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Click here for the full text of this decision FACTS:Texas death-row inmate Marvin Lee Wilson applied for this court’s authorization to file a successive application for a writ of habeas corpus in the U.S. District Court for the Eastern District of Texas. He seeks to challenge his death sentence pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), prohibiting the execution of mentally retarded criminals. This is Wilson’s second motion for authorization; this court dismissed without prejudice his first motion for failure to exhaust his Atkins claim in state court. HOLDING:The court denies Wilson’s present motion for authorization because it is time-barred and because he has not demonstrated the sort of “rare and exceptional circumstances” that would justify equitable tolling of the limitations period. The Antiterrorism and Effective Death Penalty Act (AEDPA) provides a one-year limitations period for habeas applications. Not until 40 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. The actions of his counsel particularly in waiting until the very last day of the limitations period to file his application appear to be more indicative of brinkmanship than of careful diligence, the court states. Because Wilson deliberately waited until the last possible moment to file his application, and thereby took a risk that could have been avoided, the court declines to extend to him the benefit of equitable tolling. 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, 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 (Tex. Crim. App. 1977). Wilson insists that this Texas rule precluded the filing of an Atkins claim during the pendency of his initial federal habeas proceedings and that it justifies equitable tolling for his successive application. “Although we have previously recognized the potential of the two-forum rule to present a rare and exceptional circumstance for a successive habeas applicant seeking to raise an Atkins challenge, In re Hearn, 376 F.3d 447, 457 (5th Cir. 2004), it does not explain Wilson’s waiting until the very last day of the limitations period to file his successive application in federal court. Even if we assume arguendo that the rule did effectively force Wilson to choose between his pending federal writ petition and his successive Atkins claim, that dilemma presented itself just the same on the first day of the limitations period as it did on the last: Wilson did not in any way limit his risk of dismissal by waiting until June 20, 2003, to file. Prudence � and diligence � would seem to us to have required Wilson’s counsel to leave himself at least a little room for error, rather than to delay his life-and-death filing to the very last minute. However great an obstacle the two-forum rule may have posed, Wilson’s decision to stand mute all the way up to the statutory deadline cannot be said to have resulted from rare and extraordinary circumstances.” Wilson additionally argues that he is entitled to equitable tolling because the state misled him and the court about the proper procedure for preserving federal review of his Atkins claim. Wilson points to the state’s letter urging this court to deny his motion for authorization as premature. The only portion of the text that may be even remotely misleading is the assertion that Wilson could re-file “in this Court” after the state court ruling, rather than in the district court. Wilson has not demonstrated that he was misled in any meaningful way by the state concerning the appropriate procedure for filing his successive habeas application such that he would be entitled to equitable tolling on that basis, the court concludes. OPINION:Per curiam; Davis, Wiener and Garza, JJ. Editor’s note: Below is a list of petitions and petitions for discretionary review granted by the Court of Criminal Appeals recently. The list is updated on Texas Lawyer’s Web site, www.texaslawyer.com, where readers also can find a complete list of petitions granted so far during the 2005-2006 term. Also, the online and e-mailed daily Texas Lawyer Case Alert includes information on petitions granted.

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