Case: 09-70026 Document: 00511146935 Page: 1 Date Filed: 06/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 18, 2010
No. 09-70026 Lyle W. Cayce
Clerk
JOHN LEZELL BALENTINE
Petitioner - Appellant
v.
RICK THALER, Director, Texas Department of
Criminal Justice, Correctional Institutions Division
Respondent - Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
John Lezell Balentine, a Texas prisoner sentenced to death, appeals the
denial of his motion to set aside the judgment that a year earlier had denied him
habeas corpus relief. We find the prior judgment should have been set aside
because of a subsequent state court ruling. We REVERSE and REMAND for an
evidentiary hearing on whether Balentine’s trial counsel ineffectively
investigated for mitigation evidence to present during sentencing.
PROCEDURAL HISTORY
Balentine confessed that on January 21, 1998, in Amarillo, Texas, he
murdered three teenagers, Mark Caylor, Jr., Kai Geyer, and Steven Brady
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Watson. The details of the crime are set out in Balentine v. Quarterman, No.
2:03-CV-00039, 2008 WL 862992, at *2 (N.D. Tex. Mar. 31, 2008).
There have been several separate actions to determine Balentine’s guilt
for the murders and then to review that determination in state and federal court.
We summarize the proceedings that have led to today’s appeal.
A. Trial, Sentencing, and Direct Appeal
In April 1999, a jury found Balentine guilty of capital murder and
sentenced him to death. The Texas Court of Criminal Appeals affirmed the
conviction and sentence on April 3, 2002. Balentine v. State, 71 S.W.3d 763 (Tex.
Crim. App. 2002).
B. First State Habeas Application
Balentine filed a state post-conviction application for writ of habeas corpus
on January 22, 2001, which would have been before proceedings on the direct
appeal were final. Twenty-one grounds for relief were stated, the first fourteen
all challenging the constitutionality of the Texas death penalty scheme. The
only identified issue concerning sentencing was that counsel was ineffective by
not presenting any evidence at the sentencing hearing. The state district court
denied relief on October 18, 2002. The Court of Criminal Appeals, after adopting
the trial judge’s findings and conclusions, also denied relief on December 4, 2002.
Ex parte Balentine, No. WR-54,071-01 (Tex. Crim. App. Dec. 4, 2002) (not
designated for publication).
C. First Federal Habeas Application
Balentine filed an application for writ of habeas corpus in the United
States District Court for the Northern District of Texas on December 1, 2003,
then filed an amended application on August 19, 2004. See 28 U.S.C. § 2254. He
alleged nine grounds of error, including a denial of a right to individualized
sentencing under the Eighth Amendment. The crux of such a claim is that a
defendant did not receive an individualized sentence because no mitigating
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evidence was presented at trial. See Lockett v. Ohio, 438 U.S. 586 (1978). After
securing new counsel, Balentine detailed – for the first time in any court – the
mitigation evidence that could have been presented had there been proper
investigation. That evidence included affidavits by family members and experts.
The magistrate judge issued a Report and Recommendation finding Balentine
not entitled to relief because the claims relating to mitigating evidence were
unexhausted and procedurally barred.
Balentine objected to the Report and Recommendation on December 21,
2007. He also requested that the district court stay the federal proceedings so
that he could return to state court to exhaust the mitigation claims. The district
court denied the motion on March 31, 2008. This denial of a stay is a key
procedural point in our review of the decision on the Rule 60(b) motion. Also on
March 31, 2008, and then on reconsideration on May 30, 2008, the district court
overruled all objections to the Report and Recommendation.
Balentine appealed the denial of his habeas petition to this court. We
affirmed on April 13, 2009. Balentine v. Quarterman, 324 F. App’x 304, 305-06
(5th Cir.), cert. denied, 130 S. Ct. 484 (2009).
D. Successive State Habeas Application
On August 21, 2009, Balentine filed a subsequent habeas application in
state district court pursuant to Section 5 of Texas Code of Criminal Procedure
Article 11.071. He alleged that he was deprived of his Sixth Amendment right
to effective assistance when his trial counsel did not investigate, develop, and
present mitigation evidence in the punishment phase of the trial. He also alleged
a violation of Batson v. Kentucky, 476 U.S. 79 (1986). The Court of Criminal
Appeals dismissed the application. Ex parte Balentine, Nos. WR-54071-01,
WR-54071-02, 2009 WL 3042425 (Tex. Crim. App. Sept. 22, 2009).
