, I dissent because I
firmly believe that the AEDPA’s time bar is inapplicable to Henderson’s Atkins
claim, grounded as it is in his alleged “intellectual disability.” 1 The producing
cause of my disagreement with the majority is its insistence that the “camel” of
Henderson’s Atkins claim pass through the “needle’s eye” of actual innocence,
thereby subjecting his and all other petitioners’ Atkins claims to the AEDPA’s
statute of limitations.
The Supreme Court cases that have recognized the concept of “actual
innocence” require the habeas petitioner to allege his factual innocence—that he
simply did not commit the act in question—and, in some instances, to allege
some constitutional flaw in his trial as well. Not so, however, for an Atkins claim:
In Atkins, the Supreme Court held that executing an intellectually disabled
person for committing any crime would violate the Eighth Amendment,
regardless of such person’s factual guilt of the particular crime as found in an
errorfree trial of conviction. I am convinced, therefore, that Supreme Court
precedent rejects the shoe-horning of an Atkins claim into the cubbyhole of
1
As did the Supreme Court in Atkins, we have heretofore referred to “mental
retardation.” But, a recent act of Congress mandates use of the phrase “intellectual disability”
in place of “mental retardation” in all federal enactments and regulations. See Rosa’s Law,
Pub. L. No. 111-256 (Oct. 5, 2010).
16
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actual innocence and thereby subjecting such a claim to the AEDPA’s time bar.2
Here’s why.
The Supreme Court has defined a claim of “actual innocence” as
constituting either (1) a substantive argument that, as a matter of fact, the
petitioner did not commit the acts that constitute his crime of conviction, adding
that he must prove such an assertion by “truly persuasive” newly discovered
evidence (Herrera v. Collins3 ); or (2) a procedural argument that constitutional
errors at trial, along with newly discovered evidence of his factual innocence,
undermine the certainty of the petitioner’s conviction (Schlup v. Delo 4 ). Unlike
an Atkins claim, which makes unconstitutional the execution of the petitioner
for any crime, the Herrera and Schlup varieties of actual innocence claims
render unconstitutional the petitioner’s execution or imprisonment for his one
crime of conviction only. Actual innocence claims under both Herrera and Schlup
focus on the particular facts of the petitioner’s offense of conviction; Schlup
claims also focus on his particular trial of conviction. Moreover, both of these
types of actual innocence claims are conditioned on the existence of new evidence
that was not presented at trial and that calls the petitioner’s conviction into
question.5
2
I am likewise convinced that by doggedly pursuing an opportunity for their client to
obtain a substantive determination whether he is “intellectually disabled” and thus immune
from the death penalty, Henderson’s long-serving pro bono counsel are not simply playing for
time. Indeed, four justices of the Texas Court of Criminal Appeals joined a concurrence which
stated that Henderson’s “case presents a close question on the ultimate factual issue of mental
retardation.” Ex Parte Henderson, No. WR-37658-03, 2006 WL 167836, at *1 (Tex. Crim. App.
Jan. 25, 2006) (Cochran, J., concurring).
3
506 U.S. 390, 417 (1993). The best example might well be the burgeoning number of
conviction reversals on the basis of new or improved DNA evidence.
4
513 U.S. 298, 314-15 (1995).
5
The Supreme Court has explained that “Schlup’s evidence of innocence need carry
less of a burden [than Herrera’s]” because Herrera’s evidence of factual innocence must “be
strong enough to make his execution ‘constitutionally intolerable’ even if his conviction was
17
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In Sawyer v. Whitley,6 the Supreme Court defined“actual innocence” more
expansively by including procedural claims based on constitutional error at
sentencing. A Sawyer claim of actual innocence that addresses the sentencing
phase of trial does so the way that a Schlup claim addresses such error at the
guilt-innocence phase. To prevail on a Sawyer claim of actual innocence, the
petitioner must show “by clear and convincing evidence that but for
constitutional error at his sentencing hearing, no reasonable juror would have
found him eligible for the death penalty under [state] law.” 7
As the Supreme Court stated in Sawyer, referring to these claims as
“actual innocence of the death penalty” is “not a natural usage of those words.” 8
The Court nevertheless strove “to construct an analog to the simpler situation
represented by the case of a noncapital defendant.”9 Thus, instead of claiming
factual innocence of the offense itself, Sawyer’s sentencing variation on the
actual innocence theme embodies a claim that the courts erred by sentencing to
death a person who is factually innocent of either (1) the element or elements of
such person’s crime of conviction that make it a capital offense, or (2) the
aggravating factors that make such person eligible to be sentenced to death.
