Balentine v. Thaler

Case: 09-70026 Document: 00511296604 Page: 1 Date Filed: 11/17/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 17, 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

ON PETITION FOR REHEARING
(Opinion June 18, 2010, 5th Cir., 2010________F.3d ________)

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
No judge in active service on this court requested that the court be polled
in response to the petition for rehearing en banc. The petition is denied. The
petition for rehearing by the panel is GRANTED. The prior opinion is
withdrawn, and this opinion is substituted.
John Lezell Balentine, a Texas prisoner sentenced to death, appeals the
district court’s denial of his Rule 60(b) motion to set aside that court’s 2009
judgment. We initially held his arguments to be valid. Balentine v. Thaler, 609
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No. 09-70026

F.3d 729 (5th Cir. 2010). On rehearing, we conclude that a ruling by the Texas
Court of Criminal Appeals should not be presumed to have reached the merits
of his claims. The claims are procedurally defaulted and cannot be considered.
We AFFIRM the district court’s refusal to set aside its earlier denial of relief.
PROCEDURAL HISTORY
Balentine confessed that on January 21, 1998, in Amarillo, Texas, he
murdered three teenagers, Mark Caylor, Jr., Kai Geyer, and Steven Brady
Watson. The details of the crime are set out in Balentine v. State, 71 S.W.3d
763, 767-68 (Tex. Crim. App. 2002).
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. Id. at 774.
B. First State Habeas Application
Balentine filed a state post-conviction application for writ of habeas corpus
on January 22, 2001, which was before the proceedings on the direct appeal were
final. Twenty-one grounds for relief were stated, the first fourteen 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 phase. The state district court denied relief on
October 18, 2002. The Court of Criminal Appeals, after adopting the trial judge’s
findings and conclusions, 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,

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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
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 proceedings so he could
return to state court to exhaust the mitigating evidence claims. The district court
denied the request on March 31, 2008. Also on March 31, 2008, and then on
reconsideration on May 30, 2008, the district court overruled all objections,
adopted the findings of the Report and Recommendation, and denied the petition.
Balentine appealed to this court. We affirmed on April 13, 2009. Balentine
v. Quarterman, 324 F. App’x 304 (5th Cir.), cert. denied, 130 S. Ct. 484 (2009).
D. Subsequent State Habeas Application
On August 21, 2009, Balentine filed a subsequent habeas application in
state 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, or present
mitigation evidence in the punishment phase of the trial. See Wiggins v. Smith,
539 U.S. 510 (2003). He also alleged a violation of Batson v. Kentucky, 476 U.S.
79 (1986). The Court of Criminal Appeals dismissed the application. Ex parte

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Balentine, Nos. WR-54071-01, WR-54071-02, 2009 WL 3042425 (Tex. Crim. App.
Sept. 22, 2009).
E. Motion for Rule 60(b) Relief from the Federal Court Judgment
The day after the Court of Criminal Appeals’ ruling, Balentine returned to
federal district court and filed a motion for relief from judgment under Federal
Rule of Civil Procedure 60(b)(5) and (6). 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’ September 22, 2009
dismissal of his application did not constitute an independent and adequate state
law ground that would bar review by the federal court. He requested an
evidentiary hearing on the merits of his claim that counsel had been ineffective
by failing to search adequately 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’ 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 beyond the federal court’s review.
The district court granted a certificate of appealability, finding that jurists
of reason could disagree on that court’s interpretation of two Fifth Circuit
precedents, namely, Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), and
Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 2008). We then granted a stay of
execution. Balentine now claims that a proper analysis of the two cited
precedents would lead to the conclusion that the Court of Criminal Appeals
reached the merits of his 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.

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DISCUSSION
This appeal is from the district court’s denial of a motion under Rule
60(b)(5) and (6). Those sections are broadly worded:
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: . . .

(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(5)-(6). We have described this Rule as a powerful one:
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, [but] 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 omitted).
The part of Rule 60(b)(5) relevant to our case is that equity should prevent
some part of the earlier judgment from applying. Balentine’s arguments under
Rule 60(b)(6) also focus on equity. We will analyze the subparts together and
often refer to them as Rule 60(b). 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).
As was revealed by our recounting of the procedural history of Balentine’s
post-conviction filings, his initial, unsuccessful federal petition for review of his
conviction was brought in 2003. A state prisoner is not entitled to use Rule 60(b)
as a broad opening for a second request in the federal court to overturn his
conviction. Still, a Rule 60(b) motion, filed several years after an inmate’s Section
2254 application had been denied, is in some circumstances an available option.

