Hearn v. Dretke

376 F.3d 447, 2004 WL 1497552

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 6, 2004
• Docket: Nos. 04-10245, 04-70010
• Status: Published

Opinions

EDITH BROWN CLEMENT, Circuit Judge:

Yokamon Laneal Hearn, an indigent Texas inmate seeking to challenge his death sentence pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), moves this Court to appoint counsel to prepare his application for authority to file a successive federal habeas corpus petition, and to stay his execution pending the disposition of such petition. For the following reasons, the motions to appoint counsel and stay the execution are GRANTED.

I.

Hearn was convicted of capital murder in Texas and sentenced to death. He appealed to the Texas Court of Criminal Appeals, which affirmed both the conviction and sentence. Hearn v. State, No. 73,371 (Tex.Crim.App. Oct. 3, 2001) (per curiam). The Supreme Court later denied Hearn’s petition for writ of certiorari. Hearn v. Texas, 535 U.S. 991, 122 S.Ct. 1547, 152 L.Ed.2d 472 (2002).

After Hearn was denied state post-conviction relief, Ex parte Hearn, No. 50,116-01 (Tex.Crim.App. Nov. 14, 2001), he filed a federal habeas petition pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas. On July 11, 2002, the district court granted summary judgment on behalf of the Director of the Texas Department of Criminal Justice (“Director”), thereby denying Hearn’s request for federal habeas relief. Hearn v. Cockrell, No. 3:01-CV-2551-D, 2002 WL 1544815 (N.D.Tex. July 11, 2002). Both the district court and this Court denied Hearn’s application for a certificate of appealability (“COA”), finding that he had failed to make a substantial showing of the denial of a constitutional right. Hearn v. Cockrell, No. 02-10913, 73 Fed.Appx. 79, 2003 WL 21756441 (5th Cir. June 23, 2003). On November 17, 2003, the Supreme Court denied Hearn’s petition for writ of certiorari. Hearn v. Dretke, - U.S.-, 124 S.Ct. 579, 157 L.Ed.2d 440 (2003). The State of Texas scheduled Hearn’s execution for March 4, 2004.

On March 2, 2004, Hearn filed a successive application for state post-conviction relief, claiming that he is mentally retarded and that his death sentence is cruel and unusual punishment under the Eighth Amendment. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). On March 3, 2004, the Texas Court of Criminal Appeals dismissed Hearn’s application on the ground that it constituted an abuse of writ, finding that he failed to make a prima facie showing of mental retardation. Ex parte Hearn, No. 50, 116-02 (Tex.Crim.App. Mar. 3, 2004). Later that day, Hearn moved the United States District Court for the Northern District of Texas for appointment of counsel pursuant to 21 U.S.C. § 848(q)(4)(B), and for a stay of execution under 28 U.S.C. § 2251. The district court sua sponte transferred the motions to this Court, and Hearn filed a separate notice of appeal— asking us to reverse the transfer order, appoint counsel, and enter a stay of execution.¹ In order to thoroughly address Hearn’s claim, we granted a temporary stay of execution, requested supplemental briefing, and heard oral argument.

II.

A. Appointment of counsel

The legality of Hearn’s detention was determined on a prior application for a writ of habeas corpus. Hearn v. Dretke, - U.S. -, 124 S.Ct. 579, 157 L.Ed.2d 440 (2003). “Before a second or successive application [for a writ of habeas corpus] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). In order to facilitate the preparation of his application for § 2244(b)(3)(A) authority, Hearn now moves this Court to appoint counsel pursuant to 21 U.S.C. § 848(q)(4)(B).²

(1) Scope of § 848(q)(4)(B)

The Director contends that § 848(q)(4)(B) does not authorize the appointment of counsel to prepare an application for authority to file a successive habeas writ petition. We disagree.

Section 848(q)(4)(B) provides that:

In any post conviction proceeding under section 2254 or 2255 of Title 28, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9).

21 U.S.C. § 848(q)(4)(B) (emphasis added). Significantly, this provision expressly incorporates subsection (q)(8), which states that

each attorney so appointed shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.