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E. Motion for Rule 60(b) Relief from the Federal Court Judgment
On September 23, 2009, Balentine filed a motion for relief from judgment
under Federal Rule of Civil Procedure 60(b) in federal district court. The
judgments from which relief was sought were those of March and May 2008,
denying his Section 2254 claims. Balentine argued that the Court of Criminal
Appeals’s September 22, 2009 dismissal of his application did not constitute an
independent and adequate ground that would bar review of the claim. He
requested an evidentiary hearing on the merits of his claim that counsel had been
ineffective by failing adequately to search for mitigating evidence.
On September 28, 2009, the district court denied relief from judgment and
stay of execution. The court rejected Balentine’s argument that the Court of
Criminal Appeals’s decision of September 22, 2009 had invalidated the district
court’s 2008 ruling that an unexhausted claim of ineffective assistance of counsel
was procedurally barred. The district court found that the Court of Criminal
Appeals had not ruled on the merits of the claim on September 22, 2009 and the
claim therefore remained procedurally barred.
The district court granted a certificate of appealability. Balentine now
appeals the district court’s denial of Rule 60(b) relief, claiming that the
September 22, 2009 decision of the Court of Criminal Appeals constituted a
determination on the merits of Balentine’s ineffective assistance of counsel claim.
Therefore, he argues, the ineffective assistance of counsel claim is no longer
procedurally defaulted and the federal courts should review it on the merits.
DISCUSSION
The language of Rule 60(b)(6) is brief, but its reach is broad. “On motion
and just terms, the court may relieve a party or its legal representative from a
final judgment, order, or proceeding for the following reasons: . . . (6) any other
reason that justifies relief.” We have described this Rule as a powerful one:
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Rule 60(b)(6) is a grand reservoir of equitable power to do justice in
a particular case when relief is not warranted by the preceding
clauses, we have also narrowly circumscribed its availability, holding
that Rule 60(b)(6) relief will be granted only if extraordinary
circumstances are present.
Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995) (citations and
internal quotation marks removed).
The equitable power of the district court judge is to be exercised with
discretion, while our appellate examination is for whether the discretion was
abused. Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002).
A. Is This a New Claim under AEDPA?
The relief that is available under Rule 60(b) in habeas proceedings must be
granted consistently with the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Ruiz v Quarterman, 504 F.3d 523, 526 (5th Cir. 2007); 28 U.S.C. §
2244(b). The Supreme Court has described how AEDPA and Rule 60(b) motions
operate in harmony. Gonzalez v. Crosby, 545 U.S. 524 (2005). Under AEDPA, any
successive habeas claim that has not already been adjudicated must be dismissed
unless it relies on either a new and retroactive rule of constitutional law or new
facts showing a high probability of actual innocence. Id. at 530.
Where a Rule 60(b) motion raises a new habeas claim, the motion is
considered a successive habeas application: “Using Rule 60(b) to present new
claims for relief from a state court’s judgment of conviction – even claims couched
in the language of a true Rule 60(b) motion – circumvents AEDPA’s requirement
that a new claim be dismissed unless it relies on either a new rule of
constitutional law or newly discovered facts.” Gonzalez, 545 U.S. at 531.
But there is no new habeas claim where a petitioner “merely asserts that
a previous ruling which precluded a merits determination was in error – for
example, a denial for such reasons as failure to exhaust, procedural default, or
statute-of-limitations bar.” Id. at 532 n.4. “If neither the [Rule 60(b)] motion
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itself nor the federal judgment from which it seeks relief substantively addresses
federal grounds for setting aside the movant’s state conviction, allowing the
motion to proceed as denominated creates no inconsistency with the habeas
statute or rules.” Id. at 533.
Balentine now alleges that he received ineffective assistance of counsel, in
violation of his rights under the Sixth Amendment, when his initial counsel failed
to investigate mitigating evidence for the sentencing phase of his trial.1 See
Wiggins v. Smith, 539 U.S. 510 (2003). The State argues that Balentine’s initial
federal habeas application never raised a Sixth Amendment claim for counsel’s
failure to investigate mitigating evidence. If that is so, then Balentine’s Rule
60(b) motion raised a new claim that constitutes a successive habeas application
barred by AEDPA. See § 2244(b)(2). Consequently, whether AEDPA requires
dismissal of Balentine’s Rule 60(b) motion in part depends on when the issue of
ineffective assistance for failure to investigate mitigating evidence was first
presented in earlier proceedings.
A claim of ineffective assistance of counsel for failure to investigate
mitigation evidence was not raised on direct appeal. Nor was a claim of failure
to investigate mitigation evidence presented in the state habeas application that
was filed in 2002. Instead, the initial state habeas application made a weak
assertion of a failure to present mitigation evidence.
