Media Advisory: Yokamon Laneal Hearn Scheduled
Friday, February 27, 2004
Austin – Texas Attorney General Greg Abbott
offers the following information about 25-year-old Yokamon Laneal
Hearn, who is scheduled to be executed after 6 p.m. Thursday,
March 4, 2004. On December 11, 1998, Hearn was sentenced to die
for the capital murder of Frank Meziere in North Dallas in late
FACTS OF THE CRIME
Evidence admitted at trial established that on
March 25, 1998, then 19-year-old Hearn and three others drove to
North Dallas for the expressed purpose of making some money. The
group carried with them two shotguns, a .22 caliber pistol, and a
At about 10:30 p.m. the group observed Frank
Meziere preparing to wash his 1994 Mustang in a coin-operated car
wash. Hearn devised a plan to steal the car and instructed his
accomplices how to proceed. Hearn and his companions abducted
Frank Meziere at gunpoint and drove him to a secluded location
where Hearn used the Tec-9 to shoot Meziere. Meziere died as the
result of multiple close-range gunshot wounds to the head.
Hearn then drove away in Meziere’s Mustang in
search of a “chop shop” for stolen cars. A city electrician
discovered Meziere’s body in a roadside field early the next
morning. Two hours later a patrol officer discovered Meziere’s
abandoned Mustang in a shopping center parking lot.
March 31, 1998 – Hearn was indicted in the
282nd District Court of Dallas County, Texas, for the capital
offense of murdering Frank Meziere on or about March 26, 1998.
December 11, 1998 – Hearn was sentenced to
October 3, 2001 – Texas Court of Criminal
Appeals affirmed Hearn’s conviction and sentence.
April 15, 2002 – U.S. Supreme Court denied
Hearn’s petition for writ of certiorari off direct appeal.
December 14, 2000 – Hearn filed his original
application for writ of habeas corpus in the state trial court.
August 1, 2001 – The state trial court issued
findings of fact and conclusions of law recommending that habeas
relief be denied.
November 14, 2001 – Court of Criminal Appeals
adopted the trial court’s findings and conclusions and denied
habeas corpus relief in an unpublished order.
March 4, 2002 - Hearn filed a petition for a
writ of habeas corpus in the U.S. District Court for the Northern
District of Texas, Dallas Division.
July 11, 2002 – U.S. District Court granted the
state’s motion for summary judgment and denies Hearn’s request for
federal habeas relief.
August 13, 2002 - U.S. District Court denied
Hearn’s application for a Certificate of Appealability (COA).
December 22, 2002 – Hearn filed an application
for COA and supporting brief in the 5th U.S. Circuit Court of
June 25, 2003 – The 5th U.S. Circuit Court of
Appeals denied Hearn’s request for COA
September 22, 2003 – Hearn filed a petition for
writ of certiorari in the U.S. Supreme Court.
November 17, 2003 – Supreme Court denied
Hearn’s petition for writ of certiorari.
During the punishment phase of Hearn’s trial,
the jury learned that he had be been involved in numerous prior
offenses including the burglaries of four habitations, arson, an
aggravated robbery, an aggravated assault, a sexual assault, a
terroristic threat combined with unlawful carrying of a weapon, a
criminal trespass to steal a bicycle, and a schoolyard assault
over another bicycle.
State carries out 1st single drug execution
By Cody Stark - ItemPnline.com
July 18, 2012
HUNTSVILLE — A 33-year-old man condemned to die
for the 1998 slaying of a Dallas stockbroker became the first
Texas death row inmate to be executed using a single drug
Wednesday. Yokamon Hearn was pronounced dead at 6:37 p.m., 25
minutes after the lethal does began. It did not appear that he had
any unusual reactions to the single dose as he became the sixth
person executed in Texas this year.
He did not mention the crime for what he was
put to death for, but he did make a final statement. “I’d like to
tell my family I love y’all and I wish y’all well. I’m ready,”
Hearn said. After the lethal dose was administered, Hearn closed
his eyes and began snoring before passing.
About 3 1/2 hours before Hearn’s execution, the
U.S. Supreme Court rejected appeals to halt it. None of the
appeals addressed the change in the state’s execution drug policy.
Last week the Texas Department of Criminal
Justice announced it would switch from a three-drug combination
used since 1982 to a single dose of the sedative pentobarbital for
executions following a drug shortage. The state’s supply of
pancuronium bromide, a muscle relaxant mixed with potassium
chloride (used to stop the heart) and pentobarbital, expired.
Texas began using pentobarbital last year when another drug,
sodium thiopental, became unavailable when its European supplier
stopped making it.
Hearn was convicted and sentenced to die for
the murder and carjacking of 23-year-old Frank Meziere of Plano on
March 26, 1998. Evidence during the trial revealed that Meziere
was cleaning his car at a self-service car wash in Dallas when
Hearn and a group of friends approached. The victim was forced
into his own car at gunpoint and taken to a deserted area where he
was shot 12 times in the head and upper body and dumped on the
side of the road. Hearn and his co-defendents took Meziere’s car
and other personal items before fleeing the scene.
Jason January, the former Dallas County
assistant district attorney who prosecuted Hearn, read a statement
on behalf of the Meziere family. “... We have been asked many
times if this execution would give the family closure. There is no
closure when you lose your child, especially in the violent and
senseless way we lost Frank,” January read. “A life ending at age
23 for no reason other than someone else’s greed is hard to
understand. “We have lost a son, a brother, a grandson and a
friend to many, many people. We did not come today to view this
execution as revenge or to even the score. What this has done is
give our family and friends the knowledge that Mr. Hearn will not
have the opportunity to hurt anyone else. He will not have the
opportunity to take another life.”
Hearn, known to his friends as “Yogi,” was 19
at the time of Meziere’s murder and had a lengthy record that
included burglary, robbery, assault, sexual assault and weapons
possession. One of Hearn’s companions received life in prison. Two
others got 10-year sentences.
Texas executes its 1st inmate using single
By Michael Graczyk - The Houston Chronicle
AP Wednesday, July 18, 2012
HUNTSVILLE, Texas (AP) — A Texas man convicted
of carjacking and fatally shooting a stockbroker was put to death
Wednesday, becoming the first prisoner in the nation's most active
capital punishment state to be executed under a procedure using
one lethal drug instead of three.
Texas Department of Criminal Justice officials
announced last week they were modifying the three-drug injection
method used since 1982 because the state's supply of one of the
drugs — the muscle relaxant pancuronium bromide — has expired.
Yokamon Hearn, 33, was executed using a single dose of the
sedative pentobarbital, which had been part of the three-drug
mixture since last year. Ohio, Arizona, Idaho and Washington have
already adopted a single-drug procedure, and this week Georgia
said it would do so, too.
Hearn showed no apparent unusual reaction to
the drug as his execution began. He was pronounced dead about 25
minutes after the lethal dose began flowing. Asked by the warden
if he wanted to make a statement, he said: "I'd like to tell my
family that I love y'all and I wish y'all well. I'm ready."
Hearn was condemned for the March 1998 slaying
of 23-year-old suburban Dallas stockbroker Frank Meziere. About 3½
hours before Hearn was put to death, the U.S. Supreme Court
rejected his appeals to halt the execution. None of the appeals
addressed the change in the state's execution drug policy.
Evidence showed Meziere, of Plano, was cleaning his black
convertible Mustang at a self-service car wash in Dallas when
Hearn, then 19, and his friends approached. They forced Meziere at
gunpoint into his own car and drove him to an industrial area in a
south Dallas neighborhood, where he was shot 10 times in the head.
Meziere's father, brother and uncle were among
those who witnessed Hearn's lethal injection. "We did not come
today to view this execution for revenge or to even the score,"
the family said afterward in a statement. "What this does is give
our family and friends the knowledge that Mr. Hearn will not have
the opportunity to hurt anyone else."
Hearn, known to his friends as "Yogi," already
had a lengthy record that included burglary, robbery, assault,
sexual assault and weapons possession.
In one appeal, Hearn's lawyers argued that his
mother drank alcohol when she was pregnant, stunting his
neurological development and leaving him with mental impairments
that disqualify him from execution under earlier Supreme Court
rulings. Testing shows Hearn's IQ is too high for him to be
considered mentally impaired. In another, his appeals lawyers
claimed the trial attorneys who handled his initial appeals failed
to investigate his background and uncover evidence of his alleged
mental impairment and troubled childhood.
Before the Supreme Court issued brief
one-paragraph rulings rejecting his two appeals, Richard Burr, one
of Hearn's lawyers, had acknowledged "a degree of hope, but still,
it'll be tough." State attorneys contested the appeals, arguing
that information about Hearn's background and upbringing had been
"thoroughly investigated and addressed at trial" and that the
evidence "does not substantiate any scenario other than that of
Hearn's guilt." Georgette Oden, an assistant Texas attorney
general, argued Hearn's latest appeal was improperly filed this
week by circumventing lower courts and that it should have been
filed years ago.
Hearn declined to speak with reporters in the
weeks leading up to his execution. In 2004, he avoided the death
chamber when a federal court agreed his mental impairment claims
should be reviewed and halted his execution less than an hour
before its scheduled time.
Jason January, the former Dallas County
assistant district attorney who prosecuted Hearn for capital
murder, said to stop the punishment because of fetal alcohol
syndrome "would be a free pass for anyone whose parents drank."
"No question he had a tough background, but a lot of people have
tough backgrounds and work their way out and don't fill someone's
head with 10 bullets," he said.
One of Hearn's accomplices received life in
prison. Two others got 10-year sentences. Hearn became the sixth
Texas prisoner executed this year and the 483rd since 1982. At
least eight other Texas prisoners have execution dates in the
coming months, including three in August.
Texas conducts its first one-drug execution
By Corrie MacLaggan - Reuters.com
Jul 18, 2012
(Reuters) - Texas on Wednesday carried out its
first execution since the state switched this month to a one-drug
protocol for lethal injections because a supply of another drug is
no longer available. Yokamon Hearn, 33, who had a long criminal
history, was executed for the 1998 abduction and fatal shooting of
23-year-old stockbroker Frank Meziere in Dallas. "The execution
was carried out without incident," said Jason Clark, a spokesman
for the Texas Department of Criminal Justice.
