IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-70025

Rolando RUIZ,

Petitioner-Appellant

v.

Nathaniel QUARTERMAN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Texas

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is a death penalty case from Bexar County, Texas. Petitioner

Rolando Ruiz appeals the federal district court’s order denying his Rule 60

motion for relief from judgment and stay of execution. Ruiz brings serious

charges of incompetent and ineffective trial counsel, but no federal court has

considered the merits of his constitutional claims, and he obtained a stay only

within minutes of his execution, granted by this court in order to gain sufficient

time to consider properly the appeal. After further briefing and oral argument,

we continue the stay of execution, reverse the judgment dismissing the federal

habeas petition and remand with instruction to the federal district court to

United States Court of Appeals

Fifth Circuit

F I L E D

October 11, 2007

Charles R. Fulbruge III

Clerk
No. 07-70025

2

decide the claim of ineffective trial counsel on its merits after any further

proceedings necessary to do so. 

I

Rolando Ruiz was convicted of murder by a Texas jury and sentenced to

death. At the state’s urging, and over his objections, the state trial court

declined to appoint different counsel on direct appeal on the promise that any

Sixth Amendment claim of ineffective counsel could be raised by state habeas

counsel. It was not. Without meeting his client or conducting any investigation,

Ruiz’s state habeas counsel filed a boilerplate application in state court that did

not challenge the failure of his trial counsel to investigate and present his

mitigating evidence. The Texas Court of Criminal Appeals (CCA) denied relief.

Ruiz turned to federal court and with a new lawyer filed a federal habeas

application raising claims of ineffective assistance by trial counsel and his state

habeas counsel. The district court denied relief due to “[t]he inexplicable failure

of petitioner’s state habeas counsel to raise any of these claims during

petitioner’s state habeas corpus proceeding.” The district court ruled that the

claim was procedurally defaulted because “the state court to which he would be

required to petition would now find the claims procedurally barred.” Although

convinced that while Ruiz’s state counsel was “wholly incompetent” and

“egregiously inept,” the district court rejected Ruiz’s contention that this inept

performance gave legal excuse for the failure to exhaust. It refused to entertain

the claim of ineffective assistance of trial counsel and refused to issue a

certificate of appealability for that claim. The federal district court judge did

issue a certificate of appealability upon a claimed error in juror selection. Then,

in denying Ruiz’s motion to alter judgment,the district court made clear that his

ruling rested on his conclusion that “Texas law precludes petitioner from

obtaining a ruling on the merits of his currently unexhausted claims . . . in a

successive state habeas corpus application.” Ruiz’s federal counsel asked the
No. 07-70025

1 Ruiz v. Dretke, No. 03-CV-303, 2005 WL 2402669, at *2 (W.D. Tex. Sept. 15, 2005).

3

federal district court to stay the federal proceeding to allow Ruiz to return to

state court to exhaust the ineffective-assistance claim, pointing to the CCA’s

then-recent abandonment of its refusalto accept a state court habeas application

so long as the petitioner had a federal habeas petition pending. In refusing to

hold the federal claim in abeyance, the federal district court observed:

[E]ven if this court were to hold this cause in abeyance so as to

permit petitioner to fairly present the state habeas court with his

unexhausted claim herein for the firsttime, such an action would be

an exercise in futility. . . . Petitioner’s reference to the recent

recision of the long-standing Texas rule which prohibited

simultaneous litigation of a claim in both state and federal habeas

corpus proceedings is non sequitur.1

Armed with the COA on the juror issue, Ruiz appealed to this court, at the same

time seeking review of the district court’s rejection of legal justification for the

failure to exhaust. We affirmed and the Supreme Court denied certiorari.

With the failure to persuade the federal courts that his lack of effective

habeas counsel excused his failure to exhaust, and with suggestions by the CCA

that a return to state court might no longer be futile, approximately ninety days

later Ruiz filed an application for state habeas relief raising his claim of

ineffective assistance at trial and in the presentation of his first state habeas

application. The CCA dismissed his application with an order on which much

now depends, as we will explain. After the CCA’s dismissal of his application,

Ruiz returned to federal district court, filing a motion under Rule 60(b) for relief

from judgment in light of the CCA’s ruling, which, Ruiz argued, rejected on the

merits his Sixth Amendment claim of ineffective trial counsel and in doing so

pulled the ground from under the federal district court’s earlier judgment

dismissing the claim and refusing to hold the federal claim in abeyance while

Ruiz returned to state court with his unexhausted claim. The district court
No. 07-70025

2

If so, then under AEDPA the district court must dismiss for lack of jurisdiction until Ruiz

obtains permission from this court to file a successive petition. 

