United States Court of Appeals

for the Fifth Circuit

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No. 24-20340

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In re Arthur Lee Burton, 

Movant.

______________________________

Motion for an Order Authorizing 

the United States District Court for the Southern District of Texas 

to Consider a Successive 28 U.S.C. § 2254 Application

and Motion to Stay Execution

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Before Elrod, Southwick, and Willett, Circuit Judges.

Per Curiam:

Seven days before his scheduled execution on August 7, 2024, Arthur 

Lee Burton moved this court to authorize his filing of a successive federal 

habeas petition under 28 U.S.C. § 2244(b).1 He concurrently moved to stay 

his execution. We DENY both motions.

Burton was convicted of capital murder and sentenced to death in 

June 1998. His conviction followed gruesome findings (which we will not 

recount in detail here) that he kidnapped, sexually assaulted, and strangled a 

woman who was jogging along a bayou in Houston, Texas. See generally 

Burton v. State, 2004 WL 3093226, at *1 (Tex. Crim. App. May 19, 2004). 

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1 This court’s Local Rule 8.10 requires inmates challenging their death sentences 

or execution procedures to make such challenges at least seven days before the scheduled 

execution. 

United States Court of Appeals

Fifth Circuit

FILED

August 5, 2024

Lyle W. Cayce

Clerk

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2

Burton appealed his conviction and sentence. The Texas Court of Criminal 

Appeals affirmed his conviction but vacated his sentence and remanded for a 

new trial on punishment. Burton v. State, No. AP-73,204 (Tex. Crim. App. 

Mar 7, 2001) (not designated for publication). On retrial, he was sentenced 

to death again, which the Texas Court of Criminal Appeals later affirmed.

Burton v. State, No. AP-73,204 (Tex. Crim. App. May 19, 2004) (not 

designated for publication). Burton then pursued both state and federal 

habeas relief, asserting various violations of his constitutional rights. He was 

denied relief across the board.2

Burton has since been incarcerated on death row for decades. Most 

recently, he brought three separate challenges to his scheduled execution in 

Texas state court. Burton filed two motions to withdraw his execution order 

and death warrant, along with another habeas petition alleging that his 

scheduled execution violated his constitutional rights. All three attempts

ultimately failed when, late last week, the Texas Court of Criminal Appeals 

rejected his challenges. See In re Texas ex rel. Ogg, 2024 WL 3588029, __ 

S.W.3d __ (Tex. Crim. App. July 30, 2024); Ex parte Burton, No. WR64,360-03 (Tex. Crim. App. Aug. 2, 2024) (not designated for publication). 

Burton has now turned to us for relief and seeks authorization to file a 

successive federal habeas petition under 28 U.S.C. § 2244(b). We will grant 

authorization only if Burton can make a prima facie showing that either (1) his 

claim “relies on a new rule of constitutional law” that was “made retroactive 

to cases on collateral review by the Supreme Court” and was “previously 

unavailable”; or (2) “the factual predicate for the claim could not have been 

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2 See Ex parte Burton, 2007 WL 3289679 (Tex. Crim. App. Nov. 7, 2007); Ex parte 

Burton, 2009 WL 874202 (Tex. Crim. App. April 1, 2009); Burton v. Thaler, 863 

F. Supp. 2d 639 (S.D. Tex. 2012); Burton v. Stephens, 543 Fed. App’x 451 (5th Cir. 2013); 

Burton v. Stephens, 573 U.S. 909 (2014). 

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discovered previously” with due diligence, and these facts, if proven, “would 

be sufficient to establish by clear and convincing evidence that, but for 

constitutional error, no reasonable factfinder would have found the applicant 

guilty of the underlying offense.” Id. §§ 2244(b)(2)(A), (b)(2)(B).

In his motion, Burton invokes the first category. He specifically 

alleges, for the first time, that he has a “mild” intellectual disability and thus 

cannot be lawfully executed under the Eighth and Fourteenth Amendments

to the U.S. Constitution, as interpreted by the Supreme Court in Atkins v. 

Virginia, 536 U.S. 304 (2002), and Moore v. Texas, 581 U.S. 1 (2017). Both

decisions, Burton contends, announced new rules of constitutional law, were 

made retroactive to cases on collateral review, and were previously 

unavailable to him when he initially filed for federal habeas relief back in 2012.

