IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-70026

JOHN LEZELL BALENTINE

Petitioner - Appellant

v.

RICK THALER, Director, Texas Department of

Criminal Justice, Correctional Institutions Division

Respondent - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

John Lezell Balentine, a Texas prisoner sentenced to death, appeals the

denial of his motion to set aside the judgment that a year earlier had denied him

habeas corpus relief. We find the prior judgment should have been set aside

because of a subsequent state court ruling. We REVERSE and REMAND for an

evidentiary hearing on whether Balentine’s trial counsel ineffectively

investigated for mitigation evidence to present during sentencing.

PROCEDURAL HISTORY

Balentine confessed that on January 21, 1998, in Amarillo, Texas, he

murdered three teenagers, Mark Caylor, Jr., Kai Geyer, and Steven Brady

United States Court of Appeals

Fifth Circuit

F I L E D

June 18, 2010

Lyle W. Cayce

Clerk

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Watson. The details of the crime are set out in Balentine v. Quarterman, No.

2:03-CV-00039, 2008 WL 862992, at *2 (N.D. Tex. Mar. 31, 2008).

There have been several separate actions to determine Balentine’s guilt

for the murders and then to review that determination in state and federal court.

We summarize the proceedings that have led to today’s appeal.

A. Trial, Sentencing, and Direct Appeal

In April 1999, a jury found Balentine guilty of capital murder and

sentenced him to death. The Texas Court of Criminal Appeals affirmed the

conviction and sentence on April 3, 2002. Balentine v. State, 71 S.W.3d 763 (Tex.

Crim. App. 2002).

B. First State Habeas Application

Balentine filed a state post-conviction application for writ of habeas corpus

on January 22, 2001, which would have been before proceedings on the direct

appeal were final. Twenty-one grounds for relief were stated, the first fourteen

all challenging the constitutionality of the Texas death penalty scheme. The

only identified issue concerning sentencing was that counsel was ineffective by

not presenting any evidence at the sentencing hearing. The state district court

denied relief on October 18, 2002. The Court of Criminal Appeals, after adopting

the trial judge’s findings and conclusions, also denied relief on December 4, 2002.

Ex parte Balentine, No. WR-54,071-01 (Tex. Crim. App. Dec. 4, 2002) (not

designated for publication).

C. First Federal Habeas Application

Balentine filed an application for writ of habeas corpus in the United

States District Court for the Northern District of Texas on December 1, 2003,

then filed an amended application on August 19, 2004. See 28 U.S.C. § 2254. He

alleged nine grounds of error, including a denial of a right to individualized

sentencing under the Eighth Amendment. The crux of such a claim is that a

defendant did not receive an individualized sentence because no mitigating

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evidence was presented at trial. See Lockett v. Ohio, 438 U.S. 586 (1978). After

securing new counsel, Balentine detailed – for the first time in any court – the

mitigation evidence that could have been presented had there been proper

investigation. That evidence included affidavits by family members and experts.

The magistrate judge issued a Report and Recommendation finding Balentine

not entitled to relief because the claims relating to mitigating evidence were

unexhausted and procedurally barred.

Balentine objected to the Report and Recommendation on December 21,

2007. He also requested that the district court stay the federal proceedings so

that he could return to state court to exhaust the mitigation claims. The district

court denied the motion on March 31, 2008. This denial of a stay is a key

procedural point in our review of the decision on the Rule 60(b) motion. Also on

March 31, 2008, and then on reconsideration on May 30, 2008, the district court

overruled all objections to the Report and Recommendation.

Balentine appealed the denial of his habeas petition to this court. We

affirmed on April 13, 2009. Balentine v. Quarterman, 324 F. App’x 304, 305-06

(5th Cir.), cert. denied, 130 S. Ct. 484 (2009).

D. Successive State Habeas Application

On August 21, 2009, Balentine filed a subsequent habeas application in

state district court pursuant to Section 5 of Texas Code of Criminal Procedure

Article 11.071. He alleged that he was deprived of his Sixth Amendment right

to effective assistance when his trial counsel did not investigate, develop, and

present mitigation evidence in the punishment phase of the trial. He also alleged

a violation of Batson v. Kentucky, 476 U.S. 79 (1986). The Court of Criminal

Appeals dismissed the application. Ex parte Balentine, Nos. WR-54071-01,

WR-54071-02, 2009 WL 3042425 (Tex. Crim. App. Sept. 22, 2009).