21 U.S.C. § 848(q)(8) (emphases added). On their face, these statutes grant indigent capital prisoners a mandatory right to qualified legal counsel and reasonably necessary legal services in all federal post-conviction proceedings. Needless to say, this is not language of limitation.³

The expansive nature of § 848(q)(4)(B) is further evinced by the Supreme Court’s decision in McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). The question before the Court was whether a motion to appoint counsel under § 848(q)(4)(B) qualified as a “post-conviction proceeding under section 2254 or 2255,” invoking the district court’s jurisdiction and allowing it to appoint counsel and grant a stay of execution. The language of § 2254 and § 2255 make no reference to motions to appoint counsel, and a simple reading of the habeas statutes would lead one to believe that a motion to appoint counsel would not be a “post conviction proceeding under section 2254 or 2255.” The McFarland Court, however, heeded Congress’s concern for unrepresented capital prisoners and came to the opposite conclusion, holding that the right to the appointment of counsel adheres before the filing of a formal habeas corpus petition.

This interpretation is the only one that gives meaning to the statute as a practical matter. Congress’ provision of a right to counsel under § 848(q)(4)(B) reflects a determination that quality legal representation is necessary in capital ha-beas corpus proceedings in light of “the seriousness of the possible penalty and ... the unique and complex nature of the litigation.”

[CJriminal defendants are entitled by federal law to challenge their conviction and sentence in habeas corpus proceedings. By providing indigent capital defendants with a mandatory right to qualified legal counsel in these proceedings, Congress has recognized that federal habeas corpus has a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty.

McFarland, 512 U.S. at 855, 859, 114 S.Ct. 2568 (quoting 21 U.S.C. § 848(q)(7)). The McFarland Court’s explanation of Congress’s intent to provide capital prisoners with habeas counsel, and its illustration of how far it was willing to go to effectuate that intent, guide our analysis in this case.

The Director asserts that the relief recognized in McFarland is limited to those capital prisoners who have not yet filed an initial habeas petition. Such a contention is without merit. While the petitioner in McFarland was indeed pursuing his first federal habeas writ, no language in the Supreme Court’s opinion limits its holding to initial 'petitions. We note, however, that the Court did place special emphasis on the necessity of counsel during the initial investigation of potential habeas claims. McFarland explains that Congress, through § 848(q)(4)(B), granted indigent capital prisoners the opportunity to investigate and research the factual bases of possible habeas claims. Id. at 855, 114 S.Ct. 2568 (discussing the right to “[t]he services of investigators and other experts [that] may be critical in the preapplication phase of a habeas corpus proceeding, when possible claims and their factual bases are researched and identified”); id. at 858 (recognizing the importance of the petitioner’s “opportunity” to “meaningfully ... research and present [his] habeas claims”). The Court found that McFarland — who was without counsel, and was pursuing previously unavailable habeas relief — was denied this opportunity to investigate the factual bases of his potential habeas claims. It seems clear to us that the McFarland Court would have been just as concerned with a capital prisoner in need of investigating a successive habeas petition, based on a claim previously unavailable to the prisoner, as it was with the capital prisoner seeking to file an initial petition. Under both scenarios, the prisoner has been denied the opportunity to conduct an initial investigation into the factual bases of a potential habeas claim.

One of our cases, however, includes language suggesting that indigent capital prisoners are never entitled to the appointment of counsel to prepare a successive habeas petition. See Kutzner v. Cockrell, 303 F.3d 333, 338 (5th Cir.2002) (“‘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.’ Thus, McFarland does not justify appointment of counsel or stay of execution for the preparation of a second federal habeas petition.”) (quoting Turner v. Johnson, 106 F.3d 1178, 1182 (5th Cir.1997)).⁴ While such a statement, taken by itself, strongly supports the Director’s position, its authoritative value is significantly diminished when read in the proper context.

The issue before the Kutzner Court was whether the petitioner was entitled to counsel pursuant to § 848(q)(4)(B) in light of McFarland. Kutzner begins its analysis by recognizing that the “core concern of McFarland [is] 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 claim never would be heard on the merits’.... ” 303 F.3d at 338 (quoting McFarland, 512 U.S. at 856, 114 S.Ct. 2568). The Court then reviewed the facts of Kutzner’s case, and found that he was equipped with competent counsel throughout the entire habeas process. Id. (“Kutzner was represented by qualified counsel ... [and] current counsel has represented Kutzner for more than one year.”) The Court also reasoned that his “original § 2254 petition ivas fully litigated on the merits.” Id. at 338. The opinion takes particular note that Kutzner had been long-aware of the Brady material and false testimony alleged in his proposed petition, and that he was not seeking relief pursuant to a new rule of constitutional law. Id. at 336, 337. Based on these findings, the Court ultimately concluded that Kutzner’s situation did not implicate the “core concern” of McFarland, and that his request for counsel should be denied accordingly.

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 statement of law cited by the Director, limiting McFarland to initial petitions, is not an alternative rationale supporting this narrow fact-based holding.⁵ It would be illogical to find otherwise, as this statement of law would wholly subsume, rather than facilitate, the Court’s analysis of whether Kutz-ner enjoyed an opportunity to raise his habeas claim in an earlier petition. Moreover, the contested statement of law does not stand by itself as an alternative holding. The statement is found in the final sentence of a paragraph that addresses the wholly distinct subject of Kutzner’s foregone opportunities to raise habeas claims. Further, the Court does not expressly apply the contested statement of law to the facts of Kutzner’s case. This absence of analysis is particularly striking in light of the Court’s detailed discussion, in the preceding sentences, whether McFarland's, “core concern” is implicated by the petitioner’s situation.

We find, after reading Kutzner in its proper context, that its limitation on McFarland does not constitute an alternative rationale or an alternative holding, but rather 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.” Blacic’s Law DictionaRY 1100 (7th ed.1999) (defining “obiter dictum”); see also Centennial Ins. Co. v. Ryder Truck Rental, Inc., 149 F.3d 378, 385-86 (5th Cir.1998) (“That which is ‘obi-ter dictum’ is stated only ‘by the way’ to the holding of a case and does not constitute an essential or integral part of the legal reasoning behind a decision.”) (internal quotations omitted). Further, we do not find such dictum persuasive because it contravenes McFarland’s intent to provide indigent capital prisoners with the opportunity to conduct — at the very least — a single, cursory investigation into the factual bases of each potential habeas claim.

Upon review of the statutory language, McFarland, and the prior decisions of this Circuit, we hold that courts are not barred from appointing § 848(q)(B)(4) counsel to prepare an application for authority to file a successive habeas petition. We now proceed to a discussion of whether the petitioner in the case sub judice is entitled to such relief.

(2) Hearn’s opportunity to investigate the factual bases of his Atkins claim

The Director asserts that Hearn’s motion for § 848(q)(4)(B) counsel should be denied on the ground that Hearn, like the prisoner in Kutzner, had a sufficient opportunity to investigate the factual bases of his proposed habeas claim. We disagree. Hearn’s proposed successive petition will seek habeas relief pursuant to the new constitutional rule created in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Atkins, however, had not yet been decided when Hearn filed his initial habeas petition. Although Atkins was issued while Hearn’s first petition was pending in federal court, Texas’s habeasabstention procedure — which barred the filing of a state petition while a habeas writ was pending in federal court — effectively precluded him from seeking Atkins relief until his initial habeas petition was disposed of by the federal courts. See discussion infra Part II.A(4).

Upon the denial of his initial federal habeas petition, Jan Hemphill withdrew from her representation of Hearn. Put plainly, Hearn lost his court-appointed ha-beas counsel on the very day he became eligible to raise his Atkins claim. Hearn made various efforts to persuade Hemphill to file a successive writ petition, and even dispatched family members to the federal district court and Texas Attorney General’s Office in an effort to compel her to investigate a successive claim. When all else failed, Hearn promptly contacted his current pro bono counsel, who conducted an expedited investigation into Hearn’s records and brought such evidence before this Court. We find that Hearn has made a sufficient showing that Texas’s habeas-abstention procedure, and the unavailability of qualified habeas counsel after the disposition of his initial petition, denied him the opportunity to sufficiently investigate the factual bases underlying his Atkins claim.

(3) Hearn’s showing of mental retardation

The Director maintains that, even if Hearn were, in fact, denied an opportunity to investigate the factual bases of his Atkins claim, we should withhold § 848(q)(4)(B) counsel on the ground that Hearn has failed to make the requisite prima facie showing of mental retardation.⁶ Such an assertion is without merit. Because § 848(q)(4)(B) — read in conjunction with McFarland — affords counsel to prisoners to prepare federal habeas petitions, “a substantive, merits assessment of the petition is irrelevant to the appointment of counsel.” Weeks v. Jones, 100 F.3d 124, 127 (11th Cir.1996); see Barnard v. Collins, 13 F.3d 871, 879 (5th Cir.1994) (“On its face, § 848(q)(4)(B) does not condition the appointment of counsel on the substantiality or non-frivolousness of petitioner’s habeas claim.”). As a result, a prisoner’s motion for counsel to investigate and prepare a successive Atkins claim need only be supported by a colorable showing of mental retardation.⁷