3 Fed. R. Civ. Pro. 60(b); see Gonzalez v. Crosby, 545 U.S. 524, 529 (2005).

4 Gonzalez, 545 U.S. at 529.

5

Id. at 533.

4

defended its earlier dismissal and denied the motion, rejecting the contention

that the CCA’s decision had not rested upon an independent and adequate state

law ground. As we will explain the latter was an error of law and the former an

abuse of discretion.

II

We first address whether Ruiz’s Rule 60(b) motion is subject to the

additional restrictions that apply to “second or successive” habeas corpus

petitions under AEDPA.2 We are not persuaded that the motion was a

successive petition. 

Rule 60(b) allows a losing party to seek relief from judgment under a

limited set of circumstances including fraud, mistake, and newly discovered

evidence.3 Relief is available under Rule 60(b) in habeas proceedings, but of

course only in conformity with AEDPA, including its limits of successive federal

petitions.4It is a subsequent habeas corpus application whenever the Rule 60

motion presents a “claim” for habeas relief. The Supreme Court has provided

guidance, holding that “[i]f neither the motion itself nor the federal judgment

from which it seeks relief substantively addresses federal grounds for setting

aside the movant’s state conviction, allowing the motion to proceed as

denominated creates no inconsistency with the habeas statute or rules.”5 The

Court provided helpful examples, explaining that a Rule 60(b) motion is a habeas

claim when it presents a new claim for relief, or when it presents new evidence
No. 07-70025

6 The Court assumed that reliance on a new factual predicate would escape section 2244(b)(1)’s

prohibition of claims “presented in a prior application,” and rested instead on section 2244(b)(2)(B)’s

requirement of a more convincing factual showing than Rule 60(b). Id. at 531. 

7

Id. at 532 n.4; see also Dunn v. Cockrell, 302 F.3d 491, 492 & n. 1 (5th Cir. 2002).

8 The state of Texas also urges that Ruiz’s claim is time barred because he filed his successive

federal writ three years too late. Because we hold that Ruiz’s motion under Rule 60(b) should not be

treated as a successive writ, we reject this argument.

5

in support of a claim already litigated,6or when it asserts a change in the

substantive law governing the claim, or when it attacks the federal court’s

previous resolution of a claim on the merits. Significantly, the Court then

explained that there is no new habeas claim “when [a petitioner] merely asserts

that a previous ruling which precluded a merits determination was in error – for

example, a denial for such reasons as failure to exhaust, procedural default, or

statute-of-limitations bar.”7

Such is the case here. The federal district court’s previous denial of Ruiz’s

claim was not “on the merits.” That is, the district court did not rule that there

were no grounds entitling Ruiz to habeas corpus relief under 28 U.S.C. §§ 2254(a)

and (d), but rather denied relief based on procedural default and failure to

exhaust, two rulings specifically identified by the Court as rulings precluding a

merits determination. So the district court had jurisdiction to consider Ruiz’s

Rule 60(b) motion, free of the jurisdictional constraints of AEDPA upon

successive petitions. In short, Ruiz is pursuing his first federal petition with its

claim that his trial counsel was ineffective in failing to investigate and otherwise

develop a mitigation case,8 a “Wiggins” claim.

III

The federal court below would have had no federal claim before it if, as the

district court concluded,the CCA applied an independent and adequate state law
No. 07-70025

9 Coleman v. Thompson, 501 U.S. 722 (1991).

10 Michigan v. Long, 463 U.S. 1032, 1040–41 (1983); see also Coleman v. Thompson, 501 U.S.

722 (1991) (applying the presumption in the context of habeas).

6

ground to deny relief.9 Moreover the petition would then have been successive

and Rule 60 would not allow Ruiz to escape the successive writ limits of AEDPA.