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E. Motion for Rule 60(b) Relief from the Federal Court Judgment

On September 23, 2009, Balentine filed a motion for relief from judgment

under Federal Rule of Civil Procedure 60(b) in federal district court. The

judgments from which relief was sought were those of March and May 2008,

denying his Section 2254 claims. Balentine argued that the Court of Criminal

Appeals’s September 22, 2009 dismissal of his application did not constitute an

independent and adequate ground that would bar review of the claim. He

requested an evidentiary hearing on the merits of his claim that counsel had been

ineffective by failing adequately to search for mitigating evidence.

On September 28, 2009, the district court denied relief from judgment and

stay of execution. The court rejected Balentine’s argument that the Court of

Criminal Appeals’s decision of September 22, 2009 had invalidated the district

court’s 2008 ruling that an unexhausted claim of ineffective assistance of counsel

was procedurally barred. The district court found that the Court of Criminal

Appeals had not ruled on the merits of the claim on September 22, 2009 and the

claim therefore remained procedurally barred.

The district court granted a certificate of appealability. Balentine now

appeals the district court’s denial of Rule 60(b) relief, claiming that the

September 22, 2009 decision of the Court of Criminal Appeals constituted a

determination on the merits of Balentine’s ineffective assistance of counsel claim.

Therefore, he argues, the ineffective assistance of counsel claim is no longer

procedurally defaulted and the federal courts should review it on the merits.

DISCUSSION

The language of Rule 60(b)(6) is brief, but its reach is broad. “On motion

and just terms, the court may relieve a party or its legal representative from a

final judgment, order, or proceeding for the following reasons: . . . (6) any other

reason that justifies relief.” We have described this Rule as a powerful one:

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Rule 60(b)(6) is a grand reservoir of equitable power to do justice in

a particular case when relief is not warranted by the preceding

clauses, we have also narrowly circumscribed its availability, holding

that Rule 60(b)(6) relief will be granted only if extraordinary

circumstances are present.

Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995) (citations and

internal quotation marks removed).

The equitable power of the district court judge is to be exercised with

discretion, while our appellate examination is for whether the discretion was

abused. Dunn v. Cockrell, 302 F.3d 491, 492 (5th Cir. 2002).

A. Is This a New Claim under AEDPA?

The relief that is available under Rule 60(b) in habeas proceedings must be

granted consistently with the Antiterrorism and Effective Death Penalty Act

(“AEDPA”). Ruiz v Quarterman, 504 F.3d 523, 526 (5th Cir. 2007); 28 U.S.C. §

2244(b). The Supreme Court has described how AEDPA and Rule 60(b) motions

operate in harmony. Gonzalez v. Crosby, 545 U.S. 524 (2005). Under AEDPA, any

successive habeas claim that has not already been adjudicated must be dismissed

unless it relies on either a new and retroactive rule of constitutional law or new

facts showing a high probability of actual innocence. Id. at 530.

Where a Rule 60(b) motion raises a new habeas claim, the motion is

considered a successive habeas application: “Using Rule 60(b) to present new

claims for relief from a state court’s judgment of conviction – even claims couched

in the language of a true Rule 60(b) motion – circumvents AEDPA’s requirement

that a new claim be dismissed unless it relies on either a new rule of

constitutional law or newly discovered facts.” Gonzalez, 545 U.S. at 531.

But there is no new habeas claim where 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.” Id. at 532 n.4. “If neither the [Rule 60(b)] motion

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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.” Id. at 533.

Balentine now alleges that he received ineffective assistance of counsel, in

violation of his rights under the Sixth Amendment, when his initial counsel failed

to investigate mitigating evidence for the sentencing phase of his trial. See

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Wiggins v. Smith, 539 U.S. 510 (2003). The State argues that Balentine’s initial

federal habeas application never raised a Sixth Amendment claim for counsel’s

failure to investigate mitigating evidence. If that is so, then Balentine’s Rule

60(b) motion raised a new claim that constitutes a successive habeas application

barred by AEDPA. See § 2244(b)(2). Consequently, whether AEDPA requires

dismissal of Balentine’s Rule 60(b) motion in part depends on when the issue of

ineffective assistance for failure to investigate mitigating evidence was first

presented in earlier proceedings.

