626 F.3d 842 (5th Cir. 2010), 09-70026, Balentine v. Thaler

Docket Nº:09-70026.
Citation:626 F.3d 842
Opinion Judge:LESLIE H. SOUTHWICK, Circuit Judge:
Party Name:John Lezell BALENTINE, Petitioner-Appellant, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
Attorney:Lydia M. Brandt (argued), Brandt Law Firm, P.C., Richardson, TX, for Balentine. Katherine Diane Hayes, Asst. Atty. Gen. (argued), Postconviction Lit. Div., Sean Daniel Jordan, Deputy Sol. Gen., James Patrick Sullivan, Asst. Sol. Gen., Austin, TX, for Thaler.
Judge Panel:Before STEWART, OWEN and SOUTHWICK, Circuit Judges.
Case Date:November 17, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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626 F.3d 842 (5th Cir. 2010)

John Lezell BALENTINE, Petitioner-Appellant,


Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 09-70026.

United States Court of Appeals, Fifth Circuit.

November 17, 2010

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Lydia M. Brandt (argued), Brandt Law Firm, P.C., Richardson, TX, for Balentine.

Katherine Diane Hayes, Asst. Atty. Gen. (argued), Postconviction Lit. Div.,

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Sean Daniel Jordan, Deputy Sol. Gen., James Patrick Sullivan, Asst. Sol. Gen., Austin, TX, for Thaler.

Appeal from the United States District Court for the Northern District of Texas.


(Opinion June 18, 2010, 5th Cir., 2010, 609 F.3d 729)

Before STEWART, OWEN and SOUTHWICK, Circuit Judges.


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 The prior opinion is withdrawn, and this opinion is substituted.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 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.


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, 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

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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 Fed.Appx. 304 (5th Cir.), cert. denied, __ U.S. __, 130 S.Ct. 484, 175 L.Ed.2d 310 (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, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). 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

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

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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.


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. Gonzalez v. Crosby, 545 U.S. 524, 528-29, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). A Rule 60(b) motion should be denied if it challenges on the merits an earlier denial of habeas relief. Id. at 532, 125 S.Ct. 2641. Conversely, a Rule 60(b) motion that raises procedural error in the previous federal court ruling may have merit:


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