We hold that Hearn has met this modest evidentiary threshold. For instance, Hearn has presented school records showing that he failed first grade, and that his marks often hovered in the 50s (or below) despite his regular attendance. He further proffered evidence that his score on the state-administered Weschler Adult Intelligence Scale-Revised (“WAIS-R”) Short-form test — taking into account its inherent band of error — falls within the upper range of scores indicating mild mental retardation.⁸ Hearn also presents a note from Hemphill stating her belief that he was “not very intelligent — maybe below normal.”⁹ He further cites the trial testimony of a family member to demonstrate his compromised social skills.¹⁰ We find that this evidence, while certainly insufficient to establish a prima facie case of mental retardation, nonetheless presents a colorable claim of mental retardation sufficient to justify the appointment of counsel to investigate and prepare a § 2244(b)(3)(A) application.

(4) Hearn’s showing of rare and equitable circumstances

The Director lastly contends that Hearn’s motion for counsel should be denied because his eventual Atkins claim will be time-barred. It is true that potential procedural bars may be so conclusive that the right to counsel under § 848(q)(4)(B) becomes unavailable. See Cantu-Tzin v. Johnson, 162 F.3d 295, 298-99 (5th Cir. 1998). This Court in Cantu-Tzin explained that the “Mppointment of counsel for a capital-convicted defendant would be a futile gesture if the petitioner is time-barred from seeking federal habeas relief.” Id. at 299. Hearn cannot bring his Atkins claim within the one-year statute of limitations dictated by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”).¹¹ The AEDPA limitations period, however, is subject to equitable tolling in “rare and exceptional circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998). Hearn contends that Texas’s habeas-abstention procedure, known as the “two-forum rule,” presented a rare and exceptional circumstance that precluded him from raising an Atkins claim.

Texas state law has traditionally barred prisoners from having pending habeas litigation in both state and federal courts. Through its judicially-created two-forum rule, Texas prevented petitioners from lodging a mixed petition in federal court and simultaneously returning to state court, or having a federal court hold a petition in abeyance while further state court remedies were sought. See generally Ex parte Green, 548 S.W.2d 914, 916 (Tex.Crim.App.1977) (“A petitioner must decide which forum he will proceed in, because [the Texas Court of Criminal Appeals] will not, and a trial court in this State should not, consider a petitioner’s application so long as the federal courts retain jurisdiction over the same matter.”).¹²

On February 11, 2004, the Texas Court of Criminal Appeals expressly modified the two-forum rule, enabling Texas courts to consider the merits of a subsequent writ application once a federal court stays the federal habeas proceedings. Ex parte Soffar, No. 29,890, 2004 WL 245190 (Tex. Crim.App. Feb. 11, 2004). The court in Soffar reasoned:

Because of the strict one-year statute of limitations in the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the application of [the two-forum rule], combined with the federal exhaustion requirement, may lead to unintended and unfortunate consequences. The problematic situation is when the Supreme Court announces a “watershed” procedural or substantive change in the law which applies retroactively to all cases, even those on collateral review. Atkins v. Virginia seems to be one such case.

Id. at *3.

By June 20, 2003, the date the AEDPA limitations period for Atkins claims expired, Hearn had already filed his initial federal habeas petition, and he was awaiting this Court’s ruling on his application for a COA. If Hearn had petitioned for Atkins relief in Texas court, he would have been compelled to move the federal court to dismiss without prejudice his then-pending federal petition. Such a dismissal likely would have time-barred Hearn from later asserting the claims in his pending federal petition. See Duncan v. Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (stating that the AED-PA limitations period is not tolled during the pendency of a federal habeas petition). On the other hand, because Hearn waited to file his Atkins claim until the disposition of his then-pending federal habeas proceeding, he faced Texas’s assertion of a time bar on his Atkins claim. The two-forum rule appears to have effectively forced Hearn to choose between federal review of his pending writ petition and his right to pursue successive habeas relief under Atkins.

