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

Appeal from the United States District Court

for the 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 Balentine filed a Rule 60(b) motion with the 

district court on July 12, 2012, 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 Texas 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 30, 2014

Lyle W. Cayce

Clerk

 

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No. 12-70023

permits criminal defendants to raise ineffective assistance of trial counsel 

claims 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. 

The 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, we ordered letter briefs that would identify the remaining 

issues and discuss 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.3d 312, 320 (5th Cir. 2012). 

Because the district court’s denial of Balentine’s Rule 60(b) motion was 

premised 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 state court to exhaust his potentially defaulted 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 his ineffective assistance of trial counsel claim in state 

court would be futile because the Texas Court of Criminal Appeals will not 

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No. 12-70023

consider the merits of that defaulted claim. Further, the State argues that this 

court cannot grant Rule 60(b) relief because 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 court. 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.

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