We now look for whether Balentine raised the Wiggins claim in federal
district court in his Section 2254 habeas petition, filed in 2003 and amended in
2004. The State contends that Balentine’s federal habeas petition did not state
a Sixth Amendment claim of ineffective assistance for counsel’s failure to
investigate and present mitigating evidence. Rather, the State asserts that any
claim regarding mitigation was an Eighth and Fourteenth Amendment challenge.
1
The State essentially concedes that Balentine’s initial defense counsel failed to
investigate for or present mitigation evidence during the sentencing phase.
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The relevant section of Balentine’s federal habeas application was titled
“Ground Eight (IAC [Ineffective Assistance of Counsel] – Lockett Doctrine & Risk
Assessment): Balentine was denied his federal Eighth and Fourteenth
[A]mendment rights to individualized sentencing. Trial counsel failed to present
any evidence at all in the punishment phase.” This section of the application
asserted that the trial counsel’s performance was “deficient.” It included five
arguments in support of counsel’s constitutional deficiency with regard to
mitigating evidence. The application then stated that such “deficient performance
of trial counsel raises a reasonable probability that the outcome would have been
different” and cites to the Sixth and Fourteenth Amendments, and to Strickland
v. Washington, 466 U.S. 668 (1984).
The general rule is that arguments not raised before the district court are
waived on appeal. State Indus. Prods. Corp. v. Beta Tech., Inc., 575 F.3d 450, 456
(5th Cir. 2009). The errant heading in a brief does not waive an argument.
Balentine raised a Sixth Amendment argument. Both the magistrate judge and
this court ruled on it. See Belt v. Emcare, Inc., 444 F.3d 403, 409 (5th Cir. 2006)
(holding that an issue is preserved for appeal where “the issue was sufficiently
raised for the court to rule on it”).
The section’s title gave some misdirection with the reference to Lockett, but
Balentine’s claim was nonetheless for ineffective assistance of counsel. The
section title contained counsel’s acronym for ineffective assistance of counsel,
IAC, and stated that “counsel failed to present any evidence at all in the
punishment phase.” Additionally, Balentine presented his argument in terms of
Strickland v. Washington and Wiggins v. Smith, both Sixth Amendment
ineffective assistance of counsel cases. Further, the section’s subheadings
tracked the two-prong test for ineffective counsel. Subheading 2 was titled “Trial
counsel’s performance was deficient,” and subheading 3 was titled “The deficient
performance raises a reasonable probability that the outcome would have been
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different.” The magistrate judge properly recognized the claim as an ineffective
assistance of counsel claim and ruled on it, and on appeal this court considered
the claim to be one for ineffective assistance. Balentine, 324 F. App’x at 305-06.
Thus, Balentine’s federal habeas application stated a Sixth Amendment
ineffective assistance of counsel claim, and the Rule 60(b) motion does not
present a new habeas claim barred by AEDPA.
B. Did the Texas Court of Criminal Appeals Rely on an Independent and
Adequate State Ground Precluding Federal Merits Review?
The next key issue is whether the state court reached the merits of the
claim or instead ruled that the habeas application was procedurally flawed. This
distinction matters in a Section 2254 proceeding because we do not reach the
merits when the state court denied relief due to a state law that provides an
adequate basis for the decision, independent of the merits of the federal claim.
Coleman v. Thompson, 501 U.S. 722, 729 (1991); Finley v. Johnson, 243 F.3d 215,
218 (5th Cir. 2001). The Supreme Court has held that if the state court decision
rests “primarily on federal law” or the state and federal law are interwoven, and
if “the adequacy and independence of any possible state law ground is not clear
from the face of the opinion,” we will construe the state court ruling as one
applying federal law. Ruiz v. Quarterman, 504 F.3d 523, 527 (5th Cir. 2007)
(quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). An independent and
adequate state ground must be express in order to avoid the Michigan v. Long
default rule. Finley, 243 F.3d at 218.
Consequently, if the Texas Court of Criminal Appeals did not clearly rely
on an independent state ground in its September 22, 2009 order, we will conclude
that it reached the merits and did not reject the claim for not having been
exhausted. Such a conclusion would undermine our failure to stay the federal
suit in 2008 in order to allow the claim to be presented first in state court, a
refusal based on the view that the state would not countenance such a claim.
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We now apply these principles to the state court order.
By statute, a Texas state prisoner has a limited right to have a successive
application for habeas relief considered in state court.
