dissenting:
Even by his own lawyer’s estimation, petitioner Hearn is not retarded. He has made good grades off and on throughout his academic career. He helped orchestrate a multi-stage crime ending in murder. He has scored well above the retardation threshold on standardized tests. Yet, on the thin assertion that he “may be retarded,” the majority has allowed him to succeed in a last-minute petition for stay, filed two days before his scheduled execution, and has done so in blatant violation of governing Fifth Circuit law.1
The majority has seriously undermined this court’s capital habeas jurisprudence. In much the same way as a good advocate would do, the majority has painted a road-map for virtually any capital habeas petitioner to obtain an indefinite delay in his execution by raising a frivolous, eleventh-hour claim of possible retardation.2 In the process, the majority has clouded the claims of those inmates who may be truly retarded and are properly entitled to benefit from the Supreme Court’s recent attention to their plight.
The majority certainly reaches a happy result for petitioner Hearn: He receives an attorney and the resources to investigate a last-minute and totally meritless claim of mental retardation. Courts, however, typically encounter and analyze such things as precedents and statutory language. They do not merely plow precipitously through binding caselaw, sidestep a Congressionally-enacted habeas regime, and declare that the equities mandate a different result. Unfortunately, the ma*460jority here, acting with the best of intentions, has engaged in just such an enterprise. Accordingly, I respectfully dissent.
I.
The majority ignores precedential language from a binding opinion of this circuit. In McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), the Court offered a broad interpretation of the attorney appointment provision of 21 U.S.C. § 848(q)(4)(B)3 and granted the petitioner an attorney to investigate grounds for an initial petition. Hearn, by contrast, requests an attorney to investigate and develop a record for a successive petition. Congress, through the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), has created a plain distinction between those two types of investigations.4
Although McFarland’s use of broad language arguably could, on its own, prompt one to apply its “core concerns” to a successive setting, two binding Fifth Circuit opinions bar the majority’s application of § 848(q)(4)(B). One discusses the context in which McFarland operated: “The McFarland Court was concerned only with that period of time between the habeas petitioner’s motion for the appointment of counsel and the filing of the initial petition.” Turner v. Johnson, 106 F.3d 1178, 1182 (5th Cir.1997). The other flatly forecloses the appointment of habeas counsel to prepare a successive petition: ‘McFarland does not justify appointment of counsel or stay of execution for the preparation of a second federal habeas petition.” Kutzner v. Cockrell, 303 F.3d 333, 338 (5th Cir.2002) (citing Turner, 106 F.3d at 1182).
A.
The majority skips past Kutzner by making two flawed arguments. First, it attempts to limit Kutzner largely to its facts.5 The majority also refers to the quoted language from Kutzner as a “narrow fact-based holding.”6 The majority’s stated factual differences do not distinguish Kutzner from the instant case.
One factual difference apparently involves the presence and competence of counsel.7 As discussed infra, Hearn cannot challenge the quality of his habeas counsel. See 28 U.S.C. § 2254(i). His counsel never abandoned him but merely determined that she could not help him *461because he had no further claims. Moreover, any alleged abandonment or withdrawal occurred well.after the time during which Hearn could have filed his petition.
A second factual difference centers on the probability that the Kutzner petitioner could have known of the claim contained in the successive petition.8 Although Hearn could not have known of an Atkins9 claim during his trial or through portions of his direct appeal,10 he certainly knew of it when the Supreme Court decided Atkins. Hearn could have acted on it within the one-year window that AEDPA grants to petitioners who pursue some newly-announced Constitutional claims that the Supreme Court applies retroactively.11
Even if the specific circumstances of Kutzner have some differences with the facts of this case, the larger circumstances to which the quoted language refers are identical: “McFarland does not justify appointment of counsel or stay of execution for the preparation of a second federal habeas petition.” In both cases, party has requested an attorney to help prepare and file a successive habeas petition; in both, procedural default bars their consideration.
B.
The majority, however, parries the Kutzner language by invoking the mantra of “dictum” and concluding that Kutzner has no effect on future panels facing the same situation.12 The majority incorrectly characterizes the Kutzner statement and its relationship to Kutzner’s holding.
