Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10423

In Re: DERRICK LAMONE JOHNSON

Movant.

On Motion for Order Authorizing Filing 

and Consideration of Second Petition for 

Writ of Habeas Corpus under 28 U.S.C. § 2254

and for Stay of Execution

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Derrick Lamone Johnson filed this last-minute

motion for authorization to file a successive habeas petition and for a stay of

execution based on a claim that he is mentally retarded and thus ineligible for

the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).

We are satisfied that this new claim is time-barred, so we deny petitioner’s

motion for a stay of execution and deny authorization to file a successive habeas

petition.

I.

Johnson was convicted and sentenced to death for murdering LaTausha

Curry. The Texas Court of Criminal Appeals affirmed Johnson’s conviction and

United States Court of Appeals

Fifth Circuit

F I L E D

April 30, 2009

Charles R. Fulbruge III

Clerk
No. 09-10423

2

sentence on January 30, 2002. Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App.

2002). Johnson did not petition the Supreme Court for a writ of certiorari.

Concurrent with his direct appeal, Johnson filed an application for habeas relief

in the trial court on October 22, 2001. On August 14, 2003, the trial court

entered an order adopting the State’s proposed findings recommending that

relief on Johnson’s application be denied. The Court of Criminal Appeals then

adopted the trial judge’s recommendation, and denied habeas relief on October

8, 2003. 

Next, Johnson filed his habeas petition in federal district court. The lower

court denied habeas relief and dismissed his petition with prejudice. Johnson

timely appealed and the lower court denied his request for a COA. Johnson

petitioned the United States Supreme Court for certiorari review on December

20, 2008. The court denied certiorari on March 9, 2009. Johnson v.

Quarterman, — S. Ct. —, 2009 WL 578752 (March 9, 2009).

On April 28, 2009, Johnson filed a subsequent state habeas application

with the Texas Court of Criminal Appeals raising, for the first time, an assertion

that his execution would violate the prohibition against the execution of the

mentally retarded as set forth in Atkins, supra. However, the Court of Criminal

Appeals found that Johnson failed to make a prima facie case of mental

retardation and otherwise failing to meet the requirements of Article 11.071 Sec.

5. Ex parte Johnson, 56,947-02 (Tex. Crim. App. April 29, 2009) (unpublished

order). The instant motion for authorization to file a successive federal habeas

petition followed on April 29, 2009. Petitioner is scheduled to be executed today,

April 30, 2009.

The facts of the petitioner’s brutal sexual assault and murder of 25-yearold LaTausha Curry on January 21, 1999 have been set forth in detail in our

earlier opinion and the opinion of the Texas Court of Criminal Appeals. We will

not repeat them here.
No. 09-10423

3

Some of the relevant dates have been set forth above. We repeat these

dates and others in the timeline set forth below:

November 19, 1999: Johnson sentenced to death.

October 22, 2001: Johnson files state petition for writ of habeas.

January 30, 2002: Tex. Court of Criminal Appeals (“TCCA”) affirms

Johnson’s conviction on direct appeal.

June 20, 2002: U.S. Supreme Court issues Atkins.

October 8, 2003: TCCA denies habeas relief.

February 11, 2004: TCCA modifies the “two-forum rule,” which required

dismissal of a state writ or successive writ if a federal

proceeding was pending, even if that proceeding was

stayed. Ex parte Soffar, 143 S.W.3d 804, 804 (Tex.

Crim. App. 2004).

May 17, 2004: Johnson files first federal writ.

September 18, 2007: Federal writ denied by district court.

December 2, 2007: District court denies motion for new trial.

April 7, 2008: Johnson seeks COA from Fifth Circuit.

October 2, 2008: Fifth Circuit denies COA.

January 16, 2009: Execution date set for April 30, 2009.

March 9, 2009: U.S. Supreme Court denies cert to Johnson’s

challenging the Fifth Circuit’s denying his COA.

April 28, 2009: Johnson attempts to file successive writ with TCCA

based on Atkins claims.

April 29, 2009: TCCA denies subsequent writ because Johnson failed

to make a prima facie case of mental retardation. 

Johnson files the current motion.
No. 09-10423

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II.

