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

ON PETITION FOR REHEARING

(Opinion June 18, 2010, 5th Cir., 2010________F.3d ________)

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

No judge in active service on this court requested that the court be polled

in response to the petition for rehearing en banc. The petition is denied. The

petition for rehearing by the panel is GRANTED. The prior opinion is

withdrawn, and this opinion is substituted.

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

district court’s denial of his Rule 60(b) motion to set aside that court’s 2009

judgment. We initially held his arguments to be valid. Balentine v. Thaler, 609

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2010

Lyle W. Cayce

Clerk

Case: 09-70026 Document: 00511296604 Page: 1 Date Filed: 11/17/2010
No. 09-70026

F.3d 729 (5th Cir. 2010). On rehearing, we conclude that a ruling by the Texas

Court of Criminal Appeals should not be presumed to have reached the merits

of his claims. The claims are procedurally defaulted and cannot be considered.

We AFFIRM the district court’s refusal to set aside its earlier denial of relief.

PROCEDURAL HISTORY

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

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

Watson. The details of the crime are set out in Balentine v. State, 71 S.W.3d

763, 767-68 (Tex. Crim. App. 2002).

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. Id. at 774.

B. First State Habeas Application

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

on January 22, 2001, which was before the proceedings on the direct appeal were

final. Twenty-one grounds for relief were stated, the first fourteen 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 phase. The state district court denied relief on

October 18, 2002. The Court of Criminal Appeals, after adopting the trial judge’s

findings and conclusions, 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,

2

Case: 09-70026 Document: 00511296604 Page: 2 Date Filed: 11/17/2010
No. 09-70026

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

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 proceedings so he could

return to state court to exhaust the mitigating evidence claims. The district court

denied the request on March 31, 2008. Also on March 31, 2008, and then on

reconsideration on May 30, 2008, the district court overruled all objections,

adopted the findings of the Report and Recommendation, and denied the petition.

Balentine appealed to this court. We affirmed on April 13, 2009. Balentine

v. Quarterman, 324 F. App’x 304 (5th Cir.), cert. denied, 130 S. Ct. 484 (2009).

D. Subsequent State Habeas Application

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

state 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, or present

mitigation evidence in the punishment phase of the trial. See Wiggins v. Smith,

539 U.S. 510 (2003). He also alleged a violation of Batson v. Kentucky, 476 U.S.

79 (1986). The Court of Criminal Appeals dismissed the application. Ex parte

3

Case: 09-70026 Document: 00511296604 Page: 3 Date Filed: 11/17/2010
No. 09-70026

Balentine, Nos. WR-54071-01, WR-54071-02, 2009 WL 3042425 (Tex. Crim. App.

Sept. 22, 2009).

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

The day after the Court of Criminal Appeals’ ruling, Balentine returned to

federal district court and filed a motion for relief from judgment under Federal

Rule of Civil Procedure 60(b)(5) and (6). 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’ September 22, 2009

dismissal of his application did not constitute an independent and adequate state

law ground that would bar review by the federal court. He requested an

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

by failing to search adequately 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’ 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 beyond the federal court’s review.

The district court granted a certificate of appealability, finding that jurists

of reason could disagree on that court’s interpretation of two Fifth Circuit

precedents, namely, Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007), and

Hughes v. Quarterman, 530 F.3d 336 (5th Cir. 2008). We then granted a stay of

execution. Balentine now claims that a proper analysis of the two cited

precedents would lead to the conclusion that the Court of Criminal Appeals

reached the merits of his 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.

4

Case: 09-70026 Document: 00511296604 Page: 4 Date Filed: 11/17/2010
No. 09-70026

DISCUSSION

This appeal is from the district court’s denial of a motion under Rule

60(b)(5) and (6). Those sections are broadly worded:

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: . . .

(5) the judgment has been satisfied, released, or discharged; it is

based on an earlier judgment that has been reversed or vacated; or

applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b)(5)-(6). We have described this Rule as a powerful one:

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, [but] 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 omitted).

