In Re: Hearn, 418 F.3d 444 (5th Cir. 2004). · Go Syfert
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In Re: Hearn, 418 F.3d 444 (5th Cir. 2004). Cases Citing This Book View Copy Cite
49 citation events (49 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (rule) Eric Cathey v. Lorie Davis, Director
5th Cir. · 2017 · confidence medium
Vacating the decision below, the majority in Moore: (1) held that the Briseno factors adopted by the Texas Court of Criminal Appeals for evaluating an Atkins claim are based on “superseded [medical] standards,” 96 that “creat[e] an unacceptable risk that persons with intellectual disability will be executed,” in violation of the Eighth Amendment, and thus “may not be used . . . to restrict qualification of an individual as intellectually disabled,” 97 (2) reiterated “that the Constitution ‘restrict[s] . . . the State’s power to take the life of’ any intellectually disabled …
cited Cited as authority (rule) In Re: Eric Cathey
5th Cir. · 2017 · confidence medium
In re Hearn, 418 F.3d at 445 (internal quotation marks and citations omitted). 104 .
discussed Cited as authority (rule) Robert Campbell
5th Cir. · 2014 · confidence medium
“A prima facie showing of mental retardation is simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.’ ” In re Hearn, 418 F.3d 444, 445 (5th Cir.2005) (internal quotation marks, alteration, and citation omitted).
cited Cited as authority (rule) Yokamon Hearn v. Rick Thaler, Director
5th Cir. · 2012 · confidence medium
In re Hearn, 418 F.3d 444, 448 (5th Cir.2005) (“Hearn I”).
discussed Cited as authority (rule) Elroy Chester v. Rick Thaler, Director (2×)
5th Cir. · 2012 · confidence medium
Cf., e.g., Wiley v, 625 F.3d at 216 n. 13 (noting that expert witnesses in that case "indicated that their diagnoses of [the defendant] were the same under both” the AAMR’s 1992 and 2002 definitions of the adaptive behavior prong); In re Hearn, 418 F.3d 444, 445 (5th Cir.2005) (citing the AAMR-10 in support of a general definition of mental retardation: "Mental retardation is a disability characterized by three criteria: significant limitation in intellectual functioning, significant limitation in adaptive behavior and functioning, and onset of these limitations before the age of 18”); U…
discussed Cited as authority (rule) Pierce v. Thaler (2×)
5th Cir. · 2009 · confidence medium
For Eighth Amendment purposes, it neither defines mental retardation nor—more relevantly—establishes who may diagnose mental retardation.’" Hall, 534 F.3d at 371 (quoting In re Hearn, 418 F.3d 444, 447 (5th Cir.2005)).
cited Cited as authority (rule) Eldridge v. Quarterman
5th Cir. · 2009 · confidence medium
In re Hearn, 418 F.3d 444, 446 (5th Cir.2005). 14 .
cited Cited as authority (rule) Rosales v. Quarterman
5th Cir. · 2008 · confidence medium
See, e.g., Moreno v. Dretke, 450 F.3d 158, 163 (5th Cir.2006); In re Hearn, 418 F.3d 444, 446-47 (5th Cm.2005).
discussed Cited as authority (rule) Hall v. Quarterman (2×)
5th Cir. · 2008 · confidence medium
In re Hearn, 418 F.3d 444, 447 (5th Cir.2005); see also Ex parte Lewis, 223 S.W.3d 372, 374 (Tex.Crim.App.2006) (Cochran, J., concurring) (joining the majority in declining to adopt the trial court’s fact findings based on Tex. Health & Safety Code § 591.003(16) and explaining that whether a physician or psychologist is licensed in Texas is of no "legal significance in deciding whether [an] applicant is mentally retarded for purposes of eligibility for the death penalty under Atkins v. Virginia or Ex parte Briseno"). .
discussed Cited as authority (rule) In Re: Mathis (2×) also: Cited "see"
5th Cir. · 2007 · confidence medium
“Mental retardation is a disability characterized by three criteria: significant limitation in intellectual functioning, significant limitation in adaptive behavior and functioning, and onset of these limitations before the age of 18.” In re Hearn, 418 F.3d 444, 445 (5th Cir.2005) (citing the AAMR factors).
cited Cited as authority (rule) In Re: Nealy
5th Cir. · 2007 · confidence medium
“A prima facie showing ... is simply a sufficient showing of possible merit to warrant a fuller [exploration] by the district court.” In re Hearn, 418 F.3d 444, 445 (5th Cir.2005).
examined Cited as authority (rule) Ex Parte Blue (3×)
Tex. Crim. App. · 2007 · confidence medium