Texas, which executes more people than any
other U.S. state, had been using a three-drug cocktail to carry
out executions but will now use only pentobarbital, a sedative
sometimes used to euthanize animals. The state made the switch
because its available supply of another drug in the cocktail,
pancuronium bromide, expired and was no longer usable. "The
one-drug protocol has been adopted by several states, and has been
upheld as constitutional by the courts," Clark said in an email.
On Tuesday, Georgia postponed an execution that
also had been scheduled for Wednesday as it prepared to use
pentobarbital alone instead of three drugs in its lethal
On March 25, 1998, Hearn and three others
kidnapped Meziere at a self-service car wash. Hearn shot him at
close range and then drove off in Meziere's Mustang, according to
the Texas Attorney General's Office. Meziere's body was found the
next morning in a field with gunshot wounds to the head and face.
Witnesses testified at Hearn's trial that he bragged about the
killing, waving a newspaper story about the crime, according to
Dallas Morning News reports from 1998.
The 5th U.S. Circuit Court of Appeals granted
Hearn a reprieve on the day he was scheduled to be executed in
2004 after he indicated he wanted to raise a claim that he had
Hearn was the sixth inmate put to death in
Texas this year and the 24th in the United States, according to
the Death Penalty Information Center. Clark said Hearn's final
statement was: "Yes, I would like to tell my family that I love
y'all and I wish y'all well. I'm ready."
Yokamon Hearn was sentenced to death for the
carjacking and fatal shooting of a Dallas-area stockbroker. Acting
on a tip in March of 1998, police arrested Yokamon Hearn and
Delvin Diles just after midnight at a room in the Delux Inn. They
abducted Frank Meziere, 23, of Plano, at a carwash, taking him to
an industrial area of east Oak Cliff and shooting him repeatedly
in the head. Some men driving to work about 6 a.m. the next day
spotted his body in a patch of grass. Meziere's car was found
about an hour later.
Police said they had determined that Hearn and
Diles carjacked Meziere when he pulled into a carwash. A police
spokesman said that "they forced him into his car and drove to the
murder scene." Meziere's father said that "I just hope justice can
be done as soon as possible. I've always been in favor of the
death penalty, and I stand by that now." Dallas County criminal
records showed Diles had received 5 years of probation the
previous summer after pleading guilty to a felony burglary charge;
Hearn had been charged with misdemeanor theft, a case which was
still pending at the time of Frank's murder.
Frank Meziere had watched a Dallas Mavericks
basketball game at a restaurant with a friend and before heading
home stopped at a self-service car wash to clean his black Mustang
convertible. The 23-year-old Plano stockbroker, a 1996 Texas A&M
University graduate, never made it home. His body was found the
next day, March 26, 1998, along the side of a road in an
industrial area of Oak Cliff, an area of south Dallas. He had been
shot in the head 10 times. His car was found about 5 miles away,
abandoned and with the lights on.
"Having dealt with murders, you think you've
seen it all," said Jason January, a former Dallas County assistant
district attorney. "But this innocent victim was shot almost for
sport. "It was just the sheer overkill of the thing that was
ludicrous." Yokamon Hearn bragged to friends about how he "domed"
Meziere, meaning he shot him in the head. Hearn was set to die
Thursday evening for the slaying.
In an appeal filed this week, lawyers for Hearn
said the inmate may be mentally retarded and asked the courts to
halt the punishment so they can pursue their claim. The U.S.
Supreme Court has barred execution of the mentally retarded.
Prosecutors said questions about Hearn's mental competence never
surfaced previously. Hearn, 25, refused to speak with reporters as
his execution date neared. The U.S. Supreme Court in November
denied his request seeking a review of his case. "It's hard
sometimes to know what a death penalty case is, but after a while
you know one when you see it," said January, the lead prosecutor
at Hearn's trial. "And this just screamed out for the death
penalty." Dallas jurors agreed, deliberating less than an hour to
convict Hearn and about an hour before deciding on punishment.
Hearn was 19 at the time of the crime and had a lengthy record
that included burglary, robbery, assault, a sexual assault and
weapons possession. "I remember having a big map of the city
showing places he had hit and pulled guns on people," January
recalled this week. "He was an equal opportunity carjacker --
women, black, white, everybody."
Hearn, along with 2 other Dallas men and one
woman from Oklahoma City, were seen on a security camera video at
a convenience store adjacent to the car wash. They had been out
looking for someone to carjack, authorities said. According to
testimony at his trial, Hearn drove Meziere's car after he and
companion Delvin Diles forced the victim into the car. The two
others, Dwight Burley and Teresa Shirley, were in a second car in
a convoy that took them to an area near Dallas' wastewater
treatment plant. Meziere was shot there with a Tec-9 automatic,
then with a .22-caliber pistol. Hearn drove off with his car.
Shirley, driver of the 2nd car, testified Meziere had his arms
raised near his head and appeared to beg for his life as Hearn
swung the Tec-9, a 9 mm assault-style rifle stolen from an
apartment the previous day, back and forth before opening fire.
After the victim hit the ground, Hearn shot him several more
times, she said. Diles added some shots from his revolver. Hearn
drove off with Meziere's car and kept the victim's license. A
witness testified at his trial that Hearn later bragged at a party
about the shooting.
Physical evidence linked both Hearn and Diles
to the car. Diles, 19 at the time, pleaded guilty and was
sentenced to consecutive life terms for Meziere's death and an
unrelated aggravated robbery. He and Hearn were arrested within
days of the slaying. Shirley, then 19, and Burley, then 20, were
arrested more than 8 months later. Each pleaded guilty to
aggravated robbery and received 10-year prison sentences.
A condemned inmate described by a prosecutor as
an "equal opportunity carjacker" was spared Thursday evening less
than an hour before he could have been taken to the Texas death
chamber for killing a Dallas-area man who was shot 10 times in the
head. Yokamon Hearn, 25, was facing lethal injection for the 1998
fatal shooting of Frank Meziere, a 23-year-old Plano stockbroker
abducted at gunpoint from a self-service car wash in Dallas six
years ago. The 5th U.S. Circuit Court of Appeals agreed with
defense attorneys who sought a delay in their late appeals and
stopped the punishment, but the court also set an accelerated
briefing schedule to ensure the appeals would not be prolonged,
Lori Ordiway, an assistant district attorney in Dallas County,
said. The death warrant allowed the execution to be carried out
after 6 p.m. although state officials normally wait until all
appeals are resolved before moving ahead with the lethal
injection. In the appeal before the New Orleans-based 5th Circuit,
lawyers contended Hearn may be mentally retarded and wanted time
to pursue the claim. The U.S. Supreme Court has barred the
execution of the mentally retarded.
Ex parte Hearn, 310 S.W.3d 424 (Tex.
Crim. App. 2010) (PCR)
Background: Death-sentenced applicant filed
application for post-conviction relief based on claim of mental
retardation. The 282nd District Court, Dallas County, Karen J.
Treene, J., transferred application to Court of Criminal Appeals.
Holding: The Court of Criminal Appeals,
Johnson, J., held that applicant failed to establish that he was
mentally retarded. Application dismissed.
JOHNSON, J., delivered the opinion for a
Applicant, Yokamon Laneal Hearn, was convicted
of capital murder and sentenced to death. In this subsequent
application for habeas corpus, applicant asserts that he is
mentally retarded and, pursuant to the United States Supreme Court
holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153
L.Ed.2d 335 (2002), constitutionally exempt from a death sentence.
In our statutes and case law, “mental
retardation” is defined by: (1) significantly subaverage general
intellectual functioning; (2) accompanied by related limitations
in adaptive functioning; (3) the onset of which occurs prior to
the age of 18. Ex parte Briseno, 135 S.W.3d 1, 7 n. 26
(Tex.Crim.App.2004) (citing American Association of Mental
Retardation (AAMR), Mental Retardation: Definition,
Classification, and Systems of Support 5 (9th ed. 1992)). See also
American Association on Mental Deficiency (AAMD), Classification
in Mental Retardation 1 (Grossman ed. 1983). The issue before this
court is whether alternative assessment measures can be
substituted for full-scale IQ scores in supporting a finding of
subaverage intellectual functioning. We hold that alternative
assessment measures can not be substituted for full-scale IQ
In December 1998, applicant was convicted of
capital murder and sentenced to death. This Court affirmed his
conviction and sentence,FN1 and the United States Supreme Court
denied his petition for writ of certiorari. FN2
FN1. Hearn v. State, No. 73,371, slip op.
(Tex.Crim.App. Oct. 3, 2001). FN2. Hearn v. Texas, 535 U.S. 991,
122 S.Ct. 1547, 152 L.Ed.2d 472 (2002).
While his appeal was pending in this Court,
applicant filed his initial application for writ of habeas corpus
in the 282nd District Court of Dallas County (state district
court). That court recommended that all relief be denied. Ex parte
Hearn, No. W98–46232–S(A) (282nd Dist. Ct., Dallas County, Aug. 1,
2001). Upon review of the record, this Court denied relief in an
unpublished order. Ex parte Hearn, No. 50,116–01 (Tex.Crim.App.
Nov. 14, 2001).
Subsequently, applicant sought habeas corpus
relief from his conviction and sentence in federal court. The
United States District Court for the Northern District of Texas
(federal district court) denied relief on his application for writ
of habeas corpus. Hearn v. Cockrell, 2002 WL 1544815 (N.D.Tex.
July 11, 2002). Thereafter, the United States Court of Appeals for
the Fifth Circuit (Fifth Circuit) FN3 and the United States
Supreme Court FN4 each refused applicant's petitions for review.