In deciding whether the CCA refused relief upon an independent state-law

ground or upon the merits of Ruiz’s petition we are aided by the bright light of

Michigan v. Long: 

when . . . a state court decision fairly appears to rest primarily on

federal law, or to be interwoven with federal law, and when the

adequacy and independence of any possible state law ground is not

clear from the face of the opinion, we will accept as the most

reasonable explanation thatthe state court decided the case the way

it did because it believed that federal law required it to do so.10

This settled principle gives to state courts control over the federal review of their

opinions. It has become a rote rule at the fingertips of every writing member of

state courts of last resort – where studied ambiguity or clarity in the decisional

footing is an art form and an absence of clarity in an opinion is seldom

inadvertent. Calibrated uncertainty can play a mediating role in garnering

support for an outcome. To the point, that the CCA did not make clear that its

decision rested on an independent state ground opens the merits of Ruiz’s

Wiggins claim to federal review. At best, the CCA did not make clear whether it

relied on state or federal law in dismissing Ruiz’s application. As the CCA is

keenly aware, its choice of language was made against a background legal

standard – which directs the CCA in either granting an application for

consideration of subsequent claims or dismissing that application as an abuse of

the writ – that is interwoven with federal law. 

TheTexas Code of CriminalProcedure, as interpreted by the CCA, provides

for subsequent applications where (1)the factual or legal basis for the subsequent
No. 07-70025

11 Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007); see also Tex. Code Crim.

Proc. Art. 11.071, 5(a).

12 Texas Const., Art. 5 §4(b) (“When convened en banc, five Judges shall constitute a quorum

and the concurrence of five Judges shall be necessary for a decision.”).

7

claim was previously unavailable and (2) where the facts alleged would constitute

a federal constitutional violation that would likely require relief from either the

conviction or sentence.11 The boilerplate dismissal by the CCA of an application

for abuse of the writ is itself uncertain on this point, being unclear whether the

CCA decision was based on the first element, a state-law question, or on the

second element, a question of federal constitutional law. 

In any event the decisional basis here is uncertain. Although only seven

members of the court participated, joinder of five judges remained necessary for

a decision.12 So even assuming that the four-Judge plurality rejected Ruiz’s

application as an abuse of the writ based on the first element, there is still no

fifth vote for an independent state-law ground. Judge Womack provided the fifth

vote for dismissal, filing a concurring opinion in order to reserve the question of

whether Ruiz’s procedural default should be excused by the unreasonable failure

of state habeas counsel. His concurring opinion explicitly rests on the conclusion

that Ruiz did not allege a meritorious Sixth Amendment claim. He saw the claim

of ineffective trial counsel to be a failure of presentation, not a failure to

investigate, the latter according trial counsel far less deference than that given

to tactical decisions of presentation. Even if it were clear, the four-Judge

plurality was not controlling.

Setting aside the intricacies of the CCA’s voting requirements, both the

concurring and dissenting opinions, by their unanswered language, strongly

suggest that the CCA debated and reached the federal merits question, not the

independent state law ground. The two dissenters thought Ruiz was presenting

a Wiggins claim (failure to investigate), chiding the plurality of four for failing to
No. 07-70025

13 28 U.S.C. § 2254(b)(1)(B).

8

understand that Ruiz presented this breed of ineffective-assistance claim, more

easily sustained than a claim of poor choices in presenting mitigating evidence.

The district court concluded that Judge Womack’s concurring opinion is

“utterly non sequitur” unless the plurality is read to rest on state-law grounds.

We are not persuaded. The concurring opinion can also be read as relaying the

decision path of the court, so as to preserve for another day the question whether

the obvious deficiencies in the performance of state habeas counsel excused a

failure to present the claims of ineffective trial counsel in a first state petition.

Preserving this issue makes sense only if the CCA had rejected the claim of

ineffective trial counsel on its merits rather than because it was not presented in

Ruiz’s first state habeas petition. In sum, the three opinions from the seven

judges together do not clearly rest on an independent and adequate state ground.

Even if the order of the four-Judge plurality alone left the decisional footing

certain, and it did not, Judge Womack’s opinion, necessary to the court’s

judgment, pushes the court toward a clear merit ruling, and in any event

deprives the plurality of a fifth vote on an independent and adequate state

ground. This leaves the decisional path far short of the clarity insisted upon by

Michigan v. Long, to which the district court paid no mind and of which the CCA

is acutely aware. Ruiz’s Wiggins claim was properly before the federal district

court.

IV

The district court also concluded, in a final paragraph, that the balance of

equities tips away from the defendant. We do not agree. 