The Director contends that equitable tolling is improper because — four months prior to Soffar — the Texas Court of Criminal Appeals implicitly negated the two-forum rule when it remanded a petitioner’s Atkins claim for review on the merits even though that petitioner had a writ pending in federal court. Ex parte Smith, No. 40,874-02 (Tex.Crim.App. Oct. 8, 2003). This argument is without merit. One petitioner’s willingness to jeopardize review of his pending federal habeas petition in order to file an Atkins claim does not mean that all others must. For instance, it is plausible that the petitioner in Smith was prepared to sacrifice review of his federal writ petition because it was comprised of frivolous claims. Moreover, the Texas Court of Criminal Appeals’s decision to remand one case for review on the merits, absent any express criticism of the governing two-forum rule, does not undermine decades of Texas precedent reinforcing the preclusive effect of that rule. Although it is not apparent that the AEDPA limitations period must be equitably tolled on Hearn’s behalf, we find that the facts relevant to this analysis are in dispute such that Hearn is entitled to counsel to investigate and prepare a tolling claim.

As discussed above, Hearn has made sufficient showings that he was not afforded an opportunity to investigate his Atkins claim, that he is in fact mentally retarded, and that his potential Atkins claim is not time-barred. This case therefore implicates the “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). As a result, we hold that Hearn is entitled to the appointment of counsel and reasonably necessary services under § 848(q)(4)(B) to investigate and prepare his application for authority to file an Atkins claim.

B. Stay of execution

Hearn also moves this Court for a stay of execution to provide his appointed counsel with sufficient time to prepare an application for authority to file his Atkins claim. The Director contends that this Court is not authorized to grant a stay of execution because a writ of habeas corpus is currently not pending before this Court as required by 28 U.S.C. § 2251. The Director’s claim is meritless. The Supreme Court in McFarland held that a habeas proceeding is pending before a court, for the purposes of staying an execution, once a capital prisoner moves for the appointment of habeas counsel pursuant to § 848(q)(4)(B). 512 U.S. at 856, 114 S.Ct. 2568. The McFarland Court explained that the pre-application appointment of counsel alone, without the time to adequately develop the facts and brief the claims, renders the statutory guarantee of counsel an empty promise. Id.

In accordance with the reasoning of McFarland, we find that a stay of execution is imperative to ensure the effective presentation of Hearn’s application for authority to file his Atkins claim. Because Hearn was not dilatory in his search for counsel, and the stay of execution will not substantially harm the State of Texas, the preliminary stay ordered March 4, 2004, is hereby extended to provide Hearn’s counsel with sufficient time to prepare an application for § 2244(b)(3)(A) authority.

III.

For the reasons stated above, Hearn’s motions for the appointment of counsel and for stay of execution are GRANTED. Accordingly, we REMAND to the district court to appoint counsel and furnish reasonably necessary services to help Hearn present his application for authority, and— should such authority be granted — his formal Atkins petition. Hearn shall file his completed application for § 2244(b)(3)(A) authority no later than six months from today. Accordingly, Hearn’s execution is STAYED pending the resolution of proceedings consistent with this order.

1 . Hearn's current lawyers, members of the Texas Defender Service, have volunteered their services for the limited purpose of assisting Hearn in his effort to obtain permanent habeas counsel pursuant to § 848(q)(4)(B).

2 . As an initial matter, we decline to characterize Hearn’s motion for appointment of counsel as a motion for actual § 2244(b)(3)(A) authority to file a successive federal writ petition. Hearn has made it abundantly clear that he is not asking this Court for such authority, and we are not persuaded that our precedent requires us to presume otherwise. United States v. Key, 205 F.3d 773, 774-75 (5th Cir.2000), cited by the Director, is inap-posite because it involves neither 21 U.S.C. § 848(q)(4)(B), a capital prisoner, nor the Supreme Court's ruling in McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994).

3 . The Director argues that we must deny the appointment of counsel on the ground that an application for § 2244(b)(3)(A) certification is not a "post conviction proceeding under section 2254 or 2255.” This argument is without merit. Section 2255, for example, provides that motions filed by successor petitioners “must be certified as provided in section 2244.” This clause in effect designates § 2244(b)(3)(A) certification as an element of § 2255 relief. As a result, we find that a certification inquiry is a proceeding "under” § 2255. Further, this Court has on prior occasions characterized other § 2244 hearings as "post conviction proceeding[s] under section 2254 or 2255.” See Cantu-Tzin v. Johnson, 162 F.3d 295, 302 (5th Cir.1998) (discussing the appointment of § 848(q)(4)(B) counsel for the limited purpose of preparing an equitable tolling claim pursuant to § 2244(d)).