Even assuming Burton can establish a prima facie showing under 

§ 2244(b)(2)(A),3 his petition falls well outside the one-year limitation period 

prescribed by § 2244(d). Applicants are required to bring a habeas petition 

based on a new rule of constitutional law within one year of “the date on 

which the constitutional right asserted was initially recognized by the 

Supreme Court.” 28 U.S.C. § 2244(d)(1)(C). Both Atkins and Moore, the 

only cases on which Burton relies, were decided long before he filed this 

motion five days ago. So “even if we count Moore as the starting date for 

[Burton’s] realization that the former Texas guidelines for intellectual 

disability would not stymie his Atkins claim, . . . [his] delay in filing this 

application [over seven] years after Moore is untimely.” In re Sparks, 939 F.3d 

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3 And there is doubt as to whether he can. See In re Sparks, 939 F.3d 630, 632 (5th 

Cir. 2019) (citing Shoop v. Hill, 586 U.S. 45, 49–52 (2019)); In re Milam, 838 F. App’x 796, 

798 (5th Cir. 2020) (unpublished) (“We have not definitively rejected or supported the 

contention that Moore is a new retroactive rule of constitutional law in the context of 

successive habeas petitions sought under 28 U.S.C. § 2244.”).

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630, 632 (5th Cir. 2019). “And even if we were to consider the Supreme 

Court’s second decision in Moore in 2019 as the starting date, [Burton’s 

2024] petition is still time-barred.” In re Jones, 998 F.3d 187, 190 (5th Cir. 

2021).

Apparently recognizing the late hour of his petition, Burton

preemptively argues that § 2244(b) does not permit us to consider the 

timeliness of the successive petition underlying his motion for authorization. 

He specifically contends that we cannot (or at least should not) consider the 

State’s affirmative statute-of-limitations defense. At the same time, however, 

he acknowledges that his argument is foreclosed by circuit precedent. See, 

e.g., In re Wilson, 442 F.3d 872, 874–75 (5th Cir. 2006); In re Campbell, 750 

F.3d 523, 532–33 (5th Cir. 2014); Jones, 998 F.3d at 189. He offers no 

compelling or legitimate reason for us to depart from that well-established 

precedent. We also see none ourselves. 

Burton alternatively argues that, if we consider the limitations period, 

he can nevertheless make a prima facie showing of timeliness. He first relies 

on McQuiggin v. Perkins, 569 U.S. 383 (2013), and contends that, because he 

is intellectually disabled, he is “actually innocent” of the death penalty and, 

therefore, we may disregard the limitations period to avoid a miscarriage of 

justice. But if McQuiggin does not excuse his untimeliness, Burton adds, he is 

entitled to equitable tolling for various reasons, all of which are fact-intensive 

and are best left to the district court to evaluate in the first instance. 

We find neither argument persuasive. “[E]ven if ‘actual innocence of 

the death penalty’ suffices under McQuiggin,” as Burton contends, “a 

petitioner is still responsible for pursuing his claim within the AEDPA 

limitations period.” Sparks, 939 F.3d at 633. We have also previously 

considered—and rejected—invocations of equitable tolling in motions for 

authorization. E.g., In re Lewis, 484 F.3d 793, 796–97 (5th Cir. 2007). We can, 

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and will, do the same here. Burton offers nothing but vague and cursory 

references to the absence of counsel and his mental deficiencies to argue that 

the limitations period should be tolled. These allegations are insufficient to 

show that “extraordinary circumstances” prevented his timely filing. 

Holland v. Florida, 560 U.S. 631, 649 (2010). But even if they were sufficient, 

Burton has not shown that he has pursued his rights diligently. In fact, quite 

the opposite. Burton’s intellectual disability claim—which comesto us seven 

days before his execution—postdates Atkins by more than two decades, the 

DSM–5 by more than a decade, and Moore by seven years. Equity does not 

reward such dilatory tactics. See Bucklew v. Precythe, 587 U.S. 119, 149–51 

(2019); Rhines v. Weber, 544 U.S. 269, 277–78 (2005). 

* * *

In sum, Burton’s habeas petition well exceeds the one-year statute of 

limitations period, and there are no grounds for us to excuse his untimeliness. 

Burton has therefore failed to meet the requirements of § 2244. And because 

he has failed to meet the grounds to file a successive habeas petition, “we 

have no authority to grant a stay of execution.” Sparks, 939 F.3d at 633.4

We accordingly DENY Burton’s motion to file a successive habeas 

petition under § 2244 and his concomitant motion to stay his execution. 

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4 We consider the following factors when presented with a request for stay of 

execution: “(1) whether the stay applicant has made a strong showing that he is likely to 

succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; 

(3) whether issuance of a stay will substantially injure the other parties interested in the 

proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 

(2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). Burton has not made the 

requisite showing here. See Renteria v. Lumpkin, No. 23-70007, 2023 WL 7649071, at *5 

(5th Cir. Nov. 14, 2023) (unpublished). 

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