Ruiz’s federal habeas petition claimed that he should be excused under

AEDPA13 for failure to exhaust and that he satisfied the “cause” exception to

procedural default. He explained that Texas affirmatively interfered with his
No. 07-70025

14 See Witherspoon v. Illinois, 391 U.S. 510, 517–18 (1968).

15 211 S.W.3d 767 (Tex. Crim. App. 2007).

9

efforts to obtain new counsel for direct appeal and obstructed his efforts to

prosecute his ineffective-assistance claims by appointing incompetent state

habeas counsel. On August 29, 2005, the federal district court rejected these

arguments, denying Ruiz’s ineffective-assistance claim as unexhausted and

procedurally defaulted, while granting COA on a “Witherspoon” point.14

As we have recounted, Ruiz pressed his contention that the district court

erred in failing to find legal excuse for his failure to exhaust the claim of

ineffective trial counsel, appealing the denial of COA to this court and then

seeking certiorari. The Supreme Court denied certiorari on March 19, 2007.

Approximately ninety days after certiorari was denied, Ruiz returned to state

court with his ineffective assistance claims. The CCA dismissed the application

on July 6, 2007, with the order we have discussed, and Ruiz asked the federal

district court to reconsider its earlier order dismissing for failure to exhaust.

After rejecting the contention that the CCA had rejected his constitutional

claims on their merits, which meant that Rule 60 offered no relief, the district

court chided Ruiz for a perceived lack of due diligence in not immediately

presenting his unexhausted ineffective-assistance claims to the state court when

it earlier dismissed them. Pointing to his perceived lack of due diligence, the

district court insisted that Ruiz should have returned to state court despite its

judgment that state-court litigation would have been futile given the CCA’s

summary dismissal as abuse of the writ.

While the district court’s conclusion of futility was sound when made, it has

been undermined by recent decisions by the CCA. In January 2007, the CCA

decided Ex parte Hood, indicating for the first time that there are judiciallycreated exceptions to section five.15 Before this decision, neither Ruiz nor the
No. 07-70025

16 226 S.W.3d 418 (Tex. Crim. App. 2007).

17 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that a district court has

discretion to stay a mixed petition to allow a habeas petitioner to present his unexhausted claims to the

state court in the first instance, then return to federal court. The Court explained that “stay and

abeyance should be available only in limited circumstances” because “granting a stay effectively excuses

a petitioner’s failure to present his claims first to the state courts.” Id. at 277. The Court then

explained that “stay and abeyance is only appropriate when the district court determines there was

good cause for the petitioner’s failure to exhaust his claims first in state court” and where his

unexhausted claims are not “plainly meritless.” Id. Here the district court determined that Ruiz had

both a compelling claim and a good excuse for his failure to exhaust. The court did not find a “good

excuse” in the technical sense, of course, and this cannot be how the phrase was intended by the

Supreme Court, for with such “good cause” a district court could simply excuse the failure to exhaust

on the spot. The Supreme Court rather intended the district court find “good cause” in the equitable

sense. And here the district court was plainly moved by Ruiz’s excuse, castigating Ruiz’s attorneys and

Texas’s state habeas system for their failures. 

10

district court had reason to believe that the CCA would create an equitable

exception to the successor bar. On April 25, 2007, the CCA decided Ex parte

Campbell, which, as we explained above, held that the Texas procedural bar

based on factual unavailability incorporates a question of federal constitutional

law.16 Before this decision, neither Ruiz nor the district court had any basis to

view the state successor provision as anything but an independent and adequate

state ground. Ruiz’s attorney explains, persuasively, that without these recent

decisions he would not have donated his time to this case. 

Ironically it was Ruiz who brought the modification of Texas’s two-forum

rule to the attention of the district court and asked that it hold the federal case

to allow him to exhaust.17 As we explained, the district court refused to hold the

case, observing that a return to state court would be futile. Rather, it granted

COA on another point of law. 

We cannot agree that Ruiz was dilatory in pursuing the appeal of the

district court’s rejection of his proffered excuses for default under federal law as

well as the Witherspoon claim for which the district court had granted COA. Ruiz

chose the only avenue available to him, as the district court correctly observed,

and litigated in federal court his obligation to exhaust. The district court also
No. 07-70025

18 Gomez v. United States Dist. Court, 503 U.S. 653, 654 (1992) (per curiam); Harris v. Johnson,

376 F.3d 414 (5th Cir. 2004) (per curiam).

19 See Harris, 376 F.3d at 419 (“Having chosen instead to litigate this issue in the final days

before the state carries out his execution, his suit can serve no purpose but to further delay justice that

is already eighteen years in the making.”).