A claim of ineffective assistance of counsel for failure to investigate

mitigation evidence was not raised on direct appeal. Nor was a claim of failure

to investigate mitigation evidence presented in the state habeas application that

was filed in 2002. Instead, the initial state habeas application made a weak

assertion of a failure to present mitigation evidence.

We now look for whether Balentine raised the Wiggins claim in federal

district court in his Section 2254 habeas petition, filed in 2003 and amended in

2004. The State contends that Balentine’s federal habeas petition did not state

a Sixth Amendment claim of ineffective assistance for counsel’s failure to

investigate and present mitigating evidence. Rather, the State asserts that any

claim regarding mitigation was an Eighth and Fourteenth Amendment challenge.

The State essentially concedes that Balentine’s initial defense counsel failed to 1

investigate for or present mitigation evidence during the sentencing phase.

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The relevant section of Balentine’s federal habeas application was titled

“Ground Eight (IAC [Ineffective Assistance of Counsel] – Lockett Doctrine & Risk

Assessment): Balentine was denied his federal Eighth and Fourteenth

[A]mendment rights to individualized sentencing. Trial counsel failed to present

any evidence at all in the punishment phase.” This section of the application

asserted that the trial counsel’s performance was “deficient.” It included five

arguments in support of counsel’s constitutional deficiency with regard to

mitigating evidence. The application then stated that such “deficient performance

of trial counsel raises a reasonable probability that the outcome would have been

different” and cites to the Sixth and Fourteenth Amendments, and to Strickland

v. Washington, 466 U.S. 668 (1984).

The general rule is that arguments not raised before the district court are

waived on appeal. State Indus. Prods. Corp. v. Beta Tech., Inc., 575 F.3d 450, 456

(5th Cir. 2009). The errant heading in a brief does not waive an argument.

Balentine raised a Sixth Amendment argument. Both the magistrate judge and

this court ruled on it. See Belt v. Emcare, Inc., 444 F.3d 403, 409 (5th Cir. 2006)

(holding that an issue is preserved for appeal where “the issue was sufficiently

raised for the court to rule on it”).

The section’s title gave some misdirection with the reference to Lockett, but

Balentine’s claim was nonetheless for ineffective assistance of counsel. The

section title contained counsel’s acronym for ineffective assistance of counsel,

IAC, and stated that “counsel failed to present any evidence at all in the

punishment phase.” Additionally, Balentine presented his argument in terms of

Strickland v. Washington and Wiggins v. Smith, both Sixth Amendment

ineffective assistance of counsel cases. Further, the section’s subheadings

tracked the two-prong test for ineffective counsel. Subheading 2 was titled “Trial

counsel’s performance was deficient,” and subheading 3 was titled “The deficient

performance raises a reasonable probability that the outcome would have been

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different.” The magistrate judge properly recognized the claim as an ineffective

assistance of counsel claim and ruled on it, and on appeal this court considered

the claim to be one for ineffective assistance. Balentine, 324 F. App’x at 305-06.

Thus, Balentine’s federal habeas application stated a Sixth Amendment

ineffective assistance of counsel claim, and the Rule 60(b) motion does not

present a new habeas claim barred by AEDPA.

B. Did the Texas Court of Criminal Appeals Rely on an Independent and

Adequate State Ground Precluding Federal Merits Review?

The next key issue is whether the state court reached the merits of the

claim or instead ruled that the habeas application was procedurally flawed. This

distinction matters in a Section 2254 proceeding because we do not reach the

merits when the state court denied relief due to a state law that provides an

adequate basis for the decision, independent of the merits of the federal claim.

Coleman v. Thompson, 501 U.S. 722, 729 (1991); Finley v. Johnson, 243 F.3d 215,

218 (5th Cir. 2001). The Supreme Court has held that if the state court decision

rests “primarily on federal law” or the state and federal law are interwoven, and

if “the adequacy and independence of any possible state law ground is not clear

from the face of the opinion,” we will construe the state court ruling as one

applying federal law. Ruiz v. Quarterman, 504 F.3d 523, 527 (5th Cir. 2007)

(quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). An independent and

adequate state ground must be express in order to avoid the Michigan v. Long

default rule. Finley, 243 F.3d at 218.

Consequently, if the Texas Court of Criminal Appeals did not clearly rely

on an independent state ground in its September 22, 2009 order, we will conclude

that it reached the merits and did not reject the claim for not having been

exhausted. Such a conclusion would undermine our failure to stay the federal

suit in 2008 in order to allow the claim to be presented first in state court, a

refusal based on the view that the state would not countenance such a claim.