As part of its discussion of McFarland, this court in Kutzner provided alternative rationales for denying the petitioner’s request for an attorney and a stay. Both justifications independently blocked the petitioner in Kutzner, and one has direct application in the instant case. Neither reason, therefore, functions only as dictum13
The first justification looked to “[t]he core concern of McFarland — that an un-counseled prisoner would be required to ‘proceed without counsel in order to obtain counsel and thus would expose him to the substantial risk that his habeas claims never would be heard on the merits.’ ” Kutzner, 303 F.3d at 338 (quoting McFarland, 512 U.S. at 856, 114 S.Ct. 2568). The opinion noted that Kutzner’s attorney *462served adequately and helped prepare a petition pursuant to § 2254. Id.
After stating that Kutzner’s “current” counsel had “represented Kutzner for more than one year,” the opinion took a dramatic two-sentence turn. Specifically, it moved from a fact-specific analysis of Kutzner’s claim to a more general analysis of McFarland and its impact on successive petitions in this circuit. The opinion quoted the aforementioned language from Turner, 106 F.3d at 1178, and quickly applied it to all successive petitions: “Thus, McFarland does not justify appointment of counsel or stay of execution for the preparation of a second federal habeas petition.” Kutzner, 303 F.3d at 338.
Either justification articulated in Kutz-ner would block that petitioner’s request for an attorney. “When confronting decisions of prior panels[,] we are bound by ‘not only the result but also those portions of the opinion necessary to that result.’ ” Gochicoa v. Johnson, 238 F.3d 278, 286 n. 11 (5th Cir.2000) (quoting Seminole Tribe v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)). Furthermore, ‘“the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law.’ ” Id. (quoting County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 668, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring in part and dissenting in part)).14
Either rationale advanced in Kutzner would control the outcome of that case. Neither rationale considers “unnecessary” matters, because each addresses an element of the petitioner’s situation. The Kutzner petitioner both (1) had adequate counsel for an extended period of time and (2) wished to file a successive petition. The petitioner filed a request for an attorney as part of preparation of a successive federal habeas petition.
Thus, although the second reason for denying the petitioner’s request addresses a broader issue than does the fact-intensive reason, it produces the identical resolution.15 Because “alternative holdings are binding precedent,” Kutzner has bound subsequent panels with respect both to the “core concern” fact-intensive inquiry and to the broader successive petition analysis. Williams v. Cain, 229 F.3d 468, 474 n. 5 (5th Cir.2000) (internal citations and quotations omitted).16
*463c.
The panel provides a third spurious reason to ignore Kutzner: “Further, we do not find such dictum persuasive because it contravenes McFarland’s holding.” A subsequent panel cannot determine that a prior panel’s binding decision undermines or conflicts with a Supreme Court decision issued before that of the prior panel. Instead, we assume the prior panel took all pre-existing Supreme Court precedent into account.
“Our rule of orderliness prevents one panel from overruling the decision of a prior panel.” Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th Cir.1999). Rather, if a panel identifies a purported conflict, it must acknowledge the binding circuit opinion and recommend taking the matter to the en banc court. Because the Kutzner language is a binding holding, not dictum, the majority, remarkably, has attempted to hurdle our regular procedures for reconciling allegedly conflicting or important caselaw. Fed. R.App. P. 35(a).17 Such nimble methodology is easy and convenient, and it may turn out to be effective advocacy, but it is not right.
D.
Curiously, despite the majority’s desire to distinguish the facts and to dismiss the language of Kutzner, it cites that very opinion in support of a broader point regarding the “core concern of McFarland ” (quoting Kutzner, 303 F.3d at 338). The quotation serves little purpose but to parrot language from McFarland. The citation of an opinion that the majority has otherwise disregarded factually and doctrinally suggests that the majority cares what the prior panel stated only when it suits the majority’s general'outlook. Apparently, the line between precedential authority and dictum lies in the eye of the majority.
Consequently, McFarland does not stretch as far as the majority would like. Kutzner cabins McFarland in this circuit and directly forecloses the application of § 848(q)(4)(B) to a successive petition. Hearn is not entitled to the appointment of an attorney to investigate and prepare a successive petition.
II.
Even if Kutzner did not apply, and even if § 848(q)(4)(B) allowed Hearn to request an attorney to prepare a successive habeas petition, Hearn faces another problem: on-point statutory language that blocks any habeas relief.
*464A 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 ... 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[.]
