James Henderson v. Rick Thaler, Director

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PUBLISHED OPINION FILED. [08-70018 Affirmed in Part, Vacated in Part, and Remanded] Judge: EGJ , Judge: JLW , Judge: EMG Mandate pull date is 12/07/2010 [08-70018]

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James Henderson v. Rick Thaler, DirectorDocument: 00511295537 Case: 08-70018 Page: 1 Date Filed: 11/16/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED November 16, 2010 N o . 08-70018 Lyle W. Cayce Clerk J A M E S LEE HENDERSON, P e t it io n e r - Appellant v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, R e s p o n d e n t - Appellee A p p e a l from the United States District Court fo r the Eastern District of Texas B e fo r e JOLLY, WIENER, and GARZA, Circuit Judges. E . GRADY JOLLY, Circuit Judge: T h is court authorized James Lee Henderson, a Texas death row inmate, t o file a successive federal habeas petition to assert a claim that he is mentally r e t a r d e d and thus ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2 0 0 2 ). In our order authorizing the filing, we noted that, unless the doctrine of e q u it a b le tolling applies, Henderson's successive petition is time-barred. In re H e n d e r s o n , 462 F.3d 413, 417 (5th Cir. 2006). We left "it for the district court to d e c id e whether Henderson's case presents the `rare and exceptional c ir c u m s t a n c e s ' that would entitle him to the benefit of equitable tolling." Id. Dockets.Justia.com Case: 08-70018 Document: 00511295537 Page: 2 Date Filed: 11/16/2010 No. 08-70018 T h e district court held that Henderson is not entitled to equitable tolling a n d did not reach the question whether the state court unreasonably determined t h a t Henderson is not mentally retarded. The district court granted a certificate o f appealability (COA) for two issues that are now before us for resolution: (1) w h e t h e r Henderson's mental retardation claim is time-barred because he is not e n tit le d to equitable tolling; and (2) whether the court nevertheless should reach t h e merits of Henderson's mental retardation claim because he is "innocent" of t h e death penalty. I. H e n d e r s o n was convicted and sentenced to death for the October 1993 c a p it a l murder of Martha Lennox in Clarksville, Texas. His conviction and s e n te n c e were affirmed on direct appeal. Henderson v. State, No. 71,928 (Tex. C r im . App. 1996) (unpublished). He did not file a petition for a writ of certiorari. O n March 5, 1997, the trial court appointed Pamela Campbell to represent H e n d e r s o n in state habeas proceedings. In Henderson's first state habeas a p p lic a t io n , filed on August 28, 1997, he raised claims of ineffective assistance o f 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, 5 2 5 U.S. 1004 (1998). O n August 7, 1998, Henderson filed a motion for appointment of counsel in federal district court. The district court granted the motion on August 24, a p p o in t in g Clifton Holmes and Eric Albritton (who currently represents H e n d e r s o n on his Atkins claim) to represent Henderson. On October 27, 1998, t h e district court entered a scheduling order setting a deadline of January 4, 1 9 9 9 , for Henderson to file his federal habeas petition. The district court also s t a y e d Henderson's execution, which was set for December 2, 1998. I n December 1998, Henderson's federal habeas counsel's investigator o b ta in e d a series of sworn statements from Deon Williams, who had testified 2 Case: 08-70018 Document: 00511295537 Page: 3 Date Filed: 11/16/2010 No. 08-70018 a g a in s t Henderson at trial, in which Williams recanted much of his trial t e s t im o n y . On December 31, 1998, Henderson filed a motion in federal court to v a c a t e the scheduling order. That same day, he filed a successive state habeas a p p lic a t io n in the trial court, raising claims of perjured testimony based on W illia m s 's recantation. The state habeas application was prepared by Clifton H o lm e s and Eric Albritton, the same attorneys the district court had appointed t o represent Henderson in the federal habeas proceedings. On January 12, 1999, t h e district court entered an order granting Henderson's motion to vacate the s c h e d u lin g order. In that order, the court stated that it expected Henderson to in fo r m the court of the status of his state habeas application (which at that time w a s pending before the Texas Court of Criminal Appeals) by January 27, 1999. H e n d e r s o n complied by filing his federal habeas petition on January 27, 1 9 9 9 . It was held in abeyance pending the Texas court's ruling on Henderson's s u c c e s s iv e state habeas application. On October 27, 1999, the Texas Court of C r im in a l Appeals dismissed Henderson's second state habeas application as an a b u s e of the writ. Henderson next filed an amended federal habeas petition on M a r c h 1, 2000, asserting the claims regarding Deon Williams's recantation, that h e had exhausted in his second state habeas application. T h e district court conducted an evidentiary hearing in March 2001, and d e n ie d Henderson's petition for federal habeas relief that September. It granted a certificate of appealability on November 30, 2001. O n June 20, 2002, while Henderson's appeal of the district court's denial o f habeas relief was pending in this court, the Supreme Court of the United S t a t e s issued its opinion in Atkins, barring execution of mentally retarded p r is o n e r s . O n June 9, 2003, this court affirmed the district court's denial of habeas r e lie f and denied