1The court directed the parties to brief whether Hearn had

made the required showing that the Texas Court of Criminal Appeals’

(“CCA’s”) decision is “unreasonable” under the standards of

§ 2254(d) of the the Antiterrorism and Effective Death Penalty Act

of 1996, 28 U.S.C. § 2254, and whether this determination is to be

made in light of all the evidence in the record developed before

this court or is to be decided based solely on the evidence in the

record before the CCA at the time of its 2004 ruling. Hearn III,

2008 WL 679030, at *6.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

YOKAMON LANEAL HEARN, §

 §

Petitioner, §

 § 

VS. § Civil Action No. 3:04-CV-0450-D

 §

NATHANIEL QUARTERMAN, Director, § 

Texas Department of Criminal §

Justice, Correctional §

Institutions Division, §

 §

Respondent. §

MEMORANDUM OPINION

 AND ORDER 

In Hearn v. Quarterman, 2008 WL 679030 (N.D. Tex. Mar. 13,

2008) (Fitzwater C.J.) (“Hearn III”), the court directed the

parties to brief two questions to assist the court in deciding

whether to grant petitioner Yokamon Laneal Hearn’s (“Hearn’s”) Fed.

R. Civ. P. 59(e) motion to alter or amend the judgment dismissing

with prejudice his successive habeas petition brought under Atkins

v. Virginia.1 In addition to briefing these questions, Hearn and

respondent (the “state”) have also addressed whether Hearn has

satisfied the exhaustion requirements of § 2254(b) of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

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2Another case decided after the parties submitted their

supplemental briefs, Moore v. Quarterman, ___ F.3d ___, 2008 WL

2521893 (5th Cir. June 26, 2008) (en banc) (per curiam), also

points out the difficulties that arise when an Atkins claim first

becomes available after a case has been tried and the petitioner

has exhausted his direct and collateral remedies. In Moore,

however, the en banc court addressed the cause-and-prejudice

exception to exhaustion under AEDPA. Unlike Moore, although in

this case the court concludes that Hearn has failed to exhaust his

state-court remedies, it also holds that he can still do so in

state court. Moore is therefore of limited specific guidance in

this case, apart from corroborating the difficulties that petitions

of this type present. 

- 2 -

U.S.C. § 2254. The state contends that Hearn’s current claim, in

which he argues that he can show mental retardation despite nonqualifying IQ scores, is legally and factually unexhausted and

therefore procedurally defaulted. Hearn replies that the State of

Texas violated his due process rights by failing to provide him

assistance of counsel so that he could present an Atkins claim in

state court, and that he should therefore be excused from the

exhaustion requirement. Hearn requests in the alternative that, if

the court rejects his argument, it stay and abate this proceeding

to allow him to file a habeas application in state court.

 After the parties submitted their supplemental briefs, the

Fifth Circuit decided Hall v. Quarterman, ___ F.3d ___, 2008 WL

2579273 (5th Cir. June 30, 2008) (per curiam). Although Hall is

distinguishable from Hearn’s case, the opinion highlights the

substantive and procedural complexities of Hearn’s case that

warrant granting his Rule 59(e) motion and vacating the judgment.2

These complexities notwithstanding, the court must still decide

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3

As discussed infra in § II(C), the court bases this decision

on Rhines v. Weber, 544 U.S. 269 (2005) (recognizing that district

court has discretion to order stay of habeas proceeding while

petitioner brings unexhausted claims in state court), and the CCA’s

recent modification of its two-forum rule, which enables Texas

courts to consider a subsequent writ application once a federal

court stays the federal habeas proceedings, see Ex parte Soffar,

143 S.W.3d 804 (Tex. Crim. App. 2004). 

4

Although this court rejected Hearn’s first federal habeas

petition a few weeks after Atkins was decided, the decision was

functionally one that pre-dated Atkins because Hearn filed the

petition before Atkins was decided.

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whether Hearn is barred from obtaining habeas relief based on his

failure to exhaust. For reasons the court will explain, it holds

that Hearn can still exhaust his Atkins claim in state court.