The “eligible for the death penalty” language in Sawyer can be misleading
when taken out of context. In defining the Sawyer variety of actual innocence
claims, the Supreme Court further explained that “the ‘actual innocence’
requirement must focus on those elements that render a defendant eligible for
the product of a fair trial,” whereas Schlup’s evidence “must establish sufficient doubt about
his guilt to justify the conclusion that his execution would be a miscarriage of justice unless
his conviction was the product of a fair trial.” Id. at 316 (emphases in original).
6
505 U.S. 333 (1992).
7
Id. at 350 (emphasis added).
8
Id. at 341.
9
Id.
18
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the death penalty, and not on additional mitigating evidence that was prevented
from being introduced as a result of a claimed constitutional error.” 10 The idea
is that a constitutional error which occurred in the presentation of mitigating
evidence during the sentencing phase would not necessarily undermine the
jury’s evaluation of the aggravating evidence that led to the sentence of death.
We have previously tried to clarify this point by noting that “Sawyer does
not hold that anyone who is legally ineligible for a particular punishment is
‘actually innocent.’ Sawyer merely likens sentencing criteria to the elements of
a crime, focusing on the factual, not legal, basis for the verdict.”11 So, gateway
claims of actual innocence under both Schlup and Sawyer assert constitutional
errors in convicting or sentencing a person, but only as to the particular crime
for which he was indicted and tried. Diametrically opposed to such claims of
actual innocence are claims of constitutional immunity from being put to death
for any crime, regardless of when, where, or how committed—of which genre an
Atkins claim is a prime example.
An Atkins claim asserts a per se violation of the Eighth Amendment on the
ground that the intellectually disabled petitioner is constitutionally immune
from—“legally ineligible for,” rather than “actually innocent of”—the death
penalty, regardless of his particular crime of conviction. Thus, Atkins claims are
conceptually indistinguishable from those claims of death-penalty immunity
recognized in Ford v. Wainwright12 and Roper v. Simmons,13 both of which focus
on some trait that is unique to the petitioner, i.e., that he is insane (Ford) or
under the age of sixteen (Roper). Such a trait is the thing that makes the
10
Id. at 347.
11
Callins v. Johnson, 89 F.3d 210, 215 (5th Cir. 1996) (emphases added).
12
477 U.S. 399, 410 (1986).
13
543 U.S. 551 (2005).
19
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execution of that petitioner for any crime unconstitutional, notwithstanding his
proven guilt in an errorfree trial and his death sentence imposed in an equally
errorfree sentencing proceeding.
Significantly, these immunity claims are asserted independently of any
constitutional error that might have been committed by defense counsel, or by
the prosecutor, or by the courts. Generally, neither the petitioner nor any other
party takes issue with the petitioner’s underlying factual guilt.14 Reduced to
their essence, these immunity claims insist that “[t]he Eighth Amendment
prohibits the State from inflicting the penalty of death upon a prisoner who is
[incompetent]. Petitioner’s allegation of [incompetency] in his habeas corpus
petition, if proved, therefore, would bar his execution.” 15
This crucial distinction explains why the Supreme Court has never
discussed an Atkins, Ford, or Roper claim in terms of “actual innocence.” Rather,
for example, the Court has consistently confirmed that Atkins is a “categorical
restriction[] on the death penalty.”16 In addition, the Supreme Court has
expressly distinguished immunity claims—specifically one asserted under
Ford—from claims of actual innocence, explaining: “Unlike [Herrera], Ford did
not challenge the validity of his conviction. Rather, he challenged the
constitutionality of his death sentence in view of his claim of insanity.” 17
14
In most immunity claims, the petitioner does not dispute his guilt. Instead, he
argues that “[t]he death penalty may not be imposed on certain classes of offenders, such as
juveniles under 16, the insane, and the mentally retarded, no matter how heinous the crime.”