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We now apply these principles to the state court order.

By statute, a Texas state prisoner has a limited right to have a successive

application for habeas relief considered in state court.

(a) If a subsequent application for a writ of habeas corpus is filed

after filing an initial application, a court may not consider the merits

of or grant relief based on the subsequent application unless the

application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not

have been presented previously in a timely initial application or in

a previously considered application filed under this article or Article

11.07 because the factual or legal basis for the claim was unavailable

on the date the applicant filed the previous application;

(2) by a preponderance of the evidence, but for a violation of

the United States Constitution no rational juror could have found the

applicant guilty beyond a reasonable doubt; or

(3) by clear and convincing evidence, but for a violation of the

United States Constitution no rational juror would have answered

in the state's favor one or more of the special issues that were

submitted to the jury in the applicant's trial under Article 37.071,

37.0711, or 37.072.

Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a).

The application may be filed in the court of conviction, but the clerk of that

court is to send the application to the Court of Criminal Appeals. Id. § 5(b). The

Court of Criminal Appeals then decides whether one of the limited bases for

consideration of the application on the merits has been shown.

On August 21, 2009, Balentine filed a successive application. In a two-page

order, the Court of Criminal Appeals first summarized the prior proceedings. It

then addressed the most recent filing:

Applicant presents two allegations in his application. In the

first allegation, applicant asserts that he was deprived of his Sixth

Amendment right to effective assistance of trial counsel because

counsel failed to adequately investigate, develop, and present

mitigation evidence in the punishment phase of the trial. In his

second allegation, applicant asserts that the prosecution

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unconstitutionally exercised peremptory challenges on two venire

persons in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We

have reviewed the application and find that his allegations fail to

satisfy the requirements of Article 11.071 § 5. Accordingly,

applicant’s application is dismissed, and his motion to stay his

execution is denied. Likewise, applicant’s motion to vacate the

judgment rendered in his initial state writ application is denied, and

the Court otherwise declines to reconsider that case.

Ex parte Balentine, Nos. WR-54071-01, WR-54071-02, 2009 WL 3042425 (Tex.

Crim. App. Sept. 22, 2009).

We find substantial guidance for interpreting the Court of Criminal

Appeals’s order in Ruiz v. Quarterman, 504 F.3d 523. The procedural steps in

Ruiz were the same as here – direct appeal, state habeas, federal habeas,

successive application in state court, then a Rule 60(b) motion in federal court.

Id. at 525-26. There we concluded that the Court of Criminal Appeals order

denying relief on the second habeas application could not be considered a decision

based on independent and adequate state grounds. Id. at 526. Part of the reason

was the fact that there were only four votes at the Court of Criminal Appeals for

the lead opinion that denied the writ; the judge casting the fifth vote necessary

for the decision reached the merits. Id. at 527. Such vote-counting is not

involved in Balentine’s Court of Criminal Appeals decision.

However, another reason Ruiz found that the Texas Court of Criminal

Appeals could not be said to have ruled on an independent state ground was

because the Texas court, in an earlier case, explained how it reached decisions

such as Ruiz. Id. at 527. In 2007, the Court of Criminal Appeals held that

satisfying Section 5 of Article 11.071 had two separate components:

1) the factual or legal basis for an applicant’s current claims must

have been unavailable as to all of his previous applications; and 2)

the specific facts alleged, if established, would constitute a

constitutional violation that would likely require relief from either

the conviction or sentence.

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Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007) (discussed in

Ruiz, 504 F.3d at 527). On that basis, Ruiz concluded that a “boilerplate

dismissal by the [Court of Criminal Appeals] of an application for an abuse of the

writ is itself uncertain on this point, being unclear whether the [Court’s] decision

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

a question of federal constitutional law.” Ruiz, 504 F.3d at 527.

The district court in Ruiz had held, when rejecting the Section 2254

application, that a stay and a return to state court would be futile because the

claim had not been exhausted the first time. Id. at 525. Futile or not, Ruiz

returned to state court and got the ruling from the Court of Criminal Appeals

that we construed as merits-based. As the Ruiz opinion put it, this merits ruling

“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.” Id. at 525.

Importantly, the Court of Criminal Appeals’s ruling in Ruiz that was

construed as one on the merits is not readily distinguishable from the one here.