(a) If a subsequent application for a writ of habeas corpus is filed
after filing an initial application, a court may not consider the merits
of or grant relief based on the subsequent application unless the
application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not
have been presented previously in a timely initial application or in
a previously considered application filed under this article or Article
11.07 because the factual or legal basis for the claim was unavailable
on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of
the United States Constitution no rational juror could have found the
applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a violation of the
United States Constitution no rational juror would have answered
in the state's favor one or more of the special issues that were
submitted to the jury in the applicant's trial under Article 37.071,
37.0711, or 37.072.
Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a).
The application may be filed in the court of conviction, but the clerk of that
court is to send the application to the Court of Criminal Appeals. Id. § 5(b). The
Court of Criminal Appeals then decides whether one of the limited bases for
consideration of the application on the merits has been shown.
On August 21, 2009, Balentine filed a successive application. In a two-page
order, the Court of Criminal Appeals first summarized the prior proceedings. It
then addressed the most recent filing:
Applicant presents two allegations in his application. In the
first allegation, applicant asserts that he was deprived of his Sixth
Amendment right to effective assistance of trial counsel because
counsel failed to adequately investigate, develop, and present
mitigation evidence in the punishment phase of the trial. In his
second allegation, applicant asserts that the prosecution
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unconstitutionally exercised peremptory challenges on two venire
persons in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We
have reviewed the application and find that his allegations fail to
satisfy the requirements of Article 11.071 § 5. Accordingly,
applicant’s application is dismissed, and his motion to stay his
execution is denied. Likewise, applicant’s motion to vacate the
judgment rendered in his initial state writ application is denied, and
the Court otherwise declines to reconsider that case.
Ex parte Balentine, Nos. WR-54071-01, WR-54071-02, 2009 WL 3042425 (Tex.
Crim. App. Sept. 22, 2009).
We find substantial guidance for interpreting the Court of Criminal
Appeals’s order in Ruiz v. Quarterman, 504 F.3d 523. The procedural steps in
Ruiz were the same as here – direct appeal, state habeas, federal habeas,
successive application in state court, then a Rule 60(b) motion in federal court.
Id. at 525-26. There we concluded that the Court of Criminal Appeals order
denying relief on the second habeas application could not be considered a decision
based on independent and adequate state grounds. Id. at 526. Part of the reason
was the fact that there were only four votes at the Court of Criminal Appeals for
the lead opinion that denied the writ; the judge casting the fifth vote necessary
for the decision reached the merits. Id. at 527. Such vote-counting is not
involved in Balentine’s Court of Criminal Appeals decision.
However, another reason Ruiz found that the Texas Court of Criminal
Appeals could not be said to have ruled on an independent state ground was
because the Texas court, in an earlier case, explained how it reached decisions
such as Ruiz. Id. at 527. In 2007, the Court of Criminal Appeals held that
satisfying Section 5 of Article 11.071 had two separate components:
1) the factual or legal basis for an applicant’s current claims must
have been unavailable as to all of his previous applications; and 2)
the specific facts alleged, if established, would constitute a
constitutional violation that would likely require relief from either
the conviction or sentence.
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Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007) (discussed in
Ruiz, 504 F.3d at 527). On that basis, Ruiz concluded that a “boilerplate
dismissal by the [Court of Criminal Appeals] of an application for an abuse of the
writ is itself uncertain on this point, being unclear whether the [Court’s] decision
was based on the first element, a state-law question, or on the second element,
a question of federal constitutional law.” Ruiz, 504 F.3d at 527.
The district court in Ruiz had held, when rejecting the Section 2254
application, that a stay and a return to state court would be futile because the
claim had not been exhausted the first time. Id. at 525. Futile or not, Ruiz
returned to state court and got the ruling from the Court of Criminal Appeals
that we construed as merits-based. As the Ruiz opinion put it, this merits ruling
“pulled the ground from under the federal district court’s earlier judgment
dismissing the claim and refusing to hold the federal claim in abeyance while
Ruiz returned to state court with his unexhausted claim.” Id. at 525.
Importantly, the Court of Criminal Appeals’s ruling in Ruiz that was
construed as one on the merits is not readily distinguishable from the one here.
The September 22, 2009 ruling stated that Balentine’s “allegations fail to satisfy
the requirements of Article 11.071, § 5.” Under the Court of Criminal Appeals’s
explanation in Campbell, that denial could have been a decision that the facts
were previously available and no excuse from presenting the claim earlier existed
– an adequate and independent state ground – or that denial could have been
based on a finding that the facts as alleged did not indicate a federal
constitutional violation.
There is at least one distinction, though, besides the lack of a five-vote
majority in Ruiz, between the state court order in Ruiz and the order here. The
distinction helps Balentine. In the Ruiz four-judge order, the Texas Court of
Criminal Appeals said that the application was dismissed as “an abuse of the
writ,” but that phrase does not appear in the same court’s Balentine order.
