United States Court of Appeals

Fifth Circuit

FILED

March 10, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 04-41724

_____________________

IN RE: MARVIN LEE WILSON,

Petitioner. 

_____________________

Motion for Authorization to File Successive 

Application for Writ of Habeas Corpus 

Pursuant to 28 U.S.C. § 2254

_____________________

Before DAVIS, WIENER, and GARZA, Circuit Judges.

BY THE COURT:
1 See 28 U.S.C. § 2244(b)(2), (b)(3)(C). A successive habeas application based on Atkins must

make a prima facie showing that (1) the claim to be presented has not previously been presented in

any prior application to this court; (2) the claim relies on Atkins; and (3) the applicant could be

classified as mentally retarded within the understanding of Atkins. See In re Morris, 328 F.3d 739,

740-41 (5th Cir. 2003); In re Johnson, 334 F.3d 403, 404 (5th Cir. 2003).

2

This court's order, --- F.3d ---, 2005 WL 3418652 (5th Cir. Dec.

13, 2005), is hereby withdrawn, and the following order is

substituted:

Texas death row inmate Marvin Lee Wilson has applied for our

authorization to file a successive application for a writ of

habeas corpus in the district court. He seeks to challenge his

death sentence pursuant to the Supreme Court's decision in Atkins

v. Virginia, 536 U.S. 304 (2002), prohibiting the execution of

mentally retarded criminals. This is Wilson's second motion for

authorization; we dismissed without prejudice his first motion

for failure to exhaust his Atkins claim in state court. No. 03-

40853 (Nov. 10, 2003). We did, however, hold that Wilson had

made the prima facie showing required for filing a successive

habeas application.1 Id. at 3.

Although Wilson’s failure to exhaust has now been cured by a

final judgment of the Texas Court of Criminal Appeals, Wilson's

present motion for authorization is time-barred. However,

because Wilson has demonstrated the sort of “rare and exceptional
2 A summary of the significant dates follows:

• June 20, 2002 - Atkins is announced, and the one year period to file habeas petitions

raising claims based on Atkins begins to run.

• June 20, 2003 - Wilson files successive petition in state court--which tolls federal

limitations period--and attempts to file also in federal district court.

• July 2003 - We deny Wilson’s initial pre-Atkins application.

• November 2003 - We dismiss successive federal petition without prejudice to refile

after state exhaustion.

• February 2004 - Soffar is announced, modifying the Texas two-forum rule.

• November 10,2004 - State court denies application, leaving Wilson one business day

to file his federal petition.

• November 12, 2004 - Wilson attempts to file successive habeas petition in district

3

circumstances” that justify equitable tolling of the limitations

period, we grant his motion.

I. 

Statute of Limitations

The Antiterrorism and Effective Death Penalty Act (AEDPA)

provides a one-year limitations period for habeas applications.

28 U.S.C. § 2244(d)(1). In cases like Wilson's, the year

commences to run from “the date on which the constitutional right

asserted was ... newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review.” §

2244(d)(1)(C). The Supreme Court issued Atkins on June 20, 2002;

thus, the one-year limitations period for filing a habeas

application based on Atkins expired on June 20, 2003. See In re

Hearn, 376 F.3d 447, 456 n. 11 (5th Cir.2004).2
court without our authority, with motion to defer adjudication.

• December 10, 2004 - Wilson requests that we reopen his original request for

authorization. The Court administratively rejects the motion as inconsistent with the

standard operating procedure of the Clerk’s Office..

• December 15, 2004 - District court denies motion for successive application as

unauthorized.

• December 22, 2004 - Wilson files with this court the pending request for

authorization to file successive habeas, which is the subject of this order.

4

On June 20, 2003, the very last day of his AEDPA limitations

period, and while Wilson’s application for COA on his initial

federal habeas claims was pending in this court, Wilson filed

successive applications for habeas corpus in both federal

district court and Texas state court. We dismissed without

prejudice his federal application, as noted above, while his

state application went forward in the Texas courts. Because the

time during which a properly filed application is pending in

state court is not counted toward the federal limitations period,

28 U.S.C. § 2244(d)(2), Wilson's time for filing in federal

court—with one day remaining—was tolled for as long as his state

application was pending in the Texas courts.