The part of Rule 60(b)(5) relevant to our case is that equity should prevent

some part of the earlier judgment from applying. Balentine’s arguments under

Rule 60(b)(6) also focus on equity. We will analyze the subparts together and

often refer to them as Rule 60(b). 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).

As was revealed by our recounting of the procedural history of Balentine’s

post-conviction filings, his initial, unsuccessful federal petition for review of his

conviction was brought in 2003. A state prisoner is not entitled to use Rule 60(b)

as a broad opening for a second request in the federal court to overturn his

conviction. Still, a Rule 60(b) motion, filed several years after an inmate’s Section

2254 application had been denied, is in some circumstances an available option.

5

Case: 09-70026 Document: 00511296604 Page: 5 Date Filed: 11/17/2010
No. 09-70026

Gonzalez v. Crosby, 545 U.S. 524, 528-29 (2005). A Rule 60(b) motion should be

denied if it challenges on the merits an earlier denial of habeas relief. Id. at 532.

Conversely, a Rule 60(b) motion that raises procedural error in the previous

federal court ruling may have merit:

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 533 (footnote omitted).

Accordingly, to succeed on his Rule 60(b) motion, Balentine can not make

a “claim,” i.e., he must not be challenging a prior merits-based ruling. He needed

to show “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.

The single appellate issue stated in Balentine’s brief is that the district

court abused its discretion in denying the Rule 60(b) motion. The sole argument

to support that there was an errant exercise of discretion is that the district court

failed to recognize that the latest Court of Criminal Appeals decision should be

interpreted as having ruled on the merits of his Wiggins claim.

Balentine’s brief does not then make an explicit connection between the

district court’s most recent and allegedly erroneous ruling and the Crosbyrequired procedural error in the earlier habeas application. To open the Rule

60(b) door on a claim such as this, there must be a showing of a non-merits-based

defect in the district court’s earlier decision on the federal habeas petition:

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

6

Case: 09-70026 Document: 00511296604 Page: 6 Date Filed: 11/17/2010
No. 09-70026

denominated creates no inconsistency with the habeas statute or

rules. Petitioner’s motion in the present case, which alleges that the

federal courts misapplied the federal statute of limitations set out in

§ 2244(d), fits this description.

Crosby, 545 U.S. at 533.

A fair reading of Balentine’s argument is that the district court’s 2008

decision, which found the Wiggins claim to be unexhausted and therefore not to

be considered, was reached only after the denial of Balentine’s motion to stay a

decision on the Wiggins claim until he could return to state court and present it.

In one of our key relevant precedents, we held that the denial of a stay in the

initial federal habeas proceedings, which would have allowed the petitioner to

exhaust his claim, could be the source for Crosby error. Ruiz, 504 F.3d at 526.

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. Futile or not, Ruiz returned to state court and

got a ruling from the Court of Criminal Appeals that we construed as meritsbased. Id. at 525. 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.

Like Ruiz, Balentine requested a stay of the federal proceedings so he could

return to state court to exhaust the ineffective assistance claim. Such a stay was

denied in 2008. If Balentine actually got a later ruling on the merits from the

Court of Criminal Appeals on his Wiggins claim, Ruiz would be authority

supporting his argument that it was error not to grant the Rule 60(b) motion.

On appeal here, Balentine analyzes whether the Texas court reached the

merits or used an independent and adequate state ground to deny habeas relief.

He argues that Texas incorporates federal law in its analysis of subsequent

habeas applications and that this court considers the Texas law to be interwoven

7

Case: 09-70026 Document: 00511296604 Page: 7 Date Filed: 11/17/2010
No. 09-70026

with federal law. He then closes his argument with explanations of why the

Hughes and Ruiz opinions of this court require reversal.

The State of Texas argues that Balentine did not present a Wiggins claim

in his initial federal habeas petition and instead raised it in federal court for the

first time in his Rule 60(b) motion. We turn our attention to that argument first

and find it to be unconvincing. We then address Balentine’s claims of error.