The September 22, 2009 ruling stated that Balentine’s “allegations fail to satisfy

the requirements of Article 11.071, § 5.” Under the Court of Criminal Appeals’s

explanation in Campbell, that denial could have been a decision that the facts

were previously available and no excuse from presenting the claim earlier existed

– an adequate and independent state ground – or that denial could have been

based on a finding that the facts as alleged did not indicate a federal

constitutional violation.

There is at least one distinction, though, besides the lack of a five-vote

majority in Ruiz, between the state court order in Ruiz and the order here. The

distinction helps Balentine. In the Ruiz four-judge order, the Texas Court of

Criminal Appeals said that the application was dismissed as “an abuse of the

writ,” but that phrase does not appear in the same court’s Balentine order.

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The “abuse of the writ” language is significant because of our decision in

Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 2008). The Hughes court neither

cited Ruiz nor discussed the decision of the Court of Criminal Appeals in

Campbell. The Hughes court held that a finding by the Texas court that a second

application was an “abuse of the writ” could be considered an adequate state

ground independent of the merits of the federal claim. Id. at 342. The Court of

Criminal Appeals order in Hughes said that the application “fails to satisfy the

requirements of Art. 11.071, Sec 5(a), V.A.C.C.P. Accordingly, the application

is dismissed as an abuse of the writ.” Ex parte Hughes, No. 45-876-02 (Tex. Crim.

App. Nov. 14, 2001) (not designated for publication).

Because the “abuse of the writ” language was not included in the Court of

Criminal Appeals’s order on Balentine’s successive state habeas application,

Hughes has no direct applica.tion. True, the statute itself says that a successive

application that fails to satisfy its requirements (presumably either for

procedural or for merits reasons) should be dismissed as an “abuse of the writ.”

Tex. Code. Crim. Proc. art. 11.071, § 5(c). However, giving our imprimatur to the

statute’s unvarying “abuse of the writ” label when a second state habeas

application is denied, is inconsistent with our precedents. For example, we have

held that the Texas abuse of writ approach could not always be considered a

procedural ruling because at times it requires a determination of whether a

prima facie constitutional claim has been shown:

Although Texas’ abuse of the writ doctrine is superficially procedural

in that it has a procedural effect, [because it leads to] determining

which claims are remanded to the state trial courts for further

development, it steps beyond a procedural determination to examine

the merits of an Atkins claim.

Rivera v. Quarterman, 505 F.3d 349, 360 (5th Cir. 2007). Similarly, the Campbell

explanation by the Court of Criminal Appeals reveals that the court may rule on

the basis that “the specific facts alleged, if established, would constitute a

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constitutional violation that would likely require relief from either the conviction

or sentence.” Ex parte Campbell, 226 S.W.3d at 421. Further, a ruling that the

facts, if established, did not constitute a violation would also be “interwoven” with

federal constitutional law.

Regardless of the effect of Hughes and its focus on “abuse of the writ”

language in a Texas Court of Criminal Appeals order, we give some weight to the

absence of express language of “abuse” in Balentine’s order from that court. We

give weight because of the interplay between the responsibilities and procedures

of state and federal courts in this area: each court likely is attentive or at least

aware of the effects of its decision on the other. The Ruiz court believed that how

the federal courts will react to the language of a state court habeas decision is “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.” Ruiz, 504 F.3d at 527.

We do not decide that the absence of “abuse of the writ” language was an

omission meant for our eyes, but we see it all the same.

Moreover, to the extent there is inconsistency between Hughes and the

careful examination of abuse of the writ determinations required by Ruiz and

Rivera – and Hughes did not address either precedent – we are bound by the

decisions predating Hughes because one panel cannot overrule earlier decisions.

United States v. Castro-Guevarra, 575 F.3d 550, 552 (5th Cir. 2009). Ruiz

compels us to construe the September 22, 2009 Court of Criminal Appeals ruling

as one on federal grounds, because it was not clearly based on an adequate state

ground independent of the merits.

C. Does Ruiz Require Reversal Here?

To succeed on his Rule 60(b)(6) motion, Balentine must demonstrate a basis

for relief from the district court’s 2008 judgment, as affirmed by this court. The

issue before the district court in late September 2009 was whether something

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about the Court of Criminal Appeals September 22, 2009 decision was a basis to

overturn the district court’s 2008 judgment that the Wiggins claim could not be

exhausted at that late date.