On November 10, 2004, the Texas Court of Criminal Appeals

issued a final judgment denying Wilson's state application. This

left Wilson with one business day to refile his application in

federal court. As November 11 was a federal holiday, Wilson's

filing deadline was November 12, 2004.
3 Had the district court transferred the application to this court, rather than dismissing it as

unauthorized, the application would have been timely, as the date of filing for limitations purposes

would have related back to the date of the initial filing in the district court on November 12. See

28 U.S.C. § 1631 (permitting district court to transfer unauthorized successive applications for

habeas corpus to court of appeals if “in the interest of justice,” and providing for relation back).

5

Wilson attempted to refile his successive application in the

district court on November 12, but without our prior

authorization as required under the AEDPA. 28 U.S.C. §

2244(b)(3)(A). Nearly a month later, on December 10, Wilson

submitted a motion to us, under the docket number of his

previously filed motion, for reinstatement of these proceedings.

He did not file a new motion for authorization at that time.

Although apparently not contrary to any written rule, because

Wilson’s motion to reopen the prior docket number was

inconsistent with the standard operating procedure of the Clerk’s

Office, the Court administratively declined to accept the motion

for reinstatement. On December 15, the district court dismissed

Wilson's successive application as unauthorized.3

Not until December 22, 2004, a full forty days after his

filing deadline, did Wilson properly file his new motion for

authorization. His application is clearly barred by AEDPA's

statute of limitations and must be denied, unless he has

demonstrated that he is entitled to equitable tolling of the

limitations period.
6

II. 

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.”

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

quotation and alteration omitted). A petitioner’s failure to

satisfy the statute of limitations must result from external

factors beyond his control; delays of the petitioner’s own making

do not qualify. See Felder v. Johnson, 204 F.3d 168, 174 (5th

Cir.2000) (“Equitable tolling is appropriate when an

extraordinary factor beyond the plaintiff's control prevents his

filing on time.”) In other words, If Wilson unreasonably waited

until the very last day of the one-year period following the

Supreme Court’s ruling in Atkins to assert his claim, then

despite his last-minute efforts to file on November 12, his

failure to meet his one-year deadline is his own fault and he is

not entitled to equitable tolling. “Equity is not intended for
7

those who sleep on their rights.” Fisher v. Johnson, 174 F.3d

710, 715 (5th Cir. 1999).

Wilson contends, however, that he was prevented from timely

filing in federal court by the Texas habeas corpus procedure that

was in effect during the year immediately following Atkins. Until

recently, a unique rule in the Texas courts prevented habeas

petitioners from maintaining both state and federal applications

at the same time. Often referred to as the “two-forum rule,” it

forced a petitioner to “decide which forum he [would] proceed in,

because [the state courts would not] consider a petitioner's

application so long as the federal courts retain[ed] jurisdiction

over the same matter.” Ex parte Green, 548 S.W.2d 914, 916 (Tex.

Crim. App. 1977), quoted in In re Hearn, 376 F.3d 447, 456 (5th

Cir. 2004); see also Ex parte Powers, 487 S.W.2d 101 (Tex. Crim.

App. 1972) (dismissing state writ when federal courts had not

dismissed parallel writ). Wilson argues that this Texas rule

precluded the filing of an Atkins claim, which was in effect

throughout the pendency of his initial habeas proceedings, while

the initial application was still pending, and that it justifies

equitable tolling for his successive application.

We have previously considered, in a case involving similar

circumstances, whether Texas’s two-forum rule could present a
8

rare and exceptional circumstance preventing prisoners from

asserting their rights. In In re Hearn, 376 F.3d 447 (5th Cir.

2004)(“Hearn I”), we determined that 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 Atkins.” Id. at 457. Even though we did not

squarely hold that Hearn was entitled to equitable tolling, we

granted his motion for appointment of “counsel to investigate and

prepare a tolling claim.” Id.

