1The court has referred to the Fifth Circuit’s opinion in In

re Hearn, 418 F.3d 444 (5th Cir. 2005), as “Hearn I.” It will

therefore refer to its September 27, 2007 ruling as Hearn II.

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 

Petitioner Yokamon Laneal Hearn (“Hearn”) moves pursuant to

Fed. R. Civ. P. 59(e) to vacate the judgment entered against him on

September 27, 2007, in which the court dismissed his successive

habeas petition with prejudice. Respondent (the “state”) opposes

the motion on various grounds. For the reasons that follow, the

court defers a decision on the motion until the parties have

presented additional briefing as required by this memorandum

opinion and order. 

I

The relevant background facts and procedural history of this

case are set out in the court’s prior opinion in Hearn v.

Quarterman, 2007 WL 2809908, at *1-*4 (N.D. Tex. Sept. 27, 2007)

(Fitzwater, J.) (“Hearn II”), and need not be repeated at length.1
There are, however, several opinions in this case, of which these

are but two.

2

536 U.S. 304 (2002).

- 2 -

The court will add to the discussion in Hearn II what is necessary

to understand the present decision. 

In Hearn II the court dismissed Hearn’s successive habeas

petition that presents the claim that he is mentally retarded and

that his execution is unconstitutional under Atkins v. Virginia.2

The court concluded that Hearn had not made the required showing of

mental retardation to proceed on a successive habeas petition. Id.

at *1. 

Texas has adopted the definition of mental retardation set out

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

parte Briseno, 135 S.W.3d 1, 7 (Tex. Crim. App. 2004) (en banc)

(habeas case). “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. (footnotes omitted). 

In Hearn II the court focused on whether Hearn had satisfied

the first of the three required elements of this definition, i.e.,

whether he had demonstrated “significantly subaverage general

intellectual functioning.” This element is “usually defined as an

I.Q. of about 70 or below.” In re Salazar, 443 F.3d 430, 432 (5th
- 3 -

Cir. 2006) (per curiam) (interpreting Texas-law definition of

mental retardation). After Hearn scored well above this threshold

on several IQ tests, his counsel admitted that “under the

prevailing definition of mental retardation, [Hearn] does not have

mental retardation.” Hearn II, 2007 WL 2809908, at *8 (citations

and internal quotation marks omitted). Hearn nevertheless argued

that he was entitled to proceed on his Atkins claim “on the basis

of brain impairment rather than significantly subaverage IQ . . .

[and] that under a proposed revised definition of mental

retardation, he has mental retardation.” Id. at 6 (citations and

internal quotation marks omitted). To advance this argument, Hearn

relied, inter alia, on evidence of brain dysfunction revealed by

neuropsychological testing performed by Dale G. Watson, Ph.D. (“Dr.

Watson”), a Clinical and Forensic Neuropsychologist, and a medical

diagnosis from Pablo Stewart, M.D. (“Dr. Stewart”), who concluded

that Hearn suffers from fetal alcohol syndrome. The court rejected

Hearn’s argument because the brain impairment evidence did not

establish significantly subaverage intellectual functioning. The

court also concluded that the Texas definition “requires evidence

of significantly subaverage intellectual functioning that Hearn

cannot produce.” Id. at 8. 

The court also considered Hearn’s shift of position at oral

argument, in which he asserted that he in fact is mentally retarded

under the Texas definition, despite IQ scores that are well above
- 4 -

70. Hearn essentially relied on the same evidence of

neuropsychological testing, this time contending that he could use

these test results to satisfy the Texas definition of mental

retardation. The court rejected this argument, concluding that

“assuming that Hearn can rely on evidence of neuropsychological

testing to establish mental retardation in the face of IQ scores

materially above 70, he has simply failed to produce an opinion

from Dr. Watson that he is mentally retarded.” Id. at 10. 

After the court entered a judgment, Hearn filed the instant

motion for relief under Rule 59(e). He requests that the court

vacate the judgment on the basis that he now has expert opinions

that establish that he is mentally retarded, notwithstanding the

fact that he has scored well above 70 on IQ tests. Specifically,

Hearn presents the testimony of Stephen Greenspan, Ph.D. (“Dr.

Greenspan”), a Clinical Professor of Psychiatry and Educational

Psychology, and a proffered expert on mental retardation, for the

proposition that “in some circumstances mental retardation can be

diagnosed even though the person’s full-scale IQ scores are above

the currently-prescribed cut-off point for mental retardation.”