They also do not convince.

A. The Wiggins Claim and Balentine’s Section 2254 Petition

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, 504 F.3d at 526; 28 U.S.C. § 2244(b). The Supreme Court has

described how AEDPA and Rule 60(b) motions operate in harmony. See Crosby,

545 U.S. 524. 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.

Balentine alleges that he received ineffective assistance of counsel, in

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

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

Wiggins, 539 U.S. 510. 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 28 U.S.C. § 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.

8

Case: 09-70026 Document: 00511296604 Page: 8 Date Filed: 11/17/2010
No. 09-70026

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 his federal

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 relevant section of Balentine’s federal habeas application was titled

“Ground Eight (IAC – 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.” The application explained that “IAC” means “ineffective assistance of

counsel.” Balentine claimed that, among other defaults, counsel “failed altogether

to adequately investigate and develop any mitigation and risk assessment

evidence at all.” Wiggins was cited to support the arguments regarding the need

for a reasonable investigation for mitigation evidence. The application then stated

that such “deficient performance of trial counsel raises a reasonable probability

that the outcome would have been different” and cited the Sixth and Fourteenth

Amendments and 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). Errant headings in briefs, though, do not waive arguments.

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)

9

Case: 09-70026 Document: 00511296604 Page: 9 Date Filed: 11/17/2010
No. 09-70026

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

raised for the court to rule on it. . . .”).

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

section in the brief contained the acronym for ineffective assistance of counsel 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 assistance of counsel. Subheading two was titled “Trial counsel’s

performance was deficient” and subheading three was titled “The deficient

performance raises a reasonable probability that the outcome would have been

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.

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. Independent and Adequate State Ground Methodology

Balentine argues that the Texas Court of Criminal Appeals in 2009 reached

the merits of the claim and did not simply rule 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 an

adequate state law 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,” then we should construe the state

10

Case: 09-70026 Document: 00511296604 Page: 10 Date Filed: 11/17/2010
No. 09-70026

court ruling as one applying federal law. Ruiz, 504 F.3d at 527 (quoting Michigan

v. Long, 463 U.S. 1032, 1040-41 (1983)). On the other hand, when “it does not

fairly appear that the state court rested its decision primarily on federal grounds,

it is simply not true that the ‘most reasonable explanation’ is that the state

judgment rested on federal grounds.” Coleman, 501 U.S. at 737 (quoting Long,

463 U.S. at 1041).

This court has had to apply these rules when reviewing state court orders

that were dismissed without clear explanation of the reason for the dismissal.

See, e.g., Ruiz, 504 F.3d at 527-28; Hughes, 530 F.3d at 341-42. In those cases, as

here, the Texas Court of Criminal Appeals dismissed a subsequent habeas

application with a boilerplate order that did not indicate whether the decision

turned on a state procedural bar or on an assessment of the federal merits.

A Texas state prisoner seeking relief from the death penalty has a limited

right to have a subsequent application for habeas relief considered in state court.

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).

11

Case: 09-70026 Document: 00511296604 Page: 11 Date Filed: 11/17/2010
No. 09-70026

The determination of whether these requirements are satisfied is for the

Texas Court of Criminal Appeals, not for a Texas trial court. Id. § 5(c). 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 next section of Article 11.071 addresses the situation in which the

requirements are found to be satisfied. “If the convicting court receives notice that

the requirements of Section 5 for consideration of a subsequent application have

been met, a writ of habeas corpus, returnable to the court of criminal appeals,

shall issue by operation of law.” Id. § 6(b). Only then is the State required to file

an answer to the application. Id. § 7(a). Thus, the Court of Criminal Appeals

determines without briefing by the State whether the Section 5(a) requirements

have been met.

In practice, the Court of Criminal Appeals, after determining that a

prisoner’s subsequent habeas application satisfies Section 5(a)(1), (2), or (3), often

remands the case to the trial court for fact findings. See Ex parte Alexander, No.