See In re Henderson, 462 F.3d 413, 415 (5th Cir.2006); In re Salazar, 443 F.3d 430, 431 (5th Cir.2006); In re Hearn, 418 F.3d 444, 444-45 (5th Cir.2005); In re Johnson, 334 F.3d 403, 404 (5th Cir.2003); In re Morris, 328 F.3d 739, 740 (5th Cir.2003).
discussed Cited as authority (rule) Blue, Ex Parte Carl Henry (2×)
Tex. Crim. App. · 2007 · confidence medium
See In re Henderson , 462 F.3d 413, 415 (5 th Cir. 2006); In re Salazar , 443 F.3d 430, 431 (5 th Cir. 2006); In re Hearn , 418 F.3d 444, 444-45 (5 th Cir. 2005); In re Johnson , 334 F.3d 403, 404 (5th Cir. 2003); In re Morris , 328 F.3d 739, 740 (5 th Cir. 2003).
discussed Cited as authority (rule) Lewis, David Lee
Tex. Crim. App. · 2006 · confidence medium
Id. at 450 (Smith, J., dissenting) (arguing that "if the State of Texas, through its highest criminal court, has decided to use [the PMRA] statutory definition of 'mental retardation' in Atkins proceedings, it would be a 'no brainer' that the statutory definition of who is qualified to opine as to mental retardation would also apply"). 16. 135 S.W.3d at 8 (noting that the "adaptive behavior criteria are exceedingly subjective, and undoubtedly experts will be found to offer opinions on both sides of the issue in most cases"). 17.
examined Cited as authority (rule) Ex Parte Lewis (3×)
Tex. Crim. App. · 2006 · confidence medium
Id. at 450 (Smith, J., dissenting) (arguing that "if the State of Texas, through its highest criminal court, has decided to use [the PMRA] statutory definition of 'mental retardation' in Atkins proceedings, it would be a ‘no brainer’ that the statutory definition of who is qualified to opine as to mental retardation would also apply”). . 135 S.W.3d at 8 (noting that the "adaptive behavior criteria are exceedingly subjective, and undoubtedly experts will be found to offer opinions on both sides of the issue in most cases”). .
discussed Cited as authority (rule) In Re: Henderson (2×)
5th Cir. · 2006 · confidence medium
In Re Hearn, 418 F.3d 444, 444-45 (5th Cir.2005).
discussed Cited as authority (rule) In Re: Brown
5th Cir. · 2006 · confidence medium
This Court has explained that to obtain permission to file a successive petition based on the new constitutional rule announced in Atkins , a petitioner must make a prima facie showing that “(1) his claim has not previously been presented in a prior application to this court, (2) his claim relies on a decision that stated a new, retroactively applicable rule of constitutional law that was previously unavailable to him, and (3) that he is mentally retarded.” In re Hearn, 418 F.3d 444, 444-45 (5th Cir.2005).
discussed Cited as authority (rule) In Re: Salazar
5th Cir. · 2006 · confidence medium
Because Salazar bases his application on the new constitutional rule announced in Atkins, to obtain authorization to file a successive claim, he must make a prima facie showing that “(1) his claim has not previously been presented in a prior application to this court, (2) his claim relies on a decision that stated a new, retroactively applicable rule of constitutional law that was previously unavailable to him, and (3) . . . he is mentally retarded.” In re Hearn, 418 F.3d 444, 444-45 (5th Cir. 2005).
cited Cited as authority (rule) Moreno v. Dretke
5th Cir. · 2006 · confidence medium
In re Hearn, 418 F.3d 444, 446 (5th Cir.2005).
discussed Cited as authority (rule) In Re: Robert Madrid Salazar, Movant
5th Cir. · 2006 · confidence medium
Because Salazar bases his application on the new constitutional rule announced in Atkins , to obtain authorization to file a successive claim, he must make a prima facie showing that “(1) his claim has not previously been presented in a prior application to this court, (2) his claim relies on a decision that stated a new, retroactively applicable rule of constitutional law that was previously unavailable to him, and (3) ... he is mentally retarded.” In re Hearn, 418 F.3d 444, 444-45 (5th Cir. 2005).
cited Cited "see" United States v. Robinson (In Re Robinson)
5th Cir. · 2019 · signal: see · confidence high
See Hearn , 418 F.3d at 447 -48 .
cited Cited "see, e.g." Taylor v. Quarterman
5th Cir. · 2007 · signal: see, e.g. · confidence medium
See, e.g., In re Hearn, 418 F.3d 444, 446-47 (5th Cir. 2005). 4 5
cited Cited "see, e.g." Taylor v. Quarterman
5th Cir. · 2007 · signal: see, e.g. · confidence medium
See, e.g., In re Hearn, 418 F.3d 444, 446-47 (5th Cir.2005).
Retrieving the full opinion text from the archive…
In Re: Hearn
04-10245.
Court of Appeals for the Fifth Circuit.
Oct 20, 2004.
418 F.3d 444
Published