FN3. Hearn v. Cockrell, 73 Fed.Appx. 79 (5th Cir.2003). FN4. Hearn
v. Dretke, 540 U.S. 1022, 124 S.Ct. 579, 157 L.Ed.2d 440 (2003).
After the United States Supreme Court refused
applicant's petition for writ of certiorari, applicant's counsel
concluded her representation of applicant. Applicant then sought
the help of the Texas Defender Service. In March 2004, with the
assistance of the Texas Defender Service attorneys, applicant
filed a motion for stay of execution and appointment of counsel to
assist him in investigating an Atkins claim. We denied both
requests, finding that applicant failed to make a prima facie
showing of mental retardation. Ex parte Yokamon Laneal Hearn, No.
50,116–02 (Tex.Crim.App. Mar. 3, 2004).
At about the same time, in the federal district
court, applicant moved for appointment of counsel and stay of
execution. The federal district court transferred the motions to
the Fifth Circuit sua sponte. Applicant then filed a separate
notice of appeal, asking the Fifth Circuit to reverse the order,
appoint counsel, and stay the execution. The Fifth Circuit granted
a stay of execution in order to determine whether applicant was
entitled to counsel and services under 21 U.S.C. § 848(q). It held
that applicant was entitled to such counsel, granted applicant's
request for appointment of counsel, and remanded his case to the
federal district court. In re Hearn and Hearn v. Dretke, 376 F.3d
447 (5th Cir.2004), reh. denied, 389 F.3d 122 (5th Cir.2004).
On remand, the federal district court held that
applicant had not made a showing of mental retardation, as is
required in order to proceed on his successive habeas corpus
petition. Hearn v. Quarterman, 2007 WL 2809908 (N.D.Tex. Sep.27,
2007). Applicant then filed a Rule 59(e) motion to vacate the
judgment and supported that motion with two new expert reports.
After reviewing these reports, the federal district court held
that applicant did make a prima facie case for an Atkins claim and
stayed the federal proceedings to allow applicant to present his
Atkins claim to the state court. Hearn v. Quarterman, 2008 WL
3362041 (N.D.Tex. Aug.12, 2008).
In October 2008, applicant filed, in the state
district court, a subsequent application that is based on an
Atkins claim and seeks post-conviction relief from his death
sentence. It was forwarded to this Court in June 2009. In
September 2009, the Court filed and set this case in order to
determine whether alternative-assessment measures can be
substituted for full-scale IQ scores in supporting a finding of
subaverage intellectual functioning.
In Atkins, the Supreme Court held that
executing persons who are mentally retarded is a violation of the
Eighth Amendment. Atkins, 536 U.S. at 320, 122 S.Ct. 2242. The
Supreme Court “le[ft] to the States the task of developing
appropriate ways to enforce the constitutional restriction upon
their execution of sentences.” Id. at 317, 122 S.Ct. 2242. Post-
Atkins, we have received a significant number of habeas corpus
applications from death row inmates who allege they suffer from
mental retardation and are therefore exempt from execution. “This
Court does not, under normal circumstances, create law. We
interpret and apply the law as written by the Texas Legislature or
as announced by the United States Supreme Court.” Briseno, 135
S.W.3d at 4. However, the Texas Legislature has not yet enacted
legislative guidelines for enforcing the Atkins mandate.
Consequently, we have set out guidelines by which to address
Atkins claims until the legislature acts. Briseno, 135 S.W.3d at
In Briseno we announced that “[u]ntil the Texas
Legislature provides an alternate statutory definition of ‘mental
retardation,’ ... we will follow the AAMR or section 591.003(13)
of the Texas Health and Safety Code criteria in addressing Atkins
mental retardation claims.” FN5 Briseno, 135 S.W.3d at 8. The AAMR
defines mental retardation as a disability characterized by: (1)
significantly subaverage general intellectual functioning; (2)
accompanied by related limitations in adaptive functioning; (3)
the onset of which occurs prior to the age of 18.FN6 Briseno, 135
S.W.3d at 7 n. 26 (citing AAMR at 5). See also AAMD at 1.
FN5. According to § 591.003(13) of the Texas
Health and Safety Code, mental retardation “means significantly
subaverage general intellectual functioning that is concurrent
with deficits in adaptive behavior and originates during the
developmental period.” Tex. Health & Safety Code § 591.003(13).
FN6. A jury determination of mental retardation is not required.
Briseno, 135 S.W.3d at 9.
Determining whether one has significantly
subaverage intellectual functioning is a question of fact. It is
defined as an IQ of about 70 or below.FN7 American Psychiatric
Association Diagnostic and Statistical Manual of Mental Disorders
41 (DSM–IV). There is “a measurement error of approximately 5
points in assessing IQ,” which may vary from instrument to
instrument.FN8 Id. Thus, any score could actually represent a
score that is five points higher or five points lower than the
actual IQ. Id.; see also Wilson v. Quarterman, 2009 WL 900807 *4
(E.D.Tex. Mar.31, 2009).
FN7. General intellectual functioning is
defined by the intelligence quotient (IQ). It is obtained by
assessment with a standardized, individually administered
intelligence test (i.e. Wechsler Intelligence Scales for Children,
3rd Edition; Stanford–Binet, 4th Edition; and Kaufman Assessment
Battery for Children). DSM–IV at 41. FN8. A Wechsler IQ score of
70 would represent a score range of 65 to 75. DSM–IV at 41.
The IQ score is not, however, the exclusive
measure of mental retardation. A finding of mental retardation
also requires a showing of “significant limitations in adaptive
functioning.” DSM–IV at 41. According to the AAMR, three
adaptive-behavior areas are applicable to determining mental
retardation: conceptual skills, social skills, and practical
skills.FN9 Limitations in adaptive behavior can be determined by
using standardized tests. FN10 According to the DSM–IV,
“significant limitation” is defined by a score of at least two
standard deviations below either (1) the mean in one of the three
adaptive behavior skills areas or (2) the overall score on a
standardized measure of conceptual, social, and practical skills.
Id. Although standardized tests are not the sole measure of
adaptive functioning, they may be helpful to the factfinder, who
has the ultimate responsibility for determining mental
FN9. Conceptual skills include skills related
to language, reading and writing, money concepts, and
self-direction. Social skills include skills related to
interpersonal relationships, responsibility, self-esteem,
gullibility, naivete, following rules, obeying laws, and avoiding
victimization. Practical skills are skills related to activities
of daily living and include occupational skills and maintaining a
safe environment. AAMR at 82. FN10. Several scales that have been
designed to measure adaptive functioning: Vineland Adaptive
Behavior Scales, the AAMR Adaptive Behavior Scale, the Scales of
Independent Behavior, and the Adaptive Behavior Assessment System.
DSM–IV at 42; Ex parte Woods, 296 S.W.3d 587, 596–97
(Tex.Crim.App.2009); Hunter v. State, 243 S.W.3d 664 at 670–71
In addition to demonstrating that one has
subaverage intellectual functioning and significant limitations in
adaptive functioning, he or she must demonstrate that the two are
linked—the adaptive limitations must be related to a deficit in
intellectual functioning and not a personality disorder. To help
distinguish the two, this court has set forth evidentiary factors
that “fact-finders in the criminal trial context might also focus
upon in weighing evidence as indicative of mental retardation or
of a personality disorder.” FN11 Briseno, 135 S.W.3d at 8.
FN11. This court has set forth the following
evidentiary factors: Did those who knew the offender during the
developmental stage—his family, friends, teachers, employers,
authorities—think he was mentally retarded at that time, and, if
so, act in accordance with that determination? Has the person
formulated plans and carried them through or is his conduct
impulsive? Does his conduct show leadership or does it show that
he is led around by others? Is his conduct in response to external
stimuli rational and appropriate, regardless of whether it is
socially acceptable? Does he respond coherently, rationally, and
on point to oral and written questions or do his responses wander
from subject to subject? Can the person hide facts or lie
effectively in his own or others' interests? Putting aside any
heinousness or gruesomeness surrounding the capital offense, did
the commission of that offense require forethought, planning and
complex execution of purpose? Briseno, 135 S.W.3d at 8–9.
Applicant's prima facie case for mental
In 2005, defense psychologist Dr. Alice Conroy
administered a WAIS–III test to applicant; applicant obtained a
full-scale IQ score of 74. Defense expert Dr. James Patton
concluded that applicant's full scale IQ score of 74 was within
the standard error of measurement.FN12 Therefore, applicant argues
that because his IQ score of 74 is within the standard error of
measurement, he has met the requirement of significant subaverage
intellectual functioning. FN12. Dr. Watson specifically stated
that applicant's full-scale score of 74 is “in the IQ range that
can be considered approximately two standard deviations below the
mean of 100.” Applicant's Habeas Application, Ex. 2 at 46.
However, three additional IQ test scores
yielded results that are materially above 70. In January 2007, the
district court held an evidentiary hearing on applicant's Atkins
claim. In preparation for the hearing, the two state experts
administered the WAIS–III and Stanford–Binet Intelligence Scales
(5th Edition). Applicant's resulting full-scale IQ scores on those
tests were 88 and 93 respectively.FN13 FN13. An entry in the
clinic notes of the Texas Department of Criminal
Justice-institutional division on January 5, 1999, notes that
applicant's estimated full-scale IQ on a WAIS–R short-form test
The defense then asked Dr. Dale G. Watson to
review applicant's previous test results. As a part of his
evaluation of applicant's mental health, Dr. Watson administered
an additional IQ test using the Woodcock Johnson Test of Cognitive
Abilities (3rd Edition); applicant's resulting full-scale IQ score
on that test was 87. Id. After reviewing applicant's results on
that test, Dr. Watson found that it did not demonstrate subaverage
intellectual functioning, but did demonstrate deficits in adaptive
behavior.FN14 In an effort to better understand the inconsistency
between applicant's above–70 full-scale IQ scores and his
significant deficits in adaptive functioning, Dr. Watson
administered a neuropsychological test battery. After reviewing
the results, Dr. Watson concluded that applicant's
neuropsychological deficits “appear” to underlie previous findings
of deficits in adaptive functions, and are “likely” developmental
in nature. FN14. Dr. Watson testified that there were errors in
the scoring of the WAIS–III completed by Dr. Conroy and the
WAIS–III completed by Dr. Price. None of the errors changed any
score by more than one point.