WR-57156-02, 2010 WL 2524572, at *1 (Tex. Crim. App. June 16, 2010); Ex parte

Rachal, No. WR-60394-02, 2009 WL 3042631, at *1 (Tex. Crim. App. Sept. 23,

2009). The Court of Criminal Appeals then reviews the trial court’s findings and

makes a ruling on the underlying constitutional claim. See Ex parte Tercero, No.

WR-62593-03, 2010 WL 724405, at *1 (Tex. Crim. App. Mar. 3, 2010); Ex parte

Cockrell, No. AP-76168, 2009 WL 1636528, at *1 (Tex. Crim. App. June 10, 2009).

On occasion, though, the Court of Criminal Appeals makes a merits ruling without

remand. See Ex parte Buntion, No. AP-76236, 2009 WL 3154909, at*1-2 (Tex.

Crim. App. Sept. 30, 2009).

On August 21, 2009, Balentine filed a subsequent habeas application. In a

two-page order, the Court of Criminal Appeals first summarized the prior

proceedings. It then addressed the most recent filing:

12

Case: 09-70026 Document: 00511296604 Page: 12 Date Filed: 11/17/2010
No. 09-70026

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

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, at *1

(Tex. Crim. App. Sept. 22, 2009).

The order does not explain the basis for the Court of Criminal Appeals’

decision. In our withdrawn opinion, we held the order’s lack of an explanation had

to be understood in the context of that court’s prior caselaw. That caselaw caused

us to presume that the Court of Criminal Appeals reached the federal merits of

the application. We now hold Coleman demands a different outcome.

The reason for our new decision will be better understood in the context of

certain Supreme Court precedents. The decisions endeavored to address a

problem federal courts frequently face when reviewing state court dismissal

orders: determining whether an order rested on independent and adequate state

grounds or instead reached the federal merits. If a decision rests on state

substantive or procedural law, federal courts are not permitted to second-guess

the decision. See Coleman, 501 U.S. at 729. But, if the state court’s reasoning was

based upon its conclusions about the federal claims, then federal courts can make

their own assessment of those merits. Id.

When both grounds are present, the Supreme Court presented a standard

for federal courts to apply when assessing whether a state court decision rested

13

Case: 09-70026 Document: 00511296604 Page: 13 Date Filed: 11/17/2010
No. 09-70026

on federal law or on independent and adequate state grounds. See Long, 463 U.S.

at 1040-41. When

a state court decision fairly appears to rest primarily on federal law,

or to be interwoven with the 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

that the state court decided the case the way it did because it believed

that federal law required it to do so.

Id. Applying this presumption, federal courts avoid deciding “cases where there

is an adequate and independent state ground” for the decision. Id. at 1040.

Prior to Long, the Court dealt with cases “that involve[d] possible adequate

and independent state grounds” in a variety of unsatisfying ways. Id. at 1039.

The Court previously dismissed cases that were unclear or simply vacated or

continued cases to “obtain clarification about the nature of a state court decision.”

Id. Another manner of analysis the Court sought to discontinue with Long was

“examining state law . . . because it requires us to interpret state laws with which

we are generally unfamiliar. . . .” Id. The new approach is intended to keep

federal courts from interpreting state law when analyzing a state court order for

adequate and independent grounds, allowing for clarification of the state law only

in “certain circumstances.” Id. at 1041 n.6.

The Supreme Court’s opinion in Long was on direct review of the Michigan

Supreme Court’s reversal of the conviction. Later, the same presumption was

held to apply when a federal court reviews a state inmate’s habeas petition

challenging his conviction. Harris v. Reed, 489 U.S. 255 (1989). Harris was

interpreted by some later courts to require application of the Long presumption

to cases in which the state court failed to make clear a state procedural ground for

its ruling. Coleman, 501 U.S. at 735. Two years after Harris, the Supreme Court

provided some clarification. Id. “A predicate to the application of the Harris

presumption is that the decision of the last state court to which the petitioner

14

Case: 09-70026 Document: 00511296604 Page: 14 Date Filed: 11/17/2010
No. 09-70026

presented his federal claims must fairly appear to rest primarily on federal law

or to be interwoven with federal law.” Id.