The Supreme Court has considered whether a Rule 60(b) motion, filed

several years after the inmate’s Section 2254 application had been denied, was

an available procedural option. Gonzalez v. Crosby, 545 U.S. at 527-28. Although

a Rule 60(b) motion should be denied if it challenges on the merits an earlier

denial of habeas relief,

[t]hat is not the case . . . when a Rule 60(b) motion attacks, not the

substance of the federal court’s resolution of a claim on the merits,

but some defect in the integrity of the federal habeas proceedings.

When no “claim” is presented, there is no basis for contending

that the Rule 60(b) motion should be treated like a habeas corpus

application. If 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.

Id. at 532-33 (footnote omitted).

This means that in order for Balentine to proceed, he must have raised in

his Rule 60(b) motion something other than a merits-based ruling in the earlier

judgment. Balentine argues that on September 22, 2009, the Court of Criminal

Appeals reached the merits, thereby vitiating our earlier conclusion that the

unexhausted claim was no longer a viable one in state court. According to

Balentine, this is not an attack on a merits ruling in the earlier federal decision,

but an undermining of a procedural ruling regarding the inability of Balentine

to exhaust.

For guidance in analyzing whether there was anything vitiating about the

Texas court’s latest Balentine ruling, we again turn to Ruiz, the seminal

application of Gonzalez in this Circuit. The district court in Ruiz’s Section 2254

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proceedings denied habeas relief because his ineffective assistance claims were

procedurally defaulted. As we explained on appeal,

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 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 [Court of Criminal Appeals’s] then-recent abandonment of its

refusal to accept a state court habeas application so long as the

petitioner had a federal habeas petition pending.

Ruiz, 504 F.3d at 525. Ruiz had appealed the initial denial of relief, and we

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

At the time the Ruiz federal district court made its first rulings, Texas had

not abandoned its bar to successive petitions. Ruiz, 504 F.3d at 529. However,

after the district court’s ruling, Texas undermined that barrier:

While the district court’s conclusion of futility was sound when

made, it has been undermined by recent decisions by the [Court of

Criminal Appeals]. In January 2007, the [Court of Criminal Appeals]

decided Ex parte Hood, [211 S.W.3d 767 (Tex. Crim. App. 2007),]

indicating for the first time that there are judicially-created

exceptions to section five. Before this decision, neither Ruiz nor the

district court had reason to believe that the [Court of Criminal

Appeals] would create an equitable exception to the successor bar.

On April 25, 2007, the [Court of Criminal Appeals] decided Ex parte

Campbell, [226 S.W. 3d 418 (Tex. Crim. App. 2007),] which, as we

explained above, held that the Texas procedural bar based on factual

unavailability incorporates a question of federal constitutional law.

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.

Id.

After this court’s initial affirmance, Ruiz returned to state court and

received a ruling from the Court of Criminal Appeals. Its unpublished order

stated, “We have reviewed these claims and find that they do not meet the

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requirements for consideration of subsequent claims under Article 11.071,

Section 5. This application is dismissed as an abuse of the writ . . . .” Losing in

state court, Ruiz filed his Rule 60(b)(6) motion in federal district court. It was

denied. Ruiz, 504 F.3d at 529.

On appeal, we held that this was a proper Rule 60(b)(6) motion. We quoted

language from Gonzalez that there is no new habeas claim if 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.” Gonzalez, 545 U.S. at 532 n.4.

We now turn to the case before us. Like Ruiz, Balentine requested a stay

of the federal proceedings so he could return to state court to exhaust the

ineffective assistance claim, and that stay was denied in 2008. The relief from

judgment that Balentine seeks now is to set aside the 2008 decision not to enter

a stay that would have allowed him to return to state court. We have already

determined that, subsequent to that 2008 denial, Balentine received a “merits”

ruling from the Court of Criminal Appeals. He returned to state court without

a stay, exhausted his Wiggins claim under our construction of the Court of

Criminal Appeals’s order, and is now back. Balentine now seeks to be put in the

position a stay would have placed him in his initial Section 2254 proceeding;

granting him relief from the 2008 denial of a stay would allow him to proceed as

if this were the original Section 2254 application, exhaustion completed.

