IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-70006

ROBERT LYNN PRUETT, 

 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 Southern District of Texas

USDC No. 2:06-CV-465

Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

Robert Pruett was sentenced to death for capital murder in Texas and is 

scheduled to be executed on April 28, 2015. The district court granted a 

Certificate of Appealability (COA) authorizing Pruett to appeal the denial of 

his motion for relief under Federal Rule of Civil Procedure 60(b)(6). For the 

* 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

April 10, 2015

Lyle W. Cayce

Clerk

 

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reasons that follow, we hold that the district court did not abuse its discretion 

and AFFIRM its denial of Rule 60(b) relief.

I.

In 2002, Pruett was sentenced to death for the murder of Texas 

Department of Criminal Justice Correctional Officer Daniel Nagle, which he 

committed while serving a life sentence for a prior murder. The Texas Court 

of Criminal Appeals (TCCA) affirmed his conviction and sentence on direct 

appeal. Pruett v. State, No. 74,370, 2004 WL 3093232 (Tex. Crim. App. 2004). 

Pruett did not file a petition for a writ of certiorari.

On May 30, 2002, Richard Rogers was appointed to represent Pruett in 

state habeas proceedings. In his state habeas application, Pruett claimed that 

his trial counsel rendered ineffective assistance by failing to investigate and 

present mitigating evidence to the jury. The state habeas trial court held an 

evidentiary hearing and recommended that Pruett’s conviction be set aside 

with respect to two claims, but recommended denial of all of his other claims. 

The state habeas trial court rejected Pruett’s ineffective assistance of trial 

counsel (IATC) claim on the ground that Pruett did not specify what mitigating 

evidence his trial counsel should have presented. The TCCA adopted the trial 

court’s findings and conclusions, with the exception of those in which the trial 

court recommended granting relief. Ex parte Pruett, 207 S.W.3d 767 (Tex. 

Crim. App. Oct. 19, 2005).

Although Pruett requested new counsel in federal court, the district 

court appointed Rogers, who had represented Pruett in the state habeas 

proceedings, to represent Pruett in federal court. Rogers filed a federal habeas 

petition on behalf of Pruett, raising an IATC claim identical to the one he 

presented in the state habeas proceedings. The district court denied relief on 

the ground that Pruett had failed to identify any specific mitigating evidence 

that should have been presented or would have been discovered had trial 

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counsel performed the mitigation investigation Pruett asserted they should 

have performed. The district court denied relief but granted a COA on two 

issues. Pruett v. Thaler, No. C-06-CA-465-H (S.D. Tex., Aug. 12, 2010). This 

Court affirmed the district court’s denial of relief and denied Pruett’s request 

to expand the grant of a COA. Pruett v. Thaler, 455 F. App’x 478, 487, 490-91

(5th Cir. 2011), cert. denied, 133 S. Ct. 141 (2012).

In 2012, the Supreme Court held in Martinez v. Ryan, 132 S. Ct. 1309 

(2012), that ineffective assistance of state habeas counsel can constitute cause 

to excuse the procedural default of an ineffective-assistance-of-trial-counsel 

claim. Our Court held in Ibarra v. Thaler, 691 F.3d 677 (5th Cir. 2012), that

Martinez does not apply in Texas cases. On May 28, 2013, the Supreme Court

disagreed with our ruling in Ibarra and held that Martinez does apply in Texas 

cases. Trevino v. Thaler, 133 S. Ct. 1911 (2013).

On March 28, 2013, Pruett’s current counsel filed a motion to substitute 

as counsel in place of Rogers. The district court granted the motion that same 

day. Throughout April and May 2013, Pruett’s new counsel performed an 

investigation and obtained affidavits in support of an amended IATC claim 

based on trial counsel’s failure to investigate and present mitigating evidence 

at the punishment phase of his capital murder trial. Pruett’s execution was 

scheduled for May 2013, but that execution date was withdrawn to allow DNA 

testing pursuant to an agreed motion filed by the State and Pruett. At the 

conclusion of the DNA testing, the trial court found that it was “not reasonably 

probable that [Pruett] would have been acquitted had the new results been 

available at trial.” Pruett v. Texas, No. AP-77,037 (Tex. Crim. App. Oct. 22, 

2014) (unpublished order). The TCCA affirmed. Id. The Supreme Court 

denied Pruett’s petition for a writ of certiorari on March 30, 2015. Pruett v. 

Texas, No. 14-8097, 2015 WL 302598 (U.S. Mar. 30, 2015).

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On July 8, 2014, while the DNA proceedings were pending in state court, 

Pruett’s counsel filed a subsequent state habeas application claiming that trial 

counsel were ineffective for failing to adequately investigate and present 

mitigating evidence. That application remained pending in the state court 

until December 10, 2014, when the TCCA dismissed it as an abuse of the writ. 

Ex parte Pruett, No. 62,099-02 (Tex. Crim. App. Dec. 10, 2014). Pruett’s 

petition for a writ of certiorari is pending in the Supreme Court. Pruett v. 

Texas, No. 14-8837 (2015). Pruett also filed in the TCCA a motion for leave to 

file a petition for a writ of prohibition. That motion remains pending.