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The “abuse of the writ” language is significant because of our decision in
Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 2008). The Hughes court neither
cited Ruiz nor discussed the decision of the Court of Criminal Appeals in
Campbell. The Hughes court held that a finding by the Texas court that a second
application was an “abuse of the writ” could be considered an adequate state
ground independent of the merits of the federal claim. Id. at 342. The Court of
Criminal Appeals order in Hughes said that the application “fails to satisfy the
requirements of Art. 11.071, Sec 5(a), V.A.C.C.P. Accordingly, the application
is dismissed as an abuse of the writ.” Ex parte Hughes, No. 45-876-02 (Tex. Crim.
App. Nov. 14, 2001) (not designated for publication).
Because the “abuse of the writ” language was not included in the Court of
Criminal Appeals’s order on Balentine’s successive state habeas application,
Hughes has no direct applica.tion. True, the statute itself says that a successive
application that fails to satisfy its requirements (presumably either for
procedural or for merits reasons) should be dismissed as an “abuse of the writ.”
Tex. Code. Crim. Proc. art. 11.071, § 5(c). However, giving our imprimatur to the
statute’s unvarying “abuse of the writ” label when a second state habeas
application is denied, is inconsistent with our precedents. For example, we have
held that the Texas abuse of writ approach could not always be considered a
procedural ruling because at times it requires a determination of whether a
prima facie constitutional claim has been shown:
Although Texas’ abuse of the writ doctrine is superficially procedural
in that it has a procedural effect, [because it leads to] determining
which claims are remanded to the state trial courts for further
development, it steps beyond a procedural determination to examine
the merits of an Atkins claim.
Rivera v. Quarterman, 505 F.3d 349, 360 (5th Cir. 2007). Similarly, the Campbell
explanation by the Court of Criminal Appeals reveals that the court may rule on
the basis that “the specific facts alleged, if established, would constitute a
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constitutional violation that would likely require relief from either the conviction
or sentence.” Ex parte Campbell, 226 S.W.3d at 421. Further, a ruling that the
facts, if established, did not constitute a violation would also be “interwoven” with
federal constitutional law.
Regardless of the effect of Hughes and its focus on “abuse of the writ”
language in a Texas Court of Criminal Appeals order, we give some weight to the
absence of express language of “abuse” in Balentine’s order from that court. We
give weight because of the interplay between the responsibilities and procedures
of state and federal courts in this area: each court likely is attentive or at least
aware of the effects of its decision on the other. The Ruiz court believed that how
the federal courts will react to the language of a state court habeas decision is “a
rote rule at the fingertips of every writing member of state courts of last resort
– where studied ambiguity or clarity in the decisional footing is an art form and
an absence of clarity in an opinion is seldom inadvertent.” Ruiz, 504 F.3d at 527.
We do not decide that the absence of “abuse of the writ” language was an
omission meant for our eyes, but we see it all the same.
Moreover, to the extent there is inconsistency between Hughes and the
careful examination of abuse of the writ determinations required by Ruiz and
Rivera – and Hughes did not address either precedent – we are bound by the
decisions predating Hughes because one panel cannot overrule earlier decisions.
United States v. Castro-Guevarra, 575 F.3d 550, 552 (5th Cir. 2009). Ruiz
compels us to construe the September 22, 2009 Court of Criminal Appeals ruling
as one on federal grounds, because it was not clearly based on an adequate state
ground independent of the merits.
C. Does Ruiz Require Reversal Here?
To succeed on his Rule 60(b)(6) motion, Balentine must demonstrate a basis
for relief from the district court’s 2008 judgment, as affirmed by this court. The
issue before the district court in late September 2009 was whether something
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about the Court of Criminal Appeals September 22, 2009 decision was a basis to
overturn the district court’s 2008 judgment that the Wiggins claim could not be
exhausted at that late date.
The Supreme Court has considered whether a Rule 60(b) motion, filed
several years after the inmate’s Section 2254 application had been denied, was
an available procedural option. Gonzalez v. Crosby, 545 U.S. at 527-28. Although
a Rule 60(b) motion should be denied if it challenges on the merits an earlier
denial of habeas relief,
[t]hat is not the case . . . when a Rule 60(b) motion attacks, not the
substance of the federal court’s resolution of a claim on the merits,
but some defect in the integrity of the federal habeas proceedings.
