John Balentine v. Rick Thaler, Director

Filing

PUBLISHED OPINION FILED. [09-70026 Affirmed ] Judge: CES , Judge: PRO , Judge: LHS [09-70026]

John Balentine v. Rickase: 09-70026 C Thaler, Director

Document: 00511296604 Page: 1 Date Filed: 11/17/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 17, 2010 N o . 09-70026 Lyle W. Cayce Clerk

J O H N LEZELL BALENTINE, P e t it io n e r - Appellant v. R I C K THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court for the Northern District of Texas

O N PETITION FOR REHEARING (O p in io n June 18, 2010, 5th Cir., 2010________F.3d ________) B e fo r e STEWART, OWEN, and SOUTHWICK, Circuit Judges. L E S L I E H. SOUTHWICK, Circuit Judge: N o 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 p e t it io n for rehearing by the panel is GRANTED. w it h d r a w n , and this opinion is substituted. John Lezell Balentine, a Texas prisoner sentenced to death, appeals the d is t r ic t court's denial of his Rule 60(b) motion to set aside that court's 2009 ju d g m e n t . We initially held his arguments to be valid. Balentine v. Thaler, 609 The prior opinion is

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No. 09-70026 F .3 d 729 (5th Cir. 2010). On rehearing, we conclude that a ruling by the Texas C o u r t of Criminal Appeals should not be presumed to have reached the merits o f 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. P R O C E D U R A L HISTORY B a le n t in e confessed that on January 21, 1998, in Amarillo, Texas, he m u r d e r e d three teenagers, Mark Caylor, Jr., Kai Geyer, and Steven Brady W a t s o n . The details of the crime are set out in Balentine v. State, 71 S.W.3d 7 6 3 , 767-68 (Tex. Crim. App. 2002). We summarize the proceedings that have led to today's appeal. A . Trial, Sentencing, and Direct Appeal I n April 1999, a jury found Balentine guilty of capital murder and sentenced him to death. The Texas Court of Criminal Appeals affirmed the c o n v ic t io n and sentence on April 3, 2002. Id. at 774. B. First State Habeas Application B a len tin e filed a state post-conviction application for writ of habeas corpus o n January 22, 2001, which was before the proceedings on the direct appeal were fin a l. Twenty-one grounds for relief were stated, the first fourteen challenging t h e constitutionality of the Texas death penalty scheme. The only identified is s u e concerning sentencing was that counsel was ineffective by not presenting a n y evidence at the sentencing phase. The state district court denied relief on O c t o b e r 18, 2002. The Court of Criminal Appeals, after adopting the trial judge's fin d in g s and conclusions, denied relief on December 4, 2002. Ex parte Balentine, N o . WR-54,071-01 (Tex. Crim. App. Dec. 4, 2002) (not designated for p u b lic a t io n ) . C . First Federal Habeas Application Balentine filed an application for writ of habeas corpus in the United S t a te s District Court for the Northern District of Texas on December 1, 2003, 2

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No. 09-70026 t h e n filed an amended application on August 19, 2004. See 28 U.S.C. § 2254. He a lle g e d nine grounds of error, including a denial of a right to individualized s e n te n c in g under the Eighth Amendment. The crux of such a claim is that a defendant did not receive an individualized sentence because no mitigating e v id e n c e was presented at trial. See Lockett v. Ohio, 438 U.S. 586 (1978). After s e c u r in g new counsel, Balentine detailed ­ for the first time in any court ­ the m it ig a t io n evidence that could have been presented had there been proper in v e s t ig a tio n . That evidence included affidavits by family members and experts. The magistrate judge issued a Report and Recommendation finding Balentine n o t entitled to relief because the claims relating to mitigating evidence were u n e x h a u s t e d and procedurally barred. B a le n t in e objected to the Report and Recommendation on December 21, 2 0 0 7 . He also requested that the district court stay the proceedings so he could r e t u r n to state court to exhaust the mitigating evidence claims. The district court d e n i e d the request on March 31, 2008. Also on March 31, 2008, and then on r e c o n s id e r a t io n on May 30, 2008, the district court overruled all objections, a d o p t e d the findings of the Report and Recommendation, and denied the petition. B a le n t in e 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 O n August 21, 2009, Balentine filed a subsequent habeas application in s t a te court pursuant to Section 5 of Texas Code of Criminal Procedure Article 1 1 .0 7 1 . He alleged that he was deprived of his Sixth Amendment right to

e ffe c t iv e assistance when his trial counsel did not investigate, develop, or present m it ig a t io n evidence in the punishment phase of the trial. See Wiggins v. Smith, 5 3 9 U.S. 510 (2003). He also alleged a violation of Batson v. Kentucky, 476 U.S. 7 9 (1986). The Court of Criminal Appeals dismissed the application. Ex parte