Upon a motion for rehearing following Hearn I, we denied

rehearing and clarified our opinion. See In re Hearn, 389 F.3d

122 (5th Cir. 2004) (“Hearn II”). Although we limited our

opinion in Hearn II to cases in which petitioner lacked counsel,

we found that equitable tolling did apply in that case “because

of the combination of the problem created by the Texas two-forum

rule, which Texas has overturned, and the withdrawal of

petitioner’s counsel.” Id. at 123. 

The two-forum rule presented Wilson with the same dilemma

that Hearn faced. Although Texas recently abandoned the rule,

see Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004), it

was still in effect for the entire year following the Supreme

Court’s ruling in Atkins. As in Hearn I, Wilson had already
4 Although Wilson’s initial habeas application was denied by the district court only three weeks

after the June 20, 2002, Atkins decision, 6:03-cv-295, we did not rule on his motion for COA until

July 17, 2003, more than a year after Atkins. No. 02-41084.

5 Dismissal of the pending initial petition, even without prejudice, would have precluded Wilson

from raising those same claims in the future because they would be time-barred. The AEDPA

limitations period is not tolled during the pendency of a federal——as opposed to state——habeas

petition. Duncan v. Walker, 533 U.S. 167, 172 (2001).

9

filed his initial federal habeas petition and was awaiting our

ruling on his application for a certificate of appealability

(COA) when the limitations period expired.4

Not only did the two-forum rule prevent Wilson from filing

his Atkins claim in state court, it also kept him from amending

his federal application to include an Atkins claim because it

would have been dismissed as unexhausted. See Rose v. Lundy, 455

U.S. 509, 510 (1982) (requiring dismissal of “mixed petitions”

containing both exhausted and unexhausted claims). Thus, the

rule presented a dilemma for Wilson, as it did for Hearn, because

bringing his Atkins claim in state court would have required him

to abandon his initial federal habeas application and sacrifice

permanently the claims within it.5 This problematic situation is

precisely what ultimately led the Texas Court of Criminal Appeals

to abandon the rule. See Soffar, 143 S.W.3d at 806.

Wilson appears to have delayed filing his Atkins claim in

the state court until the last possible moment in the hope that

we would rule on his initial federal habeas application before
10

expiration of the one-year limitations period. When June 20,

2003, arrived and we still had not issued a decision on his

initial motion for COA, Wilson filed successive applications in

both state and federal court raising his Atkins claim. With the

Texas two-forum rule still in effect at that time, Wilson ran the

risk of, and indeed, likely expected dismissal in state court;

but only by filing before close of business on June 20, 2003,

could he preserve his claim in federal court.

As it turned out, the Texas Court of Criminal Appeals did

not enforce the two-forum rule in Wilson’s case. Rather than

dismissing his successive application, the court remanded it to

the trial court for consideration on the merits. But Wilson

could not have known in advance that the rule would not be

applied to his case. Throughout the one-year limitations period,

the two-forum rule quite likely influenced Wilson and his counsel

to wait until the last possible moment for our decision on his

application for COA, in the hope of avoiding the Texas rule.

As the State correctly points out, though, after February

2004 when the TCCA abandoned the two-forum rule in Soffar, Wilson

could have filed a new conditional motion in this court for

authorization without necessarily facing dismissal in state

court. He then could have filed his successive application in
6

Indeed, even with the two-forum rule in effect, we conditionally granted Soffar’s motion for

authorization while his state successive application was pending. In re Soffar, No. 03-21005 at 2-3

(5th Cir. 2003) (unpublished).

11

the district court immediately after the state court ruling, and

it would have been authorized, assuming we had acted immediately.

In this respect, the two-forum rule perhaps had less effect on

Wilson’s case than on Hearn’s: As Hearn did not have a properly

filed application pending in state court, the federal limitations

period was not tolled in his case and expired on June 20, 2003,

before Soffar was decided.