On January 6, 2015, more than four years after the entry of judgment

denying federal habeas relief, Pruett filed in the district court the motion for 

relief from the judgment under Federal Rule of Civil Procedure 60(b)(6) that is 

now on appeal before this Court. In the Rule 60(b)(6) motion, he sought to 

present the IATC claim that he had presented in his subsequent state habeas 

application. Pruett alleged that his previous attorney, Richard Rogers, failed 

to properly present the IATC claim in his federal habeas petition because of a

conflict of interest stemming from Rogers’s representation of Pruett in both the 

state and federal habeas proceedings. Pruett argued that if he had been 

represented in federal court by someone other than Rogers, that attorney could 

have argued that Rogers rendered ineffective assistance in the state habeas

proceedings, which would have excused the default of any new evidence that 

was not presented to the state court in support of his IATC claim. Pruett 

argued that the failure to appoint the conflict-free counsel he requested at the 

outset of federal habeas proceedings, coupled with the likelihood that doing so 

would have enabled new counsel to develop and present the amended IATC 

claim he sought to raise and have the claim and all the supporting evidence 

considered by the federal courts, constituted the extraordinary circumstances 

necessary to justify relief pursuant to Rule 60(b)(6).

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The district court held that Pruett’s motion was not filed within a 

reasonable time under Rule 60(b)(6). Pruett filed a Federal Rule of Civil 

Procedure 59(e) motion to alter or amend the order denying Rule 60(b) relief. 

The district court denied the Rule 59(e) motion, but it granted a COA on the 

issue of whether Pruett’s Rule 60(b)(6) motion was filed within a reasonable 

time and whether Pruett has made a substantial showing of the denial of a 

constitutional right.

II.

Pruett filed his Rule 60(b)(6) motion more than four years after the entry 

of judgment. A motion made pursuant to Rule 60(b)(6) must be filed “within a 

reasonable time.” Fed. R. Civ. P. 60(c)(1). To demonstrate “any other reason

that justifies relief” under Rule 60(b)(6), a petitioner must show “extraordinary 

circumstances.” See Gonzalez v. Crosby, 545 U.S. 524, 536 (2005). “Such 

circumstances will rarely occur in the habeas context.” Id. at 535.

We review the denial of a Rule 60(b) motion for an abuse of discretion. 

Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011). “It is not enough that 

the granting of relief might have been permissible, or even warranted . . . . 

[The] denial of relief must have been so unwarranted as to constitute an abuse 

of discretion.” Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013) (citation 

omitted. 

Pruett acknowledges that this Court has held that the change in 

decisional law brought about by Martinez and Trevino does not constitute an 

extraordinary circumstance that would justify reopening the judgment under 

Rule 60(b)(6). See Diaz, 731 F.3d at 376; Adams v. Thaler, 679 F.3d 312, 320 

(5th Cir. 2012). He contends, however, that the extraordinary circumstance in 

his case arises from the fact that Rogers represented him in the initial federal 

habeas proceedings despite the fact that his professional, reputational, and 

pecuniary interests were adverse to Pruett’s because, to adequately represent 

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Pruett, he would have had to argue that he had rendered ineffective assistance 

when representing Pruett in the state habeas proceedings. For support, Pruett

relies on the Supreme Court’s decision in Christeson v. Roper, 135 S. Ct. 891 

(2015) (per curiam). Pruett argues that his Rule 60(b) motion was timely filed 

under Christeson because the Court in Christeson held that the petitioner could 

pursue Rule 60(b) relief eight years after the district court had entered 

judgment denying habeas relief.

Christeson’s first federal habeas petition was dismissed as untimely 

because his court-appointed counsel missed the filing deadline. 135 S. Ct. at 

892. Because his counsel “could not be expected to argue that Christeson was 

entitled to the equitable tolling of the statute of limitations,” inasmuch as such 

a motion would require that counsel argue “their own malfeasance,” Christeson 

requested conflict-free substitute counsel. Id. at 892-93. The district court 

denied the motion for substitution of counsel and the Eighth Circuit Court of 

Appeals affirmed. Id. at 893. The Supreme Court reversed. Id. The Court

held that counsel’s conflict of interest was grounds for substitution of counsel 

under 18 U.S.C. § 3599, in the “interests of justice.” Id. at 894-95. The Court 

stated that although Christeson, with substituted counsel, “might properly 

raise a claim for relief pursuant to Rule 60(b), . . . to obtain such relief he must 

demonstrate both the motion’s timeliness” and “extraordinary circumstances.” 

Id. at 895. Thus, nothing in Christeson supports Pruett’s contention that his 

Rule 60(b) motion was filed within a reasonable time or that he has 

demonstrated the “extraordinary circumstances” required to reopen the 

judgment.1

1 This Court’s recent decisions in Speer v. Stephens, ___ F.3d ___, 2015 WL 1449798 

(5th Cir. Mar. 30, 2015), and Mendoza v. Stephens, ___ F.3d ___, 2015 WL 1472131 (5th Cir. 

Mar. 30, 2015), do not lend any support to Pruett’s argument that his Rule 60(b) motion was 

timely filed. In both of those cases, the petitioners were represented in federal habeas 

proceedings by the same counsel who had represented them in the state habeas proceedings. 

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Pruett’s current, conflict-free counsel were appointed on March 28, 2013. 

Two months later, on May 28, 2013, the Supreme Court issued its decision in 

Trevino. By the time Trevino was decided, Pruett’s counsel had been 

conducting their investigation for two months and had obtained all but one of 

the affidavits upon which they rely to support the amended IATC claim that 

they seek to present.2

There can be no question but that the decision in Trevino provided 

grounds for Pruett to file a Rule 60(b) motion asserting that Rogers, his initial 

federal habeas counsel, who also represented him in the state habeas 

proceedings, had a conflict of interest that precluded him from asserting his 

own ineffectiveness to excuse the failure to discover and present the mitigating 

evidence supporting the amended IATC claim that Pruett seeks to raise. And 

yet Pruett waited until January 6, 2015—more than nineteen months after 

Trevino was decided and his conflict-free counsel had completed their 

investigation of the claim—to file his Rule 60(b) motion.

Pruett argues that the district court failed to give proper consideration 

to the various pleadings his counsel had filed in state court and therefore failed 

to respect the important federalism principle that the state courts should be 

given the first opportunity to correct constitutional errors. However, Pruett 

did not file his subsequent state habeas application raising his amended IATC 

Our Court, in the interests of justice, appointed supplemental counsel for the petitioners 

under 18 U.S.C. § 3599. As we have noted, Pruett was appointed conflict-free, substitute 

counsel on March 28, 2013, more than two years ago.

2 In his reply brief, Pruett claims that his counsel’s investigation was not complete in 

May 2013, and that he never made such a statement to the district court. However, the 

district court’s order states that Pruett’s counsel represented to the court that they had 

performed the investigation necessary to establish Pruett’s ineffective assistance of counsel 

claim during April and May of 2013. Furthermore, all of the affidavits, except for the June 

2014 affidavit of the jury foreman, that Pruett relies on in support of his amended IATC 

claim, are dated in April and May 2013.

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claim until July 2014, fourteen months after his conflict-free counsel 

discovered the evidence he relies on to support it. The only explanation Pruett

offers for that fourteen-month delay is that counsel made reasonable decisions 

as to which claims to pursue first, and that they were busy presenting his 

motion for clemency, filed on April 30, 2013, and his request for forensic 

testing, filed on May 14, 2013. He asserts that between the time he filed the 

forensic testing request on May 14, 2013, and the time it was denied by the 

state court on April 2, 2014, the trial court conducted four3 hearings; counsel 

had to file multiple motions to compel the State’s lab to produce a copy of its 

file; and counsel sought and obtained expert assistance in reviewing the 

analysis done by the State’s lab.

Pruett’s explanation for the delay fails to persuade us that the district 

court abused its discretion in holding that his Rule 60(b) motion was not filed 

within a reasonable time. Again, as we have noted, the Supreme Court handed 

down its decision in Trevino, which provided the basis for the conflict of 

interest argument that Pruett asserted in his Rule 60(b) motion, on May 28, 

2013. Pruett’s conflict-free counsel had been appointed two months earlier

and, by the time Trevino was decided, they had already been investigating the 

IATC claim and had obtained all but one of the affidavits that Pruett relies on 

in support of his amended IATC claim. Yet Pruett waited fourteen months to 

present his IATC claim in state court, and nineteen months to file his Rule 

60(b)(6) motion in federal court. Pruett has not offered any satisfactory 

explanation for why the clemency and DNA proceedings pending in state court 

prevented him from filing his subsequent state habeas application for fourteen 

months after he had obtained the evidence in support of the IATC claim, and 

3 The State contends that the state court’s docket reflects only three court appearances 

in the DNA proceedings.

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prevented him from filing his Rule 60(b) motion until January 2015. 

Accordingly, we hold that the district court did not abuse its discretion in 

concluding that Pruett’s Rule 60(b) motion was not filed within a reasonable 

time. See Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (per curiam)

(holding that Rule 60(b) motion filed nearly eight months after relevant 

Supreme Court decision, and two days before scheduled execution, was not 

filed within a reasonable time).4

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

4 Our conclusion that the district court did not abuse its discretion is fully consistent 

with this Court’s unpublished decision in In re Paredes, 587 F. App’x 805 (5th Cir. 2014). In 

that case, Paredes contacted conflict-free counsel in June 2014, thirteen months after the 

Supreme Court issued its opinion in Trevino, and filed his Rule 60(b) motion four months 

later, in October 2014. Id. at 825. This Court held that the motion was not filed within a 

reasonable time, “even assuming that the first time that Paredes should have been aware of 

[habeas counsel’s] conflict of interest was when Trevino issued.” Id. See also Trottie v. 

Stephens, 581 F. App’x 436, 438 (5th Cir. 2014) (holding that Rule 60(b) motion filed almost 

three years after the district court denied federal habeas relief was not filed within a 

reasonable time). 

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