Henderson's request to expand the COA. Henderson v. C o c k r e ll, 333 F.3d 592 (5th Cir. 2003). Henderson filed a petition for rehearing 3 Case: 08-70018 Document: 00511295537 Page: 4 Date Filed: 11/16/2010 No. 08-70018 e n banc on June 30, which this court denied on July 15, 2003. The Supreme C o u r t denied Henderson's petition for a writ of certiorari on January 26, 2004. Henderson v. Dretke, 540 U.S. 1163 (2004). O n January 16, 2004, ten days before the Supreme Court denied certiorari, H e n d e r s o n was evaluated by a psychologist, Dr. Susana Rosin. Dr. Rosin c o m p le t e d her report on March 19, 2004. Five days later, on March 24 (fiftys e v e n days after the Supreme Court denied certiorari), Henderson filed a third s t a t e habeas application in which he presented his Atkins claim. On April 24, 2 0 0 4 , the Texas Court of Criminal Appeals remanded the case to the trial court, fin d in g that Henderson had presented facts which, if true, might entitle him to r e lie f. Ex parte Henderson, No. 37,658-03 (Tex. Crim. App. 2004) (unpublished). O n remand, the trial court conducted a hearing and entered findings of fa c t and conclusions of law, recommending that Henderson's Atkins claim be denied. On January 25, 2006, the Texas Court of Criminal Appeals denied relief, h o ld in g that Henderson had failed to show by a preponderance of the evidence t h a t he is mentally retarded. Ex parte Henderson, No. WR-37,658-03 (Tex. Crim. A p p . Jan. 25, 2006) (unpublished). A b o u t 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 o f the proposed petition. On August 23, 2006, this court granted Henderson's m o t i o n to file a successive habeas petition. In re Henderson, 462 F.3d 413. In o u r order granting the motion, we noted that neither party had presented us w it h a complete transcript of the testimony presented at the state habeas e v id e n t ia r y hearing. Id. at 416 n.3. We concluded, based on the limited m a t e r ia ls available to us, that Henderson had made a prima facie showing of m e n ta l retardation. Id. at 417. We noted that, unless equitable tolling applies, H e n d e r s o n 's successive habeas petition is time-barred. Id. We left "it for the d is t r ic t court to decide whether Henderson's case presents the `rare and 4 Case: 08-70018 Document: 00511295537 Page: 5 Date Filed: 11/16/2010 No. 08-70018 e x c e p t io n a l circumstances' that would entitle him to the benefit of equitable t o llin g ." Id. H e n d e r s o n filed his successive federal habeas petition in the district court t h e following day, August 24, 2006. O n March 31, 2008, the district court denied relief, holding that H e n d e r s o n 's petition is barred by the statute of limitations. Henderson v. Q u a r te r m a n , No. 1:06-CV-507, 2008 WL 906259 (E.D. Tex. 2008). The district cou rt assumed that the Texas "two-forum rule"1 presented a rare and exceptional c ir c u m s t a n c e for the purposes of equitable tolling. The court concluded, h o w e v e r , that Henderson did not pursue his claim diligently and was not e n tit le d to equitable tolling because (1) fifty-seven days passed between the d e n ia l of certiorari (which ended the two-forum rule impediment to filing) and t h e filing of his state Atkins petition, (2) Henderson did not file anything in fe d e r a l court while his state petition was pending, even after the two-forum rule w a s modified; and (3) forty days passed between the Court of Criminal Appeals d e n y in g the state Atkins writ and Henderson's filing of the motion for a u t h o r iz a t io n to file a successive federal habeas petition. T h e district court granted a COA for two issues: (1 ) whether Henderson's Atkins claim is time-barred because he is not e n tit le d to equitable tolling; and (2 ) whether the court should reach the merits of Henderson's Atkins claim b e c a u s e he is "innocent" of the death penalty. 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. 1 5 Case: 08-70018 Document: 00511295537 Page: 6 Date Filed: 11/16/2010 No. 08-70018 W e heard oral argument on these issues in November 2009. At that time, t h e parties noted that the Supreme Court had granted certiorari in Holland v. F lo r id a , 539 F.3d 1334 (11th Cir. 2008), cert. granted, 130 S.Ct. 398 (Oct. 13, 2 0 0 9 ). We held this case in abeyance, pending the Supreme Court's decision in H o ll a n d , which was handed down on June 14. 130 S. Ct. 2549 (2010). At our d ir e c t io n , the parties filed supplemental letter briefs addressing the application o f Holland to the facts of Henderson's case. W e now turn to address Henderson's argument that he is entitled to e q u it a b le tolling. II. A. T h e Antiterrorism and Effective Death Penalty Act (AEDPA) provides a on e-y ea r 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 w h ic h the constitutional right asserted was . . . newly recognized by the Supreme C o u r t 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 b y the Supreme Court in Atkins, which was decided on June 20, 2002. The lim it a t io n s period commenced on that date and expired on June 20, 2003. Henderson did not file his Atkins petition until August 24, 2006. Accordingly, u n le s s equitable tolling applies, it plainly is time-barred. A t the time the district court ruled on Henderson's equitable tolling claim, t h e Supreme Court had not decided whether the AEDPA limitations period may b e equitably tolled. In Lawrence v. Florida, 549 U.S. 327, 336 (2007), the Court a s s u m e d without deciding that equitable tolling is available. The Court stated t h a t , to be entitled to equitable tolling, the petitioner "must show (1) that he has b e e n pursuing his rights diligently, and (2) that some extraordinary c ir c u m s t a n c e stood in his way and prevented timely filing." 