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Eric Randall Nance v. Larry Norris, Director, Arkansas Department of Correction
Citations: 429 F.3d 809; 2005 U.S. App. LEXIS 26165; 2005 WL 3179927Docket: 05-4135
Court: Court of Appeals for the Eighth Circuit; November 28, 2005; Federal Appellate Court
Eric Randall Nance filed a motion to remand his denied habeas corpus petition on January 24, 2005, which was interpreted as a successive petition and denied on February 9, 2005, due to non-compliance with 28 U.S.C. § 2244(b)(2). Nance's current motions for a stay of execution and to file another successive habeas petition, which essentially sought the same relief, were also denied for failing to meet the statutory requirements. However, Circuit Judge Melloy dissented, advocating for the approval of Nance's successive petition to present an Atkins v. Virginia claim. Melloy argued that Nance faced a dilemma due to the precedent on mixed petitions, which limited his ability to amend his petition without risking dismissal of all claims. He highlighted that the Supreme Court's decision in Rhines v. Weber had since relaxed restrictions on mixed petitions, allowing for stays to exhaust unexhausted claims, a significant change considering the limitations imposed by the AEDPA. Melloy pointed out that the previous rules failed to account for the challenges posed by the habeas corpus statute of limitations, which could lead to a complete loss of federal review for petitioners like Nance. Petitioners can now raise newly available, unexhausted claims in subsequent petitions following the precedent set in Rhines, which alleviates the need to choose between complete dismissal or omission of these claims. In Nance's case, a stay and abeyance is irrelevant as the first habeas petition is closed. Given that Nance has provided a psychologist's affidavit suggesting the potential merit of his mental retardation claims, he should be allowed to raise an Atkins claim in a subsequent petition. The Rhines decision indicates that denying a stay may be an abuse of discretion if there is good cause for failing to exhaust claims, they are potentially meritorious, and there is no evidence of dilatory tactics. A similar case, Hearn v. Dretke, involved the Fifth Circuit granting a stay and appointing counsel for an Atkins claim, highlighting the futility of attempting to amend a pending habeas petition due to potential time bar issues from dismissal. Nance has made a prima facie showing of mental retardation, providing a valid reason for not amending his previous petition. Since Atkins has been made retroactive, permission should be granted for Nance to file a successive habeas petition and stay the execution.