Crutsinger v. Stephens, Director TDCJ-CID
Filing
98
MEMORANDUM OPINION AND ORDER TRANSFERRING 60(b) MOTION: Because the 90 Motion is in actuality a second-or-successive petition for habeas relief, the Court TRANSFERS the Motion to the United States Court of Appeals for the Fifth Circuit. The Court denies a certificate of appealability because a certificate of appealability is not required. (Fifth Circuit notified via copy of the Notice of Electronic Filing.) (Ordered by Senior Judge Terry R Means on 8/7/2018) (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
BILLY JACK CRUTSINGER,
PETITIONER,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
RESPONDENT.
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No. 4:07-CV-00703-Y
(death-penalty case)
MEMORANDUM OPINION AND ORDER TRANSFERRING 60(b) MOTION
Before the Court is Billy Jack Crutsinger’s Opposed Motion for
Relief from Judgment Pursuant to Federal Rule of Civil Procedure
60(b)(6),
filed
on
May
9,
2018.
(“Motion,”
Dkt.
No.
90).
Crutsinger moves to reopen the Court’s judgment in a proceeding
under 28 U.S.C. § 2254 in order to revisit the Court’s denial of
funding for an investigator under 18 U.S.C. § 3599(f). Because the
Motion is in actuality a second-or-successive petition for habeas
relief, the Court TRANSFERS the Motion to the United States Court
of Appeals for the Fifth Circuit.
Applicable Law
Federal Rule of Civil Procedure 60(b)(6) allows a district
court to grant relief from a final judgment, order, or proceeding
for any reason that justifies relief.
60(b)(6).
See Fed. R. Civ. P.
The purpose of Rule 60(b) is to “balance the principle
of finality of a judgment with the interest of the court in seeing
that justice is done in light of all the facts.”
Hesling v. CSX
Transp., Inc., 396 F. 3d 632, 638 (5th Cir. 2005).
To succeed
under Rule 60(b)(6), the movant must show extraordinary circumstances exist that justify the reopening of a final judgment. See
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
District courts have jurisdiction to consider Rule 60(b)
motions in 28 U.S.C. § 2254 habeas corpus proceedings so long as
the motion attacks not the substance of the court’s resolution of
the claim on the merits, but some defect in the integrity of the
habeas proceedings.
See Gonzalez, 545 U.S. at 532.
Examples of
Rule 60(b) motions that properly raise a defect in the integrity of
the habeas proceedings include a claim of fraud on the court or
challenges
to
a
procedural
ruling
that
precluded
a
merits
determination, such as failure to exhaust, procedural default, or
time bar.
Gonzalez, 545 U.S. at 532 nn. 4, 5.
The law limits the defendant to one § 2254 petition unless he
obtains certification for a successive petition from the Court of
Appeals.
See 28 U.S.C. § 2244(b); Gonzalez, 545 U.S. at 529-30.
Because of the comparative lenience of Rule 60(b), petitioners
“sometimes attempt to file what are in fact second-or-successive
habeas petitions under the guise of Rule 60(b) motions.”
In re
Edwards, 865 F.3d 197, 203 (5th Cir.), cert. denied sub nom.
Edwards v. Davis, 137 S. Ct. 909 (2017) (citing Gonzalez, 545 U.S.
at 531–32).
A Rule 60(b) motion that (1) presents a new habeas
2
claim, (2) attacks the federal court’s previous resolution of a
claim on the merits, or (3) presents new evidence or new law in
support of a claim already litigated, should be treated as a
second-or-successive habeas petition.
531-32.
See Gonzalez, 545 U.S. at
The rationale is that such motions could circumvent the
strict successive-petition requirements in § 2244(b).
See id.
Factual Background
A Texas jury convicted Billy Jack Crutsinger of capital murder
and sentenced him to death sentence for the 2003 stabbing deaths of
Pearl Magouirk, 89, and her daughter Patricia Syren, 71, in their
home.