11

correctly observed that Texas modified its two-forum rule that forbade filing for

relief while federal relief was also being sought, however Ruiz was nonetheless

left to pursue a mixed petition or to abandon the constitutional claim on which

the district court had granted COA. Texas only opened its courts to petitioners

with pending federal claims when those claims had been stayed by the federal

courts. The district court, focused on the futility of Ruiz state litigation, refused

the required stay, closing the door thatit now concludes Ruiz should have walked

through. In practical terms the district court’s view of due diligence insisted that

Ruiz should have abandoned his federal challenge to a duty to exhaust the claim

of ineffective trial counsel. We do not understand due diligence to require a

litigant, while diligently pursuing a final federal ruling that he was excused from

exhausting his claim, to nevertheless exhaust the claim in state court –

emphatically so when he was unable to obtain the requisite stay of federal

proceedings and therefore would have had to abandon his effort to claim that his

failure to exhaust should be excused, all a futile act.

A court may consider the last-minute nature of an application to stay

execution in deciding whether to grant equitable relief,18 but we do not see this

as a last-minute attempt to manipulate the judicial process. The district court,

overlooking its closure of the door to state court by refusing a stay, failed to

consider that Ruiz’s return to state court followed on the heels of the earliest

suggestion that doing so would not be futile. Unlike Harris, Ruiz’s petition does

not come to us after sitting on his rights for eighteen years.19 The state of Texas

interfered with Ruiz’s rights until March 30, 2003, when his state habeas counsel

was finally terminated and replaced with counsel from Texas Defenders. These
No. 07-70025

20 Ruiz v. Dretke, No. 03-CV-303, 2005 WL 2620193, at *2 (W.D. Tex. Oct. 13, 2005).

21 Ruiz v. Dretke, No. 03-CV-303, 2005 WL 2146119, at *16 (W.D. Tex. Aug. 29, 2005).

22 Ruiz, 2005 WL 2620193, at *2. 

12

lawyers diligently pursued Ruiz’s claims in federal court until certiorari was

denied three months before Ruiz’s execution date. The state of Texas interfered

with Ruiz’s constitutional rights at every critical turn in this litigation,

appointing ineffective trial counsel who failed to investigate his past; reappointing the same on direct appeal, despite Ruiz’s pleas for a new lawyer; and

finally providing Ruiz with incompetent state habeas counsel, who presented the

CCA with “a set of boilerplate, frivolous claims.”20Indeed the federal district

court said it best, characterizing Ruiz’s underlying ineffective-assistance claim

as “significant, potentially meritorious”21 and calling his state habeas counsel

“appallingly inept” and “egregiously deficient.”22 We are given no rational reason

to conclude that the equities run against Ruiz, despite the “fundamental

unfairness” of his habeas proceedings, or why the district court now faults the

lawyers who first exposed the work of previous counsel as being dilatory.

Whatever be the explanation, in this difficult area of the law of capital

punishment, we are met with the inescapable conclusion that the district court’s

balancing of equities was infected by its first holdings – that the claims of

ineffective assistance oftrial counsel were again not before it and thatit had been

correct in holding that the state court would not decide the case on a return to it.

And of course if this first conclusion of the district court were sound then it

lacked jurisdiction over the resulting “successive writ.”

Texas argues that in balancing the equities we are bound to ignore the

performance of Ruiz’s state-habeas lawyer. As Texas notes, it is well settled that

“ineffective state habeas counsel does not excuse failure to raise claims in state
No. 07-70025

23 Ruiz v. Quarterman, 460 F.3d 638, 644 (5th Cir. 2006).

24 See Engle v. Isaac, 456 U.S. 107, 130 (1982).

25 Coleman, 501 U.S. at 752.

13

habeas proceedings.”23 From this rule, Texas induces that “Ruiz cannot now

claim that state habeas counsel’s conduct somehow excuses his failure to

diligently pursue relief in state courts, when that same conduct has been found

not to constitute cause for Ruiz’s failure to exhaust the claims to the state courts

first.” Texas also argues that in balancing the equities we are bound to ignore

the earlier futility of state court litigation. As Texas notes, it is well settled that

futility does not excuse a litigant’s failure to assert a claim in state court unless

the very basis of that claim was unavailable.24

Both these arguments are axiomatic, but answer the wrong question. We

are not dealing with the equities of considering an unexhausted claim. Rather,

we examine the equities of re-considering a dismissal of a claim now freed of the

baggage threatening the jurisdiction of the court. The unforgiving cases cited by