Roper, 543 U.S. at 568 (citations omitted).
15
Ford, 477 U.S. at 410.
16
Graham v. Florida, 130 S. Ct. 2011, 2021-22 (2010). See also Kennedy v. Louisiana,
128 S. Ct. 2641, 2650 (2008) (referring to Atkins in the context of the Supreme Court’s
“confining the instances in which the [death penalty] can be imposed”); Roper, 543 U.S. at 563-
64 (explaining that Atkins “ruled that the death penalty constitutes an excessive sanction for
the entire category of mentally retarded offenders”).
17
Herrera, 506 U.S. at 406.
20
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We, in contrast, have tended to cloud the issue—as does the panel majority
today—by trying to force the square peg of an Atkins claim into the round hole
of the actual innocence framework, mistakenly employing the label and theory
of “actual innocence” to do so.18 In In re Webster,19 we addressed 28 U.S.C.
§ 2255(h)(1)—the codification of the actual innocence exception to successive
petitions for federal prisoners, which parallels 28 U.S.C. § 2244(b)(2)(B)(ii) for
state prisoners—which requires petitioners to present “newly discovered
evidence that, if proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense.” 20 We held that
§ 2255(h)(1) cannot encompass an Atkins claim “where [the petitioner] does not
assert that the newly discovered evidence would negate his guilt of the offense
of which he was convicted, i.e., capital murder.”21 We based our In re Webster
holding on the conclusion that “there is no reason to believe that Congress
intended the language ‘guilty of the offense’ to mean ‘eligible for a death
sentence,’” presuming that Atkins claims would have been covered by
§ 2255(h)(1) if Congress had used the words, “actual innocence” or “eligible for
the death penalty” instead.22 Unfortunately, we failed to add the obvious
corollary that an independent Atkins claim generally fails to qualify as a Sawyer
actual innocence claim for the additional reasons that it involves neither the
18
To be sure, other circuits have also confused this issue. See, e.g., Sasser v. Norris,
553 F.3d 1121, 1125 n.4 (8th Cir. 2009) (applying Sawyer to an Atkins claim concluding
generally that “[a] petitioner is ‘actually innocent’ of the death penalty where he is ineligible
for the death penalty”).
19
605 F.3d 256 (5th Cir. 2010).
20
28 U.S.C. § 2255(h)(1) (emphasis added).
21
In re Webster, 605 F.3d at 257-58.
22
Id. at 258-59 & n.7.
21
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introduction of new evidence of factual innocence nor allegations of
constitutional error at sentencing.23
This is why, to get past that confusion now, we must think outside the
actual innocence box. Henderson has never asserted, per Herrera, that he did not
do the deed and has never asserted, per Schlup, that some constitutional error
at trial, in combination with new evidence of his factual innocence, undermines
his conviction. Most significantly, although Henderson’s first argument does
mistakenly try (likely out of Sisyphean frustration) to fit his Atkins claim into
the subset of Sawyer claims of actual innocence, nowhere does he point to any
constitutional error in the sentencing phase of his trial; nowhere does he contest
the jury’s factual finding of aggravating factors warranting the death penalty;
and nowhere does he identify any newly discovered evidence, which is an
indispensable prerequisite to the assertion of every type of true actual innocence
claim, viz., Herrera, Schlup, and Sawyer. Rather, Henderson advances the
straightforward insistence that under Atkins he is constitutionally immune to
the death penalty because he is intellectually disabled, nee retarded. Moreover,
this in no way precludes his pleading the inapplicability of the AEDPA’s time
bar in the alternative, even if inconsistent with equitable tolling, which
implicitly assumes the applicability of that time bar. All know that inconsistent
alternative pleading has been recognized and approved since the enactment of
the federal rules of procedure.24
And, even though Henderson’s attempt to analogize his case to Souter v.