28 U.S.C. § 2244(d)(1)(C). Both Hearn and his purported Atkins claim fit the statute’s requirements.
Although the majority makes the broad statement that § 848(q)(4)(B) and (8) “grant indigent capital prisoners a mandatory right to qualified legal counsel ... in all federal post-conviction proceedings,” § 848(q)(8) limits that right to “available judicial proceedings” (emphasis added). Section 848(q)(8) states only that an attorney will represent the defendant through “every subsequent stage of available judicial proceedings” (emphasis added). Though a petitioner theoretically has any motion available to him, some motions do not articulate cognizable claims and have no chance of success.18 For example, “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.” Cantu-Tzin v. Johnson, 162 F.3d 295, 296 (5th Cir.1998).
The majority concedes that the one-year period has passed and that Hearn cannot file a successive writ based on Atkins.19 The majority, however, applies the unusual device of equitable tolling to allow Hearn “sufficient time to prepare an application for § 2244(b)(3)(A) authority.” Although courts may equitably toll a statute of limitations under AEDPA, a court cannot take such action lightly. Rather, as the majority admits, “[ejquitable tolling [is permitted] ‘in rare and exceptional circumstances.’ ”20
The majority cites a number of inadequate reasons to toll limitations. Two of those reasons — Hearn’s alleged abandonment at the hands of his counsel and his showing of a “colorable” claim of mental retardation — offer nothing rare or exceptional to warrant the temporary invalidation of a carefully-drafted habeas regime.21
*465A.
Although we have applied equitable tolling on behalf of defendants as a result of attorney misbehavior, we have granted tolling only in very specific situations involving egregious and deceptive behavior — for example, where a petitioner alleged that his attorney actively misled him into believing that the attorney filed a timely § 2255 petition, United States v. Wynn, 292 F.3d 226, 230 (5th Cir.2002).22 “Equitable tolling applies principally when the plaintiff is actively misled by the defendant ... or is prevented in some extraordinary way from asserting his rights.” Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.1999).
Hearn has not alleged that Jan Hemp-hill, his appointed habeas counsel, engaged in any kind of deceit, and the record does not remotely support any such contention. Rather, any conceivable lack of attention by Hemphill did not- affect the timeliness or legitimacy of Hearn’s possible Atkins claim. Hemphill did not “withdr[a]w her representation of Hearn” until well after the one-year statute of limitations had ended. Although Hemphill could have investigated a possible Atkins claim while she awaited the decisions of this court and the ■Supreme Court, she chose not to do so.
Hemphill provides a simple reason for her inaction: “During the time I represented Mr. Hearn I did not believe him to be mentally retarded. This is based on my dealings with him and in representing him.”23 Importantly, Hearn has not alleged, and cannot allege, that his counsel offered deficient performance during the time in which he could have raised an Atkins claim.24
Although the majority flatly states that “Upon the denial of his initial federal habe-as petition, Jan Hemphill[, Hearn’s court-appointed habeas counsel,] withdrew from her representation of Hearn[,]” it does not inform the reader of Hemphill’s specific conduct in representing Hearn. After sending her certiorari petition to the Supreme Court, Hemphill sent a letter to Hearn informing him that “[f]or all practical purposes, this is the last service I can give you as my client.” She also told him to “let [her] know” if she could answer any questions he might have. When Hearn contacted Hemphill to file more appeals, Hemphill “told him [she] was not aware of any claims that he could raise in a successive petitions [sic] and that if he wanted to file other appeals, he should obtain other counsel.”
Consequently, Hemphill did not “withdraw from her representation of’ Hearn in *466any meaningful sense. She filed every claim and pursued every ground25 of appeal that she considered valid. When asked about other claims' — -which may or may not have included an Atkins claim— she did not walk away and refuse to talk to Hearn, but instead told him merely that she did not see any other valid grounds of habeas relief. The majority’s allegations and claims of attorney failure function as another means of considering the “ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings.” 28 U.S.C. § 2254(i). AED-PA, however, proscribes such a consideration.
Moreover, assuming arguendo that Hemphill’s behavior is questionable, any inadequate service on her part occurred after the time in which Hearn could have pursued his Atkins claim. The Supreme Court decided Atkins in June 2002. Hemphill sent her final letter to Hearn fifteen months later — in September 2003. Had Hemphill not “withdrawn” her representation of Hearn, his alleged evidence of retardation would not have given him the chance to file an Atkins claim beyond the one-year statute of limitations.26 Thus, the majority has taken Hemphill’s judgment that Hearn had no other valid claims— something a petitioner may not challenge under AEDPA — and used it to provide Hearn with an opportunity he would not otherwise have had to pursue an out-of-time, and totally frivolous, claim of mental retardation.27
B.