Pet’r Br. 4. Dr. Greenspan considers in his report the question

whether “a pattern of severe neuropsychological impairments can be

used to satisfy the first prong of the [mental retardation]

definition,” Greenspan Decl. 10, and he opines that “[c]ertainly,

where one is dealing with an individual with a neurological deficit
- 5 -

(such as Fetal Alcohol Spectrum Disorder) known to produce a highly

mixed pattern, one would be highly justified . . . in concluding

that highly deviant results from a neuropsychological test battery,

such as the Halstead-Reitan battery used by Dr. Watson, would

provide a more meaningful basis for diagnosing [mental retardation]

than would full-scale IQ score.” Id. at 13-14. 

In addition to Dr. Greenspan’s declaration, Hearn submits a

new declaration from James Patton, Ed.D. (“Dr. Patton”), whom Hearn

also proffers as an expert, and who has previously testified on

behalf of Hearn’s claim of mental retardation. Dr. Patton adheres

to his view that, in light of the evidence of neuropsychological

deficits revealed by Dr. Watson’s testing and Dr. Greenspan’s

opinion, Hearn is mentally retarded despite IQ scores of between 87

and 93. Patton Decl. 3-4. 

The state responds that Hearn is presenting the new claim

“that the definition of mental retardation should be expanded to

include people with normal IQ’s,” Resp’t Resp. 1; that this new

argument could and should have been raised earlier; that Hearn’s

position is contrary to state law; and that the court’s adoption of

a new definition of mental retardation would be barred under Teague

v. Lane, 489 U.S. 288 (1989) (plurality opinion). 
3Although the Rule 59(e) factors on which the court relies are

drawn from a case that decided a summary judgment motion, the court

finds that they provide appropriate guiding principles in the

present case when they are viewed through the prism, noted below,

of the fact that the court is exercising its discretion in the

context of a death penalty case.

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II

To obtain Rule 59(e) relief, the movant must

demonstrate valid reasons that justify the

court’s reconsideration of a prior ruling

. . . . The task of the court in such a case

is to strike a proper balance between [two]

competing interests[:] the need to bring

litigation to an end and the need to render

just decisions on the basis of all the facts.

In doing so, the court should consider the

following nonexclusive factors: the reasons

for the moving party’s default, the importance

of the omitted evidence to the moving party’s

case, whether the evidence was available to

the non-movant before [he] responded to the

summary judgment motion, and the likelihood

that the nonmoving party will suffer unfair

prejudice if the case is reopened.

Artemis Seafood, Inc. v. Butcher’s Choice, Inc., 1999 WL 1032798,

at *2 (N.D. Tex. 1999) (Fitzwater, J.) (citing Freeman v. County of

Bexar, 142 F.3d 848, 853 (5th Cir. 1998); Lavespere v. Niagara

Mach. & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990))

(internal citations and quotation marks omitted).3
- 7 -

III

A

Hearn’s counsel explains that, until he was preparing for the

oral argument that the court convened on September 18, 2007, he did

not realize that the evidence of Hearn’s neuropsychological

deficits and fetal alcohol syndrome might actually satisfy the

“significant limitations in intellectual functioning” element of

the mental retardation definition. Hearn also contends that the

new evidence is important because it directly relates to one of the

principal bases for the court’s denial of the successive habeas

petition: that Hearn had failed to offer expert testimony that

supported the contention that he is mentally retarded. Hearn

maintains that the evidence was not available before he responded

to the summary judgment motion because his counsel could not have

sought expert testimony on this issue until he realized in

preparing for oral argument that the neuropsychological tests and

fetal alcohol syndrome evidence could serve as a basis to satisfy

the first prong of the mental retardation definition. Hearn argues

that, due to the short passage of time between Hearn II and the

presentation of the new evidence, the state will not suffer unfair

prejudice if the case is reopened. 
- 8 -

B

“The district court has considerable discretion in deciding

whether to reopen a case under Rule 59(e).” Edward H. Bohlin Co.

v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). The exercise of

this discretion is guided in the context of a capital habeas case

by considerations arising from the “unique nature of the death

penalty and the heightened reliability demanded by the Eighth

Amendment in the determination whether the death penalty is

appropriate in a particular case.” Sumner v. Shuman, 483 U.S. 66,

72 (1987) (citations omitted).

The court concludes that, when properly balanced, the Rule

59(e) factors weigh in favor of granting reconsideration. Although

the court finds that Hearn’s counsel, through the exercise of due

diligence and reasonable competence, could have concluded earlier

than he did that evidence of Hearn’s neuropsychological deficits

and fetal alcohol syndrome might satisfy the “significant

limitations in intellectual functioning” element of the mental

retardation definition, and that his counsel could have secured

supporting expert testimony before responding to the state’s

summary judgment motion, this factor is outweighed by the

importance of the new evidence and the fact that the state is

unlikely to suffer unfair prejudice as a result of granting the
4The state does not address the Rule 59(e) factors, and it

provides no basis on which to determine that it would suffer unfair

prejudice. 

- 9 -

requested relief.4 “The need to render just decisions on the basis

of all the facts,” coupled with the fact that this is a death

penalty case, compels the court in this instance to reconsider its

previous ruling. See Artemis, 1999 WL 1032798, at *2 (addressing

summary judgment motion in non-death penalty context). 

Moreover, the court finds that the state’s arguments are

unavailing. Hearn is not presenting a new claim, as the state

contends, but is instead seeking to establish, based on new

evidence, that he is mentally retarded under the Texas definition

of mental retardation. As this court stated in Hearn II,

“[n]either this court nor the case law suggests that IQ test scores

provide the exclusive evidentiary basis on which to make [a showing

of significantly subaverage intellectual functioning].” Hearn II,

at *9 n.6. 

The court also rejects the state’s contention that the “state

law [is] that mental retardation begins with IQ’s of 70 or below.”

Resp’t Resp. 4. Texas courts have in fact held otherwise.

Although noting that “significantly subaverage intellectual

functioning is defined as an IQ of about 70 or below,” the Texas

Criminal Court of Appeals in Briseno explained that

“[p]sychologists and other mental health professionals are flexible

in their assessment of mental retardation; thus, sometimes a person
- 10 -

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.” Briseno, 135 S.W.3d at 7 n.24. Although it is not

clear on what other (non-IQ) basis the intellectual functioning

prong can be established, or whether there is an IQ threshold above

which a diagnosis of mental retardation is precluded, Briseno

appears to suggest that clinical judgment, beyond strict adherence

to IQ test results, can support a diagnosis of mental retardation.

See id. 

Briseno also explains that Texas courts will follow the AAMR

definition “[u]ntil the Texas Legislature provides an alternate

statutory definition of ‘mental retardation’ for use in capital

sentencing.” Id. at 8. Dr. Greenspan’s testimony suggests that

his position is in fact consistent with current AAMR principles of

mental retardation diagnosis, which he contends do not intend there

to be a fixed IQ cutoff point, but which instead emphasize the

importance of exercising clinical judgment in determining how to

interpret and apply the three definitional prongs to diagnosing

mental retardation in each individual case. Greenspan Decl. 13. 

C

As explained in Hearn II, after the Fifth Circuit grants leave

to file a successive petition, this court must perform an initial

role as a second gatekeeper, and determine anew whether Hearn has

satisfied the requirements for the filing of such motion. Hearn
5On March 1, 2004 Hearn moved for appointment of counsel and

a stay of execution so that he could investigate a potential Atkins

claim, and to prepare a petition for a writ of habeas corpus. On

March 3, 2004 the CCA denied Hearn’s motion on the basis that he

had failed “to make at least a prima facie showing that such

subsequent application might have merit.” Ex parte Hearn, No.

50,116-02 (Tex. Crim. App. Mar. 3, 2004) (en banc) (per curiam). 

- 11 -

II, 2007 WL 2809908 at *7. In light of the new evidence, the court

concludes that Hearn has presented a sufficient prima facie case of

mental retardation.

IV

Although the court concludes that Hearn is entitled to

reconsideration based on his having made the required prima facie

showing of mental retardation, the court also concludes that this

may not be sufficient to warrant granting Rule 59(e) relief.

Before reaching the conclusion that the judgment should be vacated,

the court must examine the merits of the state’s summary judgment

motion. In other words, Hearn may succeed at the prima facie

gatekeeping stage but still fail on the merits, which would mean

the judgment dismissing his habeas petition with prejudice should

stand.