6 Id. (internal Case: 08-70018 Document: 00511295537 Page: 7 Date Filed: 11/16/2010 No. 08-70018 q u o t a t io n marks and citation omitted); see also Pace v. DiGuglielmo, 544 U.S. 4 0 8 , 418 (2005) (same). In Lawrence, a death penalty case, the petitioner argued t h a t his attorney's mistake in calculating the limitations period entitled him to e q u it a b le tolling. 549 U.S. at 336. The Supreme Court rejected that contention, n o t i n g that, "[i]f credited, this argument would essentially equitably toll lim it a t io n s periods for every person whose attorney missed a deadline." Id. The C o u r t stated that "[a]ttorney miscalculation is simply not sufficient to warrant eq u it a b le tolling, particularly in the postconviction context where prisoners have n o constitutional right to counsel." Id. at 33637. I n Holland, the Supreme Court held specifically for the first time that A E D P A 's statute of limitations "is subject to equitable tolling in appropriate c a s e s ." 130 S. Ct. at 2560. In doing so, the Court reiterated the requirements fo r equitable tolling that it had stated in Lawrence and Pace: "[A] petitioner is e n tit le d to equitable tolling only if he shows (1) that he has been pursuing his r ig h t s diligently, and (2) that some extraordinary circumstance stood in his way a n d prevented timely filing." Id. at 2562 (internal quotation marks and citations o m itte d ). T h e Court stated that "[t]he diligence required for equitable tolling p u r p o s e s is reasonable diligence, not maximum feasible diligence." Id. at 2565 (in t e r n a l quotation marks and citations omitted). The Court held that the d is t r ic t court's conclusion, which rested on a finding of a lack of diligence, was in c o r r e c t , because: H o lla n d not only wrote his attorney numerous letters seeking c r u c ia l information and providing direction; he also repeatedly c o n t a c t e d the state courts, their clerks, and the Florida State Bar A s s o c ia t io n in an effort to have [his attorney]--the central im p e d im e n t to the pursuit of his legal remedy--removed from his c a s e . And, the very day that Holland discovered that his AEDPA c lo c k had expired due to [his attorney's] failings, Holland prepared 7 Case: 08-70018 Document: 00511295537 Page: 8 Date Filed: 11/16/2010 No. 08-70018 h is own habeas petition pro se and promptly filed it with the District C ou rt. Id . W it h respect to the extraordinary circumstances prong, the Court rejected a s "too rigid" the standard applied by the Eleventh Circuit, which had held that " e v e n attorney conduct that is `grossly negligent' can never warrant tolling a b s e n t `bad faith, dishonesty, divided loyalty, mental impairment or so forth on t h e lawyer's part.'" Id. at 2563 (quoting Holland, 539 F.3d at 1339). The S u p r e m e Court explained that the Eleventh Circuit's rule failed "to recognize t h a t , at least sometimes, professional misconduct that fails to meet the Eleventh C ir c u it 's standard could nonetheless amount to egregious behavior and create a n extraordinary circumstance that warrants equitable tolling." Id. The Court r e it e r a t e d that "a garden variety claim of excusable neglect" would not be s u ffic ie n t to warrant equitable tolling. Id. at 2564 (internal quotation marks and c it a t io n omitted). T h e Court emphasized that its precedent requires that a court of equity e x e r c is e its powers on a case-by-case basis: [C ]o u r t s of equity can and do draw upon decisions made in other s im ila r cases for guidance. Such courts exercise judgment in light o f prior precedent, but with awareness of the fact that specific c ir c u m s ta n c e s , often hard to predict in advance, could warrant s p e c ia l treatment in an appropriate case. I d . at 2563. B e c a u s e the district court in Holland incorrectly found a lack of diligence a n d the Eleventh Circuit "erroneously relied on a overly rigid per se approach" in considering whether there were extraordinary circumstances, the Supreme C o u r t observed that "no lower court has yet considered in detail the facts of this c a s e to determine whether they indeed constitute extraordinary circumstances s u ffic ie n t to warrant equitable relief." Id. at 2565. The Court also "recognize[d] 8 Case: 08-70018 Document: 00511295537 Page: 9 Date Filed: 11/16/2010 No. 08-70018 t h e prudence, when faced with an equitable, often fact-intensive inquiry, of a l l o w in g the lower courts to undertake it in the first instance." Id. (internal q u o t a t io n marks and citation omitted). Accordingly, the Court left "it to the C o u r t of Appeals to determine whether the facts in this record entitle Holland t o equitable tolling, or whether further proceedings, including an evidentiary h e a r in g , might indicate that [the State] should prevail." Id. W it h respect to the case now before us, the district court assumed that the T e x a s two-forum rule constituted an extraordinary circumstance, but concluded t h a t Henderson is not entitled to equitable tolling because he did not pursue his A tk in s claim diligently. The district court based this ruling on the facts that (1) fift y -s e v e n days passed between the denial of certiorari (which ended the twofo r u m rule impediment to filing) and the filing of his state Atkins petition; (2) H e n d e r s o n did not file any Atkins related document or pleading in federal court w h ile his