We now analyze whether the stay was properly denied in 2008. The rules

for entering stays were well-explained by the district court at that time. Prior to

AEDPA, federal petitions were dismissed, not stayed, so that petitioners could

return to state court. See Rose v. Lundy, 455 U.S. 509, 519 (1982). With AEDPA,

though, a one-year deadline was created, which meant such a practice would

almost certainly bar the inmate on his return to federal court after the renewed

state proceedings concluded. See 28 U.S.C. § 2244(d). After AEDPA, the

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Supreme Court allowed Section 2254 proceedings to be stayed in quite limited

situations. Rhines v. Weber, 544 U.S. 269, 277 (2005). The limits were created

by AEDPA’s rules, which sought to reduce delays in the post-conviction relief

process, require total exhaustion, and, joining those two concerns, prevent

inmates from piecemealing their claims. Id. at 276.

To meet AEDPA’ commands as well as serve the interests presented in stay

requests, this balance was required:

For these reasons, 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,

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. Moreover, even if a petitioner

had good cause for that failure, the district court would abuse its

discretion if it were to grant him a stay when his unexhausted claims

are plainly meritless.

Id. at 277.

In its March 31, 2008 order denying Balentine a stay, the district court

quoted this part of Rhines. The district court concluded that Balentine’s return

to state court with a second habeas application would have been futile. The order

cited one of our first opinions to apply Rhines, which held a state procedural bar

would make a claim “meritless” under Rhines. See Neville v. Dretke, 423 F.3d 474,

479-80 (5th Cir. 2005). The district court found that Balentine’s unexhausted

Wiggins claim would encounter such a procedural bar. The district court also

concluded that even if at times the Court of Criminal Appeals ignored procedural

bars – “occasional acts of grace” – the state rule would remain an adequate one

because the procedural bar must be applied “regularly” but need not always be

applied. See Amos v. Scott, 61 F.3d 333, 342 (5th Cir. 1995).

2

Our reversal both here and in Ruiz, after construing the Court of Criminal Appeals’s 2

orders as merits-based, could be seen as ignoring the “regular” versus “always” dichotomy.

However, we are not considering what the state court might have done in some hypothetical

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Then on September 28, 2009, the district court denied relief from its 2008

judgment. It found that the Court of Criminal Appeals’s September 22, 2009

order was not on the merits. It analyzed Ruiz as being limited to its peculiar

facts of a hard-to-decipher split vote at the Court of Criminal Appeals. The

district court also concluded that the Hughes “abuse of the writ” language made

the Texas court’s ruling an independent and adequate state ground.

We find only one flaw in this reasoning, but it affects all the conclusions.

We have explained why we do not consider Ruiz to be a case limited to the

peculiar facts of the four-vote Court of Criminal Appeals decision. Because we

have found Ruiz to require us to hold that the Court of Criminal Appeals decided

the case on the merits, the rest of the district court’s ruling also falls.

The Ruiz court held that the equities relevant to Rule 60(b)(6) applied to

the “re-considering [of] a dismissal of a claim now freed of the baggage

threatening the jurisdiction of the court.” Ruiz, 504 F.3d at 531. Therefore, in

reviewing the denial of Rule 60(b) relief in Ruiz, the opinion weighed the equities

under Rule 60(b). Id. at 528-32. The Ruiz court noted that the district court, in

its opinion denying the original Section 2254 application, had found Ruiz’s claims

of ineffective assistance of counsel to be “significant, potentially meritorious”

arguments that could not be reached by the court because of the failure to

exhaust. Id. at 530. The district court nonetheless denied a stay for what it

considered the futile exercise of returning to state court to present the claims.

Id. Among the weightier statements by the Ruiz court, though perhaps not a

holding, was this:

We are given no rational reason to conclude that the equities run

against Ruiz, despite the “fundamental unfairness” of his habeas

proceedings . . . . Whatever be the explanation, in this difficult area

of the law of capital punishment, we are met with the inescapable

involving another inmate. Once we construe the state court’s ruling as having reached the

merits as to this prisoner, equity compels our review of that ruling.

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conclusion that the district court’s balancing of equities was infected

by its first holdings—that the claims of ineffective assistance of trial

counsel were again not before it and that it 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.”

Id. at 530-31. On this basis, the Ruiz court found an abuse of discretion.