Jones25 is flawed, so is the State’s reciprocal effort to distinguish this case from
23
“The special Sawyer-version of the ‘miscarriage of justice’ exception is limited to
assertions of errors of constitutional magnitude occurring at sentencing.” Fearance v. Scott,
56 F.3d 633, 637-38 (5th Cir.), cert. denied, 515 U.S. 1153 (1995).
24
See FED . R. CIV . P. 8(d)(2).
25
395 F.3d 577 (6th Cir. 2005).
22
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Souter. The Sixth Circuit held in Souter that the petitioner had made a valid
Schlup claim of actual innocence and that “equitable tolling of the one-year
limitations period based on a credible showing of actual innocence is
appropriate.”26 Although the panel majority today takes issue with Souter’s
equitable tolling holding, that discussion is irrelevant here for the obvious
reason that Henderson never purports to make the requisite showing of actual
innocence—which he cannot do, of course, in the absence of newly discovered
evidence and a constitutional error at sentencing.
This analytical enigma comes home to roost in the failed effort of the panel
majority to apply the Sawyer “reasonable juror” standard here, where it simply
has no place. The majority summarizes the State’s position as: “Henderson
cannot show by clear and convincing evidence that no reasonable juror could find
that he is not mentally retarded.” This differs significantly, however, from the
Sawyer standard that asks, but for the constitutional error, would reasonable
jurors have sentenced the petitioner to death? I find the panel majority’s
extensive discussion of actual innocence not only misplaced but also susceptible
of unintentionally leading to further error by including the Atkins immunity
defense within the set of all actual innocence defenses.
Properly, Henderson’s unfettered right to assert his Atkins claim must be
assessed entirely separately and apart from any actual innocence analysis and
likewise without application of the AEDPA’s time bar. Reduced to its essentials,
Henderson’s argument is that his Atkins claim should not be subject to any
procedural bar because the Constitution forbids his execution vel non.27 Like the
26
Id. at 596-97, 599.
27
I am puzzled by the panel majority’s accusation, in its footnote 2, that—by insisting
that the AEDPA’s time bar is inapplicable to Henderson’s Atkins claim of constitutional
ineligibility for, i.e. “immunity from,” the death penalty—I am advancing an argument that
Henderson did not make, and thus waived. This is obviously not the case, but, don’t take my
word for it: The second paragraph of Part II.B of the panel majority opinion refutes that
23
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panel majority in Part II.B of its opinion, I interpret Henderson to argue that a
“fundamental miscarriage of justice” would result if, at this juncture, the
AEDPA’s statute of limitations were allowed to bar his Atkins claim. Even
though to date the miscarriage of justice principle has only been applied as an
exception to procedurally defaulted claims, that maxim is equally applicable to
putatively time-barred claims. As the Supreme Court stated almost thirty years
ago: “In appropriate cases those principles [of comity and finality] must yield to
the imperative of correcting a fundamentally unjust incarceration.”28 Most
recently, the Court acknowledged:
accusation when it correctly describes Henderson’s “alternative claim” as:
[I]rrespective of any procedural bar, the court should reach the merits of his
Atkins claim because he is actually innocent of the death penalty. . . .
[I]rrespective of equitable tolling, the court must address the merits of his
mental retardation claim because failing to do so would constitute a
fundamental miscarriage of justice[] . . . in a case in which the petitioner is
actually innocent of the death penalty because he is mentally retarded and thus,
under the Eighth Amendment of the Constitution, ineligible for capital
punishment (emphases added).