Therefore, the court in its discretion concludes that Hearn’s

federal petition should be stayed and abated so that he can file an

Atkins-based habeas application in state court.3

I

This case is substantively and procedurally complex and not

facilely fitted within the regimen contemplated under AEDPA.

Unlike the paradigm Atkins case in which a Texas habeas court

initially decides the mental retardation issue and a federal habeas

court conducts deferential review under AEDPA, Hearn’s case falls

within a narrow category——an “Atkins lacuna”——of Texas prisoners

who were tried, and whose first state habeas petitions were

decided, before Atkins was handed down.4 Consequently, Hearn’s

mental retardation claim has never been fully developed and

presented at the state trial court or state habeas court level.

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And although the Texas Court of Criminal Appeals (“CCA”) in fact

adjudicated on the merits whether Hearn had made a prima facie

showing of mental retardation to support an Atkins claim, Hearn

III, 2008 WL 679030, at *5, “the CCA decision did not involve a

dismissal of an Atkins petition, but rather the denial of a motion

seeking appointment of counsel and a stay of execution in

preparation for a subsequent Atkins application.” Id. (emphasis in

original). 

Moreover, as the concurring opinion in In re Hearn, 376 F.3d

447 (5th Cir. 2004), pointed out, when Hearn presented his motion,

he did not have counsel. Id. at 458 (Higginbotham, J., concurring)

(referring to point in time when Hearn requested stay of execution

in federal court). The Texas Defender Service, which lacked the

resources to undertake Hearn’s representation but was aware of

Hearn’s approaching execution, sought a stay and appointment of

counsel to develop his claim that he is mentally retarded and

ineligible for execution. Id. The situation when he sought a stay

from this court was essentially the same as before the CCA. 

Furthermore, as the Fifth Circuit panel explained,

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. 

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Id. at 454. Hearn was therefore prevented from returning to state

habeas court while his federal petition was pending. And of

central importance to the court’s decision today,

[u]pon 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 claim. 

Id. (some emphasis added).

Assuming for present purposes that Hearn is mentally retarded,

he was mentally retarded from the date Atkins was decided through

the date of his impending execution. As a putatively mentally

retarded person sitting on death row, he required assistance to

present a successive habeas petition to the Texas courts. But his

federal habeas counsel had withdrawn. He was relegated to

volunteer counsel who, lacking time and resources, failed to

persuade the CCA to grant appointment of counsel or a stay of

execution. Nevertheless, shortly thereafter, the same volunteer

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attorneys convinced the Fifth Circuit to grant a stay and then to

allow a successive habeas petition that presented an Atkins claim.

Despite the factually distinguishable aspects of Hall, this

court is hesitant to disregard Hall’s emphasis on the need for “a

full and fair hearing . . . where such a hearing would bring out

facts which, if proven true, support habeas relief.” Hall, 2008 WL

2579273, at *2. Moreover, in Hall, as in Hearn’s case, the

petitioner was tried before Atkins was decided. Id. at *1. When

the Hall petitioner presented his Atkins claim, the Texas courts

rejected it after conducting a paper hearing. The Fifth Circuit

held, in pertinent part, that “[t]he facts before us are a core

manifestation of a case where the state failed to provide a full

and fair hearing and where such a hearing would bring out facts

which, if proven true, support habeas relief.” Id. at *2. 

Hearn’s evidence of mental retardation now includes, inter

alia, a declaration from an expert who opines that Hearn’s

neuropsychological deficits and fetal alcohol syndrome can satisfy

the “significant limitations in intellectual functioning” element

of the mental retardation definition, and another expert who

testifies that, upon examining Hearn, and in light of the evidence

of neuropsychological deficits, Hearn is mentally retarded despite

IQ scores of between 87 and 93. As the court concluded in Hearn

III, “[a]lthough it is not clear on what other (non-IQ) basis the

intellectual functioning prong can be established, or whether there

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5

As Hall noted, the petitioner’s Atkins hearings in state

court were deficient in several respects. Nonetheless, Hall,

unlike Hearn, actually received in state court a hearing on his

Atkins claim. In light of the Hall petitioner’s having presented

his Atkins claim in state court, it was unnecessary for the panel

to decide whether he had sufficiently exhausted the claim. 