As part of its weighing of the equities, the majority finds that Hearn has offered sufficient evidence to present “a colorable claim of mental retardation sufficient to justify the appointment of counself.]” Hearn’s proffered evidence does not remotely support such a conclusion.
In reaching its result, the majority makes two contradictory statements. First, it quotes Weeks v. Jones, 100 F.3d 124, 127 (11th Cir.1996), to assert that “a substantive, merits assessment of the petition is irrelevant to the appointment of counsel.”28 The sentence and accompanying footnote that follow the Weeks citation, however, indicate that a petitioner has to offer some arguable evidence to support an Atkins claim.
The majority correctly understands that AEDPA is meant “to curb the vast number of habeas filings in the federal courts.” It *467also rightly observes that it should “withhold § 848(q)(4)(B) counsel for certification proceedings absent some colorable showing by the prisoner that he is, in fact, entitled to habeas relief.” Id. Something “colorable” “appear[s] to be true, valid, or right.” Black’s Law DiotionaRY (7th ed.1999). As shown, infra, Hearn has offered no evidence that satisfies the “color-able claim” standard.
The majority has fashioned a new evi-dentiary standard, then has craftily viewed Hearn’s evidence as satisfying that standard. The result, effectively, is that any petitioner — regardless of the procedural defaults or the inadequacy of offered evidence — may receive an attorney to pursue an Atkins claim. He needs only to file a petition containing the magic words “mental retardation” and to include some evidence that he underachieved at some point early in life. In oral argument, Hearn’s counsel admitted that he wished for such a ruling from this court.
Indeed, the panel majority has given counsel pretty much everything he has asked for. The majority describes the “colorable showing of mental retardation” standard as a “modest evidentiary threshold.” Indeed, if Hearn’s proffered “evidence” is deemed sufficient, the majority’s standard is no real threshold at all; the mere mention of slowness in school, or poor grades, triggers the right to a panoply of rights, including counsel and other assistance.
The majority has attempted to moderate the effect of this ruling by creating the “colorable showing” requirement. The paucity of Hearn’s evidence, however, suggests that, in reality, almost every prisoner will meet that threshold.29
In Texas, a party suffers from mental retardation if he satisfies three requirements.30 First, he must exhibit “ ‘significantly subaverage general intellectual functioning’ (an IQ of about 70 or below)!.]” 31 Secondly, he must have “ ‘related limitations in adaptive functioning.’ ”32 Finally, both the intelligence and adaptation problems must have manifested themselves before age eighteen.33
1.
Although the majority quotes these three requirements,34 it focuses almost entirely on the intelligence prong. The majority’s evidence, in summary, is this: Hearn performed poorly in school. He failed first grade, he regularly did not succeed in his classes, and he placed 174th out of 200 students in the tenth grade. The majority does not note that Hearn regularly performed well in some classes.|J *468In some semesters, he passed every course.35
One might attribute some of Hearn’s worst grades to apparent zeroes on a number of final exams. The zeroes do not represent a calculated number grade but represent some sort of unexcused absence. The explanation of poor attendance would correlate with Hearn’s withdrawal from the tenth grade. The school district listed his reason for withdrawal as “non-attendance.” 36
Hearn offers nothing to suggest a need for further testing, beyond the opinion of a witness who submitted an affidavit in his behalf but whose lack of a Texas license prevents him from offering any expert testimony in a trial.37 That evidence, on which the majority heavily relies, is incompetent as a matter of law and should have been stricken.38
That “expert” admits that “the results of the IQ testing ... indicated an IQ above the cut-off typically associated with mental retardation” and cannot provide any reason to conduct further testing other than the “gravity of the current situation (i.e., the importance of the decisions that have been made in regard to Mr. Hearn)[.]” Essentially, Hearn’s expert would like Hearn to have further tests based not on evidence but on the seriousness of the capital sentence. The expert advances a policy argument that lies outside our properly-understood and limited judicial role.39
Furthermore, the one test40 Hearn has taken places his I.Q. at 82. The majority emphasizes the variability inherent in the score and places Hearn’s I.Q. somewhere between 70 and 75. Even if Hearn’s “real” I.Q. score lies at the remote low ends that the majority has listed,41 such a score does *469not satisfy the threshold that Texas has adopted, namely, an I.Q. of 70 or below. Hall, 2004 WL 948342, at *10, - S.W.3d -, at -, 2004 Tex.Crim.App. LEXIS 817, at *32.