When no “claim” is presented, there is no basis for contending
that the Rule 60(b) motion should be treated like a habeas corpus
application. If neither the motion itself nor the federal judgment
from which it seeks relief substantively addresses federal grounds for
setting aside the movant’s state conviction, allowing the motion to
proceed as denominated creates no inconsistency with the habeas
statute or rules.
Id. at 532-33 (footnote omitted).
This means that in order for Balentine to proceed, he must have raised in
his Rule 60(b) motion something other than a merits-based ruling in the earlier
judgment. Balentine argues that on September 22, 2009, the Court of Criminal
Appeals reached the merits, thereby vitiating our earlier conclusion that the
unexhausted claim was no longer a viable one in state court. According to
Balentine, this is not an attack on a merits ruling in the earlier federal decision,
but an undermining of a procedural ruling regarding the inability of Balentine
to exhaust.
For guidance in analyzing whether there was anything vitiating about the
Texas court’s latest Balentine ruling, we again turn to Ruiz, the seminal
application of Gonzalez in this Circuit. The district court in Ruiz’s Section 2254
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proceedings denied habeas relief because his ineffective assistance claims were
procedurally defaulted. As we explained on appeal,
the district court made clear that his ruling rested on his conclusion
that “Texas law precludes petitioner from obtaining a ruling on the
merits of his currently unexhausted claims . . . in a successive state
habeas corpus application.” Ruiz’s federal counsel asked the federal
district court to stay the federal proceeding to allow Ruiz to return
to state court to exhaust the ineffective-assistance claim, pointing to
the [Court of Criminal Appeals’s] then-recent abandonment of its
refusal to accept a state court habeas application so long as the
petitioner had a federal habeas petition pending.
Ruiz, 504 F.3d at 525. Ruiz had appealed the initial denial of relief, and we
affirmed. Ruiz v. Quarterman, 460 F.3d 638 (5th Cir. 2006).
At the time the Ruiz federal district court made its first rulings, Texas had
not abandoned its bar to successive petitions. Ruiz, 504 F.3d at 529. However,
after the district court’s ruling, Texas undermined that barrier:
While the district court’s conclusion of futility was sound when
made, it has been undermined by recent decisions by the [Court of
Criminal Appeals]. In January 2007, the [Court of Criminal Appeals]
decided Ex parte Hood, [211 S.W.3d 767 (Tex. Crim. App. 2007),]
indicating for the first time that there are judicially-created
exceptions to section five. Before this decision, neither Ruiz nor the
district court had reason to believe that the [Court of Criminal
Appeals] would create an equitable exception to the successor bar.
On April 25, 2007, the [Court of Criminal Appeals] decided Ex parte
Campbell, [226 S.W. 3d 418 (Tex. Crim. App. 2007),] which, as we
explained above, held that the Texas procedural bar based on factual
unavailability incorporates a question of federal constitutional law.
Before this decision, neither Ruiz nor the district court had any basis
to view the state successor provision as anything but an independent
and adequate state ground.
Id.
After this court’s initial affirmance, Ruiz returned to state court and
received a ruling from the Court of Criminal Appeals. Its unpublished order
stated, “We have reviewed these claims and find that they do not meet the
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requirements for consideration of subsequent claims under Article 11.071,
Section 5. This application is dismissed as an abuse of the writ . . . .” Losing in
state court, Ruiz filed his Rule 60(b)(6) motion in federal district court. It was
denied. Ruiz, 504 F.3d at 529.
On appeal, we held that this was a proper Rule 60(b)(6) motion. We quoted
language from Gonzalez that there is no new habeas claim if a petitioner “merely
asserts that a previous ruling which precluded a merits determination was in
error – for example, a denial for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar.” Gonzalez, 545 U.S. at 532 n.4.
We now turn to the case before us. Like Ruiz, Balentine requested a stay
of the federal proceedings so he could return to state court to exhaust the
ineffective assistance claim, and that stay was denied in 2008. The relief from
judgment that Balentine seeks now is to set aside the 2008 decision not to enter
a stay that would have allowed him to return to state court. We have already
determined that, subsequent to that 2008 denial, Balentine received a “merits”
ruling from the Court of Criminal Appeals. He returned to state court without
a stay, exhausted his Wiggins claim under our construction of the Court of
Criminal Appeals’s order, and is now back. Balentine now seeks to be put in the
position a stay would have placed him in his initial Section 2254 proceeding;
granting him relief from the 2008 denial of a stay would allow him to proceed as
if this were the original Section 2254 application, exhaustion completed.