state petition was pending, even though he certainly could have after t h e Texas Court of Criminal Appeals abandoned the two-forum rule; and (3) fo r t y days passed between the Court of Criminal Appeals denying the state A tk in s writ and Henderson's filing of his motion for authorization to file a s u c c e s s iv e federal habeas petition. In his supplemental letter brief, Henderson challenges this holding of the d is t r ic t court by arguing that it erroneously applied a "maximum feasible d ilig e n c e " standard rather than the "reasonable diligence" standard that the S u p r e m e Court announced in Holland. The State counters in its supplemental le t t e r brief that Holland does nothing more than reaffirm this court's prior e q u it a b le tolling jurisprudence. H e n d e r s o n also argues for a de novo standard of review. However, review o f a district court's decision not to apply equitable tolling is controlled by our p r e c e d e n t , which requires that we review the district court's decision for abuse o f discretion. Flores v. Quarterman, 467 F.3d 484, 485 (5th Cir. 2006); Fisher v. 9 Case: 08-70018 Document: 00511295537 Page: 10 Date Filed: 11/16/2010 No. 08-70018 J o h n s o n , 174 F.3d 710, 713 (5th Cir. 1999). Because the decision to apply e q u it a b le tolling is discretionary, and because the district court has not had an o p p o r t u n it y 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 t o the district court to allow it to consider, in the first instance, whether the facts o f 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) (u n p u b lis h e d ) (vacating and remanding "[i]n order to permit the district court fir s t consideration of Jones's petition in light of the Court's holding in Holland"). B. W e now turn to consider the second issue presented in this appeal: whether the merits of Henderson's mental retardation claim must be considered b e c a u s e he is actually innocent of the death penalty. T h e district court granted a COA for Henderson's alternative claim that, ir r e s p e c t iv e of any procedural bar, the court should reach the merits of his A tk i n s claim because he is actually innocent of the death penalty. Thus, H e n d e r s o n argues that, irrespective of equitable tolling, the court must address t h e merits of his mental retardation claim because failing to do so would c o n s t it u t e a fundamental miscarriage of justice. In support of this claim, H e n d e r s o n relies on Sawyer v. Whitley, 505 U.S. 333, 34647 (1992), to argue t h a t 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 t h u s , under the Eighth Amendment of the Constitution, ineligible for capital p u n is h m e n t . He acknowledges that the Fifth Circuit has not so held, but cites fo r support Souter v. Jones, 395 F.3d 577 (6th Cir. 2005). In Souter, the Sixth C ir c u it held that "where an otherwise time-barred habeas petitioner can d e m o n s t r a t e that it is more likely than not that no reasonable juror would have fo u n d him guilty beyond a reasonable doubt, the petitioner should be allowed to 10 Case: 08-70018 Document: 00511295537 Page: 11 Date Filed: 11/16/2010 No. 08-70018 p a s s through the gateway and argue the merits of his underlying constitutional c la im s ." Id. at 602. Henderson contends that, under this exception, the district c o u r t should have reached the merits of his Atkins claim and granted relief. T h e State contends that Henderson's reliance on Souter is misplaced, b e c a u s e the actual innocence exception addressed in that case is factual in n o c e n c e of the charged crime itself, and not legal innocence of the death p e n a lt y . Even if the court were to establish such an exception to the AEDPA s t a t u t e of limitations, the State argues, Henderson cannot show by clear and c o n v in c in g evidence that no reasonable juror could find that he is not mentally r e t a r d e d . The State contends further that, in this circuit, a claim of actual i n n o c e n c e does not constitute a rare and exceptional circumstance permitting e q u it a b le tolling. See Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000) (h o ld in g that a claim of actual innocence "does not constitute a `rare and e x c e p t io n a l' circumstance [permitting equitable tolling], given that many p r is o n e r s maintain they are innocent."); Cousin v. Lensing, 310 F.3d 843, 849 (5 t h Cir. 2002) (same). Henderson replies that Felder recognized that a s h o w in g , as opposed to a mere claim, of actual innocence would be sufficient to ju s tify 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."). I n Flanders v. Graves, 299 F.3d 974, 977 (8th Cir. 2002), the Eighth C ir c u it rejected, "as a broad concept," the contention that actual innocence could b e used to excuse a habeas petitioner's failure to file his petition within the lim it a t io n s period. The court explained: I t is our duty to apply statutes as written. The statute fixes a oney e a r period of limitations, and says nothing about actual innocence, e v e n though other parts of AEDPA, enacted at the same time, do r e fe r to this doctrine. It is not our place to engraft an additional ju d g e -m a d e exception onto congressional language that is clear on it s face. 11 Case: 08-70018 Document: 00511295537 Page: 12 Date Filed: 11/16/2010 No. 08-70018 I d . (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 r e s p o n d e n t that prevented him from discovering the relevant facts in a timely fa s h io n , or, at the very least, that a reasonably diligent petitioner could not have d is c o v e r e d 