Some scattered evidence suggests that Hearn has, at the least, an adequate level of intelligence. He wrote a coherent and lengthy request for clemency to the Texas Board of Pardons and Paroles: “My Execution date is set for March 4, 2004. And I am trying to get the help of you ladies and gentlemen in getting my sentence commuted to life.” He submitted a long, personalized request for a pen pal via a web site. In the request, he used complete sentences and told the reader he “enjoy[s] reading novels (horror, Western, Suspense) [and] doing drawings.”42
Neither the majority nor Hearn has made an arguable showing that Hearn has the degree of sub-par intelligence associated with mental retardation. Although he certainly did not achieve the greatest educational success, he did not languish in the public school system. At times, he performed well; at other times, it appears that he did not attend class with sufficient regularity to achieve a laudable score. He had ample chance to provide greater details regarding his educational problems but has not presented any information beyond a list that includes some unimpressive grades.
To hold that a few poor grades constitute a “colorable showing” of mental retardation gives no limiting principle and offers no guidance to district courts who will entertain similar claims. Undoubtedly, almost every individual sentenced to death will have shown, at some point in his life, some underachieving or deviant behavior.
We have an obligation to set some sort of meaningful evidentiary threshold and to articulate fairly transparent criteria for satisfying that mark. The majority’s decision to accept some bad grades as satisfactory evidence of sub-par intelligence does not meet that obligation and invites stan-dardless review.43
2.
The majority also errs in deciding that Hearn has satisfied the second prong of the Texas definition of mental retardation. Though a party must prove all three prongs, the majority merely winks at the adaptive-functioning prong:44 “H[earn] further cites the trial testimony of a family member to demonstrate his compromised social skills.” The majority offers nothing else. With respect to the family member, an aunt45 of Hearn’s named Wanda Bell, the majority notes only that she “testified that he was a ‘follower’ who tended to be ‘influenced by the wrong type of people,’ and that when he left home at age 18, she was still ‘concerned [sic] about if he was being taken care of.’ ”
In making such a statement, Bell may well have described a large proportion of *470American teenagers. Although her testimony may reflect genuine concern regarding Hearn, it cannot possibly, on its own, reasonably lead to the conclusion that Hearn has problems with adaptive functioning. The majority’s reliance on Bell’s statement, however, conflicts with two other matters relating to her. First, the family court that awarded permanent custody to Bell noted that, after Hearn stayed with Bell permanently, “[h]e followed all the rules and did quite well in school.” Hearn responded positively to a functional, stable home.
Secondly, Bell’s testimony in the punishment phase of Hearn’s trial indicates that Hearn understood right from wrong, could succeed when he applied himself, and possessed the ability to live on his own. As part of her testimony, Bell stated that “[w]ell when [Hearn] applied hisself [sic]. He — he was — he’s good head on him and, you know, when you apply yourself to your studies, you do well.” Bell responded ‘Tes” to the question “if he would work, he could do okay?” Bell twice affirmed that Hearn “knew right from wrong” by age seventeen. She noted that Hearn left her care when he turned eighteen and apparently took care of himself adequately during that time.
Furthermore, the majority’s lone citation to Bell’s testimony is somewhat out of context. Bell did not attribute Hearn’s desire to follow others to a mental defect, but instead to a desire to compensate for his poor socioeconomic standing: “It’s just like kids develop this when they’re — some kids, when they’re young. They’re not proud of the environment that they’re in.” Bell did not suggest that Hearn possessed any kind of adaptive problem.
Additionally, the facts of the crime suggest that Hearn functioned rather well with others. He participated in the carjacking and shooting of an individual. Testimony and evidence showed that he drove the victim’s car to an isolated area and shot the victim in the head multiple times. He bragged of his exploits and provided details of the killing to three others not associated in the crime.
Hearn also understood that he needed to dispose of the evidence to avoid prosecution. Two witnesses testified that he asked about where to locate a “chop shop” to dispose of the victim’s car. When the police questioned him, he provided a coherent but false explanation as to how his fingerprints appeared on the victim’s car’s steering wheel. Hearn functioned well enough to kidnap a man, drive a stolen car, shoot a victim multiple times, brag about his exploits, and create an untruthful, exculpatory story. If Hearn had not functioned so well, the victim would not have died. Thus, the majority’s lone citation to one statement from a relative cannot possibly satisfy the adaptive-functioning prong of mental retardation.
III.
Thus, in its apparent zeal to grant Hearn an attorney, and a stay of execution,46 the majority neglects and unpersua-sively responds to two significant problems that are fatal to its spirited position. First, it cannot factually distinguish, and cannot logically dismiss as dictum, the binding language of Kutzner that forecloses the application of McFarland to successive habeas petitions.