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No. 09-70026 B a le n tin e , Nos. WR-54071-01, WR-54071-02, 2009 WL 3042425 (Tex. Crim. App. S e p t . 22, 2009). E . Motion for Rule 60(b) Relief from the Federal Court Judgment T h e day after the Court of Criminal Appeals' ruling, Balentine returned to fe d e r a l district court and filed a motion for relief from judgment under Federal R u le of Civil Procedure 60(b)(5) and (6). The judgments from which relief was s o u g h t were those of March and May 2008, denying his Section 2254 claims. Balentine argued that the Court of Criminal Appeals' September 22, 2009 d is m is s a l of his application did not constitute an independent and adequate state la w ground that would bar review by the federal court. He requested an

e v id e n t ia r y hearing on the merits of his claim that counsel had been ineffective b y failing to search adequately for mitigating evidence. O n September 28, 2009, the district court denied relief from judgment and s t a y of execution. The court rejected Balentine's argument that the Court of C r im in a l Appeals' decision of September 22, 2009 had invalidated the district c o u r t 's 2008 ruling that an unexhausted claim of ineffective assistance of counsel w a s procedurally barred. The district court found that the Court of Criminal A p p e a ls had not ruled on the merits of the claim on September 22, 2009, and the c la im therefore remained beyond the federal court's review. T h e district court granted a certificate of appealability, finding that jurists o f reason could disagree on that court's interpretation of two Fifth Circuit p r e c e d e n t s , namely, Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), and H u g h e s v. Quarterman, 530 F.3d 336 (5th Cir. 2008). We then granted a stay of e x e c u tio n . Balentine now claims that a proper analysis of the two cited

p r e c e d e n t s would lead to the conclusion that the Court of Criminal Appeals r e a c h e d the merits of his ineffective assistance of counsel claim. Therefore, he a r g u e s , the ineffective assistance of counsel claim is no longer procedurally d e fa u lt e d , and the federal courts should review it on the merits. 4

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No. 09-70026 D IS C U S S IO N T h is appeal is from the district court's denial of a motion under Rule 6 0 (b )(5 ) and (6). Those sections are broadly worded: O n motion and just terms, the court may relieve a party or its le g a l representative from a final judgment, order, or proceeding for t h e following reasons: . . . (5) the judgment has been satisfied, released, or discharged; it is b a s e d on an earlier judgment that has been reversed or vacated; or a p p ly in g it prospectively is no longer equitable; or (6) any other reason that justifies relief. F e d . R. Civ. P. 60(b)(5)-(6). We have described this Rule as a powerful one: R u le 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 c la u s e s , [but] we have also narrowly circumscribed its availability, h o ld in g that Rule 60(b)(6) relief will be granted only if extraordinary c ir c u m s ta n c e s are present. B a t t s v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995) (citations and in t e r n a l quotation marks omitted). The part of Rule 60(b)(5) relevant to our case is that equity should prevent s o m e part of the earlier judgment from applying. Balentine's arguments under R u le 60(b)(6) also focus on equity. We will analyze the subparts together and o ft e n 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 t h e discretion was abused. Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002). A s was revealed by our recounting of the procedural history of Balentine's p o s t -c o n v ic t io n filings, his initial, unsuccessful federal petition for review of his c o n v ic tio n was brought in 2003. A state prisoner is not entitled to use Rule 60(b) a s a broad opening for a second request in the federal court to overturn his c o n v ic tio n . Still, a Rule 60(b) motion, filed several years after an inmate's Section 2 2 5 4 application had been denied, is in some circumstances an available option. 5

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No. 09-70026 G o n z a le z v. Crosby, 545 U.S. 524, 528-29 (2005). A Rule 60(b) motion should be d e n ie d 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 fe d e r a l court ruling may have merit: W h e n no "claim" is presented, there is no basis for contending that t h e Rule 60(b) motion should be treated like a habeas corpus a p p lic a t io n . If neither the motion itself nor the federal judgment fr o m which it seeks relief substantively addresses federal grounds for s e t t in g aside the movant's state conviction, allowing the motion to p r o c e e d as denominated creates no inconsistency with the habeas s t a tu t e 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 t o show "that a previous ruling which precluded a merits determination was in e r r o r ­ for example, a denial for such reasons as failure to exhaust, procedural d e fa u lt , or statute-of-limitations bar." Id. at 532 n.4. The single appellate issue stated in Balentine's brief is that the district c o u r t abused its discretion in denying the Rule 60(b) motion. The sole argument t o support that there was an errant exercise of discretion is that the district court fa ile d to recognize that the latest Court of Criminal Appeals decision should be in t e r p r e t e d as having ruled on the merits of his Wiggins claim. B a le n t in e 's brief does not then make an explicit connection between the d is t r ic t court's most recent and allegedly erroneous ruling and the Crosbyr e q u i r e d procedural error in the earlier habeas application. To open the Rule 6 0 (b ) door on a claim such as this, there must be a showing of a non-merits-based d e fe c t in the district court's earlier decision on the federal habeas petition: I f neither the motion itself nor the federal judgment from which it s e e k s relief substantively addresses federal grounds for setting aside t h e movant's state conviction, allowing the motion to proceed as