The defense then asked Dr. Stephen Greenspan to
consider whether neuropsychological deficits such as those
revealed by neuropsychological testing of applicant could satisfy
the requirement of significantly subaverage general intellectual
functioning, despite full-scale IQ scores ranging from 87 to 93.
Dr. Greenspan opined that substituting neuropsychological measures
for full-scale IQ scores is “justified when there is a medical
diagnosis of a brain syndrome or lesion, such as Fetal Alcohol
Spectrum Disorder ... because it is well known that such
conditions cause a mixed pattern of intellectual impairments that,
while just as serious and handicapping as those found in people
with a diagnosis of MR, are not adequately summarized” by
full-scale IQ scores.FN15 Dr. Greenspan concluded that, under a
more expansive definition of mental retardation, applicant could
establish a mental-retardation claim.
FN15. Dr. Pablo Stewart previously found that
applicant suffers from Fetal Alcohol Syndrome and Dr. Greenspan
adopted this finding in conducting his evaluation of applicant's
mental health. Applicant's Habeas Application, Ex. 4 at 64–65. Dr.
Greenspan also noted that, in the past, other experts have argued
that “full-scale IQ is not an adequate indicator of significant
intellectual impairment in someone with brain damage,” and that
extremely deficient verbal IQ could be a better index. Id. at
11–12 (discussing People v. Superior Court (Vidal), 40 Cal.4th
999, 56 Cal.Rptr.3d 851, 155 P.3d 259 (2007)).
In view of all the evidence, applicant argues
that he is mentally retarded. He notes that, in spite of the new
IQ test results, Dr. Patton concluded that applicant is mentally
retarded. “Neuropsychological testing, together with the diagnosis
of fetal alcohol syndrome, has demonstrated that the significant
limitations I have identified in Mr. Hearn's adaptive behavior
are, nevertheless, a product of intellectual deficits.... I am
satisfied that Mr. Hearn has mental retardation.” Id. In making
his Atkins claim, applicant asks this Court to significantly alter
the current definition of mental retardation. Applicant correctly
notes that the assessment of “about 70 or below” is flexible;
“[s]ometimes a person whose IQ has tested above 70 may be
diagnosed as mentally retarded while a person whose IQ tests below
70 may not be mentally retarded.” FN16 Briseno, 135 S.W.3d at 7 n.
24 (citing AAMD at 23). Applicant, however, misconstrues this
language to mean that clinical judgment can completely replace
full-scale IQ scores in measuring intellectual functioning.
FN16. The AAMD states that, “[t]he maximum
specified IQ is not to be taken as an exact value, but as a
commonly accepted guideline” and that “clinical assessment must be
flexible.” AAMD at 22.
This court has expressly declined to establish
a “mental retardation” bright-line exemption from execution
without “significantly greater assistance from the [ ]
legislature.” Briseno, 135 S.W.3d at 6. Instead, this court
interprets the “about 70” language of the AAMR's definition of
mental retardation to represent a rough ceiling, above which a
finding of mental retardation in the capital context is precluded.
FN17. See, e.g., Ex parte Woods, 296 S.W.3d at 608 n. 35 & 36;
Williams, 270 S.W.3d at 132; Neal v. State, 256 S.W.3d 264, 273
(Tex.Crim.App.2008); Hunter, 243 S.W.3d at 671; Gallo v. State,
239 S.W.3d 757, 771 (Tex.Crim.App.2007); Ex parte Blue, 230 S.W.3d
151, 165 (Tex.Crim.App.2007); Ex parte Lewis, 223 S.W.3d 372, 378
n. 21 (Cochran, J. concurring) (Tex.Crim.App.2006); Hall v. State,
160 S.W.3d 24, 36 (Tex.Crim.App.2004); Briseno, 135 S.W.3d at 14
n. 53. Compare, Ex parte Van Alstyne, 239 S.W.3d 815
(Tex.Crim.App.2007); Ex parte Bell, 152 S.W.3d 103
(Tex.Crim.App.2004); Ex parte Modden, 147 S.W.3d 293
In the present case, applicant attempts to use
neuropsychological measures to wholly replace full-scale IQ scores
in measuring intellectual functioning.FN18 However, this court has
regarded non-IQ evidence as relevant to an assessment of
intellectual functioning only where a full-scale IQ score was
within the margin of error for standardized IQ testing. FN19 Thus,
we hold that, while applicants should be given the opportunity to
present clinical assessment to demonstrate why his or her
full-scale IQ score is within that margin of error, applicants may
not use clinical assessment as a replacement for full-scale IQ
scores in measuring intellectual functioning.
FN18. In support, applicant cited Dr.
Greenspan's conclusion that substituting neuropsychological
measures for full-scale IQ in cases of apparent brain damage “is
justified when there is a medical diagnosis of a brain syndrome or
lesion, such as Fetal Alcohol Spectrum Disorder.” Applicant's
Habeas Application, Ex. 4 at 68. FN19. In Hunter, the expert
discussed the band of confidence for the particular IQ test
implemented and how applicant's mild depression and having been
handcuffed at the time of taking an IQ test may have affected his
score. Hunter, 243 S.W.3d at 670.
The evidence before us in this application does
not demonstrate significantly subaverage intellectual functioning
by applicant. Accordingly, we dismiss the application.
376 F.3d 447
in Re: Yokamon Laneal Hearn, Movant.
Yokamon Laneal Hearn, Petitioner-Appellant,
Doug Dretke, Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent-Appellee.
Federal Circuits, Fifth
July 6, 2004
Transfer Order from the United States District
Court and Appeal from the United States District Court from the
Northern District of Texas.
Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit
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.
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.
In order to thoroughly address Hearn's claim, we granted a
temporary stay of execution, requested supplemental briefing, and
heard oral argument.
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).
(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
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
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.
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
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 habeas corpus proceedings in light of "the seriousness of
the possible penalty and ... the unique and complex nature of the
[C]riminal 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)).
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 was 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.
It would be illogical to find otherwise, as this statement of law
would wholly subsume, rather than facilitate, the Court's analysis
of whether Kutzner 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
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." BLACK'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 `obiter 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 habeas-abstention
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
Upon the denial of his initial federal habeas
petition, Jan Hemphill withdrew from her representation of Hearn.
Put plainly, Hearn lost his court-appointed habeas 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
(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.
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.
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
Hearn also presents a note from Hemphill stating her belief that
he was "not very intelligent ? maybe below normal."
He further cites the trial testimony of a family member to
demonstrate his compromised social skills.
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 §
(4) Hearn's showing of rare and equitable
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 "[a]ppointment 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").
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.").
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 AEDPA
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
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.
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.
PATRICK E. HIGGINBOTHAM, Circuit Judge,
I concur fully in Judge Clement's opinion.
Hearn is on death row in Texas. He does not have counsel. The
Texas Defender Service, lacking the resources to undertake the
representation of Hearn and aware that Hearn's date of execution
was looming, asked the federal district court to stay the
execution and appoint counsel to develop his claim that he is
mentally retarded and ineligible for execution. This case reached
the panel only hours before the execution. We granted a stay to
allow sufficient time to properly decide the request. We found the
case sufficiently complex and uncertain that additional briefs and
oral argument were requested. The dissent now "regrets" not
dissenting from that stay.
I remain convinced that the stay was proper and
that this prisoner is entitled to a lawyer and an opportunity to
investigate and present any claim of retardation that he may have.
I am not prepared to hold that he must first make a prima facie
case that he is retarded to be entitled to a lawyer to make that
case. The dissent argues just that and is prepared to disregard a
filed affidavit as incompetent evidence. This approach has it
backwards. We don't have enough evidence to peg Hearn's ability.
What little "evidence" that has been presented is equivocal and
needs explanation. If the record before us is all that Hearn can
produce before the district court with the assistance of a lawyer,
I would quickly agree that it falls far short of a prima facie
showing. There is enough, however, to warrant development as Judge
Clement explains. As best I sift from its rhetoric, the dissent
would hold that a prisoner on death row with no lawyer must make a
prima facie case that he is so retarded that he cannot be executed
in order to have the benefit of counsel.
We are instructed that we must take this
approach or face the fact that every person on death row with no
lawyer but with colorable claims of retardation would be entitled
to a lawyer. I do not see that as a frightening possibility.
Rather, that it is being urged by the dissent as such is a
chilling comment on the confused state of the law of capital
punishment in this circuit.
The dissent would run the one year clock on
Hearn during the time he had no lawyer. If there is a doctrine of
equitable tolling, it must not tolerate a limitations bar to a
retarded prisoner awaiting execution and without counsel. It is no
answer to assert that Hearn is not retarded unless we are prepared
to dispense with lawyers and hearings.
But, it is argued, Hearn did have counsel for
part of the time. The dissent has no answer for the fact that
during that period of representation a claim of retardation could
not have been filed, given the two-forum rule Texas then adhered
to. The dissent in a footnote asserts, with no authority, that
Texas was never serious about that rule, passing over the fact
that much later, Texas, recognizing the plight it created for
petitioners such as Hearn, abandoned it. The dissent says the two-forum
rule was never real.