United States Court of Appeals Fifth Circuit F I L E D REVISED OCTOBER 20, 2004 October 19, 2004 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _______________________ Clerk No. 04-10245 _______________________

In Re: Yokamon Laneal HEARN , Movant. _______________________

No. 04-70010 _______________________

Yokamon Laneal Hearn, Petitioner-Appellant, v. Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

Transfer Order from the United States District Court and Appeal from the United States District Court from the Northern District of Texas ______________________________________________________________________________

ORDER ON REHEARING (Opinion 7/6/04, 5th Cir., 376 F.3d 447)

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

The petition for panel rehearing is DENIED, and no judge in regular active service having requested that the court be polled on rehearing en banc, the petition for rehearing en banc is

DENIED. The court, having considered the request for rehearing, clarifies the panel opinion as follows: appointed for a successive petition, but the appointment alone does not grant capital defendants a right to an automatic stay of execution. McFarland, 512 U.S. at 858.

[*445]

Under such circumstances, the defendant will have sufficient time to file a petition

conforming to the prima facie standard mandated by 28 U.S.C. 2244(b)(3)(C) prior to his scheduled execution. A federal court need not grant a stay where a dilatory capital defendant ignores this opportunity to file timely and flouts the available processes. Id.

[*446]

The majority seems now to recognize that once newly-appointed counsel has presented his

or her case for Hearn on remand, the district court will surely find that Hearn meets none of the standards for retardation and will deny relief. As Judge Higginbotham observed, “If there is nothing there, as the dissent seems to know, the district court will so conclude.” Id. at 459 (Higginbotham, J., concurring).

The majority’s clarification somewhat explains the majority’s assertion that this petitioner, having shown no substantial facts in support of retardation, is nonetheless entitled to counsel. The majority’s position on retardation remains in error, but at least there is a way of understanding how the majority can attempt to justify appointing counsel in a case such as this, where the attempted showing of retardation is meritless if not downright disingenuous.

I respectfully dissent.

[*447]
1 The panel decision is limited to a petitioner who: (i) has already filed state and federal petitions; (ii) presently lacks §848(q)(4)(B) counsel; (iii) may have a §2244(b)(2)(A) claim based on the previously unavailable, new Supreme Court rule in Atkins; and (iv) to whom Atkins may apply.
2 Consequently, this decision does not imply that all defendants are entitled to §848(q)(4)(B) counsel for all successive habeas actions. McFarland v. Scott, 512 U.S. 849 (1994), must be harmonized with Congress’s later determination in AEDPA that the gro unds for successive habeas petitions are narrowly circumscribed. Cf. Cantu-Tzin v. Johnson, l62 F.3d 295, 296 (5th Cir. 1998) (“neither McFarland nor §848(q)(4)(B) requires appointment of counsel for the who lly futile enterprise of addressing the merits of a time-barred habeas petition”).
3 Equitable tolling applies in this 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.
4 This is a fact-bound case. In the ordinary case, e.g., In re Holladay, 331 F.3d 1169 (11th Cir. 2003), where the issue of mental retardation was explored at trial for Penry mitigation purposes, there will likely be a state court record from which to determine whether a prima facie case of mental retardation exists. Counsel may be
5 As the panel opinion made clear, while Hearn made a colorable showing of entitlement to §848(q)(4)(B) counsel for the limited purpose of investigating and preparing his successive habeas petition, we have not decided the merits of his claim of mental retardation. Jerry E. Smith, Circuit Judge, dissenting from the denial of panel rehearing: I respectfully dissent from the denial of rehearing. Although I appreciate the majority's well-meaning effort to address portions of its initial opinion, Hearn v. Dretke (In re Hearn), 376 F.3d 447 (5th Cir. 2004), the majority’s clarifications, which are generally helpful, do not cure the fundamental deficiencies on which I focused in dissent, id. at 459-71 (Smith, J., dissenting). Fortunately, in its order on rehearing, the majority states that “[t]his is a fact-bound case” and that “[t]he facts of this case do not presently demonstrate that Hearn ‘is in fact mentally retarded.’” Unfortunately, however, the majority still clings to its notion that “Hearn has made a colorable showing of entitlement to . . . counsel.”