### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-70029

ARTURO DIAZ, 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

Before KING, JONES, and PRADO, Circuit Judges. EDITH H. JONES, Circuit Judge: This is a d e a t h penalty case in w hich appellant Arturo Diaz appeals the district court’s d enial of his Federal Rule of Civil Procedure 60(b)(6) motion for relief from judgment and motion for stay of e xe c u t ion. Thirty days before his

sc h e d u l e d e xecution date o f September 26, 2 013, D iaz filed both motions in f e d e r a l district court, seeking relief from t h at court’s denial of h abeas relief in 2005. Diaz a s k e d t h e court to reopen his previous federal h abeas action and consider the m erits of procedurally barre d claims in light o f Martinez v. Ryan ,

___ U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012) a nd T revino v. Thaler ,

___ U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Septem ber 25, 2013 Ly l e W . Cay ce Clerk Case: 13-70029 Document: 00512385722 Page: 1 Date Filed: 09/25/2013N o. 13-70029

U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). The district court denied b o t h o f Diaz’s m otions on S eptember 20, 2013. Diaz now appeals the distric t court’s decision. For the reasons set forth below, we AFFIRM. BACKGROUND T h e f a cts of Diaz’s underlying capital offense are detailed i n this court’s opinion of April 11, 2007. See D i az v . Q u a rterman , 228 F

. App’x 417 (5th Cir. 2007). In short, Diaz brutally stabbed one man to death and attempted to stab another man to death i n the course of robbing both men. He was convicted by

a Texas jury of capital murder, attempted c apital murder, and aggra v ated robbery, and he was sentenced to death. Diaz u nsuccessfully sought Texas state appellate review. During the p endency of his direct appeal, he also unsuccessfully pursued habeas relief with the Texas Court of Criminal Appeals, challenging, among many other things, the effectiveness of hi s t r i a l c ounsels’ representation. T he state court denied habeas relief in a 604-page ord e r, Ex parte Diaz , N o. CR-1464-99-G (1) (370th D ist. Ct., Hidalgo C n ty., Tex. Apr. 17, 2003), which the Texas Court of Criminal Appeals adopted, Ex Parte Diaz , No. 55,850-01 (Tex. Crim. App. June 18, 2003). In 2004, D iaz filed a federal habeas petition in the U.S. District Court for the S o u t hern District o f Texas, ultimately raising six grounds for relief. Relevant to this appeal, Diaz claimed that his trial a ttor n e y s had p rovided ineffective representation (1) by failing to counsel Diaz properly on the State’s offer o f a p lea bargain and (2) in t he penalty phase of the trial, failing to

a d e qu at e ly i nv e s ti g a te a nd present readily available mitigating evidence, failing to pre p a r e f

o r t h e t estimony of the only w itness o ffered by the d efense, and basing closing argument on residual doubt rather than mitigation. The district court denied relief o n a l l of Diaz’s claims and declined to issue a Certificate of Appealability (“COA”). S p ecifically, the c ourt found that Diaz’s plea bargain claim a nd the portions o f h is mitigation claim relating to t h e defense witness and

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c o u n s e l ’ s c l o s i n g a r gu ment were unexhausted and p rocedurally barred in federal court because those claims w ere procedurally barred in s t ate c ourt under Texas law. D iaz v. Dretke , No. M -04-225, 2005 W L 2 2 6 4 9 6 6 at *6 (S.D. Tex. Aug. 19 2005). As to the non-barred portion of Diaz’s p enalty phase c l a i m—that trial counsel provided ineffective representation by f ailing to adequately investigate and p resent readily available mitigating evidence—the district court held that

even if c ounsel were deficient for failing to investigat e e v i d e n c e o f Diaz’s disadvantaged childhood, Diaz still could not prove that h e was p r ej u d i c ed by counsel’s performance. Id. a t *9-*10 (“While testimony about Diaz’[s] childhood privations would certainly elicit sympathy, this evidence pales in comparison to the evidence presented to the jury

