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United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 20, 2004
October 19, 2004
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________
Clerk
No. 04-10245
_______________________
In Re: Yokamon Laneal HEARN , Movant.
_______________________
No. 04-70010
_______________________
Yokamon Laneal Hearn,
Petitioner-Appellant,
v.
Doug Dretke, Director, Texas Department of
Criminal Justice, Correctional
Institutions Division,
Respondent-Appellee.
Transfer Order from the United States District
Court and Appeal from the United States District Court
from the Northern District of Texas
______________________________________________________________________________
ORDER ON REHEARING
(Opinion 7/6/04, 5th Cir., 376 F.3d 447)
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
The petition for panel rehearing is DENIED, and no judge in regular active service having
requested that the court be polled on rehearing en banc, the petition for rehearing en banc is

DENIED. The court, having considered the request for rehearing, clarifies the panel opinion as
follows:
1.
The panel decision is limited to a petitioner who:
(i)
has already filed state and federal petitions;
(ii)
presently lacks §848(q)(4)(B) counsel;
(iii)
may have a §2244(b)(2)(A) claim based on the previously unavailable, new
Supreme Court rule in Atkins; and
(iv)
to whom Atkins may apply.
2.
Consequently, this decision does not imply that all defendants are entitled to
§848(q)(4)(B) counsel for all successive habeas actions. McFarland v. Scott, 512
U.S. 849 (1994), must be harmonized with Congress's later determination in AEDPA
that the gro unds for successive habeas petitions are narrowly circumscribed. Cf.
Cantu-Tzin v. Johnson, l62 F.3d 295, 296 (5th Cir. 1998) ("neither McFarland nor
§848(q)(4)(B) requires appointment of counsel for the wholly futile enterprise of
addressing the merits of a time-barred habeas petition").
3.
Equitable tolling applies in this case because of the combination of the problem
created by the Texas two-forum rule, which Texas has overturned, and the withdrawal
of petitioner's counsel.
4.
This is a fact-bound case. In the ordinary case, e.g., In re Holladay, 331 F.3d 1169
(11th Cir. 2003), where the issue of mental retardation was explored at trial for
Penry mitigation purposes, there will likely be a state court record from which to
determine whether a prima facie case of mental retardation exists. Counsel may be
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appointed for a successive petition, but the appointment alone does not grant capital
defendants a right to an automatic stay of execution. McFarland, 512 U.S. at 858.
Under such circumstances, the defendant will have sufficient time to file a petition
conforming to the prima facie standard mandated by 28 U.S.C. 2244(b)(3)(C) prior
to his scheduled execution. A federal court need not grant a stay where a dilatory
capital defendant ignores this opportunity to file timely and flouts the available
processes. Id.
5.
As the panel opinion made clear, while Hearn made a colorable showing of
entitlement to §848(q)(4)(B) counsel for the limited purpose of investigating and
preparing his successive habeas petition, we have not decided the merits of his claim
of mental retardation.
Jerry E. Smith, Circuit Judge, dissenting from the denial of panel rehearing:
I respectfully dissent from the denial of rehearing. Although I appreciate the majority's
well-meaning effort to address portions of its initial opinion, Hearn v. Dretke (In re Hearn), 376 F.3d
447 (5th Cir. 2004), the majority's clarifications, which are generally helpful, do not cure the
fundamental deficiencies on which I focused in dissent, id. at 459-71 (Smith, J., dissenting).
Fortunately, in its order on rehearing, the majority states that "[t]his is a fact-bound case" and
that "[t]he facts of this case do not presently demonstrate that Hearn `is in fact mentally retarded.'"
Unfortunately, however, the majority still clings to its notion that "Hearn has made a colorable
showing of entitlement to . . . counsel."
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The majority seems now to recognize that once newly-appointed counsel has presented his
or her case for Hearn on remand, the district court will surely find that Hearn meets none of the
standards for retardation and will deny relief. As Judge Higginbotham observed, "If there is nothing
there, as the dissent seems to know, the district court will so conclude." Id. at 459 (Higginbotham,
J., concurring).
The majority's clarification somewhat explains the majority's assertion that this petitioner,
having shown no substantial facts in support of retardation, is nonetheless entitled to counsel. The
majority's position on retardation remains in error, but at least there is a way of understanding how
the majority can attempt to justify appointing counsel in a case such as this, where the attempted
showing of retardation is meritless if not downright disingenuous.
I respectfully dissent.
4