In Henderson v. Thaler, No. 08-70018, a capital habeas matter, the court affirmed in part the denial of petitioner's habeas petition where petitioner did not cite any authority holding that there was an "actual
innocence of the death penalty" exception to the AEDPA statute of limitations. However, the order is vacated in part where the district court needed to further consider whether petitioner was entitled to
equitable tolling in light of Holland v. Florida.
As the court wrote: "This court authorized James Lee Henderson, a Texas death row inmate,
to file a successive federal habeas petition to assert a claim that he is mentally retarded and thus ineligible for execution under Atkins v. Virginia, 536 U.S. 304 (2002). In our order authorizing the filing, we noted that, unless the doctrine of equitable tolling applies, Henderson's successive petition is time-barred. In re Henderson, 462 F.3d 413, 417 (5th Cir. 2006). We left "it for the district court to decide whether Henderson's case presents the 'rare and exceptional circumstances' that would entitle him to the benefit of equitable tolling." Id.