UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-41152
ELROY CHESTER,
Petitioner - Appellee,
VERSUS
JANIE COCKRELL, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent - Appellant.
Appeal from the United States District Court
For the Eastern District of Texas, Texarkana Division
(5:00-CV-152)
February 26, 2003
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
The State of Texas appeals the district court’s grant of
habeas corpus relief to Elroy Chester, who is currently on death
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
row for the murder of Willie Ryman III. Chester pleaded guilty to
capital murder and was sentenced to death by a Texas jury. The
district court based its grant of habeas relief on the Supreme
Court’s recent decision in Atkins v. Virginia, 122 S.Ct 2242, 2252
(2002), where the Court held unconstitutional the execution of
mentally retarded individuals. Chester raised two additional
claims for habeas relief at the district court level.1 Because the
district court granted habeas relief based on Atkins, it did not
address the merits of these claims.
Both parties conclude that this case is controlled by our
recent decision in Bell v. Cockrell, 310 F.3d 330 (5th Cir. 2002).
We agree. Although Atkins was decided after Chester’s judgment
became final, we held in Bell that the Atkins decision is an
exception to the Teague v. Lane non-retroactivity rule, and thus
applies retroactively to collateral attacks, including habeas
relief. Id. at 332. In Bell, we further held that in state
capital cases where Atkins is applicable, the state court must
reaffirm or reimpose capital punishment prior to the defendant
seeking federal habeas relief. Bell, 310 F.3d at 332. The basis
1
The other claims were: (1) he was denied due process and
equal protection in violation of the Fourteenth Amendment because
the prosecution argued that Chester’s alleged mental retardation
could mitigate against life imprisonment and (2) he received
ineffective assistance from appellate counsel because counsel
failed to raise the previous claim.
for this holding is that the Atkins Court left it to the states to
define who is mentally retarded and to initially enforce this
constitutional restriction. Atkins, 122 S.Ct. at 2250. Although
Chester had previously raised his Eighth Amendment claim and
introduced evidence of mental retardation during sentencing, the
Texas courts never determined whether Chester was mentally retarded
and thus unable to be executed. Therefore, unless the state court
reaffirms its decision to impose capital punishment after deciding
the defendant’s Atkins claim, the federal courts will not consider
habeas relief. Consequently, we VACATE the decision of the
district court granting habeas relief.
The State also requests that we instruct the district court to
dismiss the entire habeas petition without prejudice because the
state court has not yet decided Chester’s Atkins claim. A
defendant must exhaust his state court remedies before filing for
federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). In addition, a
federal court may not consider a request for habeas relief from a
state-court conviction if the habeas petition contains both
exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 514
(1982). Here, because the state court has not ruled on the Atkins
claim, it is not yet exhausted. Therefore, Chester’s habeas
petition contains both exhausted and unexhausted claims. Thus, the
district court may not consider Chester’s request for habeas
relief.
Although the State requests that Chester’s habeas petition be
dismissed without prejudice, dismissal could result in a statute of
limitations bar for the defendant’s remaining claims. However, the
State has agreed to waive any available statute of limitations
defense for the remaining claims as long as these claims are filed
within the permissible time for seeking federal habeas relief on
the Atkins claim.2 Brief of Respondent-Appellant, at 27 n.12.
This Court will hold the State to its promise. Therefore, Chester
will not be barred from asserting these remaining claims because
they may be re-filed if his Atkins claim is unsuccessful in state
court. Consequently, we REMAND this case to the district court
with instructions to dismiss the habeas petition without prejudice.
GRANT OF HABEAS VACATED; REMANDED WITH INSTRUCTIONS
2
The statute of limitations for the Atkins claim is one-
year from the date of the Atkins decision, which the Supreme Court
decided on June 20, 2002. 28 U.S.C. § 2244(d)(1)(C). Of course,
the limitation period will be interrupted during the pendency of
the state court’s review of the Atkins claim. Thus, the
permissible time for filing the remaining claims will be extended
past June 20, 2003 when Chester files his Atkins claim in state
court.