What can “irrespective of any procedural bar” and “irrespective of equitable tolling” in
Henderson’s alternative argument possibly mean if not that the AEDPA’s statute of
limitations does not apply to his Atkins claim? Surely, he would not abandon his primary claim
of equitable tolling if he were not asserting, in the alternative, the inapplicability of the
AEDPA’s time bar. When read in combination with its acknowledgment, in footnote 2, that
Henderson devotes a paragraph in his brief to arguing my point—that Atkins claims are not
subject to the AEDPA’s time bar—the panel majority’s footnote statement that my argument
is “unasserted, unargued, unbriefed, and unraised” by Henderson just doesn’t hold water.
To verify this, all that needs be done is to (1) take the panel majority’s description of
Henderson’s alternative claim and my analysis of why Henderson’s Atkins claim should not
be barred by time or procedure, (2) set them down, side by side, and (3) read each in light of
the other: It will be obvious that, together, the panel majority’s succinct description of
Henderson’s unwaived argument and the quotation of Part II of Henderson’s brief in the
majority’s footnote 2 describe precisely the position that I advocate here. The majority’s
mischaracterization of my point in its footnote 2 is, at best, a semantic quibble. So, if you take
it at all, do so with a grain of salt.
28
Engle v. Isaac, 456 U.S. 107, 134 (1982).
24
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AEDPA seeks [to eliminate delays in the federal habeas review
process] without undermining basic habeas corpus principles and
while seeking to harmonize the new statute with prior law, under
which a petition’s timeliness was always determined under
equitable principles. . . . The importance of the Great Writ, the only
writ explicitly protected by the Constitution, Art. I, § 9, cl. 2, along
with congressional efforts to harmonize the new statute with prior
law, counsels hesitancy before interpreting AEDPA’s statutory
silence as indicating a congressional intent to close courthouse doors
that a strong equitable claim would ordinarily keep open.29
If we were to condone the barring of Henderson’s Atkins claim by the AEDPA’s
statute of limitations, without ever affording him a federal opportunity to
demonstrate his intellectual disability, then allowing the State to execute him
would not only be “fundamentally unjust”; it would be unconstitutional per se.30
In conclusion, even though the panel majority is correct that Henderson
does not assert a valid Sawyer claim of actual innocence, its reasoning is fatally
flawed by erroneously presuming that every Atkins claim is necessarily an actual
innocence claim. But, as I have laboriously demonstrated above, that assumption
simply is wrong: Sawyer bars the execution of a petitioner who did not factually
commit the elements of the crime that made it a capital offense or the
aggravating factors that led the jury to impose the death penalty, or both. In
stark contrast, Atkins bars the execution of an intellectually disabled petitioner
even if the courts are absolutely certain (and the petitioner does not contest) that
29
Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (internal citation omitted).
30
Traditionally, the “miscarriage of justice” exception has been considered to be
synonymous with the “actual innocence” exception. See Sawyer, 505 U.S. at 339 (referring to
“the miscarriage of justice, or ‘actual innocence,’ exception”). Nonetheless, there is a viable
argument that the principle can extend beyond the precise nuances of “actual innocence”
claims.
25
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he committed each element of the capital offense and that he is guilty of those
aggravating factors that led to his death sentence.
Thus, it is its foundational error in classifying an Atkins claim as one of
actual innocence that leads the panel majority to cause Henderson’s claim to fail
under the Sawyer analysis. This is error because his simply is not a claim of
“actual innocence” to begin with.31 The obvious reason why his claim fails to
meet the Sawyer standard is that the Sawyer standard is not applicable to an
Atkins claim. The same is true of the AEDPA’s statute of limitations: It was
never meant to apply, and never should be applied, to an Atkins claim—or to a
Ford or Roper claim for that matter.32
31
Notably, the panel majority never addresses the substance of my analysis that
Henderson’s Atkins claim was never meant to fit (and indeed cannot fit) into the actual
innocence framework.