Texas interpret the “cause and prejudice” exception to procedural default under

AEDPA and do not apply here. Significantly, AEDPA’s “cause” exception reads

against fundamental principles of comity and federalism. The Supreme Court

has explained that even poor lawyering cannot excuse a litigant’s failure to

exhaust, because “the costs associated with an ignorant or inadvertent procedural

default are no less than where the failure to raise a claim is a deliberate strategy:

It deprives the state courts of the opportunity to review trial errors.”25 There is

no such deprivation here. Texas has now had the opportunity to review the claim

and did so on its merits. Understandably Texas cannot demonstrate why

principles of comity and federalism codified in AEDPA should inform this federal

court’s balancing of the equities in deciding whether to re-open its federal

judgment under federal rule 60(b). With respect to Ruiz’s claims of futility, our
No. 07-70025

26 Fackelman v. Bell, 564 F.2d 734, 735 (5th Cir. 1977).

27 Warfield v. Byron, 436 F.3d 551, 555 (5th Cir. 2006).

28 Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981); see also Harrell v. DCS

Equip. Leasing Corp., 951 F.2d 1453, 1459 (5th Cir. 1992); Greater Baton Rouge Golf Ass’n v. Recreation

and Park Comm’n, 507 F.2d 227, 228-29 (5th Cir. 1975) (per curiam). Cf. Warfield, 436 F.3d at 557

(“For these reasons, and because the district court's denial of Littlewood's Rule 60(b) motion did not

preclude examination of the merits of the case, the court did not abuse its discretion.”).

29 Seven Elves, 635 F.2d at 403.

30 See TNB Fin. v. Parker Interests, 243 F.3d 228 (5th Cir. 2001).

14

balancing of equities here is not a question whether futility excuses nonexhaustion, it’s a question of whether futility informs our evaluation of attorney

diligence. Ruiz does not argue that futility excuses non-exhaustion under

AEDPA, for he has now exhausted. He is explaining only that he was not

dilatory, sitting on his rights in order to weasel a last minute stay of execution;

that he diligently returned to state court when that court first opened its door.

In balancing the equities, we must pay careful attention to our standard of

review, which is for abuse of discretion only. The “main application” of Rule 60(b)

“is to those cases in which the true merits of a case might never be considered.”26

Thus, although we rarely reverse a district court’s exercise of discretion to deny

a Rule 60(b) motion,27 we have reversed “where denial of relief precludes

examination of the full merits of the cause,” explaining that in such instances

“even a slight abuse may justify reversal.”28 This lesser standard of review has

been applied most liberally to motions to re-open default judgments,29 but has

also been extended where a judgment on the merits was pretermitted by strict

time limits in a bankruptcy court’s local rules.30 And as we have explained, no

federal court has considered the merits of Ruiz’s constitutional claims. We say

only that a procedural hurdle was erroneously placed in Ruiz’s path, that courts

universally favor judgment on the merits, and that the underlying case here is
No. 07-70025

15

sufficiently “significant[and] potentially meritorious”thatit should not be cut off

at its knees. Equity would not deny Ruiz a hearing on the merits. 

The stay of execution is CONTINUED. The district court’s order denying

Ruiz’s Rule 60(b) motion is REVERSED and the case is REMANDED for

consideration of ineffective assistance of counsel on the merits.
No. 07-70025

16

BENAVIDES, Circuit Judge, dissenting:

Rolando Ruiz’s state habeas counsel was found to be “wholly incompetent”

and “egregiously inept,” and I do not doubt that he was. Whether ineffective

habeas counsel excuses Ruiz’s failure to exhaust his ineffective trial counsel claim

before Texas’s courts, so as to prevent the claim from being procedurally barred

here, is a difficult question. It was a difficult question when the district court

answered it in the negative in 2005, when this panel affirmed the district court’s

judgment in 2006, and when it was presented to the Texas Court of Criminal

Appeals (“TCCA”) eight days before Ruiz’s scheduled execution this year. 