In Coleman, the Court reviewed an ambiguous state court dismissal. See

id. at 727-29. Roger Coleman, convicted of rape and capital murder in Virginia,

exhausted his direct state court appeals in 1983. Id. at 726-27. He filed a habeas

petition in a state trial court. Id. at 727. After that court denied his claims, he

appealed to the Virginia Supreme Court. Id. The State of Virginia filed a motion

to dismiss, contending Coleman’s appeal could not be considered because his

notice of appeal was not timely filed. Id. Both parties filed briefs on the motion

to dismiss and on the merits of Coleman’s claims; the Virginia Supreme Court

issued a brief order dismissing the appeal. Id. The order noted that Coleman filed

a petition for appeal on December 4, 1986. It then stated:

Thereupon came the appellee, by the Attorney General of

Virginia, and filed a motion to dismiss the petition for appeal; on

December 19, 1986 the appellant filed a memorandum in opposition

to the motion to dismiss; on December 19, 1986 the appellee filed a

reply to the appellant’s memorandum; on December 23, 1986 the

appellee filed a brief in opposition to the petition for appeal; on

December 23, 1986 the appellant filed a surreply in opposition to the

appellee’s motion to dismiss; and on January 6, 1987 the appellant

filed a reply brief.

Upon consideration whereof, the motion to dismiss is granted

and the petition for appeal is dismissed.

Id. at 727-28.

Coleman then turned to federal court. The district court and the Fourth

Circuit denied relief. Id. at 728-29. At the Supreme Court, Coleman argued that

“the presumption of Long and Harris applies in this case and precludes a bar to

habeas because the Virginia Supreme Court’s order dismissing [his] appeal did not

‘clearly and expressly’ state that it was based on state procedural grounds.” Id.

at 735. He sought creation of “a conclusive presumption of no independent and

15

Case: 09-70026 Document: 00511296604 Page: 15 Date Filed: 11/17/2010
No. 09-70026

adequate state grounds in every case in which a state prisoner presented his

federal claims to a state court, regardless of whether it fairly appears that the

state court addressed those claims.” Id. at 737-38.

The Supreme Court rejected this argument. Coleman’s proposed rule would

result in federal courts reviewing the constitutional merits of state prisoners’

claims even when independent and adequate state grounds should have barred

their consideration. Id. at 738.

After the Court declined Coleman’s invitation to extend the Long

presumption to all state habeas corpus petitions asserting federal claims, it also

declined to create a presumption in cases where a state court order did not plainly

rest on federal grounds. See id. at 739-40. It stated that “in the rest of the cases”

– that is, those cases where a state court judgment does not rest primarily on

federal grounds or is not interwoven with federal law – “there is little need for a

conclusive presumption.” Id. at 739. “In the absence of a clear indication that a

state court rested its decision on federal law, a federal court’s task will not be

difficult.” Id. at 739-40.

The Supreme Court then undertook the task of determining the basis for the

state court’s ruling as to Coleman. The Virginia Supreme Court had granted the

state’s motion to dismiss without explaining the court’s reasons. Id. at 727-28.

The state’s motion, though, raised only the fact that Coleman’s notice of appeal

was untimely. Id. at 727, 740. The Virginia Supreme Court made “no mention of

federal law” in its brief dismissal order. Id. at 740. Based on this evidence from

the state court record, the decision fairly appeared to be based primarily upon

state procedural grounds. Id. at 740, 744.