Although Wilson might have filed a conditional motion for

authorization pending the outcome of his successive state

application,6 we had already dismissed his first motion for

authorization as premature for failure to exhaust his claim in

state court. It is hard to fault Wilson or his counsel for

deciding not to file another motion in light of this ruling.

More significantly, the State’s argument misses the point that

the two-forum rule caused Wilson not to file his Atkins claim in

federal court until the very last day of the one-year limitations

period. It was only because the state court decided -

unpredictably - not to enforce the rule in Wilson’s case that the

federal limitations period was tolled long enough to continue

past February 2004, when Soffar was decided. Thus, the effect of
12

the two-forum rule in causing Wilson to delay his federal filing

was in fact the same as that in Hearn: It prevented him from

raising his Atkins claim for the entire year of the limitations

period. If it were not for the two-forum rule, Wilson presumably

would not have been trapped in this procedural conundrum in the

first place.

An applicant’s diligence in pursuing relief is an important

factor in assessing his entitlement to equitable tolling. See

Coleman, 184 F.3d at 403 (“for equitable tolling to apply, the

applicant must diligently pursue ... relief.”). Although Wilson

arguably might have done more to preserve the availability of

federal review while his successive state application was still

pending, immediately following the state court’s ruling Wilson

did attempt to file in federal court and timely requested a

deferred adjudication so that he could seek our authorization.

As stated above, Wilson’s district court filing would have been

effective to toll the limitations period, if the district court

had elected to transfer rather than dismiss it.

The dissent asserts that in the single day left before

limitations ran, Wilson could have filed a motion for

authorization to file a successive habeas petition with this

court, obtained a ruling on that motion, and then filed his
13

petition in federal district court. It is possible that Wilson

could have accomplished all this in one day but not likely. At

least, we find it hard to fault Wilson’s counsel for not

undertaking that extraordinary effort.

Although one can argue that Wilson should not have held out

until the very last day of the Atkins limitations period to

present his motion for COA, he had good reasons for the delay.

Also it is noteworthy that the applicant in Hearn made no federal

filings at all during the limitations period. It seems to us

that Wilson’s diligence in his efforts to preserve review of his

Atkins claim, in light of all the surrounding extraordinary

circumstances, cuts strongly in favor of equitable tolling in

his case.

The dissent asserts that Wilson's delay in filing his

current motion for authorization was the result of attorney error

and therefore not susceptible to equitable tolling. The dissent

correctly points out that our precedent requires that a

petitioner file a new motion for authorization after exhausting

state remedies and before filing a successive petition, and not,

as Wilson attempted, a motion to reinstate the prior

authorization proceedings. The dissent argues that it was this

mistake, and not Texas' two-forum rule, that caused Wilson's
14

failure to timely file his successive petition, and that our

grant of equitable tolling suggests that we have not treated

seriously the AEDPA requirement that Wilson move for

authorization before filing his petition. We disagree.

