United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER DENYING RULE 60(B)
MOTION AND, IN THE ALTERNATIVE, DENYING AUTHORIZATION OF
R. MEANS UNITED STATES DISTRICT JUDGE.
years ago, this Court denied federal habeas petitioner Billy
Jack Crutsinger's request under 18 U.S.C. § 3599(f)
for funds to investigate an unexhausted and procedurally
barred claim of ineffective trial counsel. That ruling was
correct under the law, but the law has since changed. It may
now be error for a district court to refuse needed funding in
cases where there is a credible chance it would enable the
petitioner to overcome procedural default--and the
ineffectiveness of state habeas counsel may overcome
procedural default for claims of ineffective trial counsel.
Ayestas v. Davis, 138 S.Ct. 1080, 1094 (2018);
Trevino v. Thaler, 569 U.S 413 (2013); Martinez
v. Ryan, 566 U.S. 1 (2012).
questions now before the Court are whether the circumstances
require reopening this case under Federal Rule of Civil
Procedure 60(b) (6) and, if so, whether Crutsinger has made
the necessary showing for funding under § 3599(f). The
Court answers both of these questions in the negative.
Court assumes the parties' familiarity with the history
of the case as set out in the Court of Appeals' remand
order and will not repeat it. See Crutsinger v.
Davis, No. 18-70027, 2019 WL 2864445 (5th Cir. July 3,
Rule of Civil Procedure 60(b)(6) allows a district court to
grant relief from a final judgment, order, or proceeding for
any reason that justifies relief. See Fed.R.Civ.P. 60(b) (6)
. District courts have jurisdiction to consider Rule 60(b)
motions in 28 U.S.C. § 2254 habeas-corpus proceedings so
long as the motion attacks not the substance of the
court's resolution of the claim on the merits but some
alleged defect in the integrity of the habeas proceedings.
See Gonzalez v. Crosby, 545 U.S. 524, 532 nn. 4, 5
(2005). The United States Court of Appeals for the Fifth
Circuit held that this Court has jurisdiction to decide
Crutsinger's Rule 60(b) motion. Crutsinger, 2019
WL 2864445, at *4.
justify reopening the judgment, Crutsinger must show
"extraordinary circumstances." See
Gonzalez, 545 U.S. at 535. Such circumstances will
rarely occur in the habeas context. Id.
(parenthetically noting that this strict interpretation is
essential to preserve the finality of judgments). In
determining whether extraordinary circumstances exist, this
Court may consider a wide range of factors, including, in an
appropriate case, 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). A change
in the Supreme Court's interpretation of the AEDPA is
rarely extraordinary by itself. See Gonzalez, 54 5
U.S. at 536 (stating that it is hardly extraordinary that,
after Gonzalez's case was no longer pending, the Supreme
Court interpreted the statute differently).
Court of Appeals has already acknowledged, circuit precedent
appears to foreclose Crutsinger's reliance on the changes
in law brought by Martinez/Trevino. Crustinger v.
Davis, No. 18-70027, 2019 WL 3243399, at *2 n.1 (5th
Cir. July 19, 2019) (order denying stay); see Adams v.
Thaler, 679 F.3d 312, 319-20 (5th Cir. 2 012) (rejecting
argument that Martinez and the equitable imperative
that the "true merit of the cause be heard"
constitute extraordinary circumstances in death-penalty
case); Diaz v. Stephens, 731 F.3d 370, 376 (5th Cir.
2013) (holding that Trevino did not undermine
reliance on the changes in law brought by
Martinez/Trevino appears to be foreclosed by
Gonzalez as well. In Gonzalez, the Supreme
Court held that a change in equitable-tolling law under the
AEDPA did not constitute an extraordinary circumstance that
justified reopening the district court's dismissal of
Gonzalez's petition as time-barred. The Supreme Court
further stated that the change in law was "all the less
extraordinary in petitioner's case because of his lack of
diligence in pursuing review of the statute-of-limitations
issue." Gonzalez, 545 U.S. at 636-37.
the changes in the law affecting funding are, if anything,
less extraordinary than the changes discussed in
Gonzalez because a lack of funding did not prevent
Crutsinger from presenting a claim. Unlike Gonzalez,
whose petition was dismissed, this Court addressed at length
the merits of Crutsinger's ineffective-trial-counsel
claim (IATC) based on the timing of counsel's
investigation. Crutsinger v. Thaler, No.