As just noted, the Coleman court considered the Virginia Supreme Court

order to be uninformative. Conversely, our initial opinion in the present appeal

held the Court of Criminal Appeals’ order that denied Balentine’s subsequent

application was informative. The information was not in the order itself but came

16

Case: 09-70026 Document: 00511296604 Page: 16 Date Filed: 11/17/2010
No. 09-70026

from the context in which its words were to be read, which was an earlier decision

by the Texas Court of Criminal Appeals that explained how it resolved whether

a subsequent application satisfied Section 5(a)(1) of Article 11.071. The Texas

court’s explanation was this:

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.

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

Ruiz, 504 F.3d at 527). The court held that a sufficient showing of unavailability

was made. Id. at 422. The subsequent application then faced one more hurdle:

Applicant also must jump over the rest of the section 5(a)(1) bar. That

is, his application must allege sufficient specific facts that, if proven,

establish a federal constitutional violation sufficiently serious as to

likely require relief from his conviction or sentence.

Id. at 422. The court concluded that because no prima facie case of a

constitutional violation was shown, Campbell failed to meet the second element

of this test, and the application was therefore an abuse of the writ. Id. at 425.

We have held that a determination by a state court that a petitioner failed

to make a “prima facie showing” of “sufficient specific facts” to entitle him to relief

is a decision on the merits. Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir.

2007) (citation omitted). The first element of the Campbell analysis is a “state-law

question,” but Rivera categorizes the second element as “a question of federal

constitutional law.” Ruiz, 504 F.3d at 527.

In our first opinion on this appeal, we analyzed the effect of the Court of

Criminal Appeals’ explanation of its procedure. We first considered Ruiz, which

concluded that a dismissal without explanation might be due to “the first element,

a state-law question, or on the second element, a question of federal constitutional

law.” Id. We then evaluated what we understood Ruiz to say about the effect of

17

Case: 09-70026 Document: 00511296604 Page: 17 Date Filed: 11/17/2010
No. 09-70026

that uncertainty. Our re-evaluation on rehearing now leads us to a different

understanding of Ruiz.

It is beyond question that this court in Ruiz concluded that the Court of

Criminal Appeals’ order denying relief was not a decision based on independent

and adequate state grounds. Id. at 527-28. Ruiz gave weight to 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 – which was necessary for the

decision – explicitly reached the merits. Id. Even though such vote-counting was

not involved in Balentine’s Court of Criminal Appeals decision, our initial opinion

in the present appeal held that Ruiz had also relied on the explanation in Ex parte

Campbell that an unexplained denial of a subsequent application may have been

based on a federal merits ground. We understood Ruiz to mean that uncertainty

should be transformed into a presumption that the state court reached the merits.

We did not consider, though, that this approach was inconsistent with the

Supreme Court’s refusal in Coleman to create a “conclusive presumption of no

independent and adequate state grounds in every case in which a state prisoner

presented his federal claims to a state court, regardless of whether it fairly

appears that the state court addressed those claims.” Coleman, 501 U.S. at 738-

39. The Texas court’s explanation that it at times reaches the federal merits in

denying a subsequent application cannot, consistent with Coleman’s admonition,

be the basis for a presumption that the state court actually reached the merits.

Balentine cites several Texas cases to support the argument that denials of

relief under Section 5 may be the result of a merits-determination. E.g., Ex parte

Medellin, 223 S.W.3d 315 (Tex. Crim. App. 2006). Decisions that explicitly reach

the merits, as that 45-page opinion did, are irrelevant to the issue before us.

There must be more than silence. In some form, the state court has to make

a fair indication that the merits of the claims were reached. We conclude that

Ruiz, by relying on the fact that one of the state court judges clearly reached the

18

Case: 09-70026 Document: 00511296604 Page: 18 Date Filed: 11/17/2010
No. 09-70026

merits, had a decision in which it did “fairly appear” that the state court primarily

relied on federal grounds. We erred in interpreting Ruiz otherwise.