Secondly, the one-year statute of limitations bars Hearn’s application. The ma*471jority has apparently lowered the standard of “rare and exceptional” circumstances required to grant equitable tolling so that anyone may obtain an attorney, at any stage of litigation, by simply claiming mental retardation. Hearn, and the majority on his behalf, offer a dearth of evidence to suggest that Hearn has satisfied any of the three prongs of Texas’s definition of mental retardation.
Without precedential basis, a supportive statute of limitations, or evidence justifying equitable tolling, the panel must rely on good intentions and an unreasonably generous reading of everything that Hearn has alleged and submitted. The majority opinion brings this panel squarely in conflict with binding precedent and does not assist district courts in considering the similar claims that will undoubtedly follow from this opinion. I respectfully dissent.
. I regret not having dissented from the initial order granting a stay of execution.
. The majority opinion might thus be aptly described as "a triumph of lawyering from the bench.” Kennedy v. Lockyer, 372 F.3d 1013, 1031, 1038-40 (9th Cir.2004) (O'Scannlain, J., dissenting).
. “On its face, [§ 848(q)(4)(B) ] grants indigent capital defendants a mandatory right to qualified legal counsel and related services 'in any [federal] post conviction proceeding.' " McFarland, 512 U.S. at 854, 114 S.Ct. 2568 (footnote omitted) (brackets in original).
. Compare 28 U.S.C. § 2254 (describing the procedures for filing a habeas petition on behalf of a “person in custody pursuant to the judgment of a State court”) with 28 U.S.C. § 2244(b) (describing additional hurdles a party must satisfy if it presents a claim in a second or successive habeas petition).
. "We read Kutzner as holding that the relief enunciated in McFarland does not apply to successive habeas petitioners who had been afforded sufficient opportunities to investigate the factual bases of their proposed claim.”
. The majority also makes the surprising assertion that Kutzner contains language only "suggesting" that indigent capital prisoners are never entitled to the appointment of counsel to prepare a successive habeas petition (emphasis added). There is nothing merely "suggestive” about Kutzner's explicit holding that "McFarland does not justify appointment of counsel or stay of execution for the preparation of a second federal habeas petition.” Kutzner, 303 F.3d at 338. Thus, Kutzner makes an emphatic statement, not just a hint, about the law, and the majority's desperate description of it as a "suggestion” is transparent.
. "The [Kutzner] Court then reviewed the facts of Kutzner's case, and found that he was equipped with competent counsel throughout the entire habeas process.”
. Kutzner, 303 F.3d at 336 (stating that Kutz-ner, who claimed that the government withheld forensics evidence, "knew of the [skin] scrapings, blot, and first hair at trial, on appeal, during his state habeas petition and during the federal habeas petition. He never requested its testing.").
. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
. The Atkins claim, of course, did not exist at that time.
. 28 U.S.C. § 2244(d)(1)(C). Additionally, as discussed infra, Hearn has offered insufficient evidence to suggest either the presence of mental retardation or the effect of the alleged retardation on his ability to press an Atkins claim during the one-year period.
. "We find, after reading Kutzner in its proper context, that its limitation on McFarland ... constitute^] a mere 'judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential.' " (quoting the definition of "ob-iter dictum” from Black’s Law Dictionary 1100 (7thed.l999)).
. By way of contrast, a rationale explained by way of analogy to a situation different from that presented in the case at issue is dictum and not an alternative holding. E.g., Shepherd v. Int’l Paper Co., 372 F.3d 326, 331, No. 03-20721, 2004 U.S.App. LEXIS 10592, at *11 — *12 (5th Cir. May 28, 2004).
. Chief Justice Rehnquist has defined “dicta " as a court's consideration of “abstract and hypothetical situations not before it.” Connecticut v. Doehr, 501 U.S. 1, 30, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991) (Rehnquist, C.J., concurring). See also Black's Law Dictionary 1100 (7th ed.1999) (defining "obiter dictum” as “A judicial comment ... that is unnecessary to the decision in the case and therefore not precedential”).
. In essence, the Kutzner panel told the petitioner that (1) the facts do not line up with the core concerns of McFarland; and (2) even if your facts did align with McFarland, your general situation — filing a successive petition — lies outside of McFarland.
