731 F.3d 370 (5th Cir. 2013), 13-70029, Diaz v. Stephens

Docket Nº:13-70029.
Citation:731 F.3d 370
Opinion Judge:EDITH H. JONES, Circuit Judge:
Party Name:Arturo DIAZ, Petitioner-Appellant v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
Attorney:James Michael Terry, Jr., Esq., Terry, Simon & Kelly, P.L.L.C., Austin, TX, for Petitioner-Appellant. Thomas Merrill Jones, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Respondent-Appellee.
Judge Panel:Before KING, JONES, and PRADO, Circuit Judges.
Case Date:September 25, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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731 F.3d 370 (5th Cir. 2013)

Arturo DIAZ, Petitioner-Appellant

v.

William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 13-70029.

United States Court of Appeals, Fifth Circuit.

September 25, 2013

Page 371

[Copyrighted Material Omitted]

Page 372

James Michael Terry, Jr., Esq., Terry, Simon & Kelly, P.L.L.C., Austin, TX, for Petitioner-Appellant.

Thomas Merrill Jones, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Respondent-Appellee.

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

Before KING, JONES, and PRADO, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This is a death penalty case in which appellant Arturo Diaz appeals the district court's denial of his Federal Rule of Civil Procedure 60(b)(6) motion for relief from judgment and motion for stay of execution. Thirty days before his scheduled execution date of September 26, 2013, Diaz filed both motions in federal district court, seeking relief from that court's denial of habeas relief in 2005. Diaz asked the court to reopen his previous federal habeas action and consider the merits of procedurally barred claims in light of Martinez v. Ryan, __ U.S. __, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and Trevino v. Thaler, __ U.S. __, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). The district court denied both of Diaz's motions on September 20, 2013. Diaz now appeals the district court's decision. For the reasons set forth below, we AFFIRM.

BACKGROUND

The facts of Diaz's underlying capital offense are detailed in this court's opinion of April 11, 2007. See Diaz v. Quarterman, 228 Fed.Appx. 417 (5th Cir.2007). In short, Diaz brutally stabbed one man to death and attempted to stab another man to death in the course of robbing both men. He was convicted by a Texas jury of capital murder, attempted capital murder, and aggravated robbery, and he was sentenced to death. Diaz unsuccessfully sought Texas state appellate review. During the pendency of his direct appeal, he also unsuccessfully pursued habeas relief with the Texas Court of Criminal Appeals, challenging, among many other things, the

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effectiveness of his trial counsels' representation. The state court denied habeas relief in a 604-page order, Ex parte Diaz, No. CR-1464-99-G (1) (370th Dist. Ct., Hidalgo Cnty., Tex. Apr. 17, 2003), which the Texas Court of Criminal Appeals adopted, Ex parte Diaz, No. 55,850-01 (Tex.Crim.App. June 18, 2003).

In 2004, Diaz filed a federal habeas petition in the U.S. District Court for the Southern District of Texas, ultimately raising six grounds for relief. Relevant to this appeal, Diaz claimed that his trial attorneys had provided ineffective representation (1) by failing to counsel Diaz properly on the State's offer of a plea bargain and (2) in the penalty phase of the trial, failing to adequately investigate and present readily available mitigating evidence, failing to prepare for the testimony of the only witness offered by the defense, and basing closing argument on residual doubt rather than mitigation. The district court denied relief on all of Diaz's claims and declined to issue a Certificate of Appealability (" COA" ). Specifically, the court found that Diaz's plea bargain claim and the portions of his mitigation claim relating to the defense witness and counsel's closing argument were unexhausted and procedurally barred in federal court because those claims were procedurally barred in state court under Texas law. Diaz v. Dretke, No. M-04-225, 2005 WL 2264966 at *6 (S.D.Tex. Aug. 19, 2005). As to the non-barred portion of Diaz's penalty phase claim— that trial counsel provided ineffective representation by failing to adequately investigate and present readily available mitigating evidence— the district court held that even if counsel were deficient for failing to investigate evidence of Diaz's disadvantaged childhood, Diaz still could not prove that he was prejudiced by counsel's performance. Id. at *9-*10 (" While testimony about Diaz'[s] childhood privations would certainly elicit sympathy, this evidence pales in comparison to the evidence presented to the jury...." ). See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (stating that in order to prevail on a claim for ineffective assistance of counsel, a defendant must show that counsel's deficient performance prejudiced the defense).