We now analyze whether the stay was properly denied in 2008. The rules
for entering stays were well-explained by the district court at that time. Prior to
AEDPA, federal petitions were dismissed, not stayed, so that petitioners could
return to state court. See Rose v. Lundy, 455 U.S. 509, 519 (1982). With AEDPA,
though, a one-year deadline was created, which meant such a practice would
almost certainly bar the inmate on his return to federal court after the renewed
state proceedings concluded. See 28 U.S.C. § 2244(d). After AEDPA, the
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Supreme Court allowed Section 2254 proceedings to be stayed in quite limited
situations. Rhines v. Weber, 544 U.S. 269, 277 (2005). The limits were created
by AEDPA’s rules, which sought to reduce delays in the post-conviction relief
process, require total exhaustion, and, joining those two concerns, prevent
inmates from piecemealing their claims. Id. at 276.
To meet AEDPA’ commands as well as serve the interests presented in stay
requests, this balance was required:
For these reasons, stay and abeyance should be available only
in limited circumstances. Because granting a stay effectively excuses
a petitioner’s failure to present his claims first to the state courts,
stay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to
exhaust his claims first in state court. Moreover, even if a petitioner
had good cause for that failure, the district court would abuse its
discretion if it were to grant him a stay when his unexhausted claims
are plainly meritless.
Id. at 277.
In its March 31, 2008 order denying Balentine a stay, the district court
quoted this part of Rhines. The district court concluded that Balentine’s return
to state court with a second habeas application would have been futile. The order
cited one of our first opinions to apply Rhines, which held a state procedural bar
would make a claim “meritless” under Rhines. See Neville v. Dretke, 423 F.3d 474,
479-80 (5th Cir. 2005). The district court found that Balentine’s unexhausted
Wiggins claim would encounter such a procedural bar. The district court also
concluded that even if at times the Court of Criminal Appeals ignored procedural
bars – “occasional acts of grace” – the state rule would remain an adequate one
because the procedural bar must be applied “regularly” but need not always be
applied. See Amos v. Scott, 61 F.3d 333, 342 (5th Cir. 1995).2
2
Our reversal both here and in Ruiz, after construing the Court of Criminal Appeals’s
orders as merits-based, could be seen as ignoring the “regular” versus “always” dichotomy.
However, we are not considering what the state court might have done in some hypothetical
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Then on September 28, 2009, the district court denied relief from its 2008
judgment. It found that the Court of Criminal Appeals’s September 22, 2009
order was not on the merits. It analyzed Ruiz as being limited to its peculiar
facts of a hard-to-decipher split vote at the Court of Criminal Appeals. The
district court also concluded that the Hughes “abuse of the writ” language made
the Texas court’s ruling an independent and adequate state ground.
We find only one flaw in this reasoning, but it affects all the conclusions.
We have explained why we do not consider Ruiz to be a case limited to the
peculiar facts of the four-vote Court of Criminal Appeals decision. Because we
have found Ruiz to require us to hold that the Court of Criminal Appeals decided
the case on the merits, the rest of the district court’s ruling also falls.
The Ruiz court held that the equities relevant to Rule 60(b)(6) applied to
the “re-considering [of] a dismissal of a claim now freed of the baggage
threatening the jurisdiction of the court.” Ruiz, 504 F.3d at 531. Therefore, in
reviewing the denial of Rule 60(b) relief in Ruiz, the opinion weighed the equities
under Rule 60(b). Id. at 528-32. The Ruiz court noted that the district court, in
its opinion denying the original Section 2254 application, had found Ruiz’s claims
of ineffective assistance of counsel to be “significant, potentially meritorious”
arguments that could not be reached by the court because of the failure to
exhaust. Id. at 530. The district court nonetheless denied a stay for what it
considered the futile exercise of returning to state court to present the claims.
Id. Among the weightier statements by the Ruiz court, though perhaps not a
holding, was this:
We are given no rational reason to conclude that the equities run
against Ruiz, despite the “fundamental unfairness” of his habeas
proceedings . . . . Whatever be the explanation, in this difficult area
of the law of capital punishment, we are met with the inescapable
involving another inmate. Once we construe the state court’s ruling as having reached the
merits as to this prisoner, equity compels our review of that ruling.
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conclusion that the district court’s balancing of equities was infected
by its first holdings—that the claims of ineffective assistance of trial
counsel were again not before it and that it had been correct in
holding that the state court would not decide the case on a return to
it. And of course if this first conclusion of the district court were
sound then it lacked jurisdiction over the resulting “successive writ.”
Id. at 530-31. On this basis, the Ruiz court found an abuse of discretion.