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No. 09-70026 d e n o m in a t e d creates no inconsistency with the habeas statute or r u le s . Petitioner's motion in the present case, which alleges that the fe d e r a l courts misapplied the federal statute of limitations set out in § 2244(d), fits this description. C r o s b y , 545 U.S. at 533. A fair reading of Balentine's argument is that the district court's 2008 d e c is io n , which found the Wiggins claim to be unexhausted and therefore not to b e considered, was reached only after the denial of Balentine's motion to stay a d e c is io n 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 in it ia l federal habeas proceedings, which would have allowed the petitioner to e x h a u s t 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, t h a t a stay and a return to state court would be futile because the claim had not b e e n exhausted the first time. Id. Futile or not, Ruiz returned to state court and g o t a ruling from the Court of Criminal Appeals that we construed as meritsb a s e d . Id. at 525. As the Ruiz opinion put it, this merits ruling "pulled the g r o u n d from under the federal district court's earlier judgment dismissing the c la im and refusing to hold the federal claim in abeyance while Ruiz returned to s t a te court with his unexhausted claim." Id. Like Ruiz, Balentine requested a stay of the federal proceedings so he could r e t u r n to state court to exhaust the ineffective assistance claim. Such a stay was d e n i e d in 2008. If Balentine actually got a later ruling on the merits from the C o u r t of Criminal Appeals on his Wiggins claim, Ruiz would be authority s u p p o r tin g his argument that it was error not to grant the Rule 60(b) motion. O n appeal here, Balentine analyzes whether the Texas court reached the m e r it s or used an independent and adequate state ground to deny habeas relief. He argues that Texas incorporates federal law in its analysis of subsequent h a b e a s applications and that this court considers the Texas law to be interwoven 7

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No. 09-70026 w it h federal law. He then closes his argument with explanations of why the H u g h e s 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 fir s t time in his Rule 60(b) motion. We turn our attention to that argument first a n d 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 g r a n t e d consistently with the Antiterrorism and Effective Death Penalty Act (" A E D P A " ). Ruiz, 504 F.3d at 526; 28 U.S.C. § 2244(b). The Supreme Court has d e s c r ib e d how AEDPA and Rule 60(b) motions operate in harmony. See Crosby, 5 4 5 U.S. 524. Under AEDPA, any successive habeas claim "that has not already b e e n adjudicated must be dismissed unless it relies on either a new and r e t r o a c t iv e rule of constitutional law or new facts showing a high probability of a c t u a l innocence." Id. at 530. B a le n t in e alleges that he received ineffective assistance of counsel, in v io la t io n of his rights under the Sixth Amendment, when his trial counsel failed t o investigate mitigating evidence for the sentencing phase of his trial. See W ig g in s , 539 U.S. 510. The State argues that Balentine's initial federal habeas a p p lic a t io n never raised a Sixth Amendment claim for counsel's failure to in v e s t ig a t e mitigating evidence. If that is so, then Balentine's Rule 60(b) motion r a is e d a new claim that constitutes a successive habeas application barred by A E D P A . See 28 U.S.C. § 2244(b)(2). Consequently, whether AEDPA requires d is m is s a l of Balentine's Rule 60(b) motion in part depends on when the issue of in e ffe c t iv e assistance for failure to investigate mitigating evidence was first p r e s e n t e d in earlier proceedings.