As in Ruiz, here there was strong concern expressed in the earlier Section

2254 proceedings as to the effectiveness of Balentine’s prior counsel. The

magistrate judge’s Report and Recommendation of September 27, 2007, adopted

by the district court, made these observations about Balentine’s trial:

No mitigation evidence concerning petitioner’s background,

childhood, or family was presented at his trial, and trial counsel

called no witnesses at the punishment phase. Other than the

criminal history from the prosecution, petitioner’s counsel presented

no facts about petitioner’s background, childhood, or family to the

jury. While this omission, if in fact it was an omission, presents a

substantial question, it does not necessarily compel a finding of

deficient performance if counsel’s actions were based upon a

reasonable tactical decision . . . . A decision to not present mitigating

evidence may be reasonable if based upon “evidence in their

investigation to suggest that a mitigation case, in its own right,

would have been counterproductive, or that further investigation

would have been fruitless.” Wiggins, 539 U.S. at 525, 123 S. Ct. at

2537.

. . .

The fact that trial counsel may have determined the defense

[of denying guilt] to be petitioner’s best defense would not, however,

justify a failure to investigate and obtain all available mitigation

evidence. Indeed, before counsel could make a decision as to whether

mitigation evidence should be offered, counsel would have to know

what evidence there was. The record before this Court does not

reflect the extent of trial counsel’s investigation or knowledge of

mitigation evidence at the time of trial. We only know none was

presented. Therefore, a review of the merits of this claim would

require this Court to allow further discovery, and/or hold an

evidentiary hearing to hear testimony from trial counsel and defense

investigators regarding the extent of the defense investigation in

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preparation for the punishment phase of petitioner’s trial, whether

any mitigation evidence was obtained, and, if so, why it was not

presented. Such additional discovery and an evidentiary hearing are

not warranted, and, in fact, are prohibited by Fifth Circuit precedent

because the claims asserted in grounds seven and eight are

unexhausted and procedurally barred.

We interpret these points, based on a review of the record of the Section

2254 proceedings, to indicate that absent the exhaustion issue, there was reason

for an evidentiary hearing. The Ruiz court made it clear that we review the

denial of Rule 60(b) relief for an abuse of discretion, but that we exercise care if

“denial of relief precludes examination of the full merits of the cause” because “in

such instances ‘even a slight abuse may justify reversal.’” Id. at 532 (quoting

Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981)).

Balentine’s equities compare closely to those of Ruiz in these ways:

(1) There were serious concerns that constitutionally ineffective lawyering

occurred due to counsel’s failure to investigate for mitigation evidence.

(2) In the Section 2254 proceedings, the Ruiz district court found serious

defects in trial court representation regarding investigating for mitigation

evidence, but held the issue to be defaulted. Here the district court similarly

adopted the magistrate judge’s finding of serious issues of ineffectiveness, and

stated that an evidentiary hearing would be needed to be certain.

(3) In the initial federal habeas cases for both, the inmate sought a stay and

remand to state court, and both were denied as futile.

(4) In both, the Court of Criminal Appeals in considering the successive

application under Article 11.071, Section 5, issued an order that, under the Ruiz

interpretation, is not clearly based on an adequate state ground independent of

the merits. Therefore, the merits by imputation were reached by the Texas court

in the successive application in each case, vitiating the district court’s finding

that a stay and return to state court to exhaust would be futile.

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(5) On return to federal district court, Rule 60(b) relief was denied.

Ruiz controls. The procedural hurdle regarding exhaustion that was

perceived in the Section 2254 proceedings has been eliminated. The equities

weigh in favor of Balentine in the same manner as they did for Ruiz. Balentine

is entitled to have relief granted from the 2008 denial of a stay. The district court

on remand should consider that Balentine now has an exhausted state Wiggins

claim. That claim should be reviewed, in conjunction with any necessary

evidentiary hearing, under the appropriate AEDPA deferential standards.

CONCLUSION

We restate the reasons for this holding. Where the Court of Criminal

Appeals dismisses a successive application with this boilerplate language, we

cannot determine whether the decision relied on a state-law defect or a finding

that federal constitutional law was not violated. Consequently, the Court of

Criminal Appeals’ order must be construed as having reached the merits of the

federal constitutional issue. In the Section 2254 proceedings, the district court

denied a stay for the claim to be exhausted in state court based on its belief of the

futility of a stay; that belief has been vitiated. Finally, the equities for Rule

60(b)(6) relief are compelling when the failure to investigate and present

available mitigation evidence has already been found in the Section 2254

proceedings to be a substantial issue.

We REVERSE the district court’s order denying Balentine’s Rule 60(b)

motion and REMAND for consideration of the ineffective assistance of counsel

claim. The stay of execution is CONTINUED until further order of this court.

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