concurring:
I-concur fully in Judge Clement’s opinion. Hearn is on death row in Texas. He does not have counsel. The Texas Defender Service, lacking the resources to undertake the representation of Hearn and aware that Hearn’s date of execution was looming, asked the federal district court to stay the execution and appoint counsel to develop his claim that he is mentally retarded and ineligible for execution. This case reached the panel only hours before the execution. We granted a stay to allow sufficient time to properly decide the request. We found the case sufficiently complex and uncertain that additional briefs and oral argument were requested. The dissent now “regrets” not dissenting from that stay.
I remain convinced that the stay was proper and that this prisoner is entitled to a lawyer and an opportunity to investigate and present any claim of retardation that he may have. I am not prepared to hold that he must first make a prima facie case that he is retarded to be entitled to a lawyer to make that case. The dissent argues just that and is prepared to disregard a filed affidavit as incompetent evidence. This approach has it backwards. We don’t have enough evidence to peg Hearn’s ability. What little “evidence” that has been presented is equivocal and needs explanation. If the record before us is all that Hearn can produce before the district court with the assistance of a lawyer, I would quickly agree that it falls far short of a prima facie showing. There is enough, however, to warrant development as Judge Clement explains. As best I sift from its rhetoric, the dissent would hold that a prisoner on death row with no lawyer must make a prima facie case that he is so retarded that he cannot be executed in order to have the benefit of counsel.
We are instructed that we must take this approach or face the fact that every person on death row with no lawyer but with colorable claims of retardation would be entitled to a lawyer. I do not see that as a frightening possibility. Rather, that it is being urged by the dissent as such is a chilling comment on the confused state of the law of capital punishment in this circuit.
The dissent would run the one year clock on Hearn during the time he had no lawyer. If there is a doctrine of equitable tolling, it must not tolerate a limitations bar to a retarded prisoner awaiting execution and without counsel. It is no answer to assert that Hearn is not retarded unless *459we are prepared to dispense with lawyers and hearings.
But, it is argued, Hearn did have counsel for part of the time. The dissent has no answer for the fact that during that period of representation a claim of retardation could not have been filed, given the two-forum rule Texas then adhered to. The dissent in a footnote asserts, with no authority, that Texas was never serious about that rule, passing over the fact that much later, Texas, recognizing the plight it created for petitioners such as Hearn, abandoned it. The dissent says the two-forum rule was never real.
The dissent accuses the majority of ignoring circuit precedent, Judge Davis’s opinion in Kutzner and Judge Politz’s opinion in Turner. It bears mention that neither petitioner in these cases had an available writ path. The panel in Kutzner pointedly observed that the petitioner had no right to pursue a successive writ with a claim that did not rely upon a new rule of constitutional law. Petitioners had counsel in both cases at all relevant times and neither petitioner presented Atkins claims.
This is not an easy case. The state has been represented at all times by counsel and has full access to prisoner records and other resources to reply to this claim. I cannot be so dismissive of Hearn’s statutory right as to refuse him a lawyer when at the least there is enough to warrant examination. If there is nothing there, as the dissent seems to know, the district court will so conclude. In the end I have more confidence in facts decided by an Article III trial judge with competent counsel before him than those determined on appeal by appellate judges.