The conviction and sentence were affirmed on appeal.
Crutsinger v. State, 206 S.W.3d 607 (Tex. Crim. App.), cert.
denied, 549 U.S. 1098 (2006).
Crutsinger’s state application for
habeas corpus relief was denied as well.
Ex parte Crutsinger, No.
WR-63,481, 2007 WL 3277524 (Tex. Crim. App. Nov. 7, 2007).
In 2008, he filed an application of habeas corpus relief under
28 U.S.C. § 2254.
Prior to filing the application, Crutsinger
requested the authorization of $7,500 to investigate an unexhausted
claim of ineffective trial counsel.
Application
for
Authorization
Investigator (Dkt. No. 13).
for
See 18 U.S.C. § 3599(f);
Funding
and
Appointment
of
Crutsinger had sought and was granted
leave to file the request ex parte and under seal.
See Dkt. No. 8.
Respondent opposed the ex parte nature of the proceedings as well
as the authorization of funds.
See Dkt. No. 11.
3
This Court has
since granted Crutsinger's motions to unseal the request and the
order denying authorization in order to facilitate his pursuit of
relief under Rule 60(b).
See Dkt. Nos. 13, 14, 89, 97.
This Court denied authorization without prejudice for two
reasons.
First, the Court held that Crutsinger did not provide
information necessary to show that the unexhausted claim was not
procedurally barred.
Second, Crutsinger did not provide informa-
tion to overcome the restriction on factual development in 28
U.S.C. § 2254(e)(2), which, with two exceptions, prohibits evidentiary development where the applicant has failed to develop the
factual basis of the claim in state court.
See Order Denying
Application for Funding and Appointment of Investigator (Dkt. No.
14).
Crutsinger moved for reconsideration, again ex parte and under
seal, in an attempt to address the Court’s concerns.
See Motion
for Reconsideration and Amplification of Application For Authorization for Funding and Appointment of Investigator (Dkt. No. 17).
The Court denied the motion to reconsider because Crutsinger did
not make allegations sufficient under then-current case law that
would allow the Court to consider the merits of the unexhausted
claim for which the funding was sought. The Court noted that there
was an abundance of case law, beginning with Coleman v. Thompson,
501 U.S. 722 (1991), establishing that the ineffectiveness of state
habeas counsel cannot justify a failure to exhaust or excuse
4
procedural default.
See Unsealed Order Denying Second Ex Parte
Application for Funding and Appointment of Investigator (Dkt. No.
18).
Three months later, Crutsinger moved for the appointment of a
mental health expert, again under seal and ex parte.
See Motion to
Permit Ex Parte Consideration of, and Seal, Authorization for
Funding & Appointment of Mental Health Expert (Dkt. No. 19).1
Respondent again opposed the ex parte nature of the request and
opposed funding (Dkt. No. 23).
Because the request was supported
by a selective disclosure of information from the trial record,
this Court allowed Crutsinger additional time to provide supplemental information helpful to the proper consideration of his
request.
See Sealed Order Granting Additional Time to Supplement
Ex Parte Application for Appointment of Mental Health Expert (Dkt.
No. 21).
Crutsinger supplemented his funding application, but the
Court ultimately denied the request because the unredacted information he provided did not support the argument that further
testing was needed.
See Sealed Supplement to Mr. Crutsinger’s
Application for Authorization for Funding and Appointment of Mental
Health
Expert
(Dkt.
No.
24);
Sealed
Order
Denying
Ex
Parte
Application for Appointment of Mental Health Expert (Dkt. No. 25).
1
Although documents related to the request for a mental health expert were
flied under seal, the Court’s discussion herein does not disclose any privileged
information.
5
Crutsinger filed his Petition several weeks later.
31.
Dkt. No.