A

The state contends that the Texas Court of Criminal Appeals’

(“CCA’s”) rejection of Hearn’s successive application5

 constitutes

an adjudication on the merits that falls within the deferential
6

28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated

on the merits in State court proceedings

unless the adjudication of the claim——

(1) resulted in a decision that was contrary

to, or involved an unreasonable application

of, clearly established Federal law, as

determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

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scheme of 28 U.S.C. § 2254(d).6 In his successive petition before

this court, Hearn argues that the CCA’s ruling should not be

accorded deference. He maintains that the Fifth Circuit treated

the ruling “as a finding of procedural default,” and that because

he was unrepresented and had no funds to pay to support the

necessary investigation, he can establish sufficient cause to

overcome the procedural default. The state responds that in the

Atkins context, a CCA dismissal is an adjudication on the merits

that is entitled to deference by this court. 

B

Hearn notes correctly that there has been division in this

circuit concerning whether, for purposes of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254,

state court rulings dismissing Atkins claims for failure to
7The court finds unavailing Hearn’s argument that the Fifth

Circuit treated the CCA decision in his case as a finding of

procedural default, and that this should guide this court’s

consideration of the matter. Hearn appears to base this argument

on the Fifth Circuit’s characterization of the decision as a

dismissal for abuse of the writ. See In Re Hearn, 376 F.3d 447,

449 (5th Cir. 2004). In that decision, however, the panel

addressed only the question whether Hearn was entitled to a stay of

execution and appointment of counsel. It did not make an explicit

determination whether the CCA’s decision was procedural or on the

merits. 

- 13 -

establish a prima facie claim are “on the merits” or procedural.

See Moreno v. Dretke, 450 F.3d 158, 165 n.3 (5th Cir. 2006) (noting

division). The Fifth Circuit’s recent pronouncement in Rivera v.

Quarterman, 505 F.3d 349, 359 (5th. Cir. 2007), however, has

unambiguously resolved the issue.7 Taking up Judge Higginbotham’s

concurrence in Morris v. Dretke, 413 F.3d 484, 500 n.4 (5th Cir.

2005), the Rivera panel held that “in the Atkins context, Texas

courts have imported an antecedent showing of sufficient specific

facts to merit further review, rendering dismissal of such claims

[as abuses of the writ] a decision on the merits.” Rivera, 505

F.3d at 359 (internal quotation marks omitted). The panel

explained that, “[a]lthough Texas’ abuse of the writ doctrine is

superficially procedural in that it has a procedural effect,

determining which claims are remanded to the state trial courts for

further development, it steps beyond a procedural determination to

examine the merits of an Atkins claim.” Id. at 360. 

It should be noted in the present case that the CCA decision

did not involve a dismissal of an Atkins petition, but rather the
8

Such substantive review is indicative of a decision on the

merits. See Henderson v. Cockrell, 333 F.3d 592, 598 (5th Cir.

2003) (“In the context of federal habeas proceedings, adjudication

‘on the merits’ is a term of art that refers to whether a court’s

disposition of the case was substantive as opposed to procedural.”)

(internal citations and quotation marks omitted)).

- 14 -

denial of a motion seeking appointment of counsel and a stay of

execution in preparation for a subsequent Atkins application. This

fact, however, does not alter this court’s ultimate determination

that the decision was on the merits, because it was based on a

record addressing the evidentiary basis of Hearn’s potential Atkins

claim. In his motion presented to the CCA, Hearn clearly attempted

to set forth evidence of possible mental retardation, submitting

various academic records in order to assert “sub-average

intellectual functioning.” Pet’r Mot. 4. In response, the state

presented IQ evidence and analysis of the Briseno factors that are

used to determine deficiencies in adaptive behavior. That the

briefing primarily addressed prima facie factors indicates that the

CCA decision was based on a substantive review of the evidentiary

showing.8 The CCA thus appears to have incorporated the

requirement of a prima facie showing into its determination whether

to grant the pre-habeas application relief that Hearn requested.
- 15 -

C

Having determined that the CCA decision was on the merits, the

court must apply the standards of § 2254(d). 

Under AEDPA, if a state court has adjudicated

a habeas petitioner’s claims on the merits, he

may receive relief in the federal courts only

where the state court decision resulted in a

decision that was contrary to, or involved an

unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States, or

resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

Rivera, 505 F.3d at 356 (internal quotation marks omitted) (quoting

28 U.S.C. § 2254(d)). Under this standard, the court “cannot

reverse a decision merely because [it] would reach a different

outcome,” but it “must reverse when [it] conclude[s] that the state

court decision applies the correct legal rule to a given set of

facts in a manner that is so patently incorrect as to be

“unreasonable.” Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir.