. . . .”). See Strickland v. Washingt o n , 466 U.S. 668, 687, 104 S

. Ct. 2 052, 80 L. Ed. 2 d 674 (1984) (stating that in order to prevail on a claim for ineffective assistance of counsel, a defendant must show that counsel’s deficient performance prejudiced the defense). Diaz appealed and requested a COA o n seven issues. This court certified for appeal only one of the issues that D iaz presented : w h e ther trial counsel rendered ineffective assistance during the punishment phase of trial by failing to a dequately investigate a nd present readily available m itigating evidence. See Diaz , 228 F. App’x a t 4 23. After additional briefing, thi s c o urt affirmed the lower court’s denial of habeas rel i e f o n somewhat different reasoning. Diaz v. Quarterman , 239 F. App’x 886 (5th Cir. 2007). Diaz offered five a ffidavits in an effort to p rove that four of h is family m embers and a former teacher would have provided mitigating testimony. This court refused to consider the a ffidavits because Diaz had presented the affidavits f or t he first time to the federal court. Diaz , 239 F. App’x at 890 (citing Roberts v. D retke , 356 F.3d 6 32, 6 41 (5th Cir. 2004)). Without that evidentiary support, this court found that Diaz “failed to rebut the presumption of correctness t hat a ttaches to the state court’s findings, and he cannot make his c ase that counsel were c o nstitutionally ineffective at the

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punishment phas e o f t r ial.” Id. This court also held t hat “[t]he [state court’s] finding t hat Diaz did n ot want his f amily members to testify precludes a finding of deficient performance and a finding of [ S t rickland] prejudice

. ” Diaz, 2 39 Fed. App’x at 890 (citing Schriro v. Landrigan, 5 50 U.S. 465, 127 S. Ct. 1933, 1941, 167 L. Ed. 2d 836 (2007); Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000))

. See also Ex parte Diaz, No. CR-1464-9 9

- G ( 1 ) a t ¶ ¶ 603-05, 613, 614. Diaz subsequently sought certiorari review, w hich the Supreme Court denied. Diaz v. Quarterman , 552 U.S. 1232 (2008). Five years later, on August 27, 2013, Diaz filed a motion for stay of

e x e cution and a Rule 60(b)(6) motion in federal district court, claiming th a t recent changes in habeas l aw warranted r elief from final judgment. Diaz argued that the Supreme Court’s decisions in Martinez v. Ryan and Trevino v. Thaler , coupled with t he “equities” of Diaz’s case, constituted u nique and extraordinary circumstances warranting Ruly 60(b)(6) relief. However, in “apply[ing] t he logic from A dams [ v . Thaler , 679 F .3d 312 ( 5th Cir. 2012)],” the district co u r t h eld that t he Supreme Court’s r ecent decisions did not give rise to e x t r a ordinary circumstances within the meaning o f Rule 60(b)(6), D iaz v. Stephens , No. M-04- 225, 12-13 (S.D. Tex. Sept. 1 6, 2013) (report and recommendation), and neither did the s pecific equities of Diaz’s case, Id. at 13-15. See D iaz v. Stephens , No. M04-225 (S.D. Tex. Sept. 2 0, 2013) ( adopting magistrate j udge’s report and recommendation). Thus, the district court denied D iaz’s Rule 60(b)(6) motion as well as his motion for a stay o f execution, which was no longer viable given the unavailability of review u nder Rule 60(b). Id. The district court granted Diaz

a COA sua sponte , Id. , and Diaz now appeals the district court’s denial of both motions.

4 Case: 13-70029 Document: 00512385722 Page: 4 Date Filed: 09/25/2013N o. 13-70029 STANDARD OF REVIEW This court reviews the denial of a Rule 60(b)(6) motion under an abuse of discretion standard. Wilcher v. Epps , 203 F

. App’x 559, 561 ( 5th Cir. 2 006). In applying suc h a standard, “ [i]t i s not enough t hat the granting of relief might have been permissible, o r e v en warranted[—]denial must have been so unwarranted as to constitute an abuse of discr e t i o n . ” Seven E lves, Inc. v. Eskenazi , 635 F.2d 396, 402 ( 5 t h C i r . 1981). Similarly, we review a district

c ourt’s d ecision to d eny a s tay of execution for abuse o f discretion. Green v. Thaler , 699 F .3d 4 04, 4 11 (5th Cir. 2012). “The party requesting a stay bears the burden o f showing t hat the circumstances j u s tify a n e xercise of [judicial] discretion.” Id. (alteration in o riginal) (internal quotation marks o mitted) (quoting Nken v. Holder , 556 U.S. 418, 433-34, 1 29 S