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No. 09-70026 A claim of ineffective assistance of counsel for failure to investigate m it ig a t io n evidence was not raised on direct appeal. Nor was a claim of failure t o investigate mitigation evidence presented in the state habeas application that w a s filed in 2002. Instead, the initial state habeas application made a weak a s s e r t io n of a failure to present mitigation evidence. W e now look for whether Balentine raised the Wiggins claim in his federal h a b e a s petition, filed in 2003 and amended in 2004. The State contends that B a le n tin e 's federal habeas petition did not state a Sixth Amendment claim of in e ffe c t iv e assistance for counsel's failure to investigate and present mitigating e v id e n c e . Rather, the State asserts that any claim regarding mitigation was an E ig h t h and Fourteenth Amendment challenge. T h e relevant section of Balentine's federal habeas application was titled " G r o u n d Eight (IAC ­ Lockett Doctrine & Risk Assessment): Balentine was denied h is federal Eighth and Fourteenth [A]mendment rights to individualized s e n te n c in g . Trial counsel failed to present any evidence at all in the punishment p h a s e ." The application explained that "IAC" means "ineffective assistance of c o u n s e l." Balentine claimed that, among other defaults, counsel "failed altogether t o adequately investigate and develop any mitigation and risk assessment e v id e n c e at all." Wiggins was cited to support the arguments regarding the need fo r a reasonable investigation for mitigation evidence. The application then stated t h a t such "deficient performance of trial counsel raises a reasonable probability t h a t the outcome would have been different" and cited the Sixth and Fourteenth A m e n d m e n t s and Strickland v. Washington, 466 U.S. 668 (1984). The general rule is that arguments not raised before the district court are w a iv e d on appeal. State Indus. Prods. Corp. v. Beta Tech., Inc., 575 F.3d 450, 456 (5 t h Cir. 2009). Errant headings in briefs, though, do not waive arguments. Balentine raised a Sixth Amendment argument. Both the magistrate judge and t h is court ruled on it. See Belt v. EmCare, Inc., 444 F.3d 403, 409 (5th Cir. 2006) 9

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No. 09-70026 (h o ld in g that an issue is preserved for appeal where "the issue was sufficiently r a is e d for the court to rule on it. . . ."). B a le n t in e 's claim was for ineffective assistance of counsel. The title of the s e c t io n in the brief contained the acronym for ineffective assistance of counsel and s t a t e d that "counsel failed to present any evidence at all in the punishment p h a s e ." Additionally, Balentine presented his argument in terms of Strickland v. W a s h in g to n and Wiggins v. Smith, both Sixth Amendment ineffective assistance o f counsel cases. Further, the section's subheadings tracked the two-prong test fo r ineffective assistance of counsel. Subheading two was titled "Trial counsel's p e r f o r m a n c e was deficient" and subheading three was titled "The deficient p e r f o r m a n c e raises a reasonable probability that the outcome would have been d iffe r e n t ." The magistrate judge properly recognized the claim as an ineffective a s s is t a n c e of counsel claim and ruled on it, and on appeal this court considered the c la im to be one for ineffective assistance. Balentine, 324 F. App'x at 305. T h u s , Balentine's federal habeas application stated a Sixth Amendment in e ffe c t iv e 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 t h e merits of the claim and did not simply rule that the habeas application was p r o c e d u r a lly flawed. This distinction matters in a Section 2254 proceeding

b e c a u s e we do not reach the merits when the state court denied relief due to an a d e q u a t e state law basis for the decision, independent of the merits of the federal c la im . Coleman v. Thompson, 501 U.S. 722, 729 (1991); Finley v. Johnson, 243 F .3 d 215, 218 (5th Cir. 2001). The Supreme Court has held that if the state court d e c is io n rests "primarily on federal law" or the state and federal law are " in te r w o v e n ," and if "the adequacy and independence of any possible state law g r o u n d is not clear from the face of the opinion," then we should construe the state 10

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No. 09-70026 c o u r t 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 fa ir ly 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 ju d g m e n t rested on federal grounds." Coleman, 501 U.S. at 737 (quoting Long, 4 6 3 U.S. at 1041). This court has had to apply these rules when reviewing state court orders t h a t 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 h e r e , the Texas Court of Criminal Appeals dismissed a subsequent habeas a p p lic a t io n with a boilerplate order that did not indicate whether the decision t u r n e d 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 r ig h t 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 filin g an initial application, a court may not consider the merits of or g r a n t relief based on the subsequent application unless the a p p lic a t io n contains sufficient specific facts establishing that: (1) the current claims and issues have not been and could not h a v e been presented previously in a timely initial application or in a p r e v io u s ly considered application filed under this article or Article 1 1 .0 7 because the factual or legal basis for the claim was unavailable o n the date the applicant filed the previous application; (2) by a preponderance of the evidence, but for a violation of the U n ite d States Constitution no rational juror could have found the a p p lic a n t guilty beyond a reasonable doubt; or (3) by clear and convincing evidence, but for a violation of the U n ite d States Constitution no rational juror would have answered in t h e state's favor one or more of the special issues that were submitted t o the jury in the applicant's trial under Article 37.071, 37.0711, or 3 7 .0 7 2 . Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a).