32
In its footnote 2, the panel majority faults my dissent for not making “compatible
company” with recent opinions that I joined. In cherry picking isolated statements in two of
the cases that it references, however, the majority overlooks the outcomes reached in those
opinions—outcomes that are very much compatible with my dissent.
In one, Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007), we remanded the
petitioner’s Atkins claim for consideration of equitable tolling in light of our substantive
determination that, indeed, the petitioner was intellectually disabled. Because the petitioner
had sought equitable tolling on the ground that he lacked the mental capacity to represent
himself pro se, we concluded that “the merits blend inseparably into the question of equitable
tolling here” and that “answering whether [petitioner] is retarded is logically antecedent—if
not a core element itself—to determining whether equitable tolling is available.” Id. at 355.
We therefore remanded the case to the district court for consideration of equitable tolling in
pari materiae with our holding that Rivera’s Atkins claim was meritorious. The sequence of
the Rivera proceedings was precisely the reverse of that in the instant case. In Rivera, we did
not—repeat, did not—apply the AEDPA’s statute of limitations to bar the petitioner’s Atkins
claim. Similarly, in In re Wilson, 442 F.3d 872 (5th Cir. 2006), we declined to apply the
AEDPA’s statute of limitations to bar the petitioner’s Atkins claim. Instead, we simply held
that the timing of the particular petitioner’s pursuit of his claim there at issue qualified for
equitable tolling, implying nothing more than that if the AEDPA’s time bar applied it would
be trumped by equitable tolling. See id. at 878.
Incidentally, the other two cases to which the panel majority cites—and in which I did
not join—relied on In re Wilson for the proposition that the AEDPA’s statute of limitations
bars an Atkins claim in the absence of equitable tolling. See In re Lewis, 484 F.3d 793, 798 n.20
(5th Cir. 2007) (“We have previously applied the limitations period to Atkins claims . . . .”)
(citing In re Wilson, 442 F.3d 872); In re Johnson, 325 F. App’x 337, 340 (5th Cir. 2009) (“[T]his
26
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It is axiomatic that a fundamental miscarriage of justice generally excuses
a procedural default of a petitioner’s claim the substance of which, if credited,
would avoid such a miscarriage. It is equally axiomatic that a potential
miscarriage of justice must trump the AEDPA’s time bar to an otherwise
properly asserted Atkins claim, even if that assertion is made outside the
limitations period and is not equitably tolled. Properly analyzed, a fundamental
miscarriage of justice will occur if Henderson is executed without having been
given a federal habeas opportunity to prove, per Atkins, that he is intellectually
disabled.33
It is for these reasons that, with respect, I am compelled to dissent.
Court has never held that Atkins claims are somehow exempt from the limitations period. To
the contrary, this Court has held that a successive federal petition based on mental
retardation claims is subject to § 2244(d)’s one-year statute of limitations . . . .”) (citing In re
Wilson, 442 F.3d at 877-78; In re Lewis, 484 F.3d at 796). As explained above, however, that
simply was not our holding in In re Wilson.
Thus, although the opinions in Rivera and In re Wilson might have implicitly assumed
arguendo that the AEDPA’s statute of limitations would apply to an Atkins claim in the
absence of equitable tolling, in neither case did we actually apply that time bar. My dissent,
I submit, is not only “compatible company” with these previous decisions, but is a natural
extension of them: Despite employing equitable tolling to avoid application of the AEDPA’s
statute of limitations to Atkins claims in the past, my panels never needed to decide—and thus
never did decide (as the panel majority does today)—whether the AEDPA’s the statute of
limitations would absolutely bar an Atkins claim when and if a petitioner might fail to qualify
for equitable tolling. To the extent that the panel majority nevertheless remains convinced of
my inconsistency, however, I shall rely on Emerson’s observation that “a foolish consistency
is the hobgoblin of little minds.”
33
If I am right in substance but my colleagues interpret the binding precedent of this
court as holding that the AEDPA’s statute of limitations does apply to Atkins claims, then this
issue is ripe for en banc reconsideration or—in the absence of that—certiorari.
27