. See also Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 574 (5th Cir.2004):
... "[I]t is the firm rule of this circuit that one panel may not overrule the decisions of another.” United States v. Taylor, 933 F.2d 307, 313 (5th Cir.1991).... See, e.g., United States v. Adamson, 665 F.2d 649, 656 n. 19 (5th Cir.1982) (holding that decisions on issues that were fully presented and litigated, and likely to arise on retrial, are not dictum and are still binding precedent even if the decision was not necessary to support the ultimate ruling, such as an alternative holding).
In its frantic attempt to escape the bounds of Kutzner, the majority, while acknowledging that alternative holdings are both binding on future panels, observes that in McClendon v. City of Columbia, 305 F.3d 314, 327 n. 9 (5th Cir.2002) (en banc), cert. denied, 537 U.S. 1232, 123 S.Ct. 1355, 155 L.Ed.2d 196 (2003), the court warned that in qualified *463immunity cases, panels should not routinely announce alternative holdings. From that, the majority concludes that we should not infer that the two rationales in Kutzner are both holdings. The obvious flaw in that theory is that Kutzner was decided before McClen-don, so the Kutzner panel could not possibly have known about the warning in McClendon when it issued its alternative holdings.
The majority also announces, out of whole cloth, that under McClendon it is "improper for this Court to infer alternative rationales or holdings where ones are not clearly expressed." As the majority admits, however, McClendon was addressing only the peculiar methodology used in qualified immunity cases, see Siegert v. Gilley, 500 U.S. 226, 232-34, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), so footnote 9 of McClendon does not apply here. Outside the context of qualified immunity, no opinion of this court has ever suggested that alternative holdings are improper. The majority’s bold assertion to the contrary is handy for it to use in its attack on Kutzner but finds no support in our jurisprudence.
. "An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance.”
. See, e.g., Washington v. Alaimo, 934 F.Supp. 1395 (S.D.Ga.1996) (discussing whether to impose rule 11 sanctions in response to an inmate’s self-titled "Motion To Kiss My Ass”).
. Contrary to the claim made in the concurrence, I do not take issue with the notion that "every person on death row with no lawyer but with colorable claims of retardation would be entitled to a lawyer.” Hearn's problem is that he (1) had a capable lawyer for many months and (2) began proceedings for an out of time, successive petition and has presented hardly a shred of evidence to suggest that his claim is anything more than frivolous.
. United States v. Riggs, 314 F.3d 796, 799 (5th Cir.2002) (emphasis added) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998)).
.The majority also discusses the Texas "two forum” rule of comity, under which a "petitioner must decide which forum he will proceed in, because this Court will not, and a trial court in this State should not, consider a petitioner’s application so long as the federal courts retain jurisdiction of the same matter.” Ex parte Green, 548 S.W.2d 914, 916 (Tex. Crim.App.1977). Texas courts have rarely applied the rule, and it was recently amended so that state courts could entertain a petitioner's Atkins claim while that same petitioner had a federal habeas writ pending. Ex parte Soffar, No. 29,980-02, 2004 WL 245190, at *2, - S.W.3d -, -, 2004 Tex.Crim. App. LEXIS 200, at *9 (Tex.Crim.App. Feb. 11, 2004).
Hearn did not investigate his possible Atkins claim while his federal claim worked its way through the Fifth Circuit and the Supreme Court. He also did not even attempt *465to file anything in state court to challenge the traditional application of the rule. Even if the two forum rule prevented Hearn from filing his Atkins claim, the factors discussed infra — especially the absolute lack of any evidence to support Hearn's retardation claim— render equitable tolling entirely inappropriate.
.“We agree with the district court that Wynn's allegation that he was deceived by his attorney into believing that a timely § 2255 motion had been filed on his behalf presents a 'rare and extraordinary circumstance’ beyond petitioner's control that could warrant equitable tolling of the statute of limitations.” Wynn, 292 F.3d at 230.
. Hemphill subsequently moderated her statement in a declaration given on March 10, 2004: “At the time, I did not consider mental retardation one way or the other.” Both statements show, at the least, that the possibility that Hearn is retarded never entered Hemphill's mind.
. 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”).
. Hemphill’s initial habeas petition listed nineteen grounds for relief.
. I should also note that in its apparent rush to grant Hearn relief, the majority has unfairly besmirched Ms. Hemphill’s reputation as a competent attorney. Hemphill filed a thorough and reasonable initial habeas petition that contained nineteen separate grounds for relief. Contrary to the majority's cheap implication, Hemphill did not pass her time by eating crayons and blowing bubbles at the ceiling. The majority should not allow its zeal in trying to establish a point to be expressed at the unfair expense of a diligent attorney.