- 7 -

is an IQ threshold above which a diagnosis of mental retardation is

precluded,[Ex parte Briseno, 135 S.W.3d 1 (Tex. Crim. App. 2004)

(en banc),] appears to suggest that clinical judgment, beyond

strict adherence to IQ test results, can support a diagnosis of

mental retardation.” Hearn III, 2008 WL 679030, at *4. 

While Hall is distinguishable from the present case in several

respects——for example, Hall appears to have presented evidence of

mental retardation that is considerably stronger than what Hearn

has adduced, and the state courts in Hall made clearly erroneous

findings, see Hall, 2008 WL 2579273, at *3——the fact remains that

Hearn, like Hall, did not receive in state court the full and fair

hearing that Hall requires, at least in the “unusual and unique

circumstances” of this type of case, id. at *4. 

II

A

The emphasis in Hall on the importance of safeguarding

procedural protections for habeas petitioners who find themselves

in the narrow Atkins “lacuna” does not, however, command that this

court conduct a de novo evidentiary hearing on Hearn’s claim.5

Before this court can consider whether Hearn is entitled to a

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6

Because the court is staying the proceedings, it need not

conduct the reasonableness analysis under § 2254(d).

- 8 -

hearing, it must address the threshold question whether he has

exhausted his Atkins claim, or whether, as he contends, he is

entitled to be excused from exhaustion under § 2254(b)(1)(B).6 

The state argues that Hearn’s new evidence and legal argument

presented in support of his Rule 59(e) motion are substantially

different from that presented in state court, and that his claim

has not been “fairly presented to the highest state court,” as

required to satisfy the exhaustion requirement. See, e.g.,

Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). The court

agrees. The evidence of mental retardation that Hearn presented to

the CCA in his motion for appointment of counsel and stay of

execution consisted solely of his school records, which at most

reflected poor performance in several subjects and grade levels

from the first through the eleventh. Pet’r Mot. Appointment of

Counsel 3-4. The Texas Defender Service, who represented Hearn

before the CCA, explained that it lacked the staff and financial

resources to investigate fully the possibility of raising an Atkins

claim. The educational record it presented was therefore meant

simply to indicate the possibility that Hearn might be mentally

retarded, and to show a sufficient basis to entitle him to

appointed counsel to develop his evidence further. Hearn did not

attempt to satisfy through this evidence the elements of a mental

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7

Texas has adopted the definition of mental retardation set

out by the American Association on Mental Retardation (“AAMR”). See

Briseno, 135 S.W.3d at 7. “Under the AAMR definition, mental

retardation is 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.” Id.

8For purposes of this conclusion, the court assumes, as it did

in Hearn III, that Hearn’s evidence is relevant to address the

Texas definition, despite his reliance on non-IQ evidence.

- 9 -

retardation claim under state law.7

 Upon obtaining appointed

counsel in federal court, Hearn has developed his record and

evidence of mental retardation to include, inter alia, expert

testimony, evidence of brain dysfunction revealed by

neuropsychological testing, and a medical diagnosis that shows that

Hearn suffers from fetal alcohol syndrome. More than simply

presenting his school records, as he did to the CCA, Hearn now

addresses each element of the Texas definition of mental

retardation8 and supports each with evidence and expert testimony.

The Fifth Circuit has explained that “as a general rule

dismissal is not required when evidence presented for the first

time in a habeas proceeding supplements, but does not fundamentally

alter, the claim presented to the state courts[,]” but “evidence

that places the claims in a significantly different legal posture

must first be presented to the state courts.” Anderson v. Johnson,

338 F.3d 382, 386-87 (5th Cir. 2003) (footnote and internal

quotation marks omitted). The court agrees with the state that

Hearn is now in a legal and evidentiary posture that is

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- 10 -

significantly different from the one before the CCA. 