It is our conclusion that the Texas two-forum rule forced

Wilson into the untenable position of having to choose between

two equally undesirable alternatives. First, Wilson could have

filed his successive petition in state court while his federal

petition remained pending. Under the two-forum rule, the state

court petition would have been dismissed, satisfying our

exhaustion requirement but sacrificing meaningful review of his

Atkins claim in state court. Second, Wilson could have

dismissed his pending federal petition and filed his successive

petition in state court. This would have allowed Wilson to

pursue relief on his Atkins claim in state court, but only by

sacrificing review of the claims asserted in his pending federal

petition. Wilson chose the first alternative, but only after

waiting in vain for this court to rule on his motion for COA

before the expiration of the limitations period. As we concluded

in Hearn, this is precisely the kind of Hobson's choice that may

not be imposed on a habeas petitioner.
15

We are also informed by the fact that had Wilson’s motion

for authorization been presented to us within the original

limitations period, we surely would have granted it. In our

earlier order, in which we denied his application because he had

not exhausted his Atkins claim, we expressly determined that

Wilson had made the requisite prima facie showing to qualify for

authorization. This determination was not undermined by the

denial of his Atkins claim in the state courts. Contrary to the

State’s assertion, the state court findings concerning the Atkins

claim are wholly irrelevant to our inquiry as to whether Wilson

has made a prima facie showing of entitlement to proceed with his

federal habeas application, which is an inquiry distinct from the

burden that Wilson must bear in proving his claim in the district

court. See, e.g., In re Briseno, No. 04-41650 (5th Cir. Jan. 6,

2005) (granting authorization to file successive habeas

application based on Atkins, despite state court finding that

applicant was not retarded). Because Wilson’s failure to exhaust

was our sole reason for dismissing Wilson’s first motion for

authorization, no substantive issue remained to be decided after

that requirement was satisfied. Thus, the presentation of

another motion for authorization was a formalism.

III. 
16

Conclusion

Wilson was confronted with a number of unique circumstances:

1. The Texas two-forum rule reasonably caused him to delay

filing a state habeas leaving himself only one day

after the state court ruling to obtain authorization

and file a federal habeas petition.

2. Although this court denied Wilson’s first motion to

file a federal habeas petition and assert his Atkins

claim for failure to exhaust state remedies, we

determined that Wilson had made the necessary prima

facie showing to proceed. Thus, the presentation of

another motion for authorization was a formalism.

We are satisfied that these are the sort of rare and

extraordinary circumstances that justify equitably tolling the

limitations period. 

The motion for authority to file successive habeas is

therefore GRANTED.
7 He simultaneously filed a successive writ petition in federal court, without first

obtaining the statutorily required authorization from the circuit court. The district court, within its

discretion, transferred this writ application to the circuit court, which then dismissed it without

prejudice as unexhausted. 

17

EMILIO M. GARZA, Circuit Judge, dissenting:

Because I do not believe that this case presents an “extraordinary circumstance”

warranting equitable tolling, I respectfully dissent. 

To clarify where I differ with the majority, a brief re-exposition of certain proceedings

may be helpful. As the majority explains, Wilson’s original habeas petition was pending in

federal district court for the entire year following Atkins. During that period, no court would

hear his Atkins claim: the two-forum rule mandated that the state habeas court dismiss a

successive writ application while federal proceedings were pending, and the exhaustion

requirement prevented him from amending his already filed federal habeas petition. On the last

day of the one-year period within which he could file an Atkins claim, risking dismissal by the

state court, Wilson filed a successive writ application in state court.7 Contrary to its own wellestablished rule, the Texas court accepted Wilson’s petition, thereby tolling the statute of

limitations under AEDPA with one day remaining. At that moment, the two-forum rule ceased

to impact Wilson: it had not barred him from having his claims heard in state court or from

ultimately filing a successive writ in federal court within the limitations period. 

When the Texas Court of Criminal Appeals eventually denied the successive writ

application, Wilson had one day in which to file his successive federal habeas claim. He did so

successfully and filed a timely successive habeas petition in the district court. However, Wilson

repeated the same error he had made in his previous attempt to file a successive habeas petition
8 Wilson’s choice not to seek conditional authorization after the two-forum rule was

lifted by Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004), also cuts strongly against the

grant of equitable tolling, as we will not grant tolling if the petitioner has failed to demonstrate a

diligent pursuance of his rights. Pace v. DiGuglielmo, ___ U.S. ___, 125 S. Ct. 1807, 1814-15

(2005); Larry v. Dretke, 361 F.3d 890, 897 (5th Cir. 2004). However, even if that questionable

decision can be justified by this court’s prior denial of the motion for authorization, it does not

18

in the federal courts and failed to seek prior authorization from this court. One month later,

Wilson filed a “Motion for Reinstatement” in the circuit court in an attempt to revive the prior

successive habeas petition that this court had dismissed without prejudice the year before. 

Probably waiting for our decision, the district court had not acted on Wilson’s successive writ at

that time. This court dismissed this motion, as it was not the appropriate way to gain approval to

file a successive habeas petition. The day after we rejected the faulty motion, however, the

district court))well within its discretion))dismissed the unauthorized successive petition,

stating that Wilson had repeated his previous error of not seeking prior authorization. Only then

did Wilson file a proper motion for authorization with this court. 