. Ct. 1749, 173 L. Ed. 2d 550 (2009)). DISCUSSION Diaz argues t h a t t h e district court abused its discretion in denying his Rule 60(b)(6) motion a n d m o t ion for stay of execution b ecause recent developments in habeas law should allow federal consideration of his ineffective assistance of trial counsel c laims as they relate to t he State’s o f f e r of a plea bargain and t he pen a l t y p h a s e of his trial. As noted by the Supreme Court, when seeking relief u nder Rule 60(b)(6), a m o v a n t is r e quired “to show ‘extraordinary circumstances’ justifying the r eopening of a final judgment.” Gonzalez v. Cr o sby , 545 U.S. 524, 535 (2005). Although “[s]uch circumstances will rarely occur in the habeas context,” I d. , D i a z c o n t e nds that the recent decisions in Martinez and Trevino amount to a “ sea change” in habeas law that warrants Rule 60(b)(6) relief. It has long been established that [i]n all c a s e s i n w hich a state prisoner h as defaulted his federal claims i n s tate court pursuant to an inde p e n d e nt and adequate state procedural rule, federal habeas review of the claim is b arred u nless the prisoner can demonstrate cause f o r t h e default a nd actual

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p rejudice a s a r esult of t he alleged violation of federal law, or demonstrate that failure to c o nsider the claims will result i n a fundamental miscarriage of justice.
Coleman v. Thompson , 501 U.S. 722, 7 50, 111 S

. Ct. 2546, 115 L. E d. 2d 640 (1991) ( emphasis added). I n addressing the “cause” prong f or o vercoming procedural default, Coleman h eld that the in e f f e c tiv e n e s s o f s t at e h ab eas counsel could not constitute s uch c a u s e. Id. at 752-53. However, in Martinez , the Sup r e m e C o u rt recognized a “ narrow exception” to Coleman , holding that where, under state law, claims of ineffective assistance of t rial counsel m ust be raised in an initial-review c ollateral proceeding, “ [i]nadequate assistance o f counsel at initial-review c olla t e r a l proceedings may e stablish cause f or a prisoner’s procedural default of a c laim of ineffective a ssistance at trial.” 132 S. Ct. at 1315. Martinez reasoned that when inmates c an only raise Strickland claims for ineffective assistance of counsel on state habeas review, a state habeas

a ttorney’s deficient performance may forgive a federal procedural bar. Id. at 1312. This court subsequently held in Ibarra v . Thaler , 687 F.3d 222, 227 (5th Ci r . 2012), t hat Martinez did not apply to federal habeas cases arising from Texas convictions and that T exas inmates were “not entitled to t he b enefit of Martinez

for . . . ineffectiveness claims” because Texas inmates are n ot limited to r aising Strickland c laims in initial review collateral proceedings. In response, the Supreme Cour t h e l d in T revino that Martinez d oes apply to cases arising from Texas courts b ecause “the Texas procedural system—as a matter of its structure, design, and operation—does not offer most defendants a m eaningful opportunity to p resent a claim of ineffective assistance of trial counsel on direct appeal.” 133 S Ct. at 1921. See a lso Hernandez v. Stephens , — F. App’x —, 2013 WL 3957796 at *9 ( 5th Cir. Aug. 2, 2013) (recognizing that T revino overruled the Fifth Circuit’s i nterpretation o f Martinez) ; Preyor v. Stephens , — F

. App’x —,

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2013 WL 3830160 a t *8 (5th Cir. July 25, 2013) ( same). Accordingly, Diaz argues that t he district court abused its discretion in denying both of his motions because Martinez and Trevino constitute “extraordinary circumstances” within the meaning o f R u l e 6 0 (b)(6), and the f ailure of Diaz’s state habeas counsel to advance his u nexhausted and procedurally barred claims properly before state court was the reason why he was h eld t o have procedurally defaulted those claims in the federal habeas proceeding. I. Diaz’s Rule 60(b)(6) Motion The threshold issue in reviewing Diaz’s R ule 60(b)(6) claim is whether Diaz has demonstrated circumstances that are sufficiently extraordinary to warrant relief from final judgment. Hess v . Cockrell , 281 F.3d 212, 216 (5th Cir. 2002). In arguing that t he district court abused its discretion in finding that there were no e xtr a o r di n ary c ir c u m s t a n c e s w arranting relief, Diaz c o ntends that (1) the district court erroneously applied A dams , which, in light of Trevino , is not controlling i n t h i s c ase; (2) t o the extent Adams does control D iaz’s case, the district court still failed t o properly weigh o t h e r “equities” that support his request for relief; and (3) a s far as the Adamsdecision relates to Rule 60(b)(6), Adamswas invalidated by subsequent Supreme Court action. A s Diaz acknowledges, this court has h eld that “[a] change in deci s i o n a l law after entry of judgment does not constitute exceptional circumstances and is not alone grounds for relief from a final judgment” under R ule 60(b)(6). Bailey

v. Ryan Stevedoring C o. , 894 F

. 2 d 157, 160 (5th Cir. 1990) (citations omitted). See also Batts v . Tow-Motor Forklift Co. , 66 F.3d 74 3 , 7 4 7