. As part of equitable tolling, we have looked to the incentives such a grant may create. Larry v. Dretke, 361 F.3d 890, 898 (5th Cir. 2004) (''Finally, to grant equitable tolling in these kinds of situations would invite the premature filing of state habeas petitions!)] This would allow applicants to circumvent the exhaustion requirement and would undermine the system of comity established by federal law.”). Under the majority's rule, an attorney’s purported "withdrawal” gives life to claims otherwise procedurally barred. Such a rule certainly could invite some less-than-scrupulous parties to manipulate the majority’s good intentions and to withdraw so as to resurrect defaulted claims.
. See also Barnard v. Collins, 13 F.3d 871, 879 (5th Cir. 1994).
. Additionally, neither the majority nor the concurrence remotely addresses the fact that Hearn filed his request for an attorney a scant two days before his long-scheduled execution. Obviously if Hearn knew of his claim and believed — based on his anemic evidence — that it was valid, he could have filed something weeks earlier.
. Hall v. State, No. 73,787, 2004 WL 948342, at *10, - S.W.3d -,-, 2004 Tex.Crim. App. LEXIS 817, at *32 (Tex.Crim.App. May 5, 2004)
. Id. (quoting Ex parte Briseno, 135 S.W.3d 1, 7 (Tex.Crim.App. 2004)).
. Id.
. Id.
. In truth, the majority ignores Hall's threshold of sub-par intelligence by stating that a party with “an IQ of approximately 70 to 75 or below” satisfies the first prong. The person must show “an IQ of about 70 or below." Hall, 2004 WL 948342, at *10, - S.W.3d at -, 2004 Tex.Crim.App. LEXIS 817, at *32.
. In the spring of 1994, Hearn passed every class at Horizons Alternative School. In the spring of 1996, he passed every class but one.
. Wanda Bell, who obtained custody of Hearn in 1995, testified in the punishment phase of the trial that Hearn "worked to a certain degree. I guess, you know, you get moody and you don't want to do what the teachers tell you to do.” Bell also recounted that Hearn stopped attending school in the tenth grade: "I dropped them off [at school] that morning, and Yokamon didn't come home that evening.” Hearn returned in January of the next year.
. Although James Patton has authored a number of books and articles focusing on mental retardation, he cannot, for purposes of a Texas trial, diagnose someone as having mental retardation. Tex. Health & Safety Code § 591.003(16) (defining "Person with mental retardation” as "a person determined by a physician or psychologist licensed in this state or certified by the department to have subav-erage general intellectual functioning with deficits in adaptive behavior”).
. The majority chides me for relying cumulatively on website hearsay in pointing out that Hearn writes articulately. See infra. This is bizarre in light of the majority's heavy — indeed, almost total reliance on testimony from an "expert” who is not even authorized to render professional opinions in Texas.
. The concurrence makes the amazing statement that requiring a petitioner to shoulder the burden of offering sufficient evidence to justify equitable tolling is a "backwards” approach. Apparently, by that logic, offering an inadmissible statement from someone who offers no reason, beyond the gravity of the death sentence, to conduct further investigation places the burden on the state to disprove Hearn's claims. That theory, in fact, stands the burden of proof on its head; the burden to obtain a stay is always on the petitioner, not the respondent.
. Upon entering state custody, Hearn took the Weschler Adult Intelligence Scale-Revised ("WAIS-R”) Short-Form test, which serves a screening function to help determine whether an inmate warrants additional treatment or counseling.
. Of course, Hearn’s "real” I.Q. could also lie at the high end of the purported variability-
. Voices From Inside, http://www.ahve-abolish-deathpenalty.org/death_penaIty/ voices_tx_hearn.htm (visited June 8, 2004).
. If slowness in school is enough to meet the requirements of McFarland, a large percentage of death row inmates will be entitled to virtually automatic stays as a result of the majority’s action in this case. That may be an unintended result, but it is a very real one.
. The majority does not even discuss the third prong. Hearn has not cited a specific or even general time when his alleged retardation began. He was, however, below the age of eighteen during the time during which evidence of his mental retardation allegedly appeared. If the school records satisfy the first prong of mental retardation, Hearn presumably will satisfy the third prong, as well.
.Bell received permanent custody of Hearn beginning in 1995.
. Because Hearn should not be appointed an attorney, I likewise dissent from the majority's stay of execution.