As in Ruiz, here there was strong concern expressed in the earlier Section
2254 proceedings as to the effectiveness of Balentine’s prior counsel. The
magistrate judge’s Report and Recommendation of September 27, 2007, adopted
by the district court, made these observations about Balentine’s trial:
No mitigation evidence concerning petitioner’s background,
childhood, or family was presented at his trial, and trial counsel
called no witnesses at the punishment phase. Other than the
criminal history from the prosecution, petitioner’s counsel presented
no facts about petitioner’s background, childhood, or family to the
jury. While this omission, if in fact it was an omission, presents a
substantial question, it does not necessarily compel a finding of
deficient performance if counsel’s actions were based upon a
reasonable tactical decision . . . . A decision to not present mitigating
evidence may be reasonable if based upon “evidence in their
investigation to suggest that a mitigation case, in its own right,
would have been counterproductive, or that further investigation
would have been fruitless.” Wiggins, 539 U.S. at 525, 123 S. Ct. at
2537.
...
The fact that trial counsel may have determined the defense
[of denying guilt] to be petitioner’s best defense would not, however,
justify a failure to investigate and obtain all available mitigation
evidence. Indeed, before counsel could make a decision as to whether
mitigation evidence should be offered, counsel would have to know
what evidence there was. The record before this Court does not
reflect the extent of trial counsel’s investigation or knowledge of
mitigation evidence at the time of trial. We only know none was
presented. Therefore, a review of the merits of this claim would
require this Court to allow further discovery, and/or hold an
evidentiary hearing to hear testimony from trial counsel and defense
investigators regarding the extent of the defense investigation in
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preparation for the punishment phase of petitioner’s trial, whether
any mitigation evidence was obtained, and, if so, why it was not
presented. Such additional discovery and an evidentiary hearing are
not warranted, and, in fact, are prohibited by Fifth Circuit precedent
because the claims asserted in grounds seven and eight are
unexhausted and procedurally barred.
We interpret these points, based on a review of the record of the Section
2254 proceedings, to indicate that absent the exhaustion issue, there was reason
for an evidentiary hearing. The Ruiz court made it clear that we review the
denial of Rule 60(b) relief for an abuse of discretion, but that we exercise care if
“denial of relief precludes examination of the full merits of the cause” because “in
such instances ‘even a slight abuse may justify reversal.’” Id. at 532 (quoting
Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981)).
Balentine’s equities compare closely to those of Ruiz in these ways:
(1) There were serious concerns that constitutionally ineffective lawyering
occurred due to counsel’s failure to investigate for mitigation evidence.
(2) In the Section 2254 proceedings, the Ruiz district court found serious
defects in trial court representation regarding investigating for mitigation
evidence, but held the issue to be defaulted. Here the district court similarly
adopted the magistrate judge’s finding of serious issues of ineffectiveness, and
stated that an evidentiary hearing would be needed to be certain.
(3) In the initial federal habeas cases for both, the inmate sought a stay and
remand to state court, and both were denied as futile.
(4) In both, the Court of Criminal Appeals in considering the successive
application under Article 11.071, Section 5, issued an order that, under the Ruiz
interpretation, is not clearly based on an adequate state ground independent of
the merits. Therefore, the merits by imputation were reached by the Texas court
in the successive application in each case, vitiating the district court’s finding
that a stay and return to state court to exhaust would be futile.
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(5) On return to federal district court, Rule 60(b) relief was denied.
Ruiz controls. The procedural hurdle regarding exhaustion that was
perceived in the Section 2254 proceedings has been eliminated. The equities
weigh in favor of Balentine in the same manner as they did for Ruiz. Balentine
is entitled to have relief granted from the 2008 denial of a stay. The district court
on remand should consider that Balentine now has an exhausted state Wiggins
claim. That claim should be reviewed, in conjunction with any necessary
evidentiary hearing, under the appropriate AEDPA deferential standards.
CONCLUSION
We restate the reasons for this holding. Where the Court of Criminal
Appeals dismisses a successive application with this boilerplate language, we
cannot determine whether the decision relied on a state-law defect or a finding
that federal constitutional law was not violated. Consequently, the Court of
Criminal Appeals’ order must be construed as having reached the merits of the
federal constitutional issue. In the Section 2254 proceedings, the district court
denied a stay for the claim to be exhausted in state court based on its belief of the
futility of a stay; that belief has been vitiated. Finally, the equities for Rule
60(b)(6) relief are compelling when the failure to investigate and present
available mitigation evidence has already been found in the Section 2254
proceedings to be a substantial issue.
We REVERSE the district court’s order denying Balentine’s Rule 60(b)
motion and REMAND for consideration of the ineffective assistance of counsel
claim. The stay of execution is CONTINUED until further order of this court.
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