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No. 09-70026 T h e determination of whether these requirements are satisfied is for the T e x a s Court of Criminal Appeals, not for a Texas trial court. Id. § 5(c). The a p p lic a t io n may be filed in the court of conviction, but the clerk of that court is to s e n d the application to the Court of Criminal Appeals. Id. § 5(b). The next section of Article 11.071 addresses the situation in which the r e q u ir e m e n t s are found to be satisfied. "If the convicting court receives notice that t h e requirements of Section 5 for consideration of a subsequent application have b e e n met, a writ of habeas corpus, returnable to the court of criminal appeals, s h a ll issue by operation of law." Id. § 6(b). Only then is the State required to file a n answer to the application. Id. § 7(a). Thus, the Court of Criminal Appeals d e t e r m in e s without briefing by the State whether the Section 5(a) requirements h a v e been met. In practice, the Court of Criminal Appeals, after determining that a p r is o n e r 's subsequent habeas application satisfies Section 5(a)(1), (2), or (3), often r e m a n d s the case to the trial court for fact findings. See Ex parte Alexander, No. W R -5 7 1 5 6 -0 2 , 2010 WL 2524572, at *1 (Tex. Crim. App. June 16, 2010); Ex parte R a c h a l, No. WR-60394-02, 2009 WL 3042631, at *1 (Tex. Crim. App. Sept. 23, 2 0 0 9 ). The Court of Criminal Appeals then reviews the trial court's findings and m a k e s a ruling on the underlying constitutional claim. See Ex parte Tercero, No. W R -6 2 5 9 3 -0 3 , 2010 WL 724405, at *1 (Tex. Crim. App. Mar. 3, 2010); Ex parte C o c k r e ll, 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 r e m a n d . See Ex parte Buntion, No. AP-76236, 2009 WL 3154909, at*1-2 (Tex. C r im . App. Sept. 30, 2009). On August 21, 2009, Balentine filed a subsequent habeas application. In a t w o -p a g e order, the Court of Criminal Appeals first summarized the prior p r o c e e d in g s . It then addressed the most recent filing:

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No. 09-70026 A p p lic a n t presents two allegations in his application. In the fir s t allegation, applicant asserts that he was deprived of his Sixth A m e n d m e n t right to effective assistance of trial counsel because c o u n s e l failed to adequately investigate, develop, and present m it ig a t io n evidence in the punishment phase of the trial. In his s e c o n d allegation, applicant asserts that the prosecution u n c o n s t it u t io n a lly exercised peremptory challenges on two venire p e r s o n s in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We h a v e reviewed the application and find that his allegations fail to s a t is fy the requirements of Article 11.071 § 5. Accordingly, a p p lic a n t 's application is dismissed, and his motion to stay his e x e c u t io n is denied. Likewise, applicant's motion to vacate the ju d g m e n t rendered in his initial state writ application is denied, and t h e Court otherwise declines to reconsider that case. E x parte Balentine, Nos. WR-54071-01, WR-54071-02, 2009 WL 3042425, at *1 (T e x . Crim. App. Sept. 22, 2009). T h e order does not explain the basis for the Court of Criminal Appeals' d e c is io n . In our withdrawn opinion, we held the order's lack of an explanation had t o be understood in the context of that court's prior caselaw. That caselaw caused u s to presume that the Court of Criminal Appeals reached the federal merits of t h e application. We now hold Coleman demands a different outcome. The reason for our new decision will be better understood in the context of c e r t a in Supreme Court precedents. The decisions endeavored to address a

p r o b le m federal courts frequently face when reviewing state court dismissal o r d e r s : determining whether an order rested on independent and adequate state g r o u n d s or instead reached the federal merits. If a decision rests on state

s u b s t a n t iv e or procedural law, federal courts are not permitted to second-guess t h e decision. See Coleman, 501 U.S. at 729. But, if the state court's reasoning was b a s e d upon its conclusions about the federal claims, then federal courts can make t h e ir own assessment of those merits. Id. When both grounds are present, the Supreme Court presented a standard fo r federal courts to apply when assessing whether a state court decision rested

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No. 09-70026 o n federal law or on independent and adequate state grounds. See Long, 463 U.S. a t 1040-41. When a state court decision fairly appears to rest primarily on federal law, o r to be interwoven with the federal law, and when the adequacy and in d e p e n d e n c e of any possible state law ground is not clear from the fa c e of the opinion, we will accept as the most reasonable explanation t h a t the state court decided the case the way it did because it believed t h a t federal law required it to do so. I d . 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 a n d independent state grounds" in a variety of unsatisfying ways. Id. at 1039. The Court previously dismissed cases that were unclear or simply vacated or c o n t in u e d 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 " e x a m in in g state law . . . because it requires us to interpret state laws with which w e are generally unfamiliar. . . ." Id. The new approach is intended to keep fe d e r a l courts from interpreting state law when analyzing a state court order for a d e q u a t e 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 S u p r e m e Court's reversal of the conviction. Later, the same presumption was h e ld to apply when a federal court reviews a state inmate's habeas petition c h a l l e n g i n g his conviction. Harris v. Reed, 489 U.S. 255 (1989). Harris was in t e r p r e t e d by some later courts to require application of the Long presumption t o cases in which the state court failed to make clear a state procedural ground for it s ruling. Coleman, 501 U.S. at 735. Two years after Harris, the Supreme Court p r o v id e d some clarification. Id. "A predicate to the application of the Harris p r e s u m p t io n is that the decision of the last state court to which the petitioner