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No. 09-70026

Gonzalez v. Crosby, 545 U.S. 524, 528-29 (2005). A Rule 60(b) motion should be
denied if it challenges on the merits an earlier denial of habeas relief. Id. at 532.
Conversely, a Rule 60(b) motion that raises procedural error in the previous
federal court ruling may have merit:

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 533 (footnote omitted).
Accordingly, to succeed on his Rule 60(b) motion, Balentine can not make
a “claim,” i.e., he must not be challenging a prior merits-based ruling. He needed
to show “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.
The single appellate issue stated in Balentine’s brief is that the district
court abused its discretion in denying the Rule 60(b) motion. The sole argument
to support that there was an errant exercise of discretion is that the district court
failed to recognize that the latest Court of Criminal Appeals decision should be
interpreted as having ruled on the merits of his Wiggins claim.
Balentine’s brief does not then make an explicit connection between the
district court’s most recent and allegedly erroneous ruling and the Crosby-
required procedural error in the earlier habeas application. To open the Rule
60(b) door on a claim such as this, there must be a showing of a non-merits-based
defect in the district court’s earlier decision on the federal habeas petition:
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

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denominated creates no inconsistency with the habeas statute or
rules. Petitioner’s motion in the present case, which alleges that the
federal courts misapplied the federal statute of limitations set out in
§ 2244(d), fits this description.
Crosby, 545 U.S. at 533.
A fair reading of Balentine’s argument is that the district court’s 2008
decision, which found the Wiggins claim to be unexhausted and therefore not to
be considered, was reached only after the denial of Balentine’s motion to stay a
decision on the Wiggins claim until he could return to state court and present it.
In one of our key relevant precedents, we held that the denial of a stay in the
initial federal habeas proceedings, which would have allowed the petitioner to
exhaust his claim, could be the source for Crosby error. Ruiz, 504 F.3d at 526.
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. Futile or not, Ruiz returned to state court and
got a ruling from the Court of Criminal Appeals that we construed as merits-
based. Id. at 525. 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.
Like Ruiz, Balentine requested a stay of the federal proceedings so he could
return to state court to exhaust the ineffective assistance claim. Such a stay was
denied in 2008. If Balentine actually got a later ruling on the merits from the
Court of Criminal Appeals on his Wiggins claim, Ruiz would be authority
supporting his argument that it was error not to grant the Rule 60(b) motion.
On appeal here, Balentine analyzes whether the Texas court reached the
merits or used an independent and adequate state ground to deny habeas relief.
He argues that Texas incorporates federal law in its analysis of subsequent
habeas applications and that this court considers the Texas law to be interwoven

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with federal law. He then closes his argument with explanations of why the
Hughes and Ruiz opinions of this court require reversal.
The State of Texas argues that Balentine did not present a Wiggins claim
in his initial federal habeas petition and instead raised it in federal court for the
first time in his Rule 60(b) motion. We turn our attention to that argument first
and find it to be unconvincing. We then address Balentine’s claims of error.
They also do not convince.
A. The Wiggins Claim and Balentine’s Section 2254 Petition
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, 504 F.3d at 526; 28 U.S.C. § 2244(b). The Supreme Court has
described how AEDPA and Rule 60(b) motions operate in harmony. See Crosby,
545 U.S. 524. 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.
Balentine alleges that he received ineffective assistance of counsel, in
violation of his rights under the Sixth Amendment, when his trial counsel failed
to investigate mitigating evidence for the sentencing phase of his trial. See
Wiggins, 539 U.S. 510. 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 28 U.S.C. § 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.

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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 his federal
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.
The relevant section of Balentine’s federal habeas application was titled
“Ground Eight (IAC – 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.” The application explained that “IAC” means “ineffective assistance of
counsel.” Balentine claimed that, among other defaults, counsel “failed altogether
to adequately investigate and develop any mitigation and risk assessment
evidence at all.” Wiggins was cited to support the arguments regarding the need
for a reasonable investigation for mitigation evidence. The application then stated
that such “deficient performance of trial counsel raises a reasonable probability
that the outcome would have been different” and cited the Sixth and Fourteenth
Amendments and 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). Errant headings in briefs, though, do not waive arguments.
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)

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(holding that an issue is preserved for appeal where “the issue was sufficiently
raised for the court to rule on it. . . .”).
Balentine’s claim was for ineffective assistance of counsel. The title of the
section in the brief contained the acronym for ineffective assistance of counsel 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 assistance of counsel. Subheading two was titled “Trial counsel’s
performance was deficient” and subheading three was titled “The deficient
performance raises a reasonable probability that the outcome would have been
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.
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. Independent and Adequate State Ground Methodology
Balentine argues that the Texas Court of Criminal Appeals in 2009 reached
the merits of the claim and did not simply rule 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 an
adequate state law 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,” then we should construe the state

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court ruling as one applying federal law. Ruiz, 504 F.3d at 527 (quoting Michigan
v. Long, 463 U.S. 1032, 1040-41 (1983)). On the other hand, when “it does not
fairly appear that the state court rested its decision primarily on federal grounds,
it is simply not true that the ‘most reasonable explanation’ is that the state
judgment rested on federal grounds.” Coleman, 501 U.S. at 737 (quoting Long,
463 U.S. at 1041).
This court has had to apply these rules when reviewing state court orders
that were dismissed without clear explanation of the reason for the dismissal.
See, e.g., Ruiz, 504 F.3d at 527-28; Hughes, 530 F.3d at 341-42. In those cases, as
here, the Texas Court of Criminal Appeals dismissed a subsequent habeas
application with a boilerplate order that did not indicate whether the decision
turned on a state procedural bar or on an assessment of the federal merits.
A Texas state prisoner seeking relief from the death penalty has a limited
right to have a subsequent application for habeas relief considered in state court.
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).

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The determination of whether these requirements are satisfied is for the
Texas Court of Criminal Appeals, not for a Texas trial court. Id. § 5(c). 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 next section of Article 11.071 addresses the situation in which the
requirements are found to be satisfied. “If the convicting court receives notice that
the requirements of Section 5 for consideration of a subsequent application have
been met, a writ of habeas corpus, returnable to the court of criminal appeals,
shall issue by operation of law.” Id. § 6(b). Only then is the State required to file
an answer to the application. Id. § 7(a). Thus, the Court of Criminal Appeals
determines without briefing by the State whether the Section 5(a) requirements
have been met.
In practice, the Court of Criminal Appeals, after determining that a
prisoner’s subsequent habeas application satisfies Section 5(a)(1), (2), or (3), often
remands the case to the trial court for fact findings. See Ex parte Alexander, No.
WR-57156-02, 2010 WL 2524572, at *1 (Tex. Crim. App. June 16, 2010); Ex parte
Rachal, No. WR-60394-02, 2009 WL 3042631, at *1 (Tex. Crim. App. Sept. 23,
2009). The Court of Criminal Appeals then reviews the trial court’s findings and
makes a ruling on the underlying constitutional claim. See Ex parte Tercero, No.
WR-62593-03, 2010 WL 724405, at *1 (Tex. Crim. App. Mar. 3, 2010); Ex parte
Cockrell, No. AP-76168, 2009 WL 1636528, at *1 (Tex. Crim. App. June 10, 2009).
On occasion, though, the Court of Criminal Appeals makes a merits ruling without
remand. See Ex parte Buntion, No. AP-76236, 2009 WL 3154909, at*1-2 (Tex.
Crim. App. Sept. 30, 2009).
On August 21, 2009, Balentine filed a subsequent habeas application. In a
two-page order, the Court of Criminal Appeals first summarized the prior
proceedings. It then addressed the most recent filing:

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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
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, at *1
(Tex. Crim. App. Sept. 22, 2009).
The order does not explain the basis for the Court of Criminal Appeals’
decision. In our withdrawn opinion, we held the order’s lack of an explanation had
to be understood in the context of that court’s prior caselaw. That caselaw caused
us to presume that the Court of Criminal Appeals reached the federal merits of
the application. We now hold Coleman demands a different outcome.
The reason for our new decision will be better understood in the context of
certain Supreme Court precedents. The decisions endeavored to address a
problem federal courts frequently face when reviewing state court dismissal
orders: determining whether an order rested on independent and adequate state
grounds or instead reached the federal merits. If a decision rests on state
substantive or procedural law, federal courts are not permitted to second-guess
the decision. See Coleman, 501 U.S. at 729. But, if the state court’s reasoning was
based upon its conclusions about the federal claims, then federal courts can make
their own assessment of those merits. Id.
When both grounds are present, the Supreme Court presented a standard
for federal courts to apply when assessing whether a state court decision rested

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on federal law or on independent and adequate state grounds. See Long, 463 U.S.
at 1040-41. When
a state court decision fairly appears to rest primarily on federal law,
or to be interwoven with the federal law, and when the adequacy and
independence of any possible state law ground is not clear from the
face of the opinion, we will accept as the most reasonable explanation
that the state court decided the case the way it did because it believed
that federal law required it to do so.
Id. Applying this presumption, federal courts avoid deciding “cases where there
is an adequate and independent state ground” for the decision. Id. at 1040.
Prior to Long, the Court dealt with cases “that involve[d] possible adequate
and independent state grounds” in a variety of unsatisfying ways. Id. at 1039.
The Court previously dismissed cases that were unclear or simply vacated or
continued cases to “obtain clarification about the nature of a state court decision.”
Id. Another manner of analysis the Court sought to discontinue with Long was
“examining state law . . . because it requires us to interpret state laws with which
we are generally unfamiliar. . . .” Id. The new approach is intended to keep
federal courts from interpreting state law when analyzing a state court order for
adequate and independent grounds, allowing for clarification of the state law only
in “certain circumstances.” Id. at 1041 n.6.
The Supreme Court’s opinion in Long was on direct review of the Michigan
Supreme Court’s reversal of the conviction. Later, the same presumption was
held to apply when a federal court reviews a state inmate’s habeas petition
challenging his conviction. Harris v. Reed, 489 U.S. 255 (1989). Harris was
interpreted by some later courts to require application of the Long presumption
to cases in which the state court failed to make clear a state procedural ground for
its ruling. Coleman, 501 U.S. at 735. Two years after Harris, the Supreme Court
provided some clarification. Id. “A predicate to the application of the Harris
presumption is that the decision of the last state court to which the petitioner

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presented his federal claims must fairly appear to rest primarily on federal law
or to be interwoven with federal law.” Id.
In Coleman, the Court reviewed an ambiguous state court dismissal. See
id. at 727-29. Roger Coleman, convicted of rape and capital murder in Virginia,
exhausted his direct state court appeals in 1983. Id. at 726-27. He filed a habeas
petition in a state trial court. Id. at 727. After that court denied his claims, he
appealed to the Virginia Supreme Court. Id. The State of Virginia filed a motion
to dismiss, contending Coleman’s appeal could not be considered because his
notice of appeal was not timely filed. Id. Both parties filed briefs on the motion
to dismiss and on the merits of Coleman’s claims; the Virginia Supreme Court
issued a brief order dismissing the appeal. Id. The order noted that Coleman filed
a petition for appeal on December 4, 1986. It then stated:
Thereupon came the appellee, by the Attorney General of
Virginia, and filed a motion to dismiss the petition for appeal; on
December 19, 1986 the appellant filed a memorandum in opposition
to the motion to dismiss; on December 19, 1986 the appellee filed a
reply to the appellant’s memorandum; on December 23, 1986 the
appellee filed a brief in opposition to the petition for appeal; on
December 23, 1986 the appellant filed a surreply in opposition to the
appellee’s motion to dismiss; and on January 6, 1987 the appellant
filed a reply brief.