The Court addressed Crutsinger’s claim that trial counsel was
ineffective for initiating the social-history investigation too
late, which prevented counsel from using evidence obtained by the
mitigation specialist of Crutsinger’s alcohol addiction, head
trauma, depression, and low intelligence (“claim 2").
Crutsinger
specifically alleged that trial counsel should have used such
evidence to challenge the voluntariness of his confession, to
present a settled insanity defense, and to mitigate evidence of his
antisocial personality disorder. Because Respondent did not assert
any procedural bar to the claim, and because the record was
sufficient to address this claim on the merits, the Court reviewed
the claim de novo and denied relief.
The Court also denied a free-
standing claim of actual innocence under Herrera v. Collins, 506
U.S. 390 (1993), as non-cognizable and because the claim was based
on a legal theory of insanity, rather than factual innocence.
Crutsinger v. Thaler, No. 4:07-CV-703-Y, 2012 WL 369927 (N.D. Tex.
Feb. 6, 2012).
The following month, the Supreme Court issued Martinez v.
Ryan, 566 U.S. 1 (2012), which held that a petitioner may overcome
the procedural default of a “substantial” claim of ineffective
trial counsel by showing that state habeas counsel was ineffective
in failing to raise the claim.
Crutsinger moved to vacate this
Court’s judgment under Federal Rule of Civil Procedure 59(e).
6
See
Motion to Alter Judgment Pursuant to FRCP 59(e) (Dkt. No. 52).
Crutsinger reasserted his request for investigative and expert
funds to factually develop Strickland prejudice under Martinez.
See Strickland v. Washington, 466 U.S. 668, 694 (1984). Crutsinger
argued that the Court was required to grant funding once it had
come to light that the Respondent did not assert any procedural
bar.
The Court denied this request, however, because it had
already concluded that the claim of ineffective trial counsel
raised
by
Crutsinger
had
no
merit
and
was,
therefore,
not
“substantial” as required by Martinez.
Crutsinger argued, however, that the Court had misinterpreted
his failure-to-investigate claim as a much weaker claim of failure
to present information within trial counsel’s possession.
After
carefully rereading Crutsinger’s Petition, the Court rejected this
argument, concluding that the Petition had primarily challenged the
compressed timing of trial counsel’s mitigation investigation, not
his failure to investigate.
The Court concluded that it had
addressed, to the extent they were briefed, all the arguments
raised in the Petition, and denied the motion for Rule 59(e)
relief.
See Order Denying Motion to Alter or Amend the Judgment
(Dkt. No. 56).
Crutsinger now attributes his decision to brief
claim 2 in the way he did to the lack of investigative funds.
Motion, pp. 14-15.
7
See
The Court of Appeals affirmed the denial of funding because
Martinez did not mandate pre-petition funding and did not alter the
rule that a prisoner cannot show a substantial need for funds when
the claim is procedurally barred.
See Crutsinger v. Stephens, 576
Fed. App’x 422, 431 (5th Cir. Aug. 4, 2014) (op. on reh’g).
The
Supreme Court then denied Crustinger’s petition for a writ of
certiorari presenting the question of whether the Court of Appeals
had erred in denying funding.
Crutsinger v. Stephens, 135 S. Ct.
1401 (2015).
Three years later, the Supreme Court held that, when funding
stands a credible chance of enabling a federal habeas petitioner to
overcome the obstacle of procedural default, it may be error for a
district court to refuse funding.
1080 (2018).
Ayestas v. Davis, 138 S. Ct.
In overruling the Fifth Circuit’s rule to the
contrary, the Supreme Court specifically cited the Court of Appeals
opinion in this case.
Id. at 1093.
In his present Motion before this Court, Crutsinger seeks to
reopen the habeas corpus proceeding on the ground that the failure
to provide funding was a defect in the integrity of the proceeding.
Crustinger contends that Ayestas provides extraordinary circumstances that justify reopening the proceedings, granting funding,
and allowing him to present factual allegations in support of “a
Sixth Amendment failure-to-investigate claim.”