The dissent accuses the majority of ignoring
circuit precedent, Judge Davis's opinion in Kutzner and Judge
Politz's opinion in Turner. It bears mention that neither
petitioner in these cases had an available writ path. The panel in
Kutzner pointedly observed that the petitioner had no right to
pursue a successive writ with a claim that did not rely upon a new
rule of constitutional law. Petitioners had counsel in both cases
at all relevant times and neither petitioner presented Atkins
This is not an easy case. The state has been
represented at all times by counsel and has full access to
prisoner records and other resources to reply to this claim. I
cannot be so dismissive of Hearn's statutory right as to refuse
him a lawyer when at the least there is enough to warrant
examination. If there is nothing there, as the dissent seems to
know, the district court will so conclude. In the end I have more
confidence in facts decided by an Article III trial judge with
competent counsel before him than those determined on appeal by
JERRY E. SMITH, Circuit Judge, dissenting:
Even by his own lawyer's estimation, petitioner
Hearn is not retarded. He has made good grades off and on
throughout his academic career. He helped orchestrate a multi-stage
crime ending in murder. He has scored well above the retardation
threshold on standardized tests. Yet, on the thin assertion that
he "may be retarded," the majority has allowed him to succeed in a
last-minute petition for stay, filed two days before his scheduled
execution, and has done so in blatant violation of governing Fifth
The majority has seriously undermined this
court's capital habeas jurisprudence. In much the same way as a
good advocate would do, the majority has painted a roadmap for
virtually any capital habeas petitioner to obtain an indefinite
delay in his execution by raising a frivolous, eleventh-hour claim
of possible retardation.
In the process, the majority has clouded the claims of those
inmates who may be truly retarded and are properly entitled to
benefit from the Supreme Court's recent attention to their plight.
The majority certainly reaches a happy result
for petitioner Hearn: He receives an attorney and the resources to
investigate a last-minute and totally meritless claim of mental
retardation. Courts, however, typically encounter and analyze such
things as precedents and statutory language. They do not merely
plow precipitously through binding caselaw, sidestep a
Congressionally-enacted habeas regime, and declare that the
equities mandate a different result. Unfortunately, the majority
here, acting with the best of intentions, has engaged in just such
an enterprise. Accordingly, I respectfully dissent.
The majority ignores precedential language from
a binding opinion of this circuit. In McFarland v. Scott, 512 U.S.
849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), the Court offered a
broad interpretation of the attorney appointment provision of 21
and granted the petitioner an attorney to investigate grounds for
an initial petition. Hearn, by contrast, requests an attorney to
investigate and develop a record for a successive petition.
Congress, through the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), has created a plain distinction between
those two types of investigations.
Although McFarland's use of broad language
arguably could, on its own, prompt one to apply its "core concerns"
to a successive setting, two binding Fifth Circuit opinions bar
the majority's application of § 848(q)(4)(B). One discusses the
context in which McFarland operated: "The McFarland Court was
concerned only with that period of time between the habeas
petitioner's motion for the appointment of counsel and the filing
of the initial petition." Turner v. Johnson, 106 F.3d 1178, 1182
(5th Cir.1997). The other flatly forecloses the appointment of
habeas counsel to prepare a successive petition: "McFarland does
not justify appointment of counsel or stay of execution for the
preparation of a second federal habeas petition." Kutzner v.
Cockrell, 303 F.3d 333, 338 (5th Cir.2002) (citing Turner, 106
F.3d at 1182).
The majority skips past Kutzner by making two
flawed arguments. First, it attempts to limit Kutzner largely to
The majority also refers to the quoted language from Kutzner as a
"narrow fact-based holding."
The majority's stated factual differences do not distinguish
Kutzner from the instant case.
One factual difference apparently involves the
presence and competence of counsel.
As discussed infra, Hearn cannot challenge the quality of his
habeas counsel. See 28 U.S.C. 2254(i). His counsel never abandoned
him but merely determined that she could not help him because he
had no further claims. Moreover, any alleged abandonment or
withdrawal occurred well after the time during which Hearn could
have filed his petition.
A second factual difference centers on the
probability that the Kutzner petitioner could have known of the
claim contained in the successive petition.
Although Hearn could not have known of an Atkins
claim during his trial or through portions of his direct appeal,
he certainly knew of it when the Supreme Court decided Atkins.
Hearn could have acted on it within the one-year window that AEDPA
grants to petitioners who pursue some newly-announced
Constitutional claims that the Supreme Court applies retroactively.
Even if the specific circumstances of Kutzner
have some differences with the facts of this case, the larger
circumstances to which the quoted language refers are identical: "McFarland
does not justify appointment of counsel or stay of execution for
the preparation of a second federal habeas petition." In both
cases, party has requested an attorney to help prepare and file a
successive habeas petition; in both, procedural default bars their
The majority, however, parries the Kutzner
language by invoking the mantra of "dictum" and concluding that
Kutzner has no effect on future panels facing the same situation.
The majority incorrectly characterizes the Kutzner statement and
its relationship to Kutzner's holding.
As part of its discussion of McFarland, this
court in Kutzner provided alternative rationales for denying the
petitioner's request for an attorney and a stay. Both
justifications independently blocked the petitioner in Kutzner,
and one has direct application in the instant case. Neither reason,
therefore, functions only as dictum.
The first justification looked to "[t]he core
concern of McFarland ? that an un-counseled prisoner would be
required to `proceed without counsel in order to obtain counsel
and thus would expose him to the substantial risk that his habeas
claims never would be heard on the merits.'" Kutzner, 303 F.3d at
338 (quoting McFarland, 512 U.S. at 856, 114 S.Ct. 2568). The
opinion noted that Kutzner's attorney served adequately and helped
prepare a petition pursuant to § 2254. Id. After stating that
Kutzner's "current" counsel had "represented Kutzner for more than
one year," the opinion took a dramatic two-sentence turn.
Specifically, it moved from a fact-specific analysis of Kutzner's
claim to a more general analysis of McFarland and its impact on
successive petitions in this circuit. The opinion quoted the
aforementioned language from Turner, 106 F.3d at 1178, and quickly
applied it to all successive petitions: "Thus, McFarland does not
justify appointment of counsel or stay of execution for the
preparation of a second federal habeas petition." Kutzner, 303
F.3d at 338.
Either justification articulated in Kutzner
would block that petitioner's request for an attorney. "When
confronting decisions of prior panels[,] we are bound by `not only
the result but also those portions of the opinion necessary to
that result.'" Gochicoa v. Johnson, 238 F.3d 278, 286 n. 11 (5th
Cir.2000) (quoting Seminole Tribe v. Florida,
517 U.S. 44 , 67, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)).
Furthermore, "`the principle of stare decisis directs us to adhere
not only to the holdings of our prior cases, but also to their
explications of the governing rules of law.'" Id. (quoting County
of Allegheny v. Am. Civil Liberties Union,
492 U.S. 573 , 668, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989)
(Kennedy, J., concurring in part and dissenting in part)).
Either rationale advanced in Kutzner would
control the outcome of that case. Neither rationale considers "unnecessary"
matters, because each addresses an element of the petitioner's
situation. The Kutzner petitioner both (1) had adequate counsel
for an extended period of time and (2) wished to file a successive
petition. The petitioner filed a request for an attorney as part
of preparation of a successive federal habeas petition.
Thus, although the second reason for denying
the petitioner's request addresses a broader issue than does the
fact-intensive reason, it produces the identical resolution.
Because "alternative holdings are binding precedent," Kutzner has
bound subsequent panels with respect both to the "core concern"
fact-intensive inquiry and to the broader successive petition
analysis. Williams v. Cain, 229 F.3d 468, 474 n. 5 (5th Cir.2000)
(internal citations and quotations omitted).
The panel provides a third spurious reason to
ignore Kutzner: "Further, we do not find such dictum persuasive
because it contravenes McFarland's holding." A subsequent panel
cannot determine that a prior panel's binding decision undermines
or conflicts with a Supreme Court decision issued before that of
the prior panel. Instead, we assume the prior panel took all pre-existing
Supreme Court precedent into account.
"Our rule of orderliness prevents one panel
from overruling the decision of a prior panel." Teague v. City of
Flower Mound, 179 F.3d 377, 383 (5th Cir.1999). Rather, if a panel
identifies a purported conflict, it must acknowledge the binding
circuit opinion and recommend taking the matter to the en banc
court. Because the Kutzner language is a binding holding, not
dictum, the majority, remarkably, has attempted to hurdle our
regular procedures for reconciling allegedly conflicting or
important caselaw. Fed. R.App. P. 35(a).
Such nimble methodology is easy and convenient, and it may turn
out to be effective advocacy, but it is not right.
Curiously, despite the majority's desire to
distinguish the facts and to dismiss the language of Kutzner, it
cites that very opinion in support of a broader point regarding
the "core concern of McFarland" (quoting Kutzner, 303 F.3d at
338). The quotation serves little purpose but to parrot language
from McFarland. The citation of an opinion that the majority has
otherwise disregarded factually and doctrinally suggests that the
majority cares what the prior panel stated only when it suits the
majority's general outlook. Apparently, the line between
precedential authority and dictum lies in the eye of the majority.
Consequently, McFarland does not stretch as far
as the majority would like. Kutzner cabins McFarland in this
circuit and directly forecloses the application of § 848(q)(4)(B)
to a successive petition. Hearn is not entitled to the appointment
of an attorney to investigate and prepare a successive petition.
Even if Kutzner did not apply, and even if §
848(q)(4)(B) allowed Hearn to request an attorney to prepare a
successive habeas petition, Hearn faces another problem: on-point
statutory language that blocks any habeas relief.
A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court. The limitation period
shall run from the latest of ... the date on which the
constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
28 U.S.C. 2244(d)(1)(C). Both Hearn and his
purported Atkins claim fit the statute's requirements.
Although the majority makes the broad statement
that § 848(q)(4)(B) and (8) "grant indigent capital prisoners a
mandatory right to qualified legal counsel ... in all federal
post-conviction proceedings," § 848(q)(8) limits that right to "available
judicial proceedings" (emphasis added). Section 848(q)(8) states
only that an attorney will represent the defendant through "every
subsequent stage of available judicial proceedings" (emphasis
added). Though a petitioner theoretically has any motion available
to him, some motions do not articulate cognizable claims and have
no chance of success.
For example, "neither McFarland nor § 848(q)(4)(B) requires
appointment of counsel for the wholly futile enterprise of
addressing the merits of a time-barred habeas petition." Cantu-Tzin
v. Johnson, 162 F.3d 295, 296 (5th Cir.1998).