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No. 09-70026 p r e s e n t e d his federal claims must fairly appear to rest primarily on federal law o r to be interwoven with federal law." Id. I n Coleman, the Court reviewed an ambiguous state court dismissal. See id . at 727-29. Roger Coleman, convicted of rape and capital murder in Virginia, e x h a u s t e d his direct state court appeals in 1983. Id. at 726-27. He filed a habeas p e t it io n in a state trial court. Id. at 727. After that court denied his claims, he a p p e a le d to the Virginia Supreme Court. Id. The State of Virginia filed a motion t o dismiss, contending Coleman's appeal could not be considered because his n o tic e of appeal was not timely filed. Id. Both parties filed briefs on the motion t o dismiss and on the merits of Coleman's claims; the Virginia Supreme Court is s u e d a brief order dismissing the appeal. Id. The order noted that Coleman filed a petition for appeal on December 4, 1986. It then stated: T h e r e u p o n came the appellee, by the Attorney General of V ir g in ia , and filed a motion to dismiss the petition for appeal; on D e c e m b e r 19, 1986 the appellant filed a memorandum in opposition t o the motion to dismiss; on December 19, 1986 the appellee filed a r e p ly to the appellant's memorandum; on December 23, 1986 the a p p e lle e filed a brief in opposition to the petition for appeal; on D e c e m b e r 23, 1986 the appellant filed a surreply in opposition to the a p p e lle e 's motion to dismiss; and on January 6, 1987 the appellant file d a reply brief. Upon consideration whereof, the motion to dismiss is granted a n d the petition for appeal is dismissed. I d . at 727-28. Coleman then turned to federal court. The district court and the Fourth C ir c u it denied relief. Id. at 728-29. At the Supreme Court, Coleman argued that " t h e presumption of Long and Harris applies in this case and precludes a bar to h a b ea s because the Virginia Supreme Court's order dismissing [his] appeal did not `c le a r ly and expressly' state that it was based on state procedural grounds." Id. a t 735. He sought creation of "a conclusive presumption of no independent and

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No. 09-70026 a d e q u a t e state grounds in every case in which a state prisoner presented his fe d e r a l claims to a state court, regardless of whether it fairly appears that the s t a t e court addressed those claims." Id. at 737-38. The Supreme Court rejected this argument. Coleman's proposed rule would r e s u lt in federal courts reviewing the constitutional merits of state prisoners' c l a i m s even when independent and adequate state grounds should have barred t h e ir consideration. Id. at 738. A fte r the Court declined Coleman's invitation to extend the Long p r e s u m p t io n to all state habeas corpus petitions asserting federal claims, it also d e c lin e d to create a presumption in cases where a state court order did not plainly r e s t 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 fe d e r a l grounds or is not interwoven with federal law ­ "there is little need for a c o n c lu s iv e presumption." Id. at 739. "In the absence of a clear indication that a s t a t e court rested its decision on federal law, a federal court's task will not be d iffic u lt ." Id. at 739-40. The Supreme Court then undertook the task of determining the basis for the s t a t e court's ruling as to Coleman. The Virginia Supreme Court had granted the s t a t e '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 w a s untimely. Id. at 727, 740. The Virginia Supreme Court made "no mention of fe d e r a l law" in its brief dismissal order. Id. at 740. Based on this evidence from t h e state court record, the decision fairly appeared to be based primarily upon s t a t e procedural grounds. Id. at 740, 744. As just noted, the Coleman court considered the Virginia Supreme Court o r d e r to be uninformative. Conversely, our initial opinion in the present appeal h e ld the Court of Criminal Appeals' order that denied Balentine's subsequent a p p lic a t io n was informative. The information was not in the order itself but came 16