The statute governing the filing of habeas petitions explicitly mandates that before a

successive application can be 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) (emphasis added). Section 2244(b)(3)(A) “acts as a

jurisdictional bar to the district court’s asserting jurisdiction over any successive habeas petition

until this court has granted the petitioner permission to file one.” United States v. Key, 205 F.3d

773, 774 (5th Cir. 2000). 

The majority elides Wilson’s total failure to seek authorization the second time he filed

for a successive writ; it is this lack of authorization that resulted in the forty-day delay between

the lapsing of the limitations period and the current, properly-filed motion.8 This failure is
explain Wilson’s failure to seek authorization concurrently with or soon after filing the successive

writ petition in federal district court.

19

particularly inexplicable given that Wilson’s attorney had not sought authorization for his first

successive writ application, a mistake that was remedied when the district court chose to transfer

the motion to this court, rather than dismiss it as unauthorized. Wilson offers no excuse for his

repeated failure to gain authorization prior to filing in district court. The majority opinion offers

no explanation either, stating simply that “[b]ecause Wilson’s failure to exhaust was our sole

reason for dismissing Wilson’s first motion for authorization, no substantive issue remained to

be decided after that requirement was satisfied.” 

This court specifically has considered whether it is necessary to move again for

authorization after a prior motion has been dismissed without prejudice. In Graham v. Johnson,

168 F.3d 762 (5th Cir. 1999), a prisoner argued that his fourth successive application should be

treated as a “continuation” of his third, which had been dismissed without prejudice for failure to

exhaust state remedies. In rejecting this argument we stated: 

A habeas petitioner could file a non-exhausted application in federal court within

the limitations period and suffer a dismissal without prejudice. He could then

wait decades to exhaust his state court remedies and could also wait decades after

exhausting his state remedies to “continue” his federal remedy, without running

afoul of the statute of limitations. Construing an application filed after a previous

application is dismissed without prejudice as a continuation of the first

application for all purposes would eviscerate the AEDPA limitations period and

thwart one of AEDPA’s principal purposes.

Id. at 780 (internal citations omitted). This reading of the effect of a dismissal in the AEDPA

context comports with our more general understanding of the effect of a dismissal without

prejudice, which is to render the case without legal effect. See Hawkins v. McHugh, 46 F.3d 10,

12 (5th Cir. 1995) (holding that a dismissal without prejudice “leaves the parties in the same
20

legal position as if no suit had been filed”). Thus the plain language of AEDPA and this circuit’s

caselaw dealing with dismissals without prejudice, both in and out of the habeas context,

indicate that a second motion for authorization cannot be considered a mere “formalism.” A

motion for authorization is an integral and statutorily-mandated part of the habeas scheme

designed by Congress and we should not willfully disregard that requirement. 

This failure to seek authorization is attorney error, which this court has specifically held

is insufficient to warrant equitable tolling. Salinas v. Dretke, 354 F.3d 425, 431-32 (5th Cir.

2004); United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002); Cousin v. Lensing, 310 F.3d

843, 848-49 (5th Cir. 2002). Our sister circuits similarly hold that attorney error does not trigger

equitable tolling. See, e.g., United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005);

Modrowski v. Mote, 322 F.3d 965, 966 (7th Cir. 2003); Miranda v. Castro, 292 F.3d 1063, 1066-

67 (9th Cir. 2002); Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001); Harris v.

Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). 

The delay between the end of the limitations period and the instant filing cannot be

excused by an “extraordinary circumstance [that] stood in [petitioner’s] way.” Pace, 125 S. Ct.

at 1814. Wilson’s unexplained failure to seek authorization of any sort rendered his second

successive writ petition infirm and led to the forty-day gap between the lapse of the statute of

limitations and the filing of the current motion. By granting equitable tolling in this instance, we

have disregarded AEDPA’s statutory scheme and erroneously suggested that prior authorization

is not necessary for the district court to accept a successive writ petition.