The majority concedes that the one-year period
has passed and that Hearn cannot file a successive writ based on
majority, however, applies the unusual device of equitable tolling
to allow Hearn "sufficient time to prepare an application for §
2244(b)(3)(A) authority." Although courts may equitably toll a
statute of limitations under AEDPA, a court cannot take such
action lightly. Rather, as the majority admits, "[e]quitable
tolling [is permitted] `in rare and exceptional circumstances.'"
The majority cites a number of inadequate
reasons to toll limitations. Two of those reasons ? Hearn's
alleged abandonment at the hands of his counsel and his showing of
a "colorable" claim of mental retardation ? offer nothing rare or
exceptional to warrant the temporary invalidation of a carefully-drafted
Although we have applied equitable tolling on
behalf of defendants as a result of attorney misbehavior, we have
granted tolling only in very specific situations involving
egregious and deceptive behavior ? for example, where a petitioner
alleged that his attorney actively misled him into believing that
the attorney filed a timely § 2255 petition, United States v. Wynn,
292 F.3d 226, 230 (5th Cir.2002).
"Equitable tolling applies principally when the plaintiff is
actively misled by the defendant ... or is prevented in some
extraordinary way from asserting his rights." Coleman v. Johnson,
184 F.3d 398, 402 (5th Cir.1999).
Hearn has not alleged that Jan Hemphill, his
appointed habeas counsel, engaged in any kind of deceit, and the
record does not remotely support any such contention. Rather, any
conceivable lack of attention by Hemphill did not affect the
timeliness or legitimacy of Hearn's possible Atkins claim.
Hemphill did not "withdr[a]w her representation of Hearn" until
well after the one-year statute of limitations had ended. Although
Hemphill could have investigated a possible Atkins claim while she
awaited the decisions of this court and the Supreme Court, she
chose not to do so.
Hemphill provides a simple reason for her
inaction: "During the time I represented Mr. Hearn I did not
believe him to be mentally retarded. This is based on my dealings
with him and in representing him."
Importantly, Hearn has not alleged, and cannot allege, that his
counsel offered deficient performance during the time in which he
could have raised an Atkins claim.
Although the majority flatly states that "Upon
the denial of his initial federal habeas petition, Jan Hemphill[,
Hearn's court-appointed habeas counsel,] withdrew from her
representation of Hearn[,]" it does not inform the reader of
Hemphill's specific conduct in representing Hearn. After sending
her certiorari petition to the Supreme Court, Hemphill sent a
letter to Hearn informing him that "[f]or all practical purposes,
this is the last service I can give you as my client." She also
told him to "let [her] know" if she could answer any questions he
might have. When Hearn contacted Hemphill to file more appeals,
Hemphill "told him [she] was not aware of any claims that he could
raise in a successive petitions [sic] and that if he wanted to
file other appeals, he should obtain other counsel."
Consequently, Hemphill did not "withdraw from
her representation of" Hearn in any meaningful sense. She filed
every claim and pursued every ground
of appeal that she considered valid. When asked about other claims
? which may or may not have included an Atkins claim ? she did not
walk away and refuse to talk to Hearn, but instead told him merely
that she did not see any other valid grounds of habeas relief. The
majority's allegations and claims of attorney failure function as
another means of considering the "ineffectiveness or incompetence
of counsel during Federal or State collateral post-conviction
proceedings." 28 U.S.C. 2254(i). AEDPA, however, proscribes such a
Moreover, assuming arguendo that Hemphill's
behavior is questionable, any inadequate service on her part
occurred after the time in which Hearn could have pursued his
Atkins claim. The Supreme Court decided Atkins in June 2002.
Hemphill sent her final letter to Hearn fifteen months later ? in
September 2003. Had Hemphill not "withdrawn" her representation of
Hearn, his alleged evidence of retardation would not have given
him the chance to file an Atkins claim beyond the one-year statute
Thus, the majority has taken Hemphill's judgment that Hearn had no
other valid claims ? something a petitioner may not challenge
under AEDPA ? and used it to provide Hearn with an opportunity he
would not otherwise have had to pursue an out-of-time, and totally
frivolous, claim of mental retardation.
As part of its weighing of the equities, the
majority finds that Hearn has offered sufficient evidence to
present "a colorable claim of mental retardation sufficient to
justify the appointment of counsel[.]" Hearn's proffered evidence
does not remotely support such a conclusion.
In reaching its result, the majority makes two
contradictory statements. First, it quotes Weeks v. Jones,
100 F.3d 124, 127 (11th Cir.1996), to assert that "a
substantive, merits assessment of the petition is irrelevant to
the appointment of counsel."
The sentence and accompanying footnote that follow the Weeks
citation, however, indicate that a petitioner has to offer some
arguable evidence to support an Atkins claim.
The majority correctly understands that AEDPA
is meant "to curb the vast number of habeas filings in the federal
courts." It also rightly observes that it should "withhold §
848(q)(4)(B) counsel for certification proceedings absent some
colorable showing by the prisoner that he is, in fact, entitled to
habeas relief." Id. Something "colorable" "appear[s] to be true,
valid, or right." BLACK'S LAW DICTIONARY (7th ed.1999). As shown,
infra, Hearn has offered no evidence that satisfies the "colorable
The majority has fashioned a new evidentiary
standard, then has craftily viewed Hearn's evidence as satisfying
that standard. The result, effectively, is that any petitioner ?
regardless of the procedural defaults or the inadequacy of offered
evidence ? may receive an attorney to pursue an Atkins claim. He
needs only to file a petition containing the magic words "mental
retardation" and to include some evidence that he underachieved at
some point early in life. In oral argument, Hearn's counsel
admitted that he wished for such a ruling from this court.
Indeed, the panel majority has given counsel
pretty much everything he has asked for. The majority describes
the "colorable showing of mental retardation" standard as a "modest
evidentiary threshold." Indeed, if Hearn's proffered "evidence" is
deemed sufficient, the majority's standard is no real threshold at
all; the mere mention of slowness in school, or poor grades,
triggers the right to a panoply of rights, including counsel and
The majority has attempted to moderate the
effect of this ruling by creating the "colorable showing"
requirement. The paucity of Hearn's evidence, however, suggests
that, in reality, almost every prisoner will meet that threshold.
In Texas, a party suffers from mental
retardation if he satisfies three requirements.
First, he must exhibit "`significantly subaverage general
intellectual functioning' (an IQ of about 70 or below)[.]"
Secondly, he must have "`related limitations in adaptive
Finally, both the intelligence and adaptation problems must have
manifested themselves before age eighteen.
Although the majority quotes these three
it focuses almost entirely on the intelligence prong. The
majority's evidence, in summary, is this: Hearn performed poorly
in school. He failed first grade, he regularly did not succeed in
his classes, and he placed 174th out of 200 students in the tenth
grade. The majority does not note that Hearn regularly performed
well in some classes. In some semesters, he passed every course.
One might attribute some of Hearn's worst
grades to apparent zeroes on a number of final exams. The zeroes
do not represent a calculated number grade but represent some sort
of unexcused absence. The explanation of poor attendance would
correlate with Hearn's withdrawal from the tenth grade. The school
district listed his reason for withdrawal as "non-attendance."
Hearn offers nothing to suggest a need for
further testing, beyond the opinion of a witness who submitted an
affidavit in his behalf but whose lack of a Texas license prevents
him from offering any expert testimony in a trial.
That evidence, on which the majority heavily relies, is
incompetent as a matter of law and should have been stricken.
That "expert" admits that "the results of the
IQ testing ... indicated an IQ above the cut-off typically
associated with mental retardation" and cannot provide any reason
to conduct further testing other than the "gravity of the current
situation (i.e., the importance of the decisions that have been
made in regard to Mr. Hearn)[.]" Essentially, Hearn's expert would
like Hearn to have further tests based not on evidence but on the
seriousness of the capital sentence. The expert advances a policy
argument that lies outside our properly-understood and limited
Furthermore, the one test
Hearn has taken places his I.Q. at 82. The majority emphasizes the
variability inherent in the score and places Hearn's I.Q.
somewhere between 70 and 75. Even if Hearn's "real" I.Q. score
lies at the remote low ends that the majority has listed,
such a score does not satisfy the threshold that Texas has adopted,
namely, an I.Q. of 70 or below. Hall, 2004 WL 948342, at *10, ___
S.W.3d ___, at ___, 2004 Tex.Crim.App. LEXIS 817, at *32.
Some scattered evidence suggests that Hearn
has, at the least, an adequate level of intelligence. He wrote a
coherent and lengthy request for clemency to the Texas Board of
Pardons and Paroles: "My Execution date is set for March 4, 2004.
And I am trying to get the help of you ladies and gentlemen in
getting my sentence commuted to life." He submitted a long,
personalized request for a pen pal via a web site. In the request,
he used complete sentences and told the reader he "enjoy[s]
reading novels (horror, Western, Suspense) [and] doing drawings."
Neither the majority nor Hearn has made an
arguable showing that Hearn has the degree of sub-par intelligence
associated with mental retardation. Although he certainly did not
achieve the greatest educational success, he did not languish in
the public school system. At times, he performed well; at other
times, it appears that he did not attend class with sufficient
regularity to achieve a laudable score. He had ample chance to
provide greater details regarding his educational problems but has
not presented any information beyond a list that includes some
To hold that a few poor grades constitute a "colorable
showing" of mental retardation gives no limiting principle and
offers no guidance to district courts who will entertain similar
claims. Undoubtedly, almost every individual sentenced to death
will have shown, at some point in his life, some underachieving or
We have an obligation to set some sort of
meaningful evidentiary threshold and to articulate fairly
transparent criteria for satisfying that mark. The majority's
decision to accept some bad grades as satisfactory evidence of sub-par
intelligence does not meet that obligation and invites
The majority also errs in deciding that Hearn
has satisfied the second prong of the Texas definition of mental
retardation. Though a party must prove all three prongs, the
majority merely winks at the adaptive-functioning prong:
"H[earn] further cites the trial testimony of a family member to
demonstrate his compromised social skills." The majority offers
nothing else. With respect to the family member, an aunt
of Hearn's named Wanda Bell, the majority notes only that she "testified
that he was a `follower' who tended to be `influenced by the wrong
type of people,' and that when he left home at age 18, she was
still `concerned [sic] about if he was being taken care of.'"
