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Crutsinger v. Davis

United States District Court, N.D. Texas, Fort Worth Division

August 8, 2019

BILLY JACK CRUTSINGER, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER DENYING RULE 60(B) MOTION AND, IN THE ALTERNATIVE, DENYING AUTHORIZATION OF FUNDS

          TERRY R. MEANS UNITED STATES DISTRICT JUDGE.

         Eleven 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).

         The 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.

         I. RULE 60(b)(6) Motion

         The 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, 2019).

         Federal 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.

         To 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).

         As the 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 Adams).

         Crutsinger's 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.

         Here, 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 that follow.

         Nevertheless, 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 abandoned him.
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.

         Factors 1, 2 (capital habeas nature of the case)

         Crutsinger's 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).

         The 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.

         Factor 3 (structural error)

         Crutsinger 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.

         In 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 ...

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