- 4 9 ( 5th Cir. 1995) (“Changes i n d ecisional law based o n constitutional principles are not of themselves extraordinary circumstances sufficient t o justify Ru l e 60(b)(6) relief.”). This principle governed in Adams , which this court decided j ust weeks after t he Martinez decision and, through Adams , in the district court’s denial of Diaz’s Rule 60(b)(6) motion. See Stephens , No. M-04-225 at 12 (Sept. 16, 2013).

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I n A d ams , we h eld t hat Martinez did not provide a sufficient basis f o r Rule 60(b)(6) relief. [I]n denying Adams’s i nitial federal habeas petition, the district court correctly determined that Adams’s claims were procedurally d e f a u l t e d pursuant t o the then-prevailing S upreme Court preced e nt of C oleman

. The Supreme Court’s l a ter decision in Martinez , w hich creates a narrow exception to Coleman ’s holding r egarding c ause to excuse procedural default, does not c o n stitute an “ extraordinary circumstance” under Supreme Court and our p recedent to warrant Rule 60(b)(6) relief.
679 F.3d at 320. Diaz, however, argues that A dams does not control h is R ul e 6 0(b)(6) motion because Trevino dramatically altered the parameters of Martinez

. The district cou r t , o n the other hand, held that Trevino “is simply a change in decisional law,” which does not a f f e c t Adams ’s applicability to t his case. Stephens , No. M-04-225 at 13 (Sept. 16, 2013) (quoting Adams , 6 79 F.3d at 320). This court’s ruling in Adams that Martinez d oes not c onstitute an extraordinary circumstance under Rule 60(b)(6) was not b ased on M a r tinez’ s applicability, or lack thereof, to c ases a rising from Texas courts. Rather, it was plainly based on the c onclusion that Martinez created a narrow, equitable exception to the rules of procedural d e f

a u l t, Adams , 679 F.3d at 3 20, a nd was “simply a change in decisional law.” Id. Trevino ’s recent application o f Martinez to T e xas cases does not change that conclusion in any way. M oreover, “[i]t is hardly extraordinary that subsequent[] [to Ibarra],

. . . [ t h e Supreme] Court arrived at a different inte r pretation” of Martinez’s application to cases arising from courts that, the Supreme Court concluded, d o not offer a “meaningful opportunity” for review of ineffective assistance of counsel claims on direct appeal. Trevino , 133 S. Ct. at 1921. See also G onzalez 545 U.S. at 536. Adams cited t h i s c o urt’s decision in Hess construing Rule 60(b)(6) for habeas cases:

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Under o u r p r ecedents, changes i n d e cisional l aw . . . do n ot constitute the “extraordinary circumstances” r equired for granting Rule 60(b)(6) relief

. . . . The dicta in Batts suggesting that the rule for changes in decisional law might be different i n the h abeas corpus context because finality is not a c o n c e r n is now flatly contradicted by, among other things, AEDPA.
Hess , 281 F .3d a t 216. Neither Adams nor H ess cites t he Seven Elves factors as bearing on the analysis of extraordinary circumstances under Rule 60(b)(6). Diaz attempts to demonstrate e xtraordinary circumstances by arguing that other equitable factors outlined in Seven Elves m ust be considered. 1 Ruling

on the question whether to reopen a default judgment, Seven Elves stated that the factors that should i nform the district court ’ s c o n s ideration of a motion under Rule60(b) are: (1) That final judgments should not lightly be disturbed; (2) that t h e Rule 60(b) m otion is n ot to be used a s a substitu t e f o r appeal; ( 3 ) that the r ule should be liberally construed in order to a c h i e v e substa n t i a l justice; (4) whether t he motion was m ade within a reasonable time; (5) whether[,] i f the j udgment w a s a d efault o r a dismissal in which there w as no consideration o f the m erits[,] t h e interest in deciding c ases on the merits outweighs, in the particular case, the i nterest in the finality of judgments, and there is merit in the movant’s claim o r d efense; (6) whether[,] if the judgment was rendered after a trial on the merits[,] the mova n t had a fair opportunity to present his clai m o r d e fense; (7) whether there a re intervening equities that would make it inequitable to grant relief;