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No. 09-70026 fr o m the context in which its words were to be read, which was an earlier decision b y 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 c o u r t's explanation was this: 1 ) the factual or legal basis for an applicant's current claims must h a v e been unavailable as to all of his previous applications; and 2) the s p e c ific facts alleged, if established, would constitute a constitutional v io la t io n that would likely require relief from either the conviction or s e n te n c e . E x parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007) (discussed in R u iz , 504 F.3d at 527). The court held that a sufficient showing of unavailability w a s made. Id. at 422. The subsequent application then faced one more hurdle: A p p lic a n t 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, e s t a b lis h a federal constitutional violation sufficiently serious as to lik e ly require relief from his conviction or sentence. I d . at 422. The court concluded that because no prima facie case of a

c o n s t it u t io n a l violation was shown, Campbell failed to meet the second element o f 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 t o 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. 2 0 0 7 ) (citation omitted). The first element of the Campbell analysis is a "state-law q u e s t io n ," but Rivera categorizes the second element as "a question of federal c o n s t it u t io n a l law." Ruiz, 504 F.3d at 527. I n our first opinion on this appeal, we analyzed the effect of the Court of C r im in a l Appeals' explanation of its procedure. We first considered Ruiz, which c o n c lu d e d 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 la w ." Id. We then evaluated what we understood Ruiz to say about the effect of 17

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No. 09-70026 t h a t uncertainty. Our re-evaluation on rehearing now leads us to a different u n d e r s t a n d in g of Ruiz. I t is beyond question that this court in Ruiz concluded that the Court of C r im in a l Appeals' order denying relief was not a decision based on independent a n d adequate state grounds. Id. at 527-28. Ruiz gave weight to the fact that t h e r e were only four votes at the Court of Criminal Appeals for the lead opinion t h a t denied the writ; the judge casting the fifth vote ­ which was necessary for the d e c is io n ­ explicitly reached the merits. Id. Even though such vote-counting was n o t 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 C a m p b e ll that an unexplained denial of a subsequent application may have been b a s e d on a federal merits ground. We understood Ruiz to mean that uncertainty s h o u ld be transformed into a presumption that the state court reached the merits. W e did not consider, though, that this approach was inconsistent with the S u p r e m e Court's refusal in Coleman to create a "conclusive presumption of no in d e p e n d e n t and adequate state grounds in every case in which a state prisoner p r e s e n t e d his federal claims to a state court, regardless of whether it fairly a p p e a r s that the state court addressed those claims." Coleman, 501 U.S. at 7383 9 . The Texas court's explanation that it at times reaches the federal merits in d e n y in g a subsequent application cannot, consistent with Coleman's admonition, b e 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 r e lie f under Section 5 may be the result of a merits-determination. E.g., Ex parte M e d e llin , 223 S.W.3d 315 (Tex. Crim. App. 2006). Decisions that explicitly reach t h e 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 R u iz , by relying on the fact that one of the state court judges clearly reached the 18

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No. 09-70026 m e r it s , had a decision in which it did "fairly appear" that the state court primarily r e lie d on federal grounds. We erred in interpreting Ruiz otherwise. C. Applying Independent and Adequate State Ground Principles to

B a le n tin e 's 2009 Court of Criminal Appeals Order We turn now to what fairly appears in the state court's denial of relief to B a le n tin e . The order itself was silent. As in Coleman, we then look to the a r g u m e n ts at the state court. Unlike in Coleman, where the Commonwealth of V ir g in ia filed a motion to dismiss, Balentine's claims never reached the stage of r e q u ir in g a response from the State of Texas. Instead, the Court of Criminal A p p e a ls decided on its own that the statutory requirements for subsequent a p p lic a t io n s had not been satisfied. Even so, we are not without indications of the r e a s o n s for the dismissal of the Wiggins claim. B e c a u s e the state court's order gives no indication of the grounds for its d e c i s i o n , we look to what Balentine presented to that court in his subsequent a p p lic a t io n . It was filed on August 18, 2009, and made these claims: ( 1 ) His counsel was constitutionally ineffective in investigating for and p r e s e n t in g 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 a n unconstitutional manner. Batson, 476 U.S. 79. Because Balentine's only argument here is that the district court erred in a n a ly z in g how the Texas Court of Criminal Appeals resolved his Wiggins claim, w e need not evaluate what the Texas court did on the Batson issue. A s we have already discussed, Texas allows a subsequent application by a s t a t e prisoner seeking relief from the death penalty to be considered on the merits i f sufficient specific facts are shown to satisfy one of three sets of criteria. Tex. C o d e Crim. Proc. Ann. art. 11.071, § 5(a). Balentine first sought to exempt himself fr o m Section 5 altogether by alleging that he did not have competent counsel 19