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 a c t u a l innocence exception that serves as a gateway through the AEDPA statute o f limitations to the merits of a petitioner's claims." Lee v. Lampert, 610 F.3d 1 1 2 5 , 1133, 1136 (9th Cir. 2010). H e n d e r s o n has not cited any authority holding that there is an "actual in n o c e n c e of the death penalty" exception to the AEDPA statute of limitations. We decline to create such an exception. C. T h e district court did not reach the merits of Henderson's mental r e t a r d a t io n claim and did not grant a COA for it. The State asserts that this c o u r t may nevertheless affirm on any basis supported by the record and argues t h a t , even assuming that Henderson is entitled to equitable tolling, Henderson's c la im fails on the merits, because he has failed to show by clear and convincing e v id e n c e that he is mentally retarded. In the light of our decision to remand to t h e district court for a determination of whether Henderson is entitled to e q u it a b le tolling under the standards announced in Holland, and also in the lig h t of the fact that the district court has not addressed the merits of H e n d e r s o n 's mental retardation claim, we think it is premature for us to c o n s id e r that claim at this stage of the proceedings. Because there is no special e x c e p t io n from the AEDPA statute of limitations based on actual innocence of t h e death penalty, it is only if the district court finds that, in the light of H o lla n d , these facts justify the tolling of the AEDPA limitations period, that the d is t r ic t court would need to address the merits of Henderson's Atkins claim. 12 Case: 08-70018 Document: 00511295537 Page: 13 Date Filed: 11/16/2010 No. 08-70018 III. F o r the foregoing reasons, the judgment of the district court is AFFIRMED w i th respect to its holding that there is no actual innocence exception to the A E D P A statute of limitations. The district court's holding that Henderson is not e n tit le d to equitable tolling is VACATED, and the case is remanded to the d is t r ic t court for further consideration of that holding in the light of Holland v. F lo r id a . If the district court finds that Henderson is entitled to equitable tolling, it will need to address the merits of his Atkins claim.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). . . . 2 13 Case: 08-70018 Document: 00511295537 Page: 14 Date Filed: 11/16/2010 No. 08-70018 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 timebarred." In re Henderson, 462 F.3d 413, 417 (5th Cir. 2006). The dissent fails to explain how 14 Case: 08-70018 Document: 00511295537 Page: 15 Date Filed: 11/16/2010 No. 08-70018 A F F I R M E D in part; VACATED in part; and REMANDED. its new found friend is compatible company with the precedents that it has so recently embraced. 15 Case: 08-70018 Document: 00511295537 Page: 16 Date Filed: 11/16/2010 No. 08-70018 W I E N E R , Circuit Judge, dissenting. I respectfully dissent. I do not do so because of any disagreement with the p a n e l majority's post-Holland analysis of the role of equitable tolling in the A E D P A 's one-year time bar. In fact, I remain hopefully confident that, in light o f the timely and diligent performance of pro bono counsel, the district court will h o ld on remand that Henderson qualifies for equitable tolling and will afford h im an evidentiary hearing on his Atkins claim. Rather, I dissent because I fir m ly believe that the AEDPA's time bar is inapplicable to Henderson's Atkins c la im , grounded as it is in his alleged "intellectual disability." 1 The producing c a u s e of my disagreement with the majority is its insistence that the "camel" of H e n d e r s o n 's Atkins claim pass through the "needle's eye" of actual innocence, t h e r e b y subjecting his and all other petitioners' Atkins claims to the AEDPA's s t a t u t e of limitations. T h e Supreme Court cases that have recognized the concept of "actual in n o c e n c e " require the habeas petitioner to allege his factual innocence--that he s im p ly did not commit the act in question--and, in some instances, to allege s o m e constitutional flaw in his trial as well. Not so, however, for an Atkins claim: I n Atkins, the Supreme Court held that executing an intellectually disabled p e r s o n for committing any crime would violate the Eighth Amendment, r e g a r d le s s of such person's factual guilt of the particular crime as found in an e r r o r fr e e trial of conviction. I am convinced, therefore, that Supreme Court p r e c e d e n t rejects the shoe-horning of an Atkins claim into the cubbyhole of 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). 1 16 Case: 08-70018 Document: 00511295537 Page: 17 Date Filed: 11/16/2010 No. 08-70018 a c t u a l innocence and thereby subjecting such a claim to the AEDPA's time bar.2 H e r e 's why. T h e Supreme Court has defined a claim of "actual innocence" as c o n s t it u t in g either (1) a substantive argument that, as a matter of fact, the p e t it io n e r did not commit the acts that constitute his crime of conviction, adding t h a t he must prove such an assertion by "truly persuasive" newly discovered e v id e n c e (Herrera v. Collins3 ); or (2) a procedural argument that constitutional e r r o r s at trial, along with newly discovered evidence of his factual innocence, u n d e r m in e the certainty of the petitioner's conviction (Schlup v. Delo 4 ). Unlike a n Atkins claim, which makes unconstitutional the execution of the petitioner fo r any crime, the Herrera and Schlup varieties of actual innocence claims r e n d e r unconstitutional the petitioner's execution or imprisonment for his one c r im e of conviction only. Actual innocence claims under both Herrera and Schlup fo c u s on the particular facts of the petitioner's offense of conviction; Schlup c la im s also focus on his particular trial of conviction. Moreover, both of these t y p e s of actual innocence claims are conditioned on the existence of new evidence t h a t was not presented at trial and that calls the petitioner's conviction into q u e s t io n .5 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). 