Upon consideration whereof, the motion to dismiss is granted
and the petition for appeal is dismissed.
Id. at 727-28.
Coleman then turned to federal court. The district court and the Fourth
Circuit denied relief. Id. at 728-29. At the Supreme Court, Coleman argued that
“the presumption of Long and Harris applies in this case and precludes a bar to
habeas because the Virginia Supreme Court’s order dismissing [his] appeal did not
‘clearly and expressly’ state that it was based on state procedural grounds.” Id.
at 735. He sought creation of “a conclusive presumption of no independent and

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adequate state grounds in every case in which a state prisoner presented his
federal claims to a state court, regardless of whether it fairly appears that the
state court addressed those claims.” Id. at 737-38.
The Supreme Court rejected this argument. Coleman’s proposed rule would
result in federal courts reviewing the constitutional merits of state prisoners’
claims even when independent and adequate state grounds should have barred
their consideration. Id. at 738.
After the Court declined Coleman’s invitation to extend the Long
presumption to all state habeas corpus petitions asserting federal claims, it also
declined to create a presumption in cases where a state court order did not plainly
rest on federal grounds. See id. at 739-40. It stated that “in the rest of the cases”
– that is, those cases where a state court judgment does not rest primarily on
federal grounds or is not interwoven with federal law – “there is little need for a
conclusive presumption.” Id. at 739. “In the absence of a clear indication that a
state court rested its decision on federal law, a federal court’s task will not be
difficult.” Id. at 739-40.
The Supreme Court then undertook the task of determining the basis for the
state court’s ruling as to Coleman. The Virginia Supreme Court had granted the
state’s motion to dismiss without explaining the court’s reasons. Id. at 727-28.
The state’s motion, though, raised only the fact that Coleman’s notice of appeal
was untimely. Id. at 727, 740. The Virginia Supreme Court made “no mention of
federal law” in its brief dismissal order. Id. at 740. Based on this evidence from
the state court record, the decision fairly appeared to be based primarily upon
state procedural grounds. Id. at 740, 744.
As just noted, the Coleman court considered the Virginia Supreme Court
order to be uninformative. Conversely, our initial opinion in the present appeal
held the Court of Criminal Appeals’ order that denied Balentine’s subsequent
application was informative. The information was not in the order itself but came

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from the context in which its words were to be read, which was an earlier decision
by the Texas Court of Criminal Appeals that explained how it resolved whether
a subsequent application satisfied Section 5(a)(1) of Article 11.071. The Texas
court’s explanation was this:
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.
Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007) (discussed in
Ruiz, 504 F.3d at 527). The court held that a sufficient showing of unavailability
was made. Id. at 422. The subsequent application then faced one more hurdle:
Applicant also must jump over the rest of the section 5(a)(1) bar. That
is, his application must allege sufficient specific facts that, if proven,
establish a federal constitutional violation sufficiently serious as to
likely require relief from his conviction or sentence.
Id. at 422. The court concluded that because no prima facie case of a
constitutional violation was shown, Campbell failed to meet the second element
of this test, and the application was therefore an abuse of the writ. Id. at 425.
We have held that a determination by a state court that a petitioner failed
to make a “prima facie showing” of “sufficient specific facts” to entitle him to relief
is a decision on the merits. Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir.
2007) (citation omitted). The first element of the Campbell analysis is a “state-law
question,” but Rivera categorizes the second element as “a question of federal
constitutional law.” Ruiz, 504 F.3d at 527.
In our first opinion on this appeal, we analyzed the effect of the Court of
Criminal Appeals’ explanation of its procedure. We first considered Ruiz, which
concluded that a dismissal without explanation might be due to “the first element,
a state-law question, or on the second element, a question of federal constitutional
law.” Id. We then evaluated what we understood Ruiz to say about the effect of

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that uncertainty. Our re-evaluation on rehearing now leads us to a different
understanding of Ruiz.
It is beyond question that this court in Ruiz concluded that the Court of
Criminal Appeals’ order denying relief was not a decision based on independent
and adequate state grounds. Id. at 527-28. Ruiz gave weight to 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 – which was necessary for the
decision – explicitly reached the merits. Id. Even though such vote-counting was
not involved in Balentine’s Court of Criminal Appeals decision, our initial opinion
in the present appeal held that Ruiz had also relied on the explanation in Ex parte
Campbell that an unexplained denial of a subsequent application may have been
based on a federal merits ground. We understood Ruiz to mean that uncertainty
should be transformed into a presumption that the state court reached the merits.
We did not consider, though, that this approach was inconsistent with the
Supreme Court’s refusal in Coleman to create a “conclusive presumption of no
independent and adequate state grounds in every case in which a state prisoner
presented his federal claims to a state court, regardless of whether it fairly
appears that the state court addressed those claims.” Coleman, 501 U.S. at 738-
39. The Texas court’s explanation that it at times reaches the federal merits in
denying a subsequent application cannot, consistent with Coleman’s admonition,
be the basis for a presumption that the state court actually reached the merits.
Balentine cites several Texas cases to support the argument that denials of
relief under Section 5 may be the result of a merits-determination. E.g., Ex parte
Medellin, 223 S.W.3d 315 (Tex. Crim. App. 2006). Decisions that explicitly reach
the merits, as that 45-page opinion did, are irrelevant to the issue before us.
There must be more than silence. In some form, the state court has to make
a fair indication that the merits of the claims were reached. We conclude that
Ruiz, by relying on the fact that one of the state court judges clearly reached the