But nothing has changed since the district court rendered its opinion that

warrants the extraordinary measure of setting it aside. At the very least, not

enough has changed to make the district court’s refusal to set it aside an abuse

of discretion. The majority believes that the TCCA’s ambiguous one-page per

curiam order, which it had all of four days to render given the impending

execution, compels Rule 60(b) relief. I disagree. I also believe the fact that Ruiz’s

first presentation of this claim to the Texas courts came just eight days before his

scheduled execution supports the district court’s finding that he was not diligent.

I respectfully dissent. 

I. DISCUSSION

A. Rule 60(b) and the TCCA’s Opinion
No. 07-70025

17

Rule 60(b) provides six grounds for relief from a prior judgment. While

Ruiz does not specify which ground he is proceeding on, the only relevant ground

is the catchall provision allowing for relief from a judgment based on “any other

reason justifying relief from the operation of the judgment.” FED. R. CIV. P.

60(b)(6). Such relief is granted rarely and only under extraordinary

circumstances. Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 745 (5th Cir. 1995).

There is no dispute that the district court’s firstjudgment denying relief on

procedural default grounds was correct when it was issued in 2005. Ruiz’s

counsel at oral argument agreed that it was a reasonable decision, and this court

has already affirmed it. But Ruiz points to the TCCA’s most recent order denying

relief in this case as an intervening factor that now renders that judgment

inequitable. His argument is that the latest TCCA opinion was ambiguous,

which compels the district court to treat it as merits based under the directives

of Long and Coleman, therefore requiring the district court to entertain the

merits of the habeas petition. Michigan v. Long, 463 U.S. 1032 (1983); Coleman

v. Thompson, 501 U.S. 722 (1991).

While the majority finds that argument convincing, I do not believe that

Long and Coleman apply to this case. I agree with the majority that the TCCA’s

“decisional basis here is uncertain,” and if we were reviewing that decision we

would be required to treat it as merits based and, accordingly, reach the merits
No. 07-70025

18

ourselves. But that is not the posture this case comes to us in. Ruiz has already

received federal habeas review, and now brings this as a Rule 60(b) motion for

relief from the earlier judgment. 

The question on a Rule 60(b) motion for relief is much different than in the

Coleman context. A Coleman petitioner typically brings his habeas claims to the

state courts first. If relief is denied, then the district court may entertain a

federal habeas claim unless the state court’s judgment was based on adequate

and independent state grounds. Coleman, 501 U.S. at 730–32. The Coleman

presumption comes into play when evaluating whether the state court’s previous

opinion was based on independent state grounds; it instructs courts to treat any

ambiguous state decisional basis as a ruling on the merits, thereby permitting

federal review. Id. at 734–35.

Here, Ruiz first brought his unexhausted ineffective assistance claim to

federal court. Because there was no state court judgment to interpret through

the Coleman presumption, the district court had to answer a hypothetical

question: “Would the state court to which the prisoner would have to present his

claims in order to exhaust them find the claims procedurally barred?” Kittleson

v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005). The district court answered yes, and

we agreed.

The relevant question on this Rule 60(b) motion is not whether the TCCA’s

subsequent opinion was unequivocally based on independent state-law grounds,
No. 07-70025

1

It follows that the district court was correct when it, as the majority chastises, “paid

no mind” to the clarity demanded by Long and Coleman. It rightly focused on whether its

earlier dismissal“on federal procedural default principles was erroneous” in fact, insofar as an

erroneous ruling could constitute extraordinary circumstances warranting relief under Rule

60(b). 

19

as it is in the Coleman context and under the majority’s treatment. The question

is whether the TCCA’s one-page opinion creates the “extraordinary

circumstances” required to set aside the district court’s otherwise unassailable

judgment.1 See Batts, 66 F.3d at 745. This is an extremely difficult standard to

meet. For example, it is clear that even “a change in state decisional law,

rendered after this court makes an Erie prediction, will not normally constitute

an extraordinary circumstance, and cannot alone be grounds for relief from a

final judgment pursuant to Rule 60(b)(6).” Id. at 748.

Even if a definitive change in law did constitute grounds for relief, Ruiz

cannot make that showing. He never demonstrates a change in Texas law that

clearly undermines the validity of the district court’s judgment. Perhaps the

TCCA’s opinions in Ex Parte Hood and Ex Parte Campbell show that Ruiz’s

argument was not entirely futile before the state courts—as he assumed it to

be—but that hardly merits setting aside the district court’s prior judgment when

it still appears to be correct, or at least reasonable. Ex Parte Hood, 211 S.W.3d

767 (Tex. Crim. App. 2007); Ex Parte Campbell, 2007 WL 1217769 (Tex. Crim.