4 . The petitioner in Turner was seeking a stay — rather than the appointment of counsel — pursuant to McFarland. Importantly, Turner's habeas petition was pending in federal court at the time of the Court's decision. Seeing that the federal habeas corpus statute grants any federal judge "before whom a ha-beas corpus proceeding is pending” power to stay an execution, 28 U.S.C. § 2251, the Turner Court's observation that 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” is far from remarkable. Turner, 106 F.3d at 1182. It is clear that such language does not concern McFarland's applicability to successive petitions, but instead restates the well-established rule that McFarland is the improper channel through which to seek a stay of execution while a habeas petition is before the federal courts.

5 . It is well-established that alternative holdings of this Court are binding on future panels. See, e.g., McClendon v. City of Columbia, 305 F.3d 314, 327 n. 9 (5th Cir.2002) (en banc); McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 925 n. 20 (5th Cir.1977) (en banc) (stating that all alternative rationales for a given result have precedential value). Our en banc Court in McClendon noted, however, that an “alternative analysis should be rare in qualified immunity cases and should not be undertaken routinely by the panels of this court.” McClendon, 305 F.3d at 327 n. 9. While we are mindful that this case does not involve a claim of qualified immunity, McClendon clearly supports the proposition that alternative analyses should not be common practice in this Circuit. In light of this principle, we find it improper for this Court to infer alternative rationales or holdings where ones are not clearly expressed.

6 . The American Association on Mental Retardation defines mental retardation as: (1) sub-average general intellectual functioning (z.e., an IQ of approximately 70 to 75 or below) existing concurrently with (2) related limitations in adaptive functioning; and (3) onset before the age of eighteen. Am. Ass’n on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Supports 1 (9th ed.1992). "Psychologists and other mental health professionals are flexible in their assessment of mental retardation; thus, sometimes a person whose IQ has tested above 70 may be diagnosed as mentally retarded." Ex parte Briseno, 135 S.W.3d 1, 7 n.24 (Tex.Crim.App. Feb. 11, 2004).

7 . Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AED-PA”) with the intent to curb the vast number of habeas filings in the federal courts. In furtherance of this objective, AEDPA requires that potential successive petitioners present the merits of their habeas writ to the courts of appeals before such claim is filed in district court. 28 U.S.C. § 2244(c). We think it concomitant with this Congressional intent to 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.

8 . Hearn scored an 82 on the WAIS-R Short-form test. “The basic requirement for any short-form is a minimum correlation of .90 with the full administration.... [W]ith a .90 correlation, two-thirds of the IQs will fall within 9 points of a person’s actual IQ and a full one-third will be 10 or more points away from the actual IQ.” Gary Groth-Marnat, Handbook of Psychological Assessment 200 (3d ed.1999). Due to the Short-form's substantial margin of error, we find that Hearn may have an IQ "between 70 and 75 or lower, which is typically considered the cutoff IQ score for the intellectual function prong of the mental retardation definition.” Atkins, 536 U.S. at 309 n. 5, 122 S.Ct. 2242.

9 . To show that Hearn has not established a colorable claim of mental retardation, the dissent points to Hearn's “long, personalized request for a pen pal via a web site.” The dissent quite ably finds that the request "used complete sentences.” If this request were in fact transcribed by Hearn, it may well be relevant to the ultimate issue of whether Hearn is in fact mentally retarded. Unlike the dissenting judge, however, we refuse to accord such weight to mere hearsay evidence.

10 . Hearn’s aunt 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.”

11 . AEDPA tolls the limitations period for one year after a new retroactive constitutional rule is enunciated. 28 U.S.C. § 2244(d)(1)(C). The retroactive rule in Atkins was issued on June 20, 2002; the AEDPA one-year limitations period for filing an Atkins claim therefore expired on June 20, 2003. Hearn has not yet raised his Atkins claim in federal court.

12 . Other states have traditionally permitted petitioners to file a mixed petition in federal court, and subsequently litigate the unex-hausted claims in state court while the federal petition was held in abeyance. See, e.g., Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001) (holding that a federal court, presented with a mixed petition, should dismiss the unexhausted claims and stay the exhausted claims to avoid the AEDPA time bar); Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000) (noting that the proper action for petitioner was "filing in both courts" and requesting that the district judge stay the federal proceedings).