IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-70038

ANTHONY CARDELL HAYNES, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CV-3424

Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:*

Petitioner Anthony Cardell Haynes appeals the district court’s denial of 

his motion for relief from judgment pursuant to Federal Rule of Civil Procedure 

60(b). For the reasons stated below, we AFFIRM. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 8, 2018

Lyle W. Cayce

Clerk

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I

Haynes was convicted by a jury of murdering an off-duty police officer 

and sentenced to death. He was denied state habeas relief in 2004 and federal 

habeas relief in 2007. In Haynes’ initial federal habeas petition, he contended 

that his trial counsel was constitutionally deficient under Strickland v. 

Washington, 466 U.S. 668 (1984) and Wiggins v. Smith, 539 U.S. 510 (2003), 

because counsel failed to investigate and present available mitigating evidence 

at the penalty phase of his capital trial. Haynes also alleged that his state 

habeas counsel was ineffective, in part because counsel neglected to present 

several meritorious constitutional claims on appeal. The district court found 

that Haynes’ claims—including the relevant ineffective assistance of trial 

counsel (“IATC”) claims—were unexhausted and procedurally barred; the 

district court alternatively rejected his claims on the merits. This court 

ultimately denied Haynes’ appeal, see Haynes v. Thaler, 438 F. App’x 324 (5th 

Cir. 2011), the Supreme Court denied certiorari review, see Haynes v. Thaler, 

566 U.S. 964 (2012), and the state set his execution date for October 18, 2012.

Haynes proceeded to file a motion for relief from judgment in the district 

court pursuant to Rule 60(b)(6). He claimed that the Supreme Court’s decision 

in Martinez v. Ryan, 566 U.S. 1 (2012)—which held that inadequate assistance 

of counsel at state collateral proceedings may establish cause for procedural 

default of an IATC claim—constituted an “extraordinary circumstance” 

warranting relief from judgment. The district court denied the motion on 

several bases: (1) based on Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012), the 

equitable exception announced in Martinez did not apply to Texas prisoners; 

(2) Martinez was merely a change in law and did not constitute an 

“extraordinary circumstance”; (3) relief was unnecessary because Haynes’ 

IATC claims had actually been adjudicated—and rejected—on the merits; and 

(4) even if Martinez was applicable, Haynes could not demonstrate “actual 

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prejudice” arising from his state habeas counsel’s failure to raise his IATC 

claim on collateral review.

This court denied Haynes’ application for a certificate of appealability

and his motion for a stay of execution, agreeing with the district court that 

Ibarra controlled. See Haynes v. Thaler, 489 F. App’x 770 (5th Cir. 2012). The

Supreme Court ultimately granted Haynes a stay of execution. See Haynes v. 

Thaler, 568 U.S. 970 (2012). Following its decision in Trevino v. Thaler, 569 

U.S. 413 (2013)—which held that Martinez does in fact apply to Texas 

prisoners—the Supreme Court vacated and remanded the case, and this court 

remanded to the district court for reconsideration of Haynes’ Rule 60(b) motion

in light of Trevino. The district court again denied Haynes’ motion, standing 

by its three alternative, and independently adequate, grounds for rejecting 

Haynes’ claims: (1) the change in decisional law does not, by itself, constitute 

an “extraordinary circumstance” warranting relief; (2) the court had already 

considered the underlying merits of Haynes’ claims and found no basis for 

relief; and (3) Haynes failed to demonstrate actual prejudice stemming from 

state habeas counsel’s failure to raise his IATC claim. This appeal follows. 

II

This court reviews a denial of a Rule 60(b) motion for abuse of discretion. 

Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013). Under this standard, “[i]t 

is not enough that the granting of relief might have been permissible, or even 

warranted[—]denial must have been so unwarranted as to constitute an abuse 

of discretion.” Id. (quoting Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th 

Cir. 1981)).

III

Rule 60(b) provides generally that the court may relieve a party from a 

final judgment, order, or proceeding in the event of obvious error such as 

mistake or inadvertence, newly discovered evidence, or fraud. See Fed. R. Civ. 

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P. 60(b)(1)–(3). Rule 60(b)(6), often referred to as the “catchall” provision, also

permits the court to relieve a party from judgment for “any other reason that 

justifies relief.” Fed. R. Civ. P. 60(b)(6). This court has cautioned, however, that 

“[t]he desire for a judicial process that is predictable mandates caution in 

reopening judgments.” Carter v. Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998) 

(quoting Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990)).