2001) (addressing AEDPA unreasonable-application standard). In

Rivera the Fifth Circuit explained that, according to this

standard,

[a] state court decision constitutes an

“unreasonable application” of clearly

established federal law . . . if the court

“identifies the correct governing legal

principle from Supreme Court precedent, but

applies that principle to the case in an

objectively unreasonable manner.” If the

state court’s decision runs afoul of these

limits, then federal court review “is
9In support of his position, Hearn points, inter alia, to IQ

testing conducted by Mary Alice Conroy, Ph.D. (“Dr. Conroy”) in

2005 (resulting in a full-scale IQ score of 74), and Dr. Patton’s

2005 opinion that he is mentally retarded. The state supports its

contention that the CCA did not unreasonably apply federal law

mainly by pointing to Hearn’s own concession that the most recent

IQ tests reveal that he does not have significantly subaverage

intellectual functioning, as measured by intellectual tests. The

state also points out that Dr. Conroy’s evaluation did not conclude

that Hearn is mentally retarded. 

- 16 -

unencumbered by the deference AEDPA normally

requires.”

Rivera, 505 F.3d at 356 (quoting Woods v. Quarterman, 493 F.3d 580,

584 (5th Cir. 2007); Panetti v. Quarterman, ___ U.S. ___, 127 S.Ct.

2842, 2855 (2007)).

Hearn argues that the CCA decision that he failed to make a

prima facie case of mental retardation “is so patently incorrect as

to be unreasonable.” In support of this contention, Hearn relies

on the evidence he has produced in federal court. He contends that

this court is entitled to consider all the evidence before it in

determining whether the CCA unreasonably applied federal law. 

Although the court has considered Hearn’s most recent evidence

in finding that he has satisfied his prima facie burden, it must

now determine whether it can consider this evidence in conducting

the “unreasonable application” analysis. In their summary judgment

briefing, both parties appear to rely on evidence developed

subsequent to the CCA’s decision in discussing the reasonableness

of that ruling.9 The parties have not, however, fully briefed this

issue, particularly in light of the most recent, post-judgment
10A determination that the CCA’s decision was unreasonable

under § 2254(d), does not, of course, predetermine the merits of

Hearn’s Atkins claim. This analysis is restricted to the CCA’s

- 17 -

evidence and this memorandum opinion and order. 

Accordingly, the court directs the parties to brief whether

Hearn has made the required showing that the CCA’s decision was

“unreasonable” under the standards of § 2254(d). They must also

brief whether this determination is to be made in light of all

evidence presently before this court, or whether this court must

conduct this analysis based solely on the evidence in the record

before the CCA at the time of its 2004 ruling. Hearn’s

supplemental brief must be filed no later than April 14, 2008. The

state may file a response brief no later than May 14, 2008. And

Hearn may file a reply brief no later than June 13, 2008. Because

the court has established deadlines of this length, it does not

anticipate that the parties will request, or that the court will

grant, extensions except for compelling cause, taking into account

the exercise of due diligence.

If Hearn is unable to show that the CCA’s decision was

“unreasonable” under the § 2254(d) standards, the court will deny

Hearn’s motion to vacate the judgment. If, on the other hand,

Hearn makes this showing, the court will grant Hearn’s Rule 59(e)

motion, vacate its September 27, 2007 judgment, and proceed to an

evidentiary hearing in which it conducts a de novo review of

Hearn’s Atkins claim.10
determination that Hearn failed to make a prima facie showing of

mental retardation. As in Rivera, the court first determines

whether the state court decision was unreasonable under § 2254(d)

and, if it was, the court then independently reviews the merits of

the Atkins claim. See Rivera, 505 F.3d at 361. Accordingly, a

decision by this court to conduct an evidentiary hearing would not

alone mean that Hearn has established that he is mentally retarded.

The court could only make that determination after fully hearing

the evidence and argument of the parties.

- 18 -

* * *

Accordingly, for the reasons explained, the court defers a

decision on Hearn’s October 11, 2007 motion pursuant to Rule 59(e)

to vacate judgment until the parties have presented the required

additional briefing. The parties must comply with the briefing

deadlines set out above. 

SO ORDERED.

March 13, 2008.

_________________________________

SIDNEY A. FITZWATER

CHIEF JUDGE