App. 2007). 
No. 07-70025

2 Given the extraordinarily short timeframe which the TCCA had to handle this Rule

60(b) motion, it is not surprising that two of the nine judges could not participate, albeit for

unspecified reasons. I disagree with the majority’s search for a “fifth vote” for the same reason

I disagree with its entire approach to the independent and adequate state ground argument.

In the Rule 60(b) context, it is not incumbent upon Texas to prove that the district court’s prior

judgment was correct by showing a subsequent Texas decision agreeing with it. It is Ruiz who

must show thatthe judgment was incorrect or otherwise inequitable. Moreover, I question the

wisdom of adopting an approach that, as a practical matter, encourages last-minute

applications in the hopes of getting non-participating judges, thereby decreasing the chances

of any definitive finding on state-law grounds. 

20

Ruiz focuses on an unclear one-page opinion that was rendered after only

four days of consideration due to Ruiz’s fast-approaching execution.2In my view,

that does not cast sufficient doubt on the district court’s judgmentto warrantthis

exceptional relief, much less to find that the district court abused its discretion

by not granting relief. While ambiguity in the TCCA’s judgment compels

reaching the merits in the Coleman context, ambiguity in this context, where it

is incumbent on Ruiz to show exceptional circumstances warranting relief, cuts

the other way. Ruiz brought his unexhausted claim to the district court,

forcing it to make an Erie guess on the procedural default issue. It decided

against him. Since then, nothing has occurred to demonstrate that the court’s

Erie guess was actually wrong. An ambiguous TCCA opinion under extreme time

constraints is not the type of extraordinary circumstance compelling Rule 60(b)

relief.

B. Diligence and Balancing the Equities
No. 07-70025

21

Rule 60(b)(6) “is a grand reservoir of equitable power,” allowing for

consideration of all factors that speak to equity. Harrell v. DCS Equip. Leasing

Corp., 951 F.2d 1453, 1458 (5th Cir. 1992). This leaves the district court with

extensive discretion to weigh equitable considerations, and I cannot agree with

my colleagues that it abused its discretion when it found Ruiz was not diligent

enough in pursuing his unexhausted claim before Texas’s courts to warrant relief.

Ruiz knew he had an unexhausted ineffective assistance claim in February,

2004, when he proceeded to federal court. He should have exhausted his claim

in the Texas courts in a second state habeas petition. If his petition was denied

as an abuse of the writ, he then could have pressed his argument before the

federal courts that he had a valid legal excuse for not raising his ineffective

assistance claim in his first state petition. Notably, AEDPA’s statute of

limitations would have been tolled during any second state habeas proceeding.

Villegas v. Johnson, 184 F.3d 467, 468 (5th Cir. 1999). The only explanation

Ruiz offers for not taking this approach is that it was futile to press the

ineffective assistance claim in a second habeas petition because it would have

been dismissed as an abuse of the writ. However, this argument is at least

slightly at odds with his first one. See supra Part I.A. Ruiz’s explanation for not

exhausting his claim in a second state petition is that it would have been futile,
No. 07-70025

22

which makes it exceptionally odd, perhaps inequitable,to now hear him complain

that the district court was wrong to reject a claim that he considered frivolous.

He does point to some intervening state caselaw to explain this anomaly, but

none of it seems significant enough to take his claim from being completely

frivolous to being correct.

That Ruiz waited more than three months after certiorari was denied in his

federal case to file his second state petition also works against him. While three

and a half months is not normally an unreasonable amount of time for such a

filing, Ruiz had already gone through several proceedings regarding this exact

ineffective assistance claim. Waiting until eight days before his scheduled

execution is somewhat concerning, especially when he now seeks to benefit from

the resulting imprecision in the TCCA’s rushed order.

I do not think it is easy to balance all of the equities in this case. I might

disagree with how the district court balanced them, but I do not think it stepped

outside the bounds of its discretion here when it found that Ruiz was not diligent

and that the equities did not compel relief from judgment. 

II. CONCLUSION

I would affirm the district court’s order denying Ruiz’s Rule 60(b) motion

and deny any further stay of his execution.