Hearn does not attempt to argue that the evidence that

supports his Atkins claim merely supplements, but does not

fundamentally alter, the proof he presented in state court. Hearn

contends instead that, to the extent he has not adequately

exhausted state remedies, he should not be required to so under

AEDPA § 2254(b)(1)(B), which excuses exhaustion if “there is an

absence of available State corrective process,” or “circumstances

exist that render such process ineffective to protect the rights of

the applicant.” Id. Although recognizing that there is no

constitutional right to counsel in post-conviction proceedings,

Hearn argues that, in his circumstances, because he was convicted

before Atkins was decided, and because the first opportunity he had

to raise an Atkins claim was in a successive habeas petition, Texas

was obligated to provide him assistance of counsel upon presenting

a colorable showing of possible mental retardation. 

The court disagrees that § 2254(b)(1)(B) relieves Hearn from

the requirement that he fairly present his claim in state court.

The statutory exceptions to exhaustion provided in § 2254(b)(1)(B)

apply against an underlying preference for exhaustion, see

§ 2254(b)(1)(A), and come into play only when recourse to state

remedies is ineffective. Hearn’s argument that he should be

excused from exhaustion relates to why he was unable to bring an

Atkins-based habeas application after the CCA denied his request

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- 11 -

for counsel. Hearn has not shown, however, that he would now be

unable to bring his Atkins claim in state court, based on the

record as it has developed in federal court. Hearn appears to

concede this in his alternative request that the court stay this

action while he presents his claim in state court. 

A federal court’s mandate to require exhaustion is clear.

“[T]he interests of comity and federalism dictate that state courts

must have the first opportunity to decide a petitioner’s claims.”

Rhines v. Weber, 544 U.S. 269, 273 (2005) (citing Rose v. Lundy,

455 U.S. 509, 518-19 (1982)). The doctrine of comity “teaches that

one court should defer action on causes properly within its

jurisdiction until the courts of another sovereignty with

concurrent powers, and already cognizant of the litigation, have

had an opportunity to pass upon the matter.” Id. at 274 (citing

Rose, 455 U.S. at 518). Against the backdrop of these principles,

and the court’s reasoning, as explained below, that Hearn is

probably not procedurally barred from bringing his Atkins claim in

state court, the court decides in its discretion to stay this

action so that he may do so. 

B

Perhaps the most important factor in this case that warrants

a stay and abatement is that Hearn is obligated to, but has not,

presented his Atkins claim in state court. As the court pointed

out in Hearn III, “[i]t should be noted in the present case that

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the CCA decision did not involve a dismissal of an Atkins petition,

but rather the denial of a motion seeking appointment of counsel

and a stay of execution in preparation for a subsequent Atkins

application.” Hearn III, 2008 WL 679030, at *5. In Hearn III the

court did not consider this fact to affect its determination that

the CCA decision was “on the merits” for the purposes of conducting

the § 2254(d) analysis. Id. But when analyzing exhaustion, the

court now deems it necessary to distinguish between the dismissal

of a habeas application and the denial of a motion for appointment

of counsel and a stay of execution. Unlike similar petitions

brought in federal habeas court after the CCA has dismissed a

petitioner’s Atkins claim for failure to make a prima facie

showing, this case does not involve the CCA’s denial of a habeas

application as an abuse of the writ under Tex. Crim. Proc. Code

Ann. art. 11.071, § 5 (Vernon Supp. 2008). Cf., e.g., Rivera v.

Quarterman, 505 F.3d 349, 355 (5th. Cir. 2007) (“The CCA denied

both of [petitioner’s] Atkins petitions as abuses of the writ,

concluding that neither the first petition nor the second

supplemented petition made a prima facie showing of retardation.”)