1 Jud ge Jo n e s n o t e s that Sev en El v es ref lects f actors m os t ap p licable to relief s ought und er Rule 60(b) ( 1)

- ( 5) , p rovis ions that enum erate s p ecif ic ground s for relief

. See Gonz a l ez , 545 U. S. at 535, 12 5 S

. C t

. a t 2 6 49 M otions und er Rule 60(b) ( 6) , how ever, require truly "extraord inary circum s tances " p recis ely becaus e there is no s p ecif ication of the bas is f

or relief

. Were it otherw is e, Rule 60(b) ( 6) could s up ers ed e the com p anion provis ions

. M oreover, in the context of habeas law , com ity and f ed eralis m elevate the concerns of f inality, rend ering the 60(b) ( 6) bar even m ore d a u n t i n g
. From this p ers pective, D iaz's claim seek ing to avoid a jud gm ent of p roced ural d ef ault bas ed on intervening cas e law is not unlik e that of Hernand ez, w ho as s ertedan intervening Sup rem e Court decis ion to s up p ort reop ening his habeas claim that had been held untim ely. H erna ndez v . Tha ler , 630 F. 3d 420, 430 (5th Cir. 2011)

. Relying on Gonz a l ez and H

e s s , but not Sev en El v es , this court rejected H ernand ez's as s ertion of extraord inary circum s tances

. Id

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a n d (8) any other f

a ctors relevant t o the justice of the judgment under attack.
Seven Elves , 635 F.2d at 402. We will assume arguendo t hat Seven Elvesmay have some application in the Rule 60(b)(6) context. Diaz asserts that the totality of circumstances in his case is f undamentally different from that in Adams

. Diaz first points out that the lower court had the opportunity to reassess its p rior denial o f h a b e a s r elief i n light of Trevino ’s “dramatic” shift i n t he l aw, whereas t he Adams c o urt did not have t h at benefit. Although this is t rue, Trevino in itself is “h a rdly extraordinary,” a s previously discussed. This “ distinction” makes no difference. Diaz also contends that his extraordinary diligence i n asserting his ineffective sta t e h a beas counsel argument materially distinguishes this case from Adams

. H e h a s in fact pursued the issue o f ineffective state habeas counsel consistently in his federal habeas suit. The remaining equitable factors that, according to D iaz, distinguish this

case from Adams include h is extensive documentation of state habeas c ounsel’s alleged failings, his pleading “far more compelling Sixth A mendment violations” than the appellant in Adams pled, and his alleging more “special circumstances” warranting relief. Concluding that b ecause D iaz did “more” in r e l a t ion to his Rule 60(b)(6) motion, he a sserts he should b e entitled to relief f rom final judgment. The district court noted, however, that Diaz’s c ircumstances “are no

more u nique o r extraordinary than any other capital inmate w h o defaulted claims in state court prior to Trevino .” Stephens , No. M-04-225 at 14 (Sept. 16, 2013). The district court was right. Even assuming arguendo that state habeas counsel w as “ineffective” under Trevino and tha t A dams d oes not f ully bar Rule 60(b)(6) relief, Diaz makes a poor showing of equitable factors necessary to reopen h i s j u dgment. In its earlier decision, this court has a lready found that

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D i a z’s claim of inadequate mitigating evidence investigation fails f or lack of S t r i c kland prejudice and because he did not want h is trial a ttorneys to call family members t o the stand for m itigation. Diaz , 239 F. App’x at 889-90. This court denied a COA on claims that trial counsel mishandled D r . P inkerman’s testimony and i mproperly emphasized residual doubt rather than mitigation in closing argument, because both claims arose solely f rom the alleged inadequate investigation of m itigating evidence. Diaz , 228 F. App’x a t 424-27. Several pages of trial transcript r eflect colloquy between the trial court and all counsel, and the court and Diaz, concerning a p roffered p l ea bargain and Diaz’s rejection of it on two separate occasions before trial. Further, applying t he o t h e r Seven Elves factors, t he district court’s consideration of the merits of Diaz’s mitigating evidence c l a i m , see Diaz , 2005 WL 2 264966 at *9-*10; the general expectation t hat final judgments will not be li g h t l y o v e rturned; the State’s strong interest in the finality of Diaz’s conviction a n d s e ntence; and t he delay that will undoubtedly result from reopening this l ong-closed case all weigh in favor o f d e nying Diaz’s Rule 60(b)(6) motion. Cf. Lopez v. R yan , 678 F.3d 1131, 1135-37 (9th Cir. 2012) (considering multiple equitable factors to determine whether “extraordinary circumstances” existed and finding that they provided “little overall support for r e opening [the petitioner’s] case” under Rule 60(b)(6)). Finally, Diaz contends th at b e c a u s e th e S u p r e m e C o u rt gr a nt e d temporary relief in two cases while Trevinowas pending, the Court implicitly invalidated Adams