In making such a statement, Bell may well have
described a large proportion of American teenagers. Although her
testimony may reflect genuine concern regarding Hearn, it cannot
possibly, on its own, reasonably lead to the conclusion that Hearn
has problems with adaptive functioning. The majority's reliance on
Bell's statement, however, conflicts with two other matters
relating to her. First, the family court that awarded permanent
custody to Bell noted that, after Hearn stayed with Bell
permanently, "[h]e followed all the rules and did quite well in
school." Hearn responded positively to a functional, stable home.
Secondly, Bell's testimony in the punishment
phase of Hearn's trial indicates that Hearn understood right from
wrong, could succeed when he applied himself, and possessed the
ability to live on his own. As part of her testimony, Bell stated
that "[w]ell when [Hearn] applied hisself [sic]. He ? he was ?
he's good head on him and, you know, when you apply yourself to
your studies, you do well." Bell responded "Yes" to the question "if
he would work, he could do okay?" Bell twice affirmed that Hearn "knew
right from wrong" by age seventeen. She noted that Hearn left her
care when he turned eighteen and apparently took care of himself
adequately during that time.
Furthermore, the majority's lone citation to
Bell's testimony is somewhat out of context. Bell did not
attribute Hearn's desire to follow others to a mental defect, but
instead to a desire to compensate for his poor socioeconomic
standing: "It's just like kids develop this when they're ? some
kids, when they're young. They're not proud of the environment
that they're in." Bell did not suggest that Hearn possessed any
kind of adaptive problem.
Additionally, the facts of the crime suggest
that Hearn functioned rather well with others. He participated in
the carjacking and shooting of an individual. Testimony and
evidence showed that he drove the victim's car to an isolated area
and shot the victim in the head multiple times. He bragged of his
exploits and provided details of the killing to three others not
associated in the crime.
Hearn also understood that he needed to dispose
of the evidence to avoid prosecution. Two witnesses testified that
he asked about where to locate a "chop shop" to dispose of the
victim's car. When the police questioned him, he provided a
coherent but false explanation as to how his fingerprints appeared
on the victim's car's steering wheel. Hearn functioned well enough
to kidnap a man, drive a stolen car, shoot a victim multiple
times, brag about his exploits, and create an untruthful,
exculpatory story. If Hearn had not functioned so well, the victim
would not have died. Thus, the majority's lone citation to one
statement from a relative cannot possibly satisfy the adaptive-functioning
prong of mental retardation.
Thus, in its apparent zeal to grant Hearn an
attorney and a stay of execution,
the majority neglects and unpersuasively responds to two
significant problems that are fatal to its spirited position.
First, it cannot factually distinguish, and cannot logically
dismiss as dictum, the binding language of Kutzner that forecloses
the application of McFarland to successive habeas petitions.
Secondly, the one-year statute of limitations
bars Hearn's application. The majority has apparently lowered the
standard of "rare and exceptional" circumstances required to grant
equitable tolling so that anyone may obtain an attorney, at any
stage of litigation, by simply claiming mental retardation. Hearn,
and the majority on his behalf, offer a dearth of evidence to
suggest that Hearn has satisfied any of the three prongs of
Texas's definition of mental retardation.
Without precedential basis, a supportive
statute of limitations, or evidence justifying equitable tolling,
the panel must rely on good intentions and an unreasonably
generous reading of everything that Hearn has alleged and
submitted. The majority opinion brings this panel squarely in
conflict with binding precedent and does not assist district
courts in considering the similar claims that will undoubtedly
follow from this opinion. I respectfully dissent.
..."[I]t is the firm rule of this circuit that
one panel may not overrule the decisions of another." United
States v. Taylor, 933 F.2d 307, 313 (5th Cir.1991).... See, e.g.,
United States v. Adamson, 665 F.2d 649, 656 n. 19 (5th Cir.1982)
(holding that decisions on issues that were fully presented and
litigated, and likely to arise on retrial, are not dictum and are
still binding precedent even if the decision was not necessary to
support the ultimate ruling, such as an alternative holding).
In its frantic attempt to escape the bounds of
Kutzner, the majority, while acknowledging that alternative
holdings are both binding on future panels, observes that in
McClendon v. City of Columbia, 305 F.3d 314, 327 n. 9 (5th
Cir.2002) (en banc), cert. denied,
537 U.S. 1232 , 123 S.Ct. 1355, 155 L.Ed.2d 196 (2003),
the court warned that in qualified immunity cases, panels should
not routinely announce alternative holdings. From that, the
majority concludes that we should not infer that the two
rationales in Kutzner are both holdings. The obvious flaw in that
theory is that Kutzner was decided before McClendon, so the
Kutzner panel could not possibly have known about the warning in
McClendon when it issued its alternative holdings.
The majority also announces, out of whole cloth,
that under McClendon it is "improper for this Court to infer
alternative rationales or holdings where ones are not clearly
expressed." As the majority admits, however, McClendon was
addressing only the peculiar methodology used in qualified
immunity cases, see Siegert v. Gilley, 500 U.S. 226, 232-34, 111
S.Ct. 1789, 114 L.Ed.2d 277 (1991), so footnote 9 of McClendon
does not apply here. Outside the context of qualified immunity, no
opinion of this court has ever suggested that alternative holdings
are improper. The majority's bold assertion to the contrary is
handy for it to use in its attack on Kutzner but finds no support
in our jurisprudence.
Hearn did not investigate his possible Atkins
claim while his federal claim worked its way through the Fifth
Circuit and the Supreme Court. He also did not even attempt to
file anything in state court to challenge the traditional
application of the rule. Even if the two forum rule prevented
Hearn from filing his Atkins claim, the factors discussed infra ?
especially the absolute lack of any evidence to support Hearn's
retardation claim ? render equitable tolling entirely
Hearn v. Cockrell, 73 Fed.Appx. 79
(5th Cir. 2003) (Habeas)
Appeal from the United States District Court
for the Northern District of Texas. (No. 3:01-CV-2551-D). Before
HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
Petitioner Yokamon Laneal Hearn (“Hearn”) seeks
a Certificate of Appealability (“COA”) as to four issues: (1)
whether the trial court violated Hearn's right to effective
assistance of counsel under the Sixth Amendment by failing to
appoint his defense counsel in the manner prescribed by Texas law;
(2) whether the prosecutor violated Batson v. Kentucky, 476 U.S.
79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using a peremptory
challenge to prevent a black male from sitting on the jury; (3)
whether the trial court violated his right to be free from cruel
and unusual punishment under the Eighth and Fourteenth Amendments
and his right to due process under the Fourteenth Amendment by
refusing to instruct the jury as to Hearn's parole eligibility;
and (4) whether Dallas County violated Hearn's right to an
impartial jury consisting of a cross-section of the community
under the Sixth and Fourteenth Amendments. Hearn's application for
a COA is DENIED.
I. FACTS AND PROCEEDINGS
On March 25, 1998, Hearn and three accomplices
drove to North Dallas with several firearms. At a coin-operated
car wash, Hearn saw Joseph Franklin Meziere (“Meziere”) cleaning
his car. With the assistance of his accomplices, Hearn abducted
Meziere and stole his car. Shortly thereafter, Hearn killed
Meziere by shooting him in the face. A jury convicted Hearn of
capital murder, and the Texas state court entered a judgment
imposing the death penalty. The Texas Court of Criminal Appeals
affirmed Hearn's conviction on direct appeal. The U.S. Supreme
Court denied Hearn's petition for a writ of certiorari.
Hearn filed an application for a writ of habeas
corpus in the trial court, which issued findings of fact and
conclusions of law and recommended that Hearn's application be
denied. The Texas Court of Criminal Appeals denied Hearn's
application for state habeas corpus relief. The federal district
court entered an order appointing counsel to represent Hearn for
his federal habeas corpus petition, but ultimately denied his
petition. The district court also denied Hearn's subsequent
petition for COA, but granted his motion to proceed in forma
pauperis on appeal.
II. STANDARD OF REVIEW
In deciding a request for a COA, we ask if a
petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Hearn need not
“convince a judge, or, for that matter, three judges, that he ...
would prevail,” but “must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,
123 S.Ct. 1029, 1038-40, 154 L.Ed.2d 931 (2003). When considering
a request for a COA, “the question is the debatability of the
underlying constitutional claim, not the resolution of that
debate.” Id. at 1042.
A. Ineffective Assistance of Counsel
Hearn does not argue that the performance of
his trial counsel was deficient in one respect or another.
Instead, Hearn asserts that the procedure by which his trial
counsel was appointed was defective. In particular, the trial
court did not adhere to the procedure established by Texas law for
the appointment of trial counsel in death penalty cases. The
question for this Court is whether the failure to follow the
proper administrative procedure signifies that Hearn received
ineffective assistance of counsel at trial.
Under Texas law, each administrative judge in
each administrative judicial region must form a selection
committee composed of himself, one or more district judges, a
representative from the local bar association, and one or more
practitioners who are certified by the Texas State Bar in criminal
law. Tex.Code Crim. Proc. Ann. art. 26.052. The selection
committee is responsible for adopting standards governing the
qualification of attorneys for appointment to death penalty cases.
Id. These standards must be posted in each district clerk's office
in the region with a list of attorneys qualified for appointment.
Id. Based on this list, the presiding judge of the district court
in which a capital felony case is filed appoints counsel for the
indigent defendant. Id.