C. Applying Independent and Adequate State Ground Principles to

Balentine’s 2009 Court of Criminal Appeals Order

We turn now to what fairly appears in the state court’s denial of relief to

Balentine. The order itself was silent. As in Coleman, we then look to the

arguments at the state court. Unlike in Coleman, where the Commonwealth of

Virginia filed a motion to dismiss, Balentine’s claims never reached the stage of

requiring a response from the State of Texas. Instead, the Court of Criminal

Appeals decided on its own that the statutory requirements for subsequent

applications had not been satisfied. Even so, we are not without indications of the

reasons for the dismissal of the Wiggins claim.

Because the state court’s order gives no indication of the grounds for its

decision, we look to what Balentine presented to that court in his subsequent

application. It was filed on August 18, 2009, and made these claims:

(1) His counsel was constitutionally ineffective in investigating for and

presenting evidence that would mitigate the punishment. Wiggins, 539 U.S. 510;

Lockett, 438 U.S. 586.

(2) The prosecution exercised some of its peremptory challenges to jurors in

an unconstitutional manner. Batson, 476 U.S. 79.

Because Balentine’s only argument here is that the district court erred in

analyzing how the Texas Court of Criminal Appeals resolved his Wiggins claim,

we need not evaluate what the Texas court did on the Batson issue.

As we have already discussed, Texas allows a subsequent application by a

state prisoner seeking relief from the death penalty to be considered on the merits

if sufficient specific facts are shown to satisfy one of three sets of criteria. Tex.

Code Crim. Proc. Ann. art. 11.071, § 5(a). Balentine first sought to exempt himself

from Section 5 altogether by alleging that he did not have competent counsel

19

Case: 09-70026 Document: 00511296604 Page: 19 Date Filed: 11/17/2010
No. 09-70026

either at trial or on his initial state habeas claim. He argued that the principles

of equity, fundamental fairness, due process, and due course of law all required

a remedy regardless of the strictures of Section 5. As he phrased the argument,

because he never got “one full and meaningful pass through habeas proceedings

(state and federal),” applying the procedural bars of Section 5 would run afoul of

these basic principles. Balentine also noted that the Texas courts had rejected

some of these arguments already, but his circumstances were unique.

The specifics of the arguments to the state court notwithstanding, the sole

issue before us today is the one identified by Balentine: did the district court err

in concluding that the decision of the state court was not on the merits of the

Wiggins claim? The only evidence is that which we find in the subsequent

application itself and in the Court of Criminal Appeals’ boilerplate order. We

conclude that the Texas court would not have silently accepted one or more of

Balentine’s arguments to ignore Section 5 altogether and then, with equal silence,

reached the merits of his Wiggins claim. This means that nothing in that part of

his subsequent application supports his claim of error now.

We now look at Section 5 itself. Balentine did not expressly identify in his

subsequent application to the state court which subsections were relevant. The

Wiggins claim is not one that affects the determination of his guilt, so Section

5(a)(2) is inapplicable. Id. § 5(a)(2) (“but for a violation of the United States

Constitution no rational juror could have found the applicant guilty beyond a

reasonable doubt”).

Therefore, Balentine would have needed to present sufficient specific facts

to support one of the following:

(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;

20

Case: 09-70026 Document: 00511296604 Page: 20 Date Filed: 11/17/2010
No. 09-70026

. . .

(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.

Id. § 5(a)(1), (3).

Balentine’s subsequent application made no effort to show that the facts or

law underlying his Wiggins claim were unavailable to him at the time of his first

state application. He made that argument as to the Batson claim, but only the

Wiggins claim is before us. Therefore, Section 5(a)(1) was not satisfied.

1

We now examine Section 5(a)(3). What is required for an argument under

that section was the subject of a recent decision:

Texas largely adopted this federal gateway in crafting its own

conditions for subsequent habeas applications. As the [Court of

Criminal Appeals] has explained, “[t]he [Texas] Legislature quite

obviously intended [§ 5(a)(3)], at least in some measure, to mimic the

federal doctrine of ‘fundamental miscarriage of justice.’ ... apparently

intending to codify, more or less, the [actual-innocence-of-the-deathpenalty] doctrine found in Sawyer v. Whitley[, 505 U.S. 333 (1992)].”