. Alternatively, he contends that the disposition o f those c ases raises another equitable factor f avoring 60(b)(6) relief. We disagree. This court issued t w o opinions while Trevino was pending b efore t he Supreme C o u rt th at e xp l i c itly relied on the holding in Adams that M artinez did not amount to an extraordinary circumstance w ithin the meaning of Rule 6 0(b)(6). See Haynes v. Thaler , 489 F. App’x 7 70 (5th Cir. 2012); Balentine v. Thaler , 692 F.3d 3 57 (5th

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Cir. 2012). The Supreme Court stayed the exec u ti o n s o f both petitioners pending disposition of certiorari petitions. Af t er issuing Trevino , the Supreme Court issued “GVR” (“grant, vacate, remand”) orders in H ayne s and Balentine , thereby gr a nti n g th e ir c e rti o r a ri p e titions, vacating t he judgments below, an d r e m a n di n g the cases to this court for further consideration i n light of Trevino

. 2 Haynes v. Thaler , __ U.S. __, 133 S. Ct. 2764, 186 L. Ed. 2 d 214 (2013); Balentine v . Thaler , __U.S. __, 133 S. Ct. 2763, 186 L. Ed. 2d 214 (2013). A GVR makes no decision as to the m erits of a case. K enemore v. R o

y , 690 F.3d 639, 642 (5th Cir. 2012). See also Tyler v. Cain , 533 U

. S. 656, 666 n.6, 121 S. C t. 2478, 150 L. Ed. 2d 632 (2001). “When the Supreme Court utilizes its GVR p ower . . . it is not m aking a decision that has a ny d eterminative impact on future l o wer-court proceedings.” Kenemore , 690 F.3d at 641. Rather, “[a] GVR is a Supreme Court practice whereby the C o urt allows a circuit court to reconsider its opinion, often after a change in the law or factual circumstances

occurs that might le a d t o a different result[.]” Id. When the Supreme Court grants a GVR, the lower court to which the case is remanded “is free to determine whether its original deci s i o n i s still c orrect in light of t h e changed circumstances or whether a different result is more appropriate.” I d. at 642. Given that a GVR makes no determinative impact on an underlying case, it stands to reason that a GVR similarly has no impact on t h e merits of a wholly separate and independent case. Indeed, a f i n d i n g t o t h e contrary would seem utterly illogical. For these reasons, D iaz has failed to show that Adams does not control his Rule 60(b)(6) motion or that the district c ourt abused its discretion in finding that Martinez , even in light of T revi n o , does not create extraordinary circumstances warranting relief from final judgment. Moreover, Diaz has failed

2 T he p ractice of granting a GVR is thoroughly exp lained in La w r e n c e v . Cha t er , 516 U

. S. 163, 165- 74, 116 S. Ct. 604, 133 L. Ed

. 2d 545 ( 1996) ( p er curiam ). 12 Case: 13-70029 Document: 00512385722 Page: 12 Date Filed: 09/25/2013N o. 13-70029

to show that the remaining “equities” of his c ase c o nstitute extraor d inary circumstances within the meaning of Rule 60(b)(6). II. Diaz’s Motion for Stay of Execution Di a z a p p e a l s t he district court’s denial of his motion for a stay of execution. I n deciding whet her to issue a stay o f execution, a court must consider: (1) whether t he stay applicant has m a d e a strong showing that h e is l ikely to succeed on the merits; ( 2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay wi l l s u bstantially injure the o ther parties interested in t h e proceeding; and (4) whether the public interest lies.
Green , 699 F.3d at 411 (quoting N ken , 556 U.S. at 434, 129 S. Ct. 1749). Diaz’s motion for a s tay of execution d epends on the availability of Rule 60(b)(6) review in this case. Because we have rejected t his vehicle to reopen the f i n a l judgment, D iaz has not made a showing o f a likelihood of s uccess o n t h e merits of his Rule 60(b)(6) motion. The district court did not abuse its discretion in denying a stay of execution. JUDGMENT AFFIRMED; STAY DENIED

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