Apparently, this entire procedure was ignored
in Dallas County. No selection committee was ever formed, no list
was created, and no appointments were made on the basis of such a
list. Instead, the administrative judge for the region
encompassing Dallas County signed an order establishing general
standards for the appointment of death penalty counsel. The order
delegated the responsibility for selecting death penalty counsel
to the trial courts, which were required to post their standards
for appointment and list the qualifying attorneys. However, the
trial court in this case never established any such standards or
In sum, the statutory procedure was not
followed, and neither was the alternative procedure established by
order of the administrative judge. The failure of the Texas courts
to follow proper administrative procedure in appointing death
penalty counsel is inexplicable. However, Hearn has not provided
any evidence that this error deprived him of effective assistance
To prevail on a constitutional claim of
ineffective assistance of counsel, a defendant must show that
counsel's performance was deficient and that the deficient
performance prejudiced the defense. Procter v. Butler, 831 F.2d
1251, 1255 (5th Cir.1987) (citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Unless a
defendant makes both showings, it cannot be said that the
conviction resulted from a breakdown in the adversary process that
renders the result unreliable.” Strickland, 466 U.S. at 687. By
failing to provide any evidence of deficient performance by his
trial counsel, Hearn fails to satisfy the first element of the
Hearn also fails to satisfy the second element
of the Strickland test because he suffered no prejudice from the
alleged procedural error. As the Supreme Court recognized, it is
“virtually inevitable” that courts will commit at least some
errors during the course of a trial. Rose v. Clark, 478 U.S. 570,
577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); Delaware v. Van
Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)
(holding that “the Constitution entitles a criminal defendant to a
fair trial, not a perfect one”). These errors are not all equally
significant, so it is necessary to distinguish between “trial
errors” and “structural errors”. Clark, 478 U.S. at 576-79;
Arizona v. Fulminante, 499 U.S. 279, 307-12, 111 S.Ct. 1246, 113
L.Ed.2d 302 (1991).
Trial errors, which may include constitutional
errors, are analyzed under the harmless error standard. Clark, 478
U.S. at 576-77; Fulminante, 499 U.S. at 307-08. As long as the
defendant had counsel and was tried by an impartial adjudicator,
there is a strong presumption that any other errors that may have
occurred are trial errors and thus subject to harmless-error
analysis. Clark, 478 U.S. at 579. Structural errors “affect[ ] the
framework within which the trial proceeds.” Fulminante, 499 U.S.
at 310. Unlike trial errors, structural errors involve the
violation of “basic [constitutional] protections, [without which]
a criminal trial cannot reliably serve its function as a vehicle
for determination of guilt or innocence, and no criminal
punishment may be regarded as fundamentally fair.” Id. For this
reason, structural errors may not be analyzed under a harmless
error standard. Id. at 309. Examples of structural errors include
the introduction of coerced confessions, the complete denial of
right to counsel, and adjudication by a biased judge. Clark, 478
U.S. at 577-78.
Hearn had counsel and an impartial adjudicator,
thus there is a strong presumption that any other errors are trial
errors and thus subject to harmless-error analysis. Clark, 478
U.S. at 579. The procedural error alleged by Hearn does not amount
to a structural error. Id. at 577-78; Fulminante, 499 U.S. at
306-07. Hearn fails to present any evidence that the procedural
error had any effect on his trial or its outcome; therefore, we
hold the error to be harmless. Wright v. State, 28 S.W.3d 526,
530-31 (Tex.Crim.App.2000) (holding that failure of trial court to
follow administrative procedure for appointment of trial counsel
in death penalty cases was harmless where defendant failed to
object to noncompliance at trial and failed to present any
evidence that he was harmed by the noncompliance).
B. Peremptory Challenge to Juror Brown
The prosecutor used a peremptory challenge to
prevent Glenn Brown (“Brown”),a black male, from sitting on the
jury. Hearn challenged the use of the peremptory challenge based
on Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986), in which the Supreme Court prohibited prosecutors from
using peremptory challenges to exclude jurors from participation
in the jury based on their race. The prosecutor explained that he
used the peremptory challenge based on Brown's religious beliefs
and not his race. Specifically, the prosecutor feared that Brown's
willingness to forgive his own grandmother's murderer signified
that Brown would have a “real, real tough time” imposing the death
penalty on Hearn. The trial court accepted the prosecutor's
reasons for peremptorily striking Brown to be race neutral.
After the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge on
the basis of race and the prosecutor has provided a race-neutral
reason for striking the juror, the decisive question [is] whether
[the prosecutor's] race-neutral explanation [ ] should be
believed. There will seldom be much evidence bearing on that
issue, and the best evidence often will be the demeanor of the
attorney who exercises the challenge. As with the state of mind of
a juror, evaluation of the prosecutor's state of mind based on
demeanor and credibility lies peculiarly within a trial judge's
province. Hernandez v. New York, 500 U.S. 352, 358-59, 365, 111
S.Ct. 1859, 114 L.Ed.2d 395 (1991). For this reason, the trial
court's finding of fact on this question is entitled to great
deference by this Court. Id. at 364-65. “[I]n the absence of
exceptional circumstances, we would defer to state-court factual
findings, even when those findings relate to a constitutional
issue.” Id. at 366. Hearn offers no evidence of exceptional
circumstances, thus this Court must defer to the judgment of the
C. Instruction on Hearn's Parole Eligibility
Before the start of trial, Hearn asked the
trial court to include the following jury instruction: Regarding
the law of parole, you are instructed that a prisoner under
sentence of death is not eligible for parole. A prisoner serving a
life sentence for a capital felony is not eligible for release on
parole until the actual calendar time the prisoner has served
without consideration of good conduct time, equals 40 calendar
Prior to closing argument, the trial court
denied Hearn's request to include this instruction in the jury
charge. According to Hearn, the trial court should have informed
the jury, which had to consider whether he would pose a future
danger to society, that he would not be eligible for parole for 40
years if he was not sentenced to death. In support of his
argument, Hearn relies primarily on Simmons v. South Carolina, 512
U.S. 154, 163-64, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), in which
the Supreme Court held that [i]n assessing future dangerousness,
the actual duration of the defendant's prison sentence is
indisputably relevant. Holding all other factors constant, it is
entirely reasonable for a sentencing jury to view a defendant who
is eligible for parole as a greater threat to society than a
defendant who is not. Indeed, there may be no greater assurance of
a defendant's future nondangerousness to the public than the fact
that he never will be released on parole. The trial court's
refusal to apprise the jury of information so crucial to its
sentencing determination ... cannot be reconciled with our
well-established precedents interpreting the Due Process Clause.
In Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 147
L.Ed.2d 125 (2000), a four-justice plurality of the Supreme Court
held that “[t]he parole-ineligibility instruction is required only
when, assuming the jury fixes the sentence at life, the defendant
is ineligible for parole under state law.” Ramdass v. Angelone,
530 U.S. 156, 166, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000). In a
concurring opinion, Justice O'Connor wrote: “ Simmons entitles the
defendant to inform the capital sentencing jury that he is parole
ineligible where the only alternative sentence to death is life
without the possibility of parole.” Id. at 181 (O'Connor, J.,
concurring). Taken together, the plurality and concurring opinions
in Ramdass indicate that the Simmons parole eligibility
instruction is only required when the only alternative sentence to
the death penalty is life without parole. As Hearn concedes, Texas
does not provide for the possibility of life without parole. If he
had not been sentenced to death, Hearn would have been eligible
for parole in 40 years. Therefore, the trial court did not err in
denying the jury instruction requested by Hearn, for he had no
right to a Simmons instruction.
Alternatively, to hold that Hearn was entitled
to a parole eligibility jury instruction, this Court would have to
announce a new rule of constitutional procedure. Id. at 166, 181.
Under Teague v. Lane, 489 U.S. 288, 309-10, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989), this Court may not announce new rules of
constitutional procedure on collateral review. Therefore, Hearn's
claim as to the parole eligibility jury instruction is
D. Representative Venire
Hearn argues that his constitutional rights to
an impartial jury and to a venire consisting of a representative
cross-section of the community were violated by the Dallas County
jury system. Apparently, Dallas County pays jurors only five
dollars per day, which results in Hispanics, persons 18 to 34
years old, and persons from households with incomes under $35,000
being underrepresented in venires and juries. Hearn cites Taylor
v. Louisiana in support of his argument. 419 U.S. 522, 538, 95
S.Ct. 692, 42 L.Ed.2d 690 (1975) (holding that the “venires from
which juries are drawn must not systematically exclude distinctive
groups in the community and thereby fail to be reasonably
Hearn's argument fails on its face. As the
Supreme Court noted, the issue in Taylor was the constitutionality
of “Art. VII, § 41, of the Louisiana Constitution, and Art. 402 of
the Louisiana Code of Criminal Procedure [, which] provided that a
woman should not be selected for jury service unless she had
previously filed a written declaration of her desire to be subject
to jury service.” Id. at 523. There is no comparable
constitutional or legal provision in this case which explicitly
provides for the exclusion of a distinctive group. Instead, Hearn
complains that the low daily fee paid to jurors by Dallas County
results in the underrepresentation of three groups, which are
distinguished based on their ethnicity, age, and income.
The Supreme Court held that “venires from which
juries are drawn must not systematically exclude distinctive
groups in the community and thereby fail to be reasonably
representative thereof.” Id. at 538 (emphasis added). In Taylor,
there was clear evidence of a systematic effort to exclude women,
but there is no such evidence here. Louisiana explicitly designed
its system to exclude women, but the underrepresentation Hearn
complains of is an indirect consequence of the low daily fee paid
to jurors in Dallas County. Defendants are not entitled to a jury,
jury wheel, pool of names, panel, or venire of any particular
composition, and there is no requirement that those bodies “mirror
the community and reflect the various distinctive groups in the
population.” Id. For this reason, the underrepresentation alleged
by Hearn is not unconstitutional.
Hearn has not made a substantial showing of the
denial of a constitutional right. Although he does not need to
show he would prevail, Hearn must demonstrate that reasonable
jurists would find his constitutional claims debatable. The
constitutional claims presented by Hearn are not debatable.
Therefore, Hearn's application for a COA is DENIED.
Frank Meziere, 26