Rocha v. Thaler, 619 F.3d 387, 402-03 (5th Cir. 2010) (quoting Ex parte Blue, 230

S.W.3d 151, 159-60 (Tex. Crim. App. 2007)). The Texas court said that Sawyer

“expressly rejected the argument that a constitutional error that impacts only the

jury’s discretion whether to impose a death sentence upon a defendant who is

unquestionably eligible for it under state law can be considered sufficiently

fundamental as to excuse the failure to raise it timely in prior state and federal

Balentine found new law for his Batson claim in Miller-El v. Dretke, 545 U.S. 231 1

(2005). It appears, though, that the legal arguments he draws from Miller-El regarding

comparative juror analysis had much earlier been stated as the law by this court and the

Texas Court of Criminal Appeals. See, e.g., United States v. Webster, 162 F.3d 308, 350 (5th

Cir. 1998); Young v. State, 826 S.W.2d 141, 152 (Tex. Crim. App. 1991).

21

Case: 09-70026 Document: 00511296604 Page: 21 Date Filed: 11/17/2010
No. 09-70026

proceedings.” Ex parte Blue, 230 S.W.3d at 160. Blue’s claimed ineligibility was

mental retardation. Id. at 153; see Atkins v. Virginia, 536 U.S. 304 (2002).

Balentine did not argue in his subsequent application that he was ineligible

for the death penalty for any reason. He instead argued that his counsel had been

incompetent in investigating for mitigating evidence; better evidence might have

convinced jurors not to sentence him to death. The argument did not satisfy this

requirement of Section 5(a)(3).

The Court of Criminal Appeals left open the possibility that a Wiggins claim

might also be cognizable under Section 5(a)(3). The court said it would “hesitate

to declare that Article 11.071, Section 5(a)(3), wholly codifies” the doctrine of

ineligibility for the death penalty. Id. at 161 n.42. It was “arguable,” the court

wrote, that because mitigation is one of the special issues referenced by Section

5(a)(3), an application “could demonstrate by clear and convincing evidence that,

but for some constitutional error, no rational juror would have answered the

mitigation special issue in the State’s favor.” Id. The Texas court held it “need

express no ultimate opinion on this question here.” Id.

We perceive nothing in this footnoted observation that would inject into the

same court’s brief Balentine order a suggestion, much less a fair indication, that

it actually reached the merits of his Wiggins claim. We have already held that the

order did not reach the merits of the issues that we know the Texas court

considers relevant, namely, ineligibility for the death penalty. We will not

interpret that same perfunctory order as having reached the merits of an issue the

Texas court at most has identified it might one day reach.

We hold that Balentine’s subsequent application did not present sufficient

facts to meet the requirements of Section 5(a)(3).

Besides being independent of the federal merits, state procedural default

must also be an adequate basis for decision. A procedural rule is adequate when

it is “firmly established and regularly followed,” even if there is an occasional

22

Case: 09-70026 Document: 00511296604 Page: 22 Date Filed: 11/17/2010
No. 09-70026

aberrant state court decision. Ford v. Georgia, 498 U.S. 411, 423-24 (1991). We

have previously held that the Court of Criminal Appeals regularly enforces the

Section 5(a) requirements. Hughes, 530 F.3d at 342.

In summary of the relevant parts of our review, the district court refused to

grant Balentine a stay in 2008 to exhaust his claims in state court, predicting

correctly that the Court of Criminal Appeals would consider the claims

procedurally barred. The Court of Criminal Appeals’ 2009 denial of Balentine’s

subsequent application was based upon independent and adequate state

procedural grounds. Therefore, Balentine has not shown the district court to be

in error when it denied his Rule 60(b) motion.

The stay of execution will end upon issuance of the mandate of this court.

AFFIRMED.

23

Case: 09-70026 Document: 00511296604 Page: 23 Date Filed: 11/17/2010