Accordingly, relief under Rule 60(b)(6) is only appropriate upon a showing of 

“extraordinary circumstances.” Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir. 

2010). The Supreme Court has stated that “[s]uch circumstances will rarely 

occur in the habeas context.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). 

Furthermore, a change in decisional law does not, on its own, constitute an 

“extraordinary circumstance” warranting relief from judgment. Adams v. 

Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (citing Bailey, 894 F.2d at 160); see 

also Gonzalez, 545 U.S. at 536. “[T]his rule applies with equal force in habeas 

proceedings under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”).” Adams, 679 F.3d at 320 (internal quotations omitted).

In Buck v. Davis, the Supreme Court explained that in determining 

whether a petitioner has demonstrated “extraordinary circumstances,” courts 

may consider a “wide range of factors,” which may include “‘the risk of injustice

to the parties’ and ‘the risk of undermining the public’s confidence in the 

judicial process.’” 137 S. Ct. 759, 778 (2017) (quoting Liljeberg v. Health 

Services Acquisition Corp., 486 U.S. 847, 864 (1988)). This court has articulated 

a number of equitable factors relevant to the Rule 60(b) inquiry:

(1) That final judgments should not lightly be disturbed; (2) that 

the Rule 60(b) motion is not to be used as a substitute for appeal; 

(3) that the rule should be liberally construed in order to achieve 

substantial justice; (4) whether the motion was made within a 

reasonable time; (5) whether if the judgment was a default or a 

dismissal in which there was no consideration of the merits the 

interest in deciding cases on the merits outweighs, in the 

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particular case, the interest in the finality of judgments, and 

there is merit in the movant's claim or defense; (6) whether if 

the judgment was rendered after a trial on the merits the 

movant had a fair opportunity to present his claim or defense; 

(7) whether there are intervening equities that would make it 

inequitable to grant relief; and (8) any other factors relevant to 

the justice of the judgment under attack.

Seven Elves, 635 F.2d at 402. Though we have never explicitly held that the 

“Seven Elves factors” bear on the extraordinary circumstances analysis under 

Rule 60(b)(6) specifically, we have used them as a guide in evaluating the 

strength of a motion brought pursuant to Rule 60(b)(6). See, e.g., Diaz, 731 F.3d 

at 377 (stating that “[w]e will assume arguendo that Seven Elves may have 

some application in the Rule 60(b)(6) context”); Matter of Al Copeland Enters., 

Inc., 153 F.3d 268, 272 (5th Cir. 1998) (noting that several Seven Elves factors 

weighed in favor of sustaining the lower court’s grant of the party’s Rule 

60(b)(6) motion). 

We have recognized, however, that “in the context of habeas law, comity 

and federalism elevate the concerns of finality, rendering the 60(b)(6) bar even 

more daunting.” Diaz, 731 F.3d at 376 n.1. Furthermore, while the viability of 

a petitioner’s underlying constitutional claim may be tangentially relevant to 

the Rule 60(b) analysis, see, e.g., Buck, 137 S. Ct. at 778, the Rule may not be 

used to attack “the substance of the federal court’s resolution of a claim on the 

merits.” Gonzalez, 545 U.S. at 532 (emphasis added); see also Adams, 679 F.3d 

at 319. Such motions constitute improper successive habeas petitions under 

AEDPA. Id. Instead, Rule 60(b) motions must allege “some defect in the 

integrity of the federal habeas proceedings,” Gonzalez, 545 U.S. at 532, and 

may challenge only erroneous rulings “which precluded a merits 

determination[—]for example, a denial for such reasons as failure to exhaust, 

procedural default, or statute-of-limitations bar,” id. at n. 4.

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Haynes acknowledges that the change in decisional law effectuated by 

Martinez and Trevino is insufficient, on its own, to demonstrate “extraordinary 

circumstances.” He maintains, however, that the balance of individual equities

this court considers when reviewing a Rule 60(b) motion weighs in his favor.

The gravamen of Haynes’ argument is that, because he has demonstrated that 

he has a substantial IATC claim and that his state habeas counsel was 

deficient in failing to raise it, he has established “extraordinary circumstances” 

warranting relief from judgment. We disagree. 

First, whether “there is merit in [Haynes’] claim” only becomes a 

relevant factor in the Rule 60(b) analysis if “there was no consideration of the 

merits” below. Seven Elves, 635 F.2d at 402. Here, the district court reviewed 

the merits of Haynes’ underlying IATC claim on multiple occasions. 