Based on the above timeline, it is clear that petitioner’s motion is barred

by the one-year limitation period of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d), which provides:

(d)(1) 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--

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time

for seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

(C) the date on which the constitutional right asserted

was initially recognized by the Supreme Court, if the

right has been newly recognized by the Supreme Court

and made retroactively applicable to cases on collateral

review; or

(D) the date on which the factual predicate of the claim

or claims presented could have been discovered through

the exercise of due diligence.

(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted toward

any period of limitation under this subsection.

28 U.S.C. § 2244(d).

In this case, the one-year limitation period began to run under

§ 2244(d)(1)(C) on June 20, 2002, the date of the Supreme Court’s decision in

Atkins, and expired on June 20, 2003, the one-year anniversary of that decision.
No. 09-10423

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In re Hearn, 376 F.3d 447, 456 n.11 (5th Cir. 2004). However, on June 20, 2002,

when Atkins was decided, petitioner’s state habeas application was pending and

was not decided until October 8, 2003. This is relevant because the time is not

counted toward the limitation period while a properly filed application for state

post-conviction relief on the pertinent claim is pending. Johnson’s limitation

period therefore expired on October 8, 2004, one year after his state habeas

application was denied by the state court. 28 U.S.C. § 2244(d)(2). Johnson’s

federal habeas petition does not toll the statute of limitations. Duncan v.

Walker, 533 U.S. 167, 181–82 (2001). Consequently, any petition Johnson now

files concerning Atkins would be more than four years past the October 8, 2004

expiration of his limitations period.

Moreover, this Court has never held that Atkins claims are somehow

exempt from the limitations period. To the contrary, this Court has held that a

successive federal petition based on mental retardation claims is subject to

§ 2244(d)’s one-year statute of limitations, and equitable tolling is available only

in “rare and extraordinary circumstances.” In re Wilson, 442 F.3d 872, 877–78

(5th Cir. 2006); In re Lewis, 484 F.3d 793, 796 (5th Cir. 2007). Although we

noted that this Court recognized a limited exception to petitioners who were

unrepresented by counsel and constrained by the Texas two-forum rule, In re

Wilson, 442 F.3d at 875–76 (citing In re Hearn, 389 F.3d 122 (5th Cir. 2004)),

neither of these conditions apply to Johnson. First, Johnson has been

represented by federal habeas counsel at every stage of his post-conviction

proceedings and has had the same counsel since before his first federal writ was

denied. Furthermore, the Texas two-forum rule was renounced by the Texas

Court of Criminal Appeals on February 11, 2004, months before Johnson filed

his federal habeas petition. See Ex parte Soffar, 143 S.W.3d 804, 804 (Tex.

Crim. App. 2004) (modifying the two-forum rule to “permit consideration of a

subsequent state writ . . . if the federal court with jurisdiction over a parallel
No. 09-10423

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writ enters an order staying its proceedings to allow the habeas applicant to

pursue his unexhausted claims in Texas state court”). Thereafter, a petitioner

was not required to abandon his original federal habeas claims to pursue an

Atkins claim in state court. Even if we were to give Johnson one year from the

date Ex parte Soffar was decided, or until February 11, 2005, his successive

petition would still be untimely. Accordingly, Johnson failed to meet his

statutory deadline, and his Atkins claim is time-barred.

Johnson is not entitled to equitable tolling. “The doctrine of equitable

tolling is applied restrictively and, as we have held repeatedly, is entertained

only in cases presenting ‘rare and exceptional circumstances where it is

necessary to preserve a plaintiff's claims when strict application of the statute

of limitations would be inequitable.’” In re Wilson, 442 F.3d at 875 (quoting

Fierro v. Cockrell, 294 F.3d 674, 682 (5th Cir. 2002)). Here, Johnson has

provided no reason for missing the deadline by years, much less a rare and

exceptional one. As this Court has long stated, “‘[e]quity is not intended for

those who sleep on their rights.’” Id. (quoting Fisher v. Johnson, 174 F.3d 710,

715 (5th Cir. 1999)).

For the above reasons we deny Johnson’s Motion for Order Authorizing

Filing and Consideration of Second Petition for Writ of Habeas Corpus under

28 U.S.C. § 2254. We also deny a stay of execution.

DENIED.