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 3 2 513 U.S. 298, 314-15 (1995). 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 5 17 Case: 08-70018 Document: 00511295537 Page: 18 Date Filed: 11/16/2010 No. 08-70018 In Sawyer v. Whitley,6 the Supreme Court defined"actual innocence" more e x p a n s iv e ly by including procedural claims based on constitutional error at s e n te n c in g . A Sawyer claim of actual innocence that addresses the sentencing p h a s e of trial does so the way that a Schlup claim addresses such error at the g u ilt -in n o c e n c e phase. To prevail on a Sawyer claim of actual innocence, the p e t it io n e r must show "by clear and convincing evidence that but for c o n s t it u t io n a l error at his sentencing hearing, no reasonable juror would have fo u n d him eligible for the death penalty under [state] law." 7 A s the Supreme Court stated in Sawyer, referring to these claims as " a c t u a l innocence of the death penalty" is "not a natural usage of those words." 8 T h e Court nevertheless strove "to construct an analog to the simpler situation r e p r e s e n t e d by the case of a noncapital defendant."9 Thus, instead of claiming fa c t u a l innocence of the offense itself, Sawyer's sentencing variation on the a c t u a l innocence theme embodies a claim that the courts erred by sentencing to d e a th a person who is factually innocent of either (1) the element or elements of s u c h person's crime of conviction that make it a capital offense, or (2) the a g g r a v a t in g factors that make such person eligible to be sentenced to death. T h e "eligible for the death penalty" language in Sawyer can be misleading w h e n taken out of context. In defining the Sawyer variety of actual innocence c la im s , the Supreme Court further explained that "the `actual innocence' r e q u ir e m e n t 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). Id. at 350 (emphasis added). Id. at 341. Id. 7 8 9 18 Case: 08-70018 Document: 00511295537 Page: 19 Date Filed: 11/16/2010 No. 08-70018 t h e death penalty, and not on additional mitigating evidence that was prevented fr o m being introduced as a result of a claimed constitutional error." 1 0 The idea is that a constitutional error which occurred in the presentation of mitigating e v id e n c e during the sentencing phase would not necessarily undermine the ju r y '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 n o t hold that anyone who is legally ineligible for a particular punishment is `a c t u a lly innocent.' Sawyer merely likens sentencing criteria to the elements of a crime, focusing on the factual, not legal, basis for the verdict."1 1 So, gateway c la im s of actual innocence under both Schlup and Sawyer assert constitutional e r r o r s in convicting or sentencing a person, but only as to the particular crime fo r which he was indicted and tried. Diametrically opposed to such claims of a c t u a l innocence are claims of constitutional immunity from being put to death fo r any crime, regardless of when, where, or how committed--of which genre an A tk in s claim is a prime example. An Atkins claim asserts a per se violation of the Eighth Amendment on the g r o u n d that the intellectually disabled petitioner is constitutionally immune fr o m -- " le g a lly ineligible for," rather than "actually innocent of"--the death p e n a lt y , regardless of his particular crime of conviction. Thus, Atkins claims are c o n c e p tu a lly indistinguishable from those claims of death-penalty immunity r e c o g n iz e d in Ford v. Wainwright1 2 and Roper v. Simmons,1 3 both of which focus o n some trait that is unique to the petitioner, i.e., that he is insane (Ford) or u n d e r the age of sixteen (Roper). Such a trait is the thing that makes the 10 Id. at 347. Callins v. Johnson, 89 F.3d 210, 215 (5th Cir. 1996) (emphases added). 477 U.S. 399, 410 (1986). 543 U.S. 551 (2005). 11 12 13 19 Case: 08-70018 Document: 00511295537 Page: 20 Date Filed: 11/16/2010 No. 08-70018 e x e c u t io n of that petitioner for any crime unconstitutional, notwithstanding his p r o v e n guilt in an errorfree trial and his death sentence imposed in an equally e r r o r fr e e sentencing proceeding. Significantly, these immunity claims are asserted independently of any c o n s t it u t io n a l error that might have been committed by defense counsel, or by t h e prosecutor, or by the courts. Generally, neither the petitioner nor any other p a r ty takes issue with the petitioner's underlying factual guilt.1 4 Reduced to t h e ir essence, these immunity claims insist that "[t]he Eighth Amendment p r o h ib it s the State from inflicting the penalty of death upon a prisoner who is [in c o m p e t e n t ]. Petitioner's allegation of [incompetency] in his habeas corpus p e t it io n , if proved, therefore, would bar his execution." 