Furthermore, as the district court has repeatedly noted, the merits of Haynes’ 

IATC claim are not particularly compelling.1 Despite Haynes’ efforts to 

demonstrate the contrary, the record indicates that Haynes’ trial counsel was 

more than adequate and that counsel’s penalty-phase investigation was 

sufficiently diligent. See Wiggins, 539 U.S. at 522–23. The thrust of Haynes’ 

argument seems to be that there may have been a better mitigation strategy 

available to defense counsel. But this amounts to no more than a claim that a 

different strategy could have been “more effective,” which falls far short of the 

required showing that “but for counsel’s errors, the result of the proceeding 

would have been different.” Coble v. Quarterman, 496 F.3d 430, 436 (5th Cir. 

2007). Accordingly, even if we were to agree with Haynes that he has raised a 

 

1 Although we touch briefly on the merits of Haynes’ IATC claim, as they are arguably

relevant to our “extraordinary circumstances” analysis, we are precluded from conducting a 

comprehensive merits review. Gonzalez, 545 U.S. at 532; see also Adams, 679 F.3d at 319. 

Haynes’ Rule 60(b) motion may not be used to attack the substance of the district court’s 

resolution of Haynes’ IATC claim on the merits or to circumvent the requirements imposed 

by AEDPA. Gonzalez, 545 U.S. at 532. 

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colorable claim with respect to the adequacy of his state habeas counsel, he 

would still be unable to claim the benefit of Martinez and Trevino. See 

Martinez, 566 U.S. at 14 (stating that “to overcome [] default, a prisoner must 

also demonstrate that the underlying [IATC] claim is a substantial one”).

The balance of the remaining equitable factors also weighs against 

granting relief under Rule 60(b)(6). In addition to considering whether the 

district court conducted a merits review, we also take into account the fact that 

“final judgments should not be lightly disturbed” and that “the Rule 60(b) 

motion is not to be used as a substitute for appeal.” Seven Elves, 635 F.2d at 

402. Again, finality is a particularly strong consideration in the habeas context. 

See Diaz, 731 F.3d at 376 n. 1. Haynes was convicted by a jury in state court 

nearly twenty years ago. He has been litigating his claims in federal court for 

over a decade, and this case has gone through multiple cycles of review. As the 

court stated in Diaz, the “State’s strong interest in the finality of [Haynes’] 

conviction and sentence[] and the delay that will undoubtedly result from 

reopening this long-closed case all weigh in favor of denying [his] Rule 60(b)(6) 

motion.” Id. at 378. Moreover, to the extent that the underlying purpose of 

Haynes’ motion is to force this court to review the merits of his IATC claim, he 

is impermissibly using Rule 60(b)(6) as a “substitute for appeal.” Seven Elves, 

635 F.2d at 402. Haynes has already received a more in-depth merits review of 

his claims than he was likely entitled from the district court, and his Rule 

60(b)(6) motion is an improper vehicle for relitigating them. 

In sum, Haynes has not demonstrated “extraordinary circumstances” 

warranting relief from judgment. The district court did not abuse its discretion 

in denying his Rule 60(b)(6) motion. 

IV

For the foregoing reasons, we AFFIRM.

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JAMES L. DENNIS, Circuit Judge, dissenting:

At the time of the capital crime in question, Anthony Haynes was

nineteen years old, had no prior criminal record, and was apparently under the 

influence of drugs. At the punishment phase of his capital trial, Haynes was 

deprived of the opportunity to present his best defense. Haynes was deprived

of the opportunity to raise his ineffective assistance of trial counsel claim in 

state court by what appears to have been egregiously deficient post-conviction 

counsel. And he was deprived of federal review of his claim by a procedural 

bar that the Supreme Court has since expressly lifted. The majority opinion 

now refuses to allow Haynes’s claim to go forward, on the theory that Haynes’s 

claim lacks merit and that, in any event, he has already had a fair shot at 

litigating it. Because I believe that Haynes presents a substantial ineffectiveassistance-of-trial-counsel claim that has never been properly considered and 

that the district court abused its discretion in failing to reopen his case, I

respectfully dissent.