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merits, had a decision in which it did “fairly appear” that the state court primarily
relied on federal grounds. We erred in interpreting Ruiz otherwise.
C. Applying Independent and Adequate State Ground Principles to
Balentine’s 2009 Court of Criminal Appeals Order
We turn now to what fairly appears in the state court’s denial of relief to
Balentine. The order itself was silent. As in Coleman, we then look to the
arguments at the state court. Unlike in Coleman, where the Commonwealth of
Virginia filed a motion to dismiss, Balentine’s claims never reached the stage of
requiring a response from the State of Texas. Instead, the Court of Criminal
Appeals decided on its own that the statutory requirements for subsequent
applications had not been satisfied. Even so, we are not without indications of the
reasons for the dismissal of the Wiggins claim.
Because the state court’s order gives no indication of the grounds for its
decision, we look to what Balentine presented to that court in his subsequent
application. It was filed on August 18, 2009, and made these claims:
(1) His counsel was constitutionally ineffective in investigating for and
presenting evidence that would mitigate the punishment. Wiggins, 539 U.S. 510;
Lockett, 438 U.S. 586.
(2) The prosecution exercised some of its peremptory challenges to jurors in
an unconstitutional manner. Batson, 476 U.S. 79.
Because Balentine’s only argument here is that the district court erred in
analyzing how the Texas Court of Criminal Appeals resolved his Wiggins claim,
we need not evaluate what the Texas court did on the Batson issue.
As we have already discussed, Texas allows a subsequent application by a
state prisoner seeking relief from the death penalty to be considered on the merits
if sufficient specific facts are shown to satisfy one of three sets of criteria. Tex.
Code Crim. Proc. Ann. art. 11.071, § 5(a). Balentine first sought to exempt himself
from Section 5 altogether by alleging that he did not have competent counsel

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either at trial or on his initial state habeas claim. He argued that the principles
of equity, fundamental fairness, due process, and due course of law all required
a remedy regardless of the strictures of Section 5. As he phrased the argument,
because he never got “one full and meaningful pass through habeas proceedings
(state and federal),” applying the procedural bars of Section 5 would run afoul of
these basic principles. Balentine also noted that the Texas courts had rejected
some of these arguments already, but his circumstances were unique.
The specifics of the arguments to the state court notwithstanding, the sole
issue before us today is the one identified by Balentine: did the district court err
in concluding that the decision of the state court was not on the merits of the
Wiggins claim? The only evidence is that which we find in the subsequent
application itself and in the Court of Criminal Appeals’ boilerplate order. We
conclude that the Texas court would not have silently accepted one or more of
Balentine’s arguments to ignore Section 5 altogether and then, with equal silence,
reached the merits of his Wiggins claim. This means that nothing in that part of
his subsequent application supports his claim of error now.
We now look at Section 5 itself. Balentine did not expressly identify in his
subsequent application to the state court which subsections were relevant. The
Wiggins claim is not one that affects the determination of his guilt, so Section
5(a)(2) is inapplicable. Id. § 5(a)(2) (“but for a violation of the United States
Constitution no rational juror could have found the applicant guilty beyond a
reasonable doubt”).
Therefore, Balentine would have needed to present sufficient specific facts
to support one of the following:
(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;