(footnotes omitted)). Hearn did not present an Atkins claim to the

CCA. In his motion, he sought the assistance of counsel and a stay

of execution so that he could develop his evidence and present such

a claim. The CCA recognized this functional difference in its

decision, noting that “Hearn requests a stay of execution in order

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9

See the state’s May 29, 2007 renewed motion for summary

judgment at 16. Because Hearn presents the alternative request for

a stay in his reply brief, the state has not been able to address

whether this procedure is permissible or warranted. In the

interest of avoiding additional delay, however, the court will not

defer a ruling while it awaits another brief from the state. Under

Rhines the court’s decision to stay the case is discretionary.

Moreover, based on the state’s previously asserted position, the

court reasonably anticipates that the state would contend that a

stay would be futile because Hearn’s Atkins claim is procedurally

barred. 

10The state avers in its May 29, 2007 brief that “on March 2,

2004, Hearn filed a successive application for state postconviction

relief . . . . On March 3, 2004, the Texas Court of Criminal

Appeals denied Hearn’s application . . . .” Resp’t Br. 3.

Although this court and the Fifth Circuit have also characterized

the CCA decision as a dismissal of a successive application, see

Hearn, 376 F.3d at 450; Hearn v. Quarterman, 2007 WL 2809908, at *2

(N.D. Tex. Sept. 27, 2007) (Fitzwater, J.), the court now more

precisely refers to the decision as a denial of a motion for

appointment of counsel and a stay of execution. 

- 13 -

to have time to investigate a claim of mental retardation under

[Atkins], and to prepare a subsequent application for writ of

habeas corpus if his investigation uncovers evidence of mental

retardation.” Ex parte Hearn, No. 50,116-02. 

The state maintains that Hearn would now be procedurally

barred from returning to state court to bring the current version

of his Atkin’s claim.9

 This position, however, seems to be based

on the misunderstanding that the CCA’s 2004 decision was a

dismissal of a successive habeas application.10 If the CCA’s

decision constituted a dismissal of a successive habeas

application, this court would agree that the Art. 11.071, § 5

factors would likely now bar Hearn from presenting his Atkins claim

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- 14 -

in state court. Because the CCA’s decision only denied Hearn’s

request for a stay of execution and appointment of counsel,

however, and did not address a successive habeas application, this

court discerns no reason why the CCA’s decision would now foreclose

Hearn from now bringing an Atkins claim in state court. The effect

of the CCA’s decision was simply to leave Hearn to his own

resources in preparing a subsequent habeas application, and to

allow the scheduled execution to proceed unless Hearn could present

sufficient grounds to halt it. Nothing in the decision precluded

him from applying for habeas relief in accordance with the

requirements of Texas law. And the CCA has since stated that

“whether an Atkins claim can be recognized for the first time in a

second post-conviction writ application will depend exclusively

upon whether it fits the criteria of Article 11.071, Section 5.

For those habeas applicants who filed their initial writs before

Atkins was decided, this has not been an impediment, so long as

they can establish a prima facie case for mental retardation.” Ex

parte Blue, 230 S.W.3d 151, 156 (Tex. Crim. App. 2007) (footnote

omitted)

C

The court rests its decision to stay this action on the

reasoning and requirements of Rhines. In Rhines the Supreme Court

considered whether a federal district court had the discretion to

stay a habeas petition that contained unexhausted claims so that

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the petitioner could present those claims to the state court and

then return to federal court once the claims had been exhausted.

The Court recognized that this procedure might be necessary in

limited circumstances because of the prejudicial effect created by

the interplay between the AEDPA one-year statute of limitations and

the requirement under Rose v. Lundy that federal habeas petitions

that contained both exhausted and unexhausted claims be dismissed.

As the Court explained, “[w]hen we decided Lundy, there was no

statute of limitations on the filing of federal habeas corpus

petitions. As a result, petitioners who returned to state court to

exhaust their previously unexhausted claims could come back to

federal court to present their perfected petitions with relative

ease.” Rhines, 544 U.S. at 274. With the enactment of the oneyear statute of limitations, “[i]f a petitioner files a timely but

mixed petition in federal district court, and the district court

dismisses it under Lundy after the limitations period has expired,

this will likely mean the termination of any federal review.” Id.

at 275. The Court thus approved limited use of the stay-andabeyance procedure, but it cautioned that this regimen be applied

on a showing that “the petitioner had good cause for his failure to

exhaust, his unexhausted claims are potentially meritorious, and

there is no indication that the petitioner engaged in intentionally

dilatory litigation tactics.” Id. at 278. 