*

Haynes’s claim is before us on appeal from the denial of a motion for 

relief from judgment under Federal Rule of Civil Procedure 60(b)(6), which 

requires Haynes to demonstrate the presence of “extraordinary 

circumstances.” See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). “In 

determining whether extraordinary circumstances are present, a court may 

consider a wide range of factors. . . . [including] ‘the risk of injustice to the 

parties’ and ‘the risk of undermining the public’s confidence in the judicial 

process.’” Buck v. Davis, 137 S. Ct. 759, 778 (2017) (quoting Liljeberg v. Health 

Servs. Acquisition Corp., 486 U.S. 847, 863–64 (1988)). 

We review a district court’s Rule 60(b) determination deferentially, and 

extraordinary circumstances are just that, extraordinary. But that does not 

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mean that a district court’s discretion is limitless, or that relief is all but

impossible to obtain. See, e.g., Buck, 137 S. Ct. at 778. A district court “must 

exercise its discretion within the bounds set by . . . relevant, binding 

precedents.” In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008). 

Such relevant, binding precedents here include Osborne v. Homeside Lending, 

Inc. (In re Osborne), 379 F.3d 277, 283 (5th Cir. 2004), which directs that 

circumstances supporting Rule 60(b) relief “must necessarily be evaluated on 

a case-by-case basis”; Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 

1981), which provides a non-exclusive list of factors to be considered in 

balancing the equities of a Rule 60(b) motion, including whether a claim is 

substantial, yet previously unreviewed; and Gonzalez v. Crosby, 545 U.S. at 

537, which recognizes the salience of diligence to Rule 60(b) motions that are 

premised, in part, on a change in decisional law. In this case, the district court 

failed to consider all of the relevant factors and misevaluated the factors it did 

consider. While the majority opinion at least places this case in the proper 

framework, it stumbles in its assessment of significant factors.

Initially, it is important to keep in mind that this case is before us 

because Haynes’s claim was denied merits review by a procedural bar that was 

lifted shortly after final judgment was entered in his federal habeas case. 

Through its decisions in Martinez v. Ryan, 566 U.S. 1, 17 (2012), and 

Trevino v. Thaler, 569 U.S. 413, 429 (2013), the Supreme Court made it 

possible for a petitioner like Haynes to present his procedurally-barred

ineffective-assistance-of-trial-counsel claim if his claim is “substantial” and if 

his state habeas counsel was ineffective in failing to bring the claim. See 

Trevino, 569 U.S. at 429; Martinez, 566 U.S. at 17. In so doing, the Court 

effected a remarkable sea change in decades-old precedent that lower courts 

and litigants previously understood as settled. See Martinez, 566 U.S. at 15; 

id. at 23 (Scalia, J., dissenting) (noting that Martinez is “a repudiation of the 

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longstanding principle governing procedural default, which Coleman and other 

cases consistently applied”); id. at 2 (describing Martinez as “a radical 

alteration of our habeas jurisprudence”). The change adopted in Martinez and 

expanded in Trevino “was also important, crafted, as it was, to ensure that 

fundamental constitutional claims receive review by at least one court.” Cox 

v. Horn, 757 F.3d 113, 124 (3d Cir. 2014). Though not alone an “extraordinary 

circumstance” warranting Rule 60(b) relief, this significant change in habeas 

jurisprudence provides an important baseline for our review of Haynes’s 

particular circumstances.

The majority opinion insists that “the district court reviewed the merits 

of Haynes’ underlying IATC claim on multiple occasions.” Op. at 6. But, as I 

have previously noted, though purporting to address the merits, the district 

court’s opinion denying Haynes habeas relief entirely failed to engage with the 

specifics of Haynes’s ineffective-assistance-of-counsel claim. See Haynes v. 

Stephens, 576 F. App’x 364, 366 (5th Cir. 2014) (Dennis, J. concurring). The 

district court addressed Haynes’s fact-intensive claim in three sentences:

[A]s noted by respondent, Haynes’ argument is essentially “not 

that counsels’ performance should have been better, rather, his 

argument is that counsel should have investigated and presented 

evidence at the punishment phase in a completely different 

manner.” The record indicates that the defense counsel (as well as 

the prosecution and trial court) went to great lengths to ensure 

that Haynes’ constitutional rights were protected and viable 

defenses pursued. Haynes’ allegations do not show flagrant 

omissions by the players involved in his trial; rather, they merely 

demonstrate the exercise of strategy and typify the maxim that 

“the Constitution entitles a criminal defendant to a fair trial, not 

a perfect one.”

Haynes v. Quarterman, No. H-05-3424, 2007 WL 268374, at *9 (S.D. Tex. Jan. 

25, 2007) (citations omitted). The Supreme Court has rejected a similarly 

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cursory alternative holding as insufficient to constitute review on the merits. 

Cone v. Bell, 556 U.S. 449, 474–75 (2009).

And even if the district court had engaged in some meaningful merits 

review, Haynes did not receive full consideration of his claim because, although 

he sought to appeal the district court’s merits holding, this court did not grant 

review of that issue, instead denying a certificate of appealability on the

ground that it was procedurally barred. See Haynes v. Quarterman, 526 F.3d 

189, 194–96 (5th Cir. 2008). “A party who seeks review of the merits of an 

adverse ruling, but is frustrated by the vagaries of circumstance, ought not in 

fairness be forced to acquiesce” to that ruling. See U.S. Bancorp Mortg. Co. v. 

Bonner Mall Pshp., 513 U.S. 18, 25 (1994). Indeed, when a district court’s

judgment is based on alternative holdings and this court addresses only one of 

these holdings on appeal, the district court’s ruling is only conclusive as to that 

holding. See Borst v. Chevron Corp., 36 F.3d 1308, 1314 n.11 (5th Cir. 1994) 

(“Because we do not consider whether or not a partial vertical (or horizontal) 

termination occurred, the district court’s ruling on this issue is not conclusive 

between the parties.”); Dow Chem. v. EPA, 832 F.2d 319, 323 (5th Cir. 1987) 

(“The federal decisions agree that once an appellate court has affirmed on one 

ground and passed over another, preclusion does not attach to the ground 

omitted from its decision.”) (quoting 18 CHARLES ALAN WRIGHT ET AL.,

FEDERAL PRACTICE & PROCEDURE § 4421 (1981)). Because the final judgment 

as to Haynes’s ineffective-assistance-of-counsel claim rested solely on 

procedural grounds, the majority opinion’s suggestion that our current review 

is constrained by 28 U.S.C. § 2244, which applies when a claim has been 

adjudicated on its merits, is unfounded.1

 

1 Nor was the district court’s cursory discussion of the merits at the Rule 60(b) phase 

a sufficient merits review. In Buck v. Davis, the Supreme Court held that the district court 

abused its discretion by declining to reopen a petitioner’s case, notwithstanding the Court’s 

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The majority opinion further errs by dismissing Haynes’s claim as “not 

particularly compelling.” See Op. at 6. This conclusion is tenable only if, like 

the district court and the majority opinion, one does not actually engage with 

the specifics of Haynes’s ineffective-assistance claim.2 In support of his 

contention that trial counsel’s penalty-phase investigation and presentation 

were unconstitutionally deficient, Haynes relies on the report of a mitigation 

specialist who opines that counsel’s investigation was extremely limited in 

depth and breadth as a function of its unreasonably late start. He also points 

to significant mitigation evidence amassed by federal post-conviction counsel, 

which trial counsel either did not discover, did not present, or both. Haynes’s 

evidence supports a substantial claim both that trial counsel’s penalty phase 

performance was deficient and that the deficiency prejudiced him.

Haynes confessed, on tape, to shooting the victim with the belief that he 

was a police officer. Faced with a strong case for Haynes’s guilt of capital 

murder, part of counsel’s defense was that Haynes may have “believed” that 

the victim was a police officer, but did not “know” that this was true. Because 

their guilt-phase argument was unlikely to be successful, reasonable counsel 

would have begun to focus on the penalty phase early on. Cf. Walbey v. 

Quarterman, 309 F. App’x 795, 801 (5th Cir. 2009) (“Given the Texas law 

establishing that the facts of [defendant’s] crime are themselves legally 

sufficient to support a finding of future dangerousness, the virtually impossible 

 

observation that the district court had discussed the merits of the claim in its Rule 60(b) 

order. 137 S. Ct. at 772, 778. In any event, the district court’s alternative holdings have 

again deprived Haynes of appellate review of this issue.

2 The majority opinion contends that “we are precluded from conducting a 

comprehensive merits review.” Op. at 6. Neither Gonzalez v. Crosby, 545 U.S. 524 (2005), 

nor Adams v. Thaler, 679 F.3d 312 (5th Cir. 2012), supports this assertion. However, I do 

agree that it is not our task at this stage to decide whether Haynes has a meritorious claim, 

only whether the merits of his claim are substantial. 

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battle that [counsel] faced on future dangerousness makes all the more 

unreasonable [his] failure to investigate a mitigation defense thoroughly.”).

Yet the record reflects that counsel delayed psychological evaluations 

until after the trial had begun. Given Haynes’s history of significant mentalhealth interventions, of which competent counsel should have been aware,

counsel should not have waited until the last minute to solicit expert 

evaluations. Cf. Escamilla v. Stephens, 749 F.3d 380, 386, 392 (5th Cir. 2014) 

(granting COA on plaintiff’s ineffective-assistance-of-counsel claim where 

counsel, inter alia, “failed to obtain a psychological evaluation for their client 

until after trial began”); Busby v. Davis, 677 F. App’x 884, 886, 893 (5th Cir. 

2017) (holding that reasonable jurists could debate whether habeas petitioner 

had presented a viable ineffective-assistance-of-counsel claim where counsel 

“waited approximately nineteen months to assemble a mitigation investigation 

team[,] hired a mitigation specialist days before voir dire,” and hired a mentalhealth expert a week after voir dire started). According to Haynes’s postconviction expert, mental-health professionals would not have had sufficient 

time to make a reasonable assessment within the timeframe counsel’s tardy 

investigation allowed. Unsurprisingly, then, the trial experts’ reports were 

unhelpful, and extensive mental-health evidence presented by the State went 

unchallenged and uncontextualized.

Moreover, counsel waited until shortly before trial to conduct most laywitness interviews. When they finally did begin their investigation, they failed 

to speak to multiple character witnesses suggested by Haynes’s parents and 

turned away witnesses who reached out to them. Several witnesses who 

testified at trial claimed that counsel did not properly prepare them. Trial 

counsel presented only a handful of mitigation witnesses, some of whom did 

not seem to know Haynes well. 

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By contrast, federal habeas counsel has presented affidavits from dozens 

of Haynes’s friends, family, and acquaintances, representing a veritable crosssection of Haynes’s community. Affidavits from two of Haynes’s ex-girlfriends, 

in addition to affirming Haynes’s good character, describe how upset and 

remorseful Haynes was after the shooting. Other affidavits attest that Haynes 

was a “good kid” and “very respectable,” that he was not violent, and that he 

was not likely to be a future danger. Several affidavits state that Haynes was 

not hostile toward authority figures or police officers. An affidavit from 

Haynes’s teacher avers that Haynes was among the best students in his 

school’s ROTC program. There is no basis in this record to conclude that 

counsel’s failure to present these witnesses resulted from a strategic decision 

when their principal mitigation theory seems to have been that Haynes was a 

good kid. Rather, trial counsel’s mitigation presentation appears to have been 

needlessly and inexplicably meager. 

In addition, federal habeas counsel has presented evidence of Haynes’s 

history of mental-health problems and Attention Deficit Hyperactivity 

Disorder, Haynes’s drug use at the time of the murder, and his low risk of 

future violence. Because of their late and limited investigation, trial counsel 

failed to present this evidence, which would have augmented Haynes’s case for 

a life sentence in multiple, significant ways, presenting a stronger case for both 

mitigation and a lack of future dangerousness.

Additional details of Haynes’s childhood would have shown a more 

complete picture of chaos and abuse, undercutting the idea that Haynes had a 

privileged upbringing—one of the principal themes of the prosecution’s 

penalty-phase case. Cf. Sears v. Upton, 561 U.S. 945, 951 (2010) (“[E]vidence 

[of a personality disorder] might not have made Sears any more likable to the 

jury, but it might well have helped the jury understand Sears, and his 

horrendous acts—especially in light of his purportedly stable upbringing.”). 

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The evidence would have presented a stronger case that Haynes was 

distraught and immediately remorseful after the murder, countering another 

one of the prosecution’s principal themes.

