United States Fifth Circuit

In a capital habeas matter, the denial of petitioner's habeas petition is affirmed where: 1) petitioner's habeas litigation strategy choice to withhold an Atkins claim from the initial federal petition, while simultaneously acting so late as to preclude exploration of other relief, did not make the Atkins rule "previously unavailable" to him within the meaning of 28 U.S.C. section 2244(b)(2)(A); 2) petitioner offered no cogent argument to excuse his failure to include his Atkins claim in his first federal petition when that claim was available to him for nine months after Atkins was decided; and 3) petitioner was not entitled to equitable tolling.

Appellate Information

• Decided 08/20/2010
• Published 08/23/2010

Judges

• Carl E. Stewart

Court

• United States Fifth Circuit

Counsel