4:07-CV-703-Y, 2012 WL 369927, at *4-13 (N.D. Tex. Feb. 6,
2012) . Although Crutsinger did not develop or present this
particular IATC claim in state court (he presented different
ones), the record in this Court was sufficient to
make an informed merits review, as discussed in the pages
Crutsinger asserts that the following additional factors
together create extraordinary circumstances that justify
reopening the judgment:
1. The nature of the proceedings as habeas corpus, in which
traditional res-judicata rules have never applied, and the
careful adjudication of which the Supreme Court has called
the highest duty of a federal court, citing Preiser v.
Rodriguez, 411 U.S. 475, 497 (1973) and Harris v.
Nelson, 394 U.S. 286, 292 (1969) .
2. The nature of the case as a capital case.
3. The nature of the alleged defect as a deprivation of
guaranteed representation, which is structural in nature and
undermines public confidence in the judicial process.
4. The nature of the alleged defect, which operated to
preclude hearing the true merits of the case because it
thwarted Crutsinger's ability "even to discover and
allege material facts in support of claims he sought to
pursue in good faith."
5. The fact that the Supreme Court specifically-mentioned
this case in Ayestas, 138 S.Ct. at 1093.
6. The facts underlying the claims affected by the alleged
defect are egregious, including that petitioner's trial
counsel went to trial only five months after being appointed
in a capital case and state habeas counsel effectively
7. Crutsinger has exercised extraordinary diligence in
pursuing his representation rights.
(Opposed Motion for Relief from Judgment Pursuant to Fed. R.
Civ. Proc. 60(b)(6), p. 24-26 (Dkt. No. 90); Supplemental
Brief in Support of Motion for Relief from Judgment, p. 3-4
(Dkt. No. Ill).) The Court addresses these factors below.
1, 2 (capital habeas nature of the case)
assertion that Rule 60(b) (6) relief is proper because this
is a death penalty proceeding in the nature of habeas is not
persuasive because the cases offered in support
(Preiser and Harris) do not address Rule
60(b) or the reopening of a judgment. Further, these cases
pre-date the AEDPA, which significantly changed and limited
the availability of habeas relief. See Gonzalez, 545
U.S. at 530; see also, e.g., Teague v. Lane, 489
U.S. 288 (1989) (holding that new constitutional rules of
criminal procedure generally do not apply on habeas review).
opinions in Adams, 679 F.3d 312 and Diaz,
731 F.3d 370, which were death-penalty cases, also undermine
Crutsinger's argument that all death-penalty habeas cases
are extraordinary for purposes of Rule 60(b). To hold
otherwise would render meaningless the strict limits on Rule
60(b) (6) relief. As the Supreme Court noted in
Harris, 394 U.S. at 298, the courts have no power to
rewrite the rules by judicial interpretations.
3 (structural error)
wrongly characterizes the alleged defect in this proceeding
as structural error in the form of the denial of
representation. This Court's 2008 ruling on his motion
for funding was not a "defect" in the proceedings.
It was correct under the law, which did not allow the alleged
ineffective assistance of state habeas counsel to excuse a
procedural default. See Coleman v. Thompson, 501
U.S. 722 (1991). That did not change for Texas until Trevino
was decided in May of 2013.
recognition of this long-standing rule, Crutsinger did not
even present in 2008 the argument under which he now claims
the Court's ruling was defective. He stated clearly that
he was not relying on the alleged ineffectiveness of his
state habeas counsel as cause to excuse procedural default:
To be sure that we are on the same page, Mr. Crutsinger is
not asserting a theory that his
state habeas counsel [ ] rendered ineffective assistance of
state habeas counsel thereby violating a
constitutionally-based right sufficient to
constitute cause to excuse a procedural default. What Mr.
Crutsinger is asserting is that the state corrective
process was ineffective thereby triggering the statutory
law exception, 28 U.S.C. 2254 (b) (1) (B) (ii) . Accordingly,
there is no "unexhausted ...