A robust mitigation presentation would also have revealed that Haynes 

was predisposed to addiction and likely high on methamphetamine on the 

night in question, presenting a much stronger argument to support trial 

counsel’s theory that Haynes was a fundamentally good person whose night of 

violent crime was influenced by drug dependency and intoxication. See Cone, 

556 U.S. at 475 (vacating decision that ignored that substance addiction may 

be mitigating even if it is not exculpatory); cf. Williams v. Taylor, 529 U.S. 362, 

398 (2000) (evidence that defendant’s “violent behavior was a compulsive 

reaction rather than the product of cold-blooded premeditation” weighed in 

favor of prejudice). It would also have explained the interrelation of Haynes’s 

home life, mental-health problems, behavioral problems, and substance-abuse 

problems, with likely repercussions for the jury’s assessment of Haynes’s moral 

blameworthiness. See Sears, 561 U.S. at 951. Additional evidence would have 

“humanize[d]” Haynes by showing how many people in his life thought of him 

as a good person: As the affidavits of over forty lay witnesses show, he was well 

liked by his family members, friends, acquaintances, and teachers. See Neal 

v. Puckett, 286 F.3d 230, 244 (5th Cir. 2002) (en banc) (undiscovered evidence 

that defendant had people in his life who saw his worth contributed to finding 

of prejudice). Furthermore, it would have provided the jury with a better 

framework for assessing Haynes’s risk of future violence in prison, which was 

likely to be low given Haynes’s good behavior in institutional settings and the 

fact that experts thought the structure of prison would abate the risk of 

violence. 

The majority opinion once again misrepresents the relevant legal 

standard by suggesting that Haynes must establish that counsel’s deficient 

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performance necessarily altered the outcome of his case. See Op. at 6. In fact,

Haynes’s ultimate burden is only to show “a probability sufficient to undermine 

confidence in that outcome.” Porter v. McCollum, 558 U.S. 30, 44 (2009) 

(cleaned up). And his only burden at this stage is to show that his claim is 

substantial. See Martinez, 566 U.S. at 14; Seven Elves, 635 F.2d at 402. 

“Capital punishment must be limited to those offenders who commit a 

narrow category of the most serious crimes and whose extreme culpability 

makes them the most deserving of execution.” Roper v. Simmons, 543 U.S. 

551, 568 (2005) (cleaned up). Before the night of the offense, Haynes had no 

criminal record, let alone one that would portend a capital offense. Given the 

relatively limited case in aggravation, which mainly included Haynes’s actions 

the night of the murder and evidence of his mental-health problems, this was 

a case in which presentation of the available mitigation evidence was very 

likely to persuade at least one juror that Haynes was not “deserving of 

execution.” See id. In sum, Haynes has made a substantial showing with 

respect to the merits of his claim.

In light of the above, a proper balancing of equitable factors weighs in 

favor of Rule 60(b) relief: for reasons already established, Haynes’s claim is 

substantial yet unreviewed; his “motion was made within a reasonable time,” 

just months after the landmark decision in Martinez lifted the procedural bar 

to his claim; and Rule 60(b) “should be liberally construed in order to achieve 

substantial justice,” here, ensuring that a death penalty petitioner’s 

substantial ineffective assistance of trial counsel claim has been considered. 

See Seven Elves, 635 F.2d at 402. 

The majority opinion repeatedly cites to finality interests, but this

cannot overcome the strong showing in favor of reopening Haynes’s case. The 

majority opinion cites Diaz v. Stephens, 731 F.3d 370 (5th Cir. 2013), for the 

proposition that “in the context of habeas law, comity and federalism elevate 

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the concerns of finality, rendering the 60(b)(6) bar even more daunting.” But, 

as is clear from that opinion, the quoted language is a statement by one judge 

only, not joined by the other panel members. See id. at 376 n.1 (statement of 

Jones, J.) (“Judge Jones notes that . . . . in the context of habeas law, comity 

and federalism elevate the concerns of finality, rendering the 60(b)(6) bar even 

more daunting.”). In any case, whatever weight this statement might carry is 

strongly tempered by the Supreme Court’s recent rejection of the notion that 

finality is the overriding concern when assessing Rule 60(b) motions in habeas 

cases. Buck, 137 S. Ct. at 779. As the Court explained, “the whole purpose of 

Rule 60(b) is to make an exception to finality.” Id. (cleaned up). 

I would add that the whole purpose of federal habeas review is to make 

an exception to finality. Indeed, in this context, our duty to search for 

constitutional error is at its apex. See Burger v. Kemp, 483 U.S. 776, 785 (1987)

(“Our duty to search for constitutional error with painstaking care is never 

more exacting than it is in a capital case.”). I believe Haynes’s claim deserves, 

but has not received, close consideration. I would hold that the district court’s 

ruling constituted an abuse of discretion and remand for plenary consideration 

of the merits of his claim. For these reasons, I respectfully dissent.

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