Balentine v. Thaler

Decision Date18 June 2010
Docket NumberNo. 09-70026.,09-70026.
Citation609 F.3d 729
PartiesJohn Lezell BALENTINE, Petitioner-Appellant,v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

Lydia M. Brandt (argued), Brandt Law Firm, P.C., Richardson, TX, for Petitioner-Appellant.

Katherine Diane Hayes, Asst. Atty. Gen. (argued), Office of Atty. Gen., Postconviction Lit. Div., Austin, TX, for 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 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 evidence was presented at trial. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (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 Fed.Appx. 304, 305-06 (5th Cir.), cert. denied, --- U.S. ----, 130 S.Ct. 484, 175 L.Ed.2d 310 (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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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).

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:

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, 125 S.Ct. 2641, 162 L.Ed.2d 480 (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, 125 S.Ct. 2641.

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, 125 S.Ct. 2641.

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, 125 S.Ct. 2641. “If neither the [Rule 60(b)] 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, 125 S.Ct. 2641.

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, 123 S.Ct. 2527, 156 L.Ed.2d 471 (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...

To continue reading

Request your trial
14 cases
  • Jordan v. Epps, Civil Action No. 1:05CV260KS
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • August 30, 2010
    ...... See Thaler v. Haynes, --- U.S. ----, 130 S.Ct. 1171, 1173-74, 175 L.Ed.2d 1003 (2010). Moreover, even ... rule is that arguments not raised before the district court are waived on appeal." Balentine v. Thaler, 609 F.3d 729, 734 (5th Cir.2010) (holding, in a case with the opposite situation, that ......
  • Rocha v. Thaler, s. 05-70028
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 17, 2010
    ...735, 111 S.Ct. 2546); see Ex parte Hughes, No. 45-876-02 (Tex.Crim.App. Nov. 14, 2001) (unpublished), quoted in Balentine v. Thaler, 609 F.3d 729, 737 (5th Cir.2010). However, Hughes was decided after the circuit precedent in Ruiz, without citing or distinguishing Ruiz. Ruiz is, in fact, in......
  • Rocha v. Thaler, s. 05-70028, 09-70018.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 9, 2010
    ...Wiggins claim is of no help to him given the procedural posture of his case and the contours of state law-was correct. However, given Balentine and its newly minted reading, reasonable jurists could debate whether Rocha's Wiggins claim fails because § 5(a)(3) operates as an independent and ......
  • Balentine v. Thaler, 09-70026
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 30, 2010
    ...735, 111 S.Ct. 2546); see Ex parte Hughes, No. 45-876-02 (Tex.Crim.App. Nov. 14, 2001) (unpublished), quoted in Balentine v. Thaler, 609 F.3d 729, 737 (5th Cir.2010). However, Hughes was decided after the circuit precedent in Ruiz, without citing or distinguishing Ruiz. Ruiz is, in fact, in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT