Cleve Foster v. Rick Thaler, Director


UNPUBLISHED OPINION ORDER FILED. [12-70026 Affirmed] Judge: JES , Judge: CES , Judge: LHS. ; denying motion to stay execution filed by Appellant Mr. Cleve Foster [7183525-2]; denying motion for certificate of appealability filed by Appellant Mr. Cleve Foster (ISSUED AS & FOR THE MANDATE) [7183523-2] [12-70026]

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Case: 12-70026 Document: 00511995384 Page: 1 Date Filed: 09/21/2012 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit _____________________ No. 12-70026 _____________________ FILED September 21, 2012 Lyle W. Cayce Clerk CLEVE FOSTER, 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 USDC No. 4:07-CV-210 __________________________ Before SMITH, STEWART, and SOUTHWICK, Circuit Judges. PER CURIAM:* IT IS ORDERED that Cleve Foster’s motion for a stay of execution is DENIED. We also determine that the district court properly denied the Rule 60(b) motion. AFFIRMED. Foster requests a Certificate of Appealability challenging the district court’s denial of relief. See 28 U.S.C. § 2253(c). Foster’s COA request relies on a Supreme Court decision handed down on March 20, 2012. See Martinez v. Ryan, 132 S. Ct. 1309 (2012). The Court recognized a new basis to excuse a * Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 12-70026 Document: 00511995384 Page: 2 Date Filed: 09/21/2012 No. 12-70026 state prisoner who has brought federal habeas claims from being held procedurally barred for failing to present those claims first in state court: Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. Martinez, 132 S. Ct. at 1320. In light of Martinez, on June 1, 2012, Foster filed a Rule 60(b)(6) motion in the district court seeking to vacate that court’s final judgment of December 2, 2008. That 2008 decision, which we affirmed, denied him relief in part due to failure to exhaust certain claims in state court. Foster v. Thaler, 369 F. App’x 598 (5th Cir. 2010). On August 13, 2012, the district court refused to grant relief from judgment. The district court relied on a Fifth Circuit decision that held Texas state procedures for considering ineffective-assistance-of-counsel claims were not the kind that Martinez required before a failure to exhaust could potentially be excused. Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012); see also Ibarra v. Thaler, No. 11-70031, 2012 WL 3537826, at *6 n.1 (5th Cir. Aug. 17, 2012). The district court also relied on a different Fifth Circuit precedent that the “decision in Martinez . . . does not constitute an ‘extraordinary circumstance’ under Supreme Court and our precedent to warrant Rule 60(b)(6) relief.” Adams v. Thaler, 679 F.3d 312, 320 (5th Cir. 2012) (citing Gonzalez v. Crosby, 545 U.S. 524, 536 (2005)). This court has recently reviewed these same issues. A majority of the 2 Case: 12-70026 Document: 00511995384 Page: 3 Date Filed: 09/21/2012 No. 12-70026 court refused to reconsider en banc a decision that denied relief in reliance on Ibarra. See Balentine v. Thaler, No. 12-70023, 2012 U.S. App. LEXIS 17370, at *6-9 (5th Cir. Aug. 17, 2012), reh’g en banc denied, No. 12-70023, 2012 WL 3570766 (5th Cir. Aug. 21, 2012). The panel also denied rehearing and supplemented its original decision by relying upon the decision in Adams. Balentine v. Thaler, No. 12-70023, 2012 WL 3570772 (5th Cir. Aug. 21, 2012). The denial of the Rule 60(b) Motion for Relief from Judgment is AFFIRMED. The motion for stay of execution is DENIED. The request for a COA is DENIED. 3

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