### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No

. 12

- 70023

JOHN LEZELL BALENTINE,
Petitioner

- Appellant
v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent

- Appellee

App eal from the United States District Cou rt f

or t he Northern District of Texas USDC No. 2:03

- CV

- 39

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before STEWART, Chief Judge, OWEN, and SOUTHWICK, Circuit Judges

. PER CURIAM: * Petitioner John Lezell Bale ntine filed a Rule 60(b) motion with the district court on July 12, 2 012, arguing that the Supreme Court’s holding in Martinez v. Ryan , 132 S. Ct. 1309 (2012) , entitled him to relief. The district
court denied the motion , relying on our precedent that Martinez was not relevant to a habeas petitioner convicted under Texas law because T exas

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 30, 2014

Lyle W. Cayce Clerk Case: 12-70023 Document: 00512517603 Page: 1 Date Filed: 01/30/2014No. 12

- 70023 permits criminal defendant s to raise ineffective assistance of trial counsel claim s on direct appeal. See Ibarra v. Thaler , 687 F.3d 222 (5th Cir. 2012), overruled by Trevino v. Thaler , 133 S. Ct. 1911 (2013). On appeal, we affirmed

. T he Supreme Court overruled this circuit’s interpretation that Martinez was inapplicable to claims that counsel had been ineffective in Texas state habeas proceedings

. See Trevino v. Thaler , 133 S. Ct. 1911 (2013) . Balentine’s petition for a writ of certiorari was granted, our judgment was vacated, and the cause was remanded for further proceedings. On remand, w e ordered letter brief s that would identify the remaining issues and discu ss whether the case should be returned to the district court. We specifically requested each party to discuss a case which had held, prior to Trevino , that Martinez was not a ruling that would justify relief under Rule 60(b). See Adams v. Thaler , 679 F.3 d 312, 320 (5th Cir. 2012). Because the district court’s denial of Balentine’s Rule 60(b) motion was pre mised on the now - overruled decision in Ibarra , we must decide the most efficacious procedure for determining whether, and if so how, Martinez applies to Balentine’s claims

. Balentine argues that the Texas Court of Criminal Appeals has expressed a willingness to consider defaulted ineffective assistance of trial counsel claims after Trevino . He asks that we stay his appeal and allow him
to return to sta te court to exhaust his potentially d efaulted constitutional claim , or in the alternative to remand the case to the district court for further development of the remaining fact

- bound issues

. Further, he asserts that Adams does not prohibit this court from granting relief because its holding was closely tied to the facts in that case, facts which he distinguishes. The State argues that , regardless of Trevino , any further attempt by Balentine to pursue h is ineffective assistance of trial counsel claim in state
court would be futile because the Texas Court of C riminal A ppeals will not 2 Case: 12-70023 Document: 00512517603 Page: 2 Date Filed: 01/30/2014No. 12

- 70023 consider the merits of that defaulted claim. Further, the State argues that this court cannot grant Rule 60(b) relie f becaus e Adams remains applicable, and, as that court held, there are no extraordinary circumstances warranting Rule 60(b) relief in this case

. An appellate court’s role does not usually resolve legal issues that have not previously been presented to a trial cour t. Due to the questions raised regarding whether it is likely futile to allow the Texas Court of Criminal Appeals to consider Balentine’s current claims in light if Martinez and Trevino , and because the relevance of Adams may depend on whether Balentine returns to state court, we REMAND in order that the district court may conduct further proceedings consistent with the Supreme Court’s ruling in Trevino . We DENY Balentine ’s motion that we stay the proceedings now and allow him to return to state court in order to exhaust his claim

. REMANDED.

3 Case: 12-70023 Document: 00512517603 Page: 3 Date Filed: 01/30/2014