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...
(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.
Id. § 5(a)(1), (3).
Balentine’s subsequent application made no effort to show that the facts or
law underlying his Wiggins claim were unavailable to him at the time of his first
state application. He made that argument as to the Batson claim, but only the
Wiggins claim is before us.1 Therefore, Section 5(a)(1) was not satisfied.
We now examine Section 5(a)(3). What is required for an argument under
that section was the subject of a recent decision:
Texas largely adopted this federal gateway in crafting its own
conditions for subsequent habeas applications. As the [Court of
Criminal Appeals] has explained, “[t]he [Texas] Legislature quite
obviously intended [§ 5(a)(3)], at least in some measure, to mimic the
federal doctrine of ‘fundamental miscarriage of justice.’ ... apparently
intending to codify, more or less, the [actual-innocence-of-the-death-
penalty] doctrine found in Sawyer v. Whitley[, 505 U.S. 333 (1992)].”

Rocha v. Thaler, 619 F.3d 387, 402-03 (5th Cir. 2010) (quoting Ex parte Blue, 230
S.W.3d 151, 159-60 (Tex. Crim. App. 2007)). The Texas court said that Sawyer
“expressly rejected the argument that a constitutional error that impacts only the
jury’s discretion whether to impose a death sentence upon a defendant who is
unquestionably eligible for it under state law can be considered sufficiently
fundamental as to excuse the failure to raise it timely in prior state and federal

1
Balentine found new law for his Batson claim in Miller-El v. Dretke, 545 U.S. 231
(2005). It appears, though, that the legal arguments he draws from Miller-El regarding
comparative juror analysis had much earlier been stated as the law by this court and the
Texas Court of Criminal Appeals. See, e.g., United States v. Webster, 162 F.3d 308, 350 (5th
Cir. 1998); Young v. State, 826 S.W.2d 141, 152 (Tex. Crim. App. 1991).

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proceedings.” Ex parte Blue, 230 S.W.3d at 160. Blue’s claimed ineligibility was
mental retardation. Id. at 153; see Atkins v. Virginia, 536 U.S. 304 (2002).
Balentine did not argue in his subsequent application that he was ineligible
for the death penalty for any reason. He instead argued that his counsel had been
incompetent in investigating for mitigating evidence; better evidence might have
convinced jurors not to sentence him to death. The argument did not satisfy this
requirement of Section 5(a)(3).
The Court of Criminal Appeals left open the possibility that a Wiggins claim
might also be cognizable under Section 5(a)(3). The court said it would “hesitate
to declare that Article 11.071, Section 5(a)(3), wholly codifies” the doctrine of
ineligibility for the death penalty. Id. at 161 n.42. It was “arguable,” the court
wrote, that because mitigation is one of the special issues referenced by Section
5(a)(3), an application “could demonstrate by clear and convincing evidence that,
but for some constitutional error, no rational juror would have answered the
mitigation special issue in the State’s favor.” Id. The Texas court held it “need
express no ultimate opinion on this question here.” Id.
We perceive nothing in this footnoted observation that would inject into the
same court’s brief Balentine order a suggestion, much less a fair indication, that
it actually reached the merits of his Wiggins claim. We have already held that the
order did not reach the merits of the issues that we know the Texas court
considers relevant, namely, ineligibility for the death penalty. We will not
interpret that same perfunctory order as having reached the merits of an issue the
Texas court at most has identified it might one day reach.
We hold that Balentine’s subsequent application did not present sufficient
facts to meet the requirements of Section 5(a)(3).
Besides being independent of the federal merits, state procedural default
must also be an adequate basis for decision. A procedural rule is adequate when
it is “firmly established and regularly followed,” even if there is an occasional

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aberrant state court decision. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). We
have previously held that the Court of Criminal Appeals regularly enforces the
Section 5(a) requirements. Hughes, 530 F.3d at 342.
In summary of the relevant parts of our review, the district court refused to
grant Balentine a stay in 2008 to exhaust his claims in state court, predicting
correctly that the Court of Criminal Appeals would consider the claims
procedurally barred. The Court of Criminal Appeals’ 2009 denial of Balentine’s
subsequent application was based upon independent and adequate state
procedural grounds. Therefore, Balentine has not shown the district court to be
in error when it denied his Rule 60(b) motion.
The stay of execution will end upon issuance of the mandate of this court.
AFFIRMED.

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