1 5 T h is crucial distinction explains why the Supreme Court has never d is c u s s e d an Atkins, Ford, or Roper claim in terms of "actual innocence." Rather, fo r example, the Court has consistently confirmed that Atkins is a "categorical r e s t r ic t io n [] on the death penalty."1 6 In addition, the Supreme Court has e x p r e s s ly distinguished immunity claims--specifically one asserted under F o r d -- fr o m claims of actual innocence, explaining: "Unlike [Herrera], Ford did n o t challenge the validity of his conviction. Rather, he challenged the c o n s t it u t io n a lit y of his death sentence in view of his claim of insanity." 1 7 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 14 Ford, 477 U.S. at 410. 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 56364 (explaining that Atkins "ruled that the death penalty constitutes an excessive sanction for the entire category of mentally retarded offenders"). 17 16 Herrera, 506 U.S. at 406. 20 Case: 08-70018 Document: 00511295537 Page: 21 Date Filed: 11/16/2010 No. 08-70018 W e , in contrast, have tended to cloud the issue--as does the panel majority t o d a y -- b y trying to force the square peg of an Atkins claim into the round hole o f the actual innocence framework, mistakenly employing the label and theory o f "actual innocence" to do so.1 8 In In re Webster,1 9 we addressed 28 U.S.C. 2255(h)(1)--the codification of the actual innocence exception to successive p e t i t io n s for federal prisoners, which parallels 28 U.S.C. 2244(b)(2)(B)(ii) for s t a t e prisoners--which requires petitioners to present "newly discovered e v id e n c e that, if proven and viewed in light of the evidence as a whole, would be s u ffic ie n t to establish by clear and convincing evidence that no reasonable fa c t fin d e r would have found the movant guilty of the offense." 2 0 We held that 2255(h)(1) cannot encompass an Atkins claim "where [the petitioner] does not a s s e r t that the newly discovered evidence would negate his guilt of the offense o f which he was convicted, i.e., capital murder."2 1 We based our In re Webster h o ld in g on the conclusion that "there is no reason to believe that Congress in t e n d e d the language `guilty of the offense' to mean `eligible for a death s e n te n c e ,'" presuming that Atkins claims would have been covered by 2255(h)(1) if Congress had used the words, "actual innocence" or "eligible for t h e death penalty" instead.2 2 Unfortunately, we failed to add the obvious c o r o lla r y that an independent Atkins claim generally fails to qualify as a Sawyer a c t u a l innocence claim for the additional reasons that it involves neither the 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 18 605 F.3d 256 (5th Cir. 2010). 28 U.S.C. 2255(h)(1) (emphasis added). In re Webster, 605 F.3d at 257-58. Id. at 258-59 & n.7. 20 21 22 21 Case: 08-70018 Document: 00511295537 Page: 22 Date Filed: 11/16/2010 No. 08-70018 in t r o d u c tio n of new evidence of factual innocence nor allegations of c o n s t it u t io n a l error at sentencing.2 3 T h is is why, to get past that confusion now, we must think outside the a c t u a l innocence box. Henderson has never asserted, per Herrera, that he did not d o the deed and has never asserted, per Schlup, that some constitutional error a t trial, in combination with new evidence of his factual innocence, undermines h is conviction. Most significantly, although Henderson's first argument does m is t a k e n ly try (likely out of Sisyphean frustration) to fit his Atkins claim into t h e subset of Sawyer claims of actual innocence, nowhere does he point to any c o n s t it u t io n a l error in the sentencing phase of his trial; nowhere does he contest t h e jury's factual finding of aggravating factors warranting the death penalty; a n d nowhere does he identify any newly discovered evidence, which is an in d is p e n s a b le prerequisite to the assertion of every type of true actual innocence c la im , viz., Herrera, Schlup, and Sawyer. Rather, Henderson advances the s t r a ig h t fo r w a r d insistence that under Atkins he is constitutionally immune to t h e death penalty because he is intellectually disabled, nee retarded. Moreover, t h is in no way precludes his pleading the inapplicability of the AEDPA's time b a r in the alternative, even if inconsistent with equitable tolling, which im p lic it ly assumes the applicability of that time bar. All know that inconsistent a lt e r n a t iv e pleading has been recognized and approved since the enactment of t h e federal rules of procedure.2 4 A n d , even though Henderson's attempt to analogize his case to Souter v. J o n e s2 5 is flawed, so is the State's reciprocal effort to distinguish this case from "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 23 See FED. R. CIV. P. 8(d)(2). 395 F.3d 577 (6th Cir. 2005). 25 22 Case: 08-70018 Document: 00511295537 Page: 23 Date Filed: 11/16/2010 No. 08-70018 S o u te r . The Sixth Circuit held in Souter that the petitioner had made a valid S c h l u p claim of actual innocence and that "equitable tolling of the one-year lim it a t io n s period based on a credible showing of actual innocence is a p p r o p r ia te ."2 6 Although the panel majority today takes issue with Souter's e q u it a b le tolling holding, that discussion is irrelevant here for the obvious r e a s o n that Henderson never purports to make the requisite showing of actual in n o c e n c e -- w h ic h he cannot do, of course, in the absence of newly discovered e v id e n c e and a constitutional error at sentencing. This analytical enigma comes home to roost in the failed effort of the panel m a jo r it y to apply the Sawyer "reasonable juror" standard here, where it simply h a s no place. The majority summarizes the State's position as: "Henderson c a n n o t