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No. 09-70026 e it h e r at trial or on his initial state habeas claim. He argued that the principles o f 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, b e c a u s e he never got "one full and meaningful pass through habeas proceedings (s t a te and federal)," applying the procedural bars of Section 5 would run afoul of t h e s e basic principles. Balentine also noted that the Texas courts had rejected s o m e of these arguments already, but his circumstances were unique. T h e specifics of the arguments to the state court notwithstanding, the sole is s u e 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 W ig g in s claim? The only evidence is that which we find in the subsequent

a p p lic a t io n itself and in the Court of Criminal Appeals' boilerplate order. We c o n c lu d e that the Texas court would not have silently accepted one or more of B a le n tin e 's arguments to ignore Section 5 altogether and then, with equal silence, r e a c h e d the merits of his Wiggins claim. This means that nothing in that part of h is subsequent application supports his claim of error now. W e now look at Section 5 itself. Balentine did not expressly identify in his s u b s e q u e n t application to the state court which subsections were relevant. The W ig g in s 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 C o n s t it u t io n no rational juror could have found the applicant guilty beyond a r e a s o n a b le doubt"). T h e r e fo r e , Balentine would have needed to present sufficient specific facts t o support one of the following: (1 ) the current claims and issues have not been and could not h a v e been presented previously in a timely initial application or in a p r e v io u s ly considered application filed under this article or Article 1 1 .0 7 because the factual or legal basis for the claim was unavailable o n the date the applicant filed the previous application;

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No. 09-70026 ... (3 ) by clear and convincing evidence, but for a violation of the U n ite d States Constitution no rational juror would have answered in t h e state's favor one or more of the special issues that were submitted t o the jury in the applicant's trial under Article 37.071, 37.0711, or 3 7 .0 7 2 . Id. § 5(a)(1), (3). Balentine's subsequent application made no effort to show that the facts or la w underlying his Wiggins claim were unavailable to him at the time of his first s t a t e application. He made that argument as to the Batson claim, but only the W ig g in s claim is before us.1 Therefore, Section 5(a)(1) was not satisfied. W e now examine Section 5(a)(3). What is required for an argument under t h a t section was the subject of a recent decision: T e x a s largely adopted this federal gateway in crafting its own c o n d it io n s for subsequent habeas applications. As the [Court of C r im in a l Appeals] has explained, "[t]he [Texas] Legislature quite o b v io u s ly intended [§ 5(a)(3)], at least in some measure, to mimic the fe d e r a l doctrine of `fundamental miscarriage of justice.' ... apparently in t e n d in g to codify, more or less, the [actual-innocence-of-the-deathp e n a lt y ] doctrine found in Sawyer v. Whitley[, 505 U.S. 333 (1992)]." R o c h a v. Thaler, 619 F.3d 387, 402-03 (5th Cir. 2010) (quoting Ex parte Blue, 230 S .W .3 d 151, 159-60 (Tex. Crim. App. 2007)). The Texas court said that Sawyer " e x p r e s s ly rejected the argument that a constitutional error that impacts only the ju r y 's discretion whether to impose a death sentence upon a defendant who is u n q u e s t io n a b ly eligible for it under state law can be considered sufficiently fu n d a m e n t a l as to excuse the failure to raise it timely in prior state and federal

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).

1

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No. 09-70026 p r o c e e d in g s ." 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 fo r the death penalty for any reason. He instead argued that his counsel had been in c o m p e te n t in investigating for mitigating evidence; better evidence might have c o n v in c e d jurors not to sentence him to death. The argument did not satisfy this r e q u ir e m e n t of Section 5(a)(3). T h e Court of Criminal Appeals left open the possibility that a Wiggins claim m ig h t also be cognizable under Section 5(a)(3). The court said it would "hesitate t o declare that Article 11.071, Section 5(a)(3), wholly codifies" the doctrine of i n e l i g i b ilit y for the death penalty. Id. at 161 n.42. It was "arguable," the court w r o t e , 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, b u t for some constitutional error, no rational juror would have answered the m it ig a t io n special issue in the State's favor." Id. The Texas court held it "need e x p r e s s no ultimate opinion on this question here." Id. W e perceive nothing in this footnoted observation that would inject into the s a m e 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 o r d e r did not reach the merits of the issues that we know the Texas court c o n s id e r s relevant, namely, ineligibility for the death penalty. We will not

in t e r p r e t that same perfunctory order as having reached the merits of an issue the T e x a s court at most has identified it might one day reach. W e hold that Balentine's subsequent application did not present sufficient fa c t s to meet the requirements of Section 5(a)(3). B e s id e s being independent of the federal merits, state procedural default m u s t 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 22

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No. 09-70026 a b e r r a n t state court decision. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). We h a v e previously held that the Court of Criminal Appeals regularly enforces the S e c tio n 5(a) requirements. Hughes, 530 F.3d at 342. In summary of the relevant parts of our review, the district court refused to g r a n t Balentine a stay in 2008 to exhaust his claims in state court, predicting c o r r e c t ly that the Court of Criminal Appeals would consider the claims p r o c e d u r a lly barred. The Court of Criminal Appeals' 2009 denial of Balentine's s u b s e q u e n t application was based upon independent and adequate state p r o c e d u r a l 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. A F F IR M E D .

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