8
Motion, pp. 22-23.
The Motion is a Successive Writ
As noted, 28 U.S.C. § 2244(b) bars this Court from asserting
jurisdiction over any second or successive petition unless and
until the Court of Appeals grants permission to file one.
United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
See
The Court
of Appeals in Key held that when “a statute removes jurisdiction
over a particular type of case from the district courts, it must by
necessity also remove from the district courts’ consideration
motions for the appointment of counsel to file the particular
claims over which the district courts lack jurisdiction.”
Id.
As
Crutsinger points out in his Motion, the services provided to
indigent habeas petitioners under 18 U.S.C. § 3599 include counsel
and funding.
Motion, p. 21.
The rationale in Key therefore
applies here:
if this Court is without jurisdiction to appoint
counsel under these circumstances, then it is without jurisdiction
to grant funding. But see In re Hearn, 376 F.3d 447, 450 n.2 (5th
Circ. 2004) (refusing to apply Key in death penalty case for
petitioner seeking to raise Atkins bar).
Crutsinger concedes his intent to present new factual allegations in support of a new “Sixth Amendment failure-to-investigate”
claim.
Crutsinger nevertheless argues that his motion is proper
under Gonzalez because he is challenging only a procedural defect
in the integrity of the proceeding that precluded the “true merits”
from being presented or adjudicated.
9
Motion, p. 20.
There was no
“procedural defect” in the habeas corpus proceeding, however.
At
the time, the Court’s rulings were correct under the then-current
case law.
See Ayestas, 138 S.Ct. at 1093 (holding that the Fifth
Circuit rule denying funding for procedurally barred claims is too
restrictive after 2013, when the Supreme Court issued Trevino v.
Thaler, 569 U.S. 413 (2013)).
Further, this Court’s rulings did
not prevent a merits review. The Court addressed his Petition on
the merits, Crutsinger’s post-judgment attempts to recast the claim
as something else notwithstanding.
Finally, any request for the authorization of funds would be
inextricably tied to the new Sixth Amendment claim Crutsinger
intends to file.
See Ayestas, 138 S. Ct. at 1094 (holding that a
natural consideration informing the exercise of discretion to grant
funds is the “likelihood that the contemplated services will help
the applicant win relief.”)
The Court’s reopening of this case to
reconsider funding in connection with the Sixth Amendment claim
would therefore circumvent the strict successive-petition requirements.
See Gonzalez, 545 U.S. at 531-32.
Transfer
The Motion is in substance a second or successive petition
under § 2244.
Before this Court may accept a second or successive
petition for filing, it must be certified by the Court of Appeals
to contain either newly discovered evidence showing a high proba-
10
bility of actual innocence or a new and retroactive rule of constitutional law.
See § 2244(b)(2); Gonzalez, 545 U.S. at 529-30.
This Court may dismiss the motion for lack of jurisdiction or
transfer it to the Court of Appeals for a determination under
§ 2244.
See 28 U.S.C. § 1631; In re Hartzog, 444 F. App’x 63, 65
(5th Cir. 2011) (citing Key, 205 F.3d at 774).
The Court finds
that it is in the interest of efficient justice to transfer the
Motion to the Court of Appeals rather than to dismiss.
Certificate of Appealability
The Court denies a certificate of appealability because a
certificate of appealability is not required. See United States v.
Fulton, 780 F.3d 683, 688 (5th Cir. 2015) (holding that COA is not
required for transfer of second § 2255 motion); e.g., In re Burton,
631 F. App’x 236 (5th Cir. Jan. 21, 2016) (citing Fulton and
interpreting request for COA as a notice of appeal in transfer of
second § 2254 habeas application).
* * * * *
The Clerk of Court is directed to TRANSFER Crutsinger’s Motion
to the United States Court of Appeals for the Fifth Circuit.
SIGNED on this the 7th day of August, 2018.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
11
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