show by clear and convincing evidence that no reasonable juror could find t h a t he is not mentally retarded." This differs significantly, however, from the S a w y e r standard that asks, but for the constitutional error, would reasonable ju r o r s have sentenced the petitioner to death? I find the panel majority's e x t e n s iv e discussion of actual innocence not only misplaced but also susceptible o f unintentionally leading to further error by including the Atkins immunity d e fe n s e within the set of all actual innocence defenses. P r o p e r ly , Henderson's unfettered right to assert his Atkins claim must be a s s e s s e d entirely separately and apart from any actual innocence analysis and lik e w is e without application of the AEDPA's time bar. Reduced to its essentials, H e n d e r s o n 's argument is that his Atkins claim should not be subject to any p r o c e d u r a l bar because the Constitution forbids his execution vel non.2 7 Like the 26 Id. at 596-97, 599. 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 27 23 Case: 08-70018 Document: 00511295537 Page: 24 Date Filed: 11/16/2010 No. 08-70018 p a n e l majority in Part II.B of its opinion, I interpret Henderson to argue that a " fu n d a m e n t a l miscarriage of justice" would result if, at this juncture, the A E D P A 's statute of limitations were allowed to bar his Atkins claim. Even t h o u g h to date the miscarriage of justice principle has only been applied as an e x c e p t io n to procedurally defaulted claims, that maxim is equally applicable to p u t a t iv e ly time-barred claims. As the Supreme Court stated almost thirty years a g o : "In appropriate cases those principles [of comity and finality] must yield to t h e imperative of correcting a fundamentally unjust incarceration."2 8 Most r e c e n tly , 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 Case: 08-70018 Document: 00511295537 Page: 25 Date Filed: 11/16/2010 No. 08-70018 A E D P A seeks [to eliminate delays in the federal habeas review p r o c e s s ] without undermining basic habeas corpus principles and w h ile seeking to harmonize the new statute with prior law, under w h ic h a petition's timeliness was always determined under e q u it a b le principles. . . . The importance of the Great Writ, the only w r it explicitly protected by the Constitution, Art. I, 9, cl. 2, along w it h congressional efforts to harmonize the new statute with prior la w , counsels hesitancy before interpreting AEDPA's statutory s ile n c e as indicating a congressional intent to close courthouse doors t h a t a strong equitable claim would ordinarily keep open.2 9 I f we were to condone the barring of Henderson's Atkins claim by the AEDPA's s t a t u t e of limitations, without ever affording him a federal opportunity to d e m o n s t r a t e his intellectual disability, then allowing the State to execute him w o u ld not only be "fundamentally unjust"; it would be unconstitutional per se.3 0 I n conclusion, even though the panel majority is correct that Henderson d o e s not assert a valid Sawyer claim of actual innocence, its reasoning is fatally fla w e d by erroneously presuming that every Atkins claim is necessarily an actual in n o c e n c e claim. But, as I have laboriously demonstrated above, that assumption s im p ly is wrong: Sawyer bars the execution of a petitioner who did not factually c o m m it the elements of the crime that made it a capital offense or the a g g r a v a t in g factors that led the jury to impose the death penalty, or both. In s t a r k contrast, Atkins bars the execution of an intellectually disabled petitioner e v e n 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). 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. 30 25 Case: 08-70018 Document: 00511295537 Page: 26 Date Filed: 11/16/2010 No. 08-70018 h e committed each element of the capital offense and that he is guilty of those a g g r a v a t in g factors that led to his death sentence. Thus, it is its foundational error in classifying an Atkins claim as one of a c t u a l innocence that leads the panel majority to cause Henderson's claim to fail u n d e r the Sawyer analysis. This is error because his simply is not a claim of " a c t u a l innocence" to begin with.3 1 The obvious reason why his claim fails to m e e t the Sawyer standard is that the Sawyer standard is not applicable to an A tk in s claim. The same is true of the AEDPA's statute of limitations: It was n e v e r meant to apply, and never should be applied, to an Atkins claim--or to a F o r d or Roper claim for that matter.32 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. 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 32 31 26 Case: 08-70018 Document: 00511295537 Page: 27 Date Filed: 11/16/2010 No. 08-70018 I t is axiomatic that a fundamental miscarriage of justice generally excuses a procedural default of a petitioner's claim the substance of which, if credited, w o u ld avoid such a miscarriage. It is equally axiomatic that a potential m is c a r r ia g e of justice must trump the AEDPA's time bar to an otherwise p r o p e r ly asserted Atkins claim, even if that assertion is made outside the lim it a t io n s period and is not equitably tolled. Properly analyzed, a fundamental m is c a r r ia g e of justice will occur if Henderson is executed without having been g iv e n a federal habeas opportunity to prove, per Atkins, that he is intellectually d is a b le d .3 3 I t 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." 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. 33 27

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