The court concludes that the unique circumstances of this case

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aptly fit within the stay-and-abeyance procedure discussed in

Rhines. First, Hearn was convicted before the Supreme Court

decided Atkins. His first federal habeas petition was denied a few

weeks after Atkins. Had Hearn been tried after Atkins, he would

have had a right to appointed counsel to develop a claim of mental

retardation in the state trial court. Because of the timing of

Atkins and of his prosecution, Hearn’s first opportunity to raise

an Atkins claim was in the context of a successive habeas

application, at a procedural point at which there is no recognized

constitutional right to assistance of counsel. Hearn is indigent

and, perhaps, mentally retarded. Volunteer counsel from the Texas

Defender Service was only able to step in at the last minute to

prepare an initial record to suggest that further investigation of

a mental retardation claim was warranted, and that therefore Hearn

was entitled to court-appointed counsel. Because the CCA denied

his request for appointed counsel, Hearn was unable to develop the

record and present a viable Atkins claim in state court. But after

coming to federal court, he obtained counsel, and, as the court

held in Hearn III, he has made a prima facie showing of mental

retardation. Hearn III, 2008 WL 679030, at *4. The court finds

that these circumstances satisfy the good cause requirement. 

Second, the finding that Hearn has made a prima facie showing

of mental retardation supports the conclusion that his Atkins claim

is potentially meritorious. 

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Third, there is no indication that Hearn has engaged in

intentionally dilatory litigation tactics. As discussed supra at

§ I, the Fifth Circuit has recounted in this case the efforts that

Hearn has undertaken to bring an Atkins claim in state court. In

re Hearn, 376 F.3d at 454.

D

In sum, there are several reasons that, in combination,

warrant staying and abating this petition under Rhines. Hearn’s

Atkins claim is within the lacuna of those that arose after he was

tried, exhausted his direct and collateral state court remedies,

and had filed his first federal habeas petition. As an indigent,

putatively mentally retarded prisoner who lacked assistance of

counsel in state court, Hearn was unable to present to the CCA an

Atkins claim that warranted appointment of counsel and a stay of

execution. But with federally appointed counsel and funds to

obtain expert evidence, he was able to make a prima facie showing

of mental retardation in federal court. Hearn has never had a full

and fair hearing of his Atkins claim in state court. But because

the claim is unexhausted and is probably not procedurally barred,

that hearing, and the initial decision about whether he is mentally

retarded, must be made in state court. Principles of comity and

federalism demand this. And the fact that Hearn is attempting to

satisfy the Texas definition of mental retardation despite nonqualifying IQ scores provides greater support for the decision to

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allow the Texas courts to decide in the first instance whether

Hearn is mentally retarded under Texas law. 

Rhines counsels that “[e]ven where stay and abeyance is

appropriate, the district court’s discretion in structuring the

stay is limited by the timeliness concerns reflected in AEDPA.”

Rhines, 544 U.S. at 277. Rhines therefore instructs district

courts to “place reasonable time limits on a petitioner’s trip to

state court and back.” Id. at 278. Accordingly, the court orders

Hearn to file a habeas application in state court within 45 days of

the date of this memorandum opinion and order, and, unless he

obtains habeas relief in state court, to return to this court

within 45 days after he exhausts his state court habeas remedies.

* * *

For the reasons explained, Hearn’s October 11, 2007 motion

pursuant to Rule 59(e) to vacate judgment is granted, the judgment

filed September 27, 2007 is vacated, and this petition is stayed

and abated while Hearn pursues his state habeas remedies in

accordance with this memorandum opinion and order. During the

pendency of this stay, this civil action will remain closed for

statistical purposes.

SO ORDERED. 

August 12, 2008.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE

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