Diaz appealed and requested a COA on seven issues. This court certified for appeal only one of the issues that Diaz presented: whether trial counsel rendered ineffective assistance during the punishment phase of trial by failing to adequately investigate and present readily available mitigating evidence. See Diaz, 228 Fed.Appx. at 423. After additional briefing, this court affirmed the lower court's denial of habeas relief on somewhat different reasoning. Diaz v. Quarterman, 239 Fed.Appx. 886 (5th Cir.2007). Diaz offered five affidavits in an effort to prove that four of his family members and a former teacher would have provided mitigating testimony. This court refused to consider the affidavits because Diaz had presented the affidavits for the first time to the federal court. Diaz, 239 Fed.Appx. at 890 (citing Roberts v. Dretke, 356 F.3d 632, 641 (5th Cir.2004)). Without that evidentiary support, this court found that Diaz " failed to rebut the presumption of correctness that attaches to the state court's findings, and he cannot make his case that counsel were constitutionally ineffective at the punishment phase of trial." Id. This court also held that " [t]he [state court's] finding that Diaz did not want his family members to testify precludes a finding of deficient performance and a finding of [ Strickland ] prejudice." Diaz, 239 Fed.Appx. at 890 (citing Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1941, 167 L.Ed.2d 836 (2007); Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir.2000)). See also Ex parte Diaz, No. CR-1464-99-G(1) at ¶¶ 603-05,

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613, 614. Diaz subsequently sought certiorari review, which the Supreme Court denied. Diaz v. Quarterman, 552 U.S. 1232, 128 S.Ct. 1442, 170 L.Ed.2d 277 (2008).

Five years later, on August 27, 2013, Diaz filed a motion for stay of execution and a Rule 60(b)(6) motion in federal district court, claiming that recent changes in habeas law warranted relief from final judgment. Diaz argued that the Supreme Court's decisions in Martinez v. Ryan and Trevino v. Thaler, coupled with the " equities" of Diaz's case, constituted unique and extraordinary circumstances warranting Ruly 60(b)(6) relief. However, in " apply[ing] the logic from Adams [ v. Thaler, 679 F.3d 312 (5th Cir.2012) ]," the district court held that the Supreme Court's recent decisions did not give rise to extraordinary circumstances within the meaning of Rule 60(b)(6), Diaz v. Stephens, No. M-04-225, 12-13 (S.D.Tex. Sept. 16, 2013) (report and recommendation), and neither did the specific equities of Diaz's case, Id. at 13-15. See Diaz v. Stephens, No. M-04-225 (S.D.Tex. Sept. 20, 2013) (adopting magistrate judge's report and recommendation). Thus, the district court denied Diaz's Rule 60(b)(6) motion as well as his motion for a stay of execution, which was no longer viable given the unavailability of review under Rule 60(b). Id. The district court granted Diaz a COA sua sponte, Id., and Diaz now appeals the district court's denial of both motions.

STANDARD OF REVIEW

This court reviews the denial of a Rule 60(b)(6) motion under an abuse of discretion standard. Wilcher v. Epps, 203 Fed.Appx. 559, 561 (5th Cir.2006). In applying such a standard, " [i]t is not enough that the granting of relief might have been permissible, or even warranted[— ]denial must have been so unwarranted as to constitute an abuse of discretion." Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981). Similarly, we review a district court's decision to deny a stay of execution for abuse of discretion. Green v. Thaler, 699 F.3d 404, 411 (5th Cir.2012). " The party requesting a stay bears the burden of showing that the circumstances justify an exercise of [judicial] discretion." Id. (alteration in original) (internal quotation marks omitted) (quoting Nken v. Holder, 556 U.S. 418, 433-34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009)).

DISCUSSION

Diaz argues that the district court abused its discretion in denying his Rule 60(b)(6) motion and motion for stay of execution because recent developments in habeas law should allow federal consideration of his ineffective assistance of trial counsel claims as they relate to the State's offer of a plea bargain and the penalty phase of his trial. As noted by the Supreme Court, when seeking relief under Rule 60(b)(6), a movant is required " to show ‘ extraordinary circumstances' justifying the reopening of a final judgment." Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Although " [s]uch circumstances will rarely occur in the habeas context," Id., Diaz contends that the recent decisions in Martinez and Trevino amount to a " sea change" in habeas law that warrants Rule 60(b)(6) relief. It has long been established that

[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure

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to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546,...

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