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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                               September 25, 2013

                                  No. 13-70029                    Lyle W. Cayce
                                                                       Clerk

ARTURO DIAZ,

                                            Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                            Respondent-Appellee



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before KING, JONES, and PRADO, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      This is a death penalty case in which appellant Arturo Diaz appeals the
district court’s denial of his Federal Rule of Civil Procedure 60(b)(6) motion for
relief from judgment and motion for stay of execution. Thirty days before his
scheduled execution date of September 26, 2013, Diaz filed both motions in
federal district court, seeking relief from that court’s denial of habeas relief in
2005. Diaz asked the court to reopen his previous federal habeas action and
consider the merits of procedurally barred claims in light of Martinez v. Ryan,
___ U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012) and Trevino v. Thaler, ___
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                                 No. 13-70029

U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). The district court denied
both of Diaz’s motions on September 20, 2013. Diaz now appeals the district
court’s decision. For the reasons set forth below, we AFFIRM.
                               BACKGROUND
      The facts of Diaz’s underlying capital offense are detailed in this court’s
opinion of April 11, 2007. See Diaz v. Quarterman, 228 F. App’x 417 (5th Cir.
2007). In short, Diaz brutally stabbed one man to death and attempted to stab
another man to death in the course of robbing both men. He was convicted by
a Texas jury of capital murder, attempted capital murder, and aggravated
robbery, and he was sentenced to death. Diaz unsuccessfully sought Texas state
appellate review.     During the pendency of his direct appeal, he also
unsuccessfully pursued habeas relief with the Texas Court of Criminal Appeals,
challenging, among many other things, the effectiveness of his trial counsels’
representation. The state court denied habeas relief in a 604-page order, Ex
parte Diaz, No. CR-1464-99-G (1) (370th Dist. Ct., Hidalgo Cnty., Tex. Apr. 17,
2003), which the Texas Court of Criminal Appeals adopted, Ex Parte Diaz, No.
55,850-01 (Tex. Crim. App. June 18, 2003).
      In 2004, Diaz filed a federal habeas petition in the U.S. District Court for
the Southern District of Texas, ultimately raising six grounds for relief.
Relevant to this appeal, Diaz claimed that his trial attorneys had provided
ineffective representation (1) by failing to counsel Diaz properly on the State’s
offer of a plea bargain and (2) in the penalty phase of the trial, failing to
adequately investigate and present readily available mitigating evidence, failing
to prepare for the testimony of the only witness offered by the defense, and
basing closing argument on residual doubt rather than mitigation. The district
court denied relief on all of Diaz’s claims and declined to issue a Certificate of
Appealability (“COA”). Specifically, the court found that Diaz’s plea bargain
claim and the portions of his mitigation claim relating to the defense witness and

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counsel’s closing argument were unexhausted and procedurally barred in federal
court because those claims were procedurally barred in state court under Texas
law. Diaz v. Dretke, No. M-04-225, 2005 WL 2264966 at *6 (S.D. Tex. Aug. 19
2005). As to the non-barred portion of Diaz’s penalty phase claim—that trial
counsel provided ineffective representation by failing to adequately investigate
and present readily available mitigating evidence—the district court held that
even if counsel were deficient for failing to investigate evidence of Diaz’s
disadvantaged childhood, Diaz still could not prove that he was prejudiced by
counsel’s performance. Id. at *9-*10 (“While testimony about Diaz’[s] childhood
privations would certainly elicit sympathy, this evidence pales in comparison to
the evidence presented to the jury . . . .”). See Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (stating that in order
to prevail on a claim for ineffective assistance of counsel, a defendant must show
that counsel’s deficient performance prejudiced the defense).
      Diaz appealed and requested a COA on seven issues. This court certified
for appeal only one of the issues that Diaz presented: whether trial counsel
rendered ineffective assistance during the punishment phase of trial by failing
to adequately investigate and present readily available mitigating evidence. See
Diaz, 228 F. App’x at 423. After additional briefing, this court affirmed the
lower court’s denial of habeas relief on somewhat different reasoning. Diaz v.
Quarterman, 239 F. App’x 886 (5th Cir. 2007). Diaz offered five affidavits in an
effort to prove that four of his family members and a former teacher would have
provided mitigating testimony. This court refused to consider the affidavits
because Diaz had presented the affidavits for the first time to the federal court.
Diaz, 239 F. App’x at 890 (citing Roberts v. Dretke, 356 F.3d 632, 641 (5th Cir.
2004)). Without that evidentiary support, this court found that Diaz “failed to
rebut the presumption of correctness that attaches to the state court’s findings,
and he cannot make his case that counsel were constitutionally ineffective at the

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punishment phase of trial.” Id. This court also held that “[t]he [state court’s]
finding that Diaz did not want his family members to testify precludes a finding
of deficient performance and a finding of [Strickland] prejudice.” Diaz, 239 Fed.
App’x at 890 (citing Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 1941,
167 L. Ed. 2d 836 (2007); Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000)).
See also Ex parte Diaz, No. CR-1464-99-G(1) at ¶¶ 603-05, 613, 614. Diaz
subsequently sought certiorari review, which the Supreme Court denied. Diaz
v. Quarterman, 552 U.S. 1232 (2008).
      Five years later, on August 27, 2013, Diaz filed a motion for stay of
execution and a Rule 60(b)(6) motion in federal district court, claiming that
recent changes in habeas law warranted relief from final judgment. Diaz argued
that the Supreme Court’s decisions in Martinez v. Ryan and Trevino v. Thaler,
coupled with the “equities” of Diaz’s case, constituted unique and extraordinary
circumstances warranting Ruly 60(b)(6) relief. However, in “apply[ing] the logic
from Adams [v. Thaler, 679 F.3d 312 (5th Cir. 2012)],” the district court held
that the Supreme Court’s recent decisions did not give rise to extraordinary
circumstances within the meaning of Rule 60(b)(6), Diaz v. Stephens, No. M-04-
225, 12-13 (S.D. Tex. Sept. 16, 2013) (report and recommendation), and neither
did the specific equities of Diaz’s case, Id. at 13-15. See Diaz v. Stephens, No. M-
04-225 (S.D. Tex. Sept. 20, 2013) (adopting magistrate judge’s report and
recommendation). Thus, the district court denied Diaz’s Rule 60(b)(6) motion as
well as his motion for a stay of execution, which was no longer viable given the
unavailability of review under Rule 60(b). Id. The district court granted Diaz
a COA sua sponte, Id., and Diaz now appeals the district court’s denial of both
motions.




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                          STANDARD OF REVIEW
      This court reviews the denial of a Rule 60(b)(6) motion under an abuse of
discretion standard. Wilcher v. Epps, 203 F. App’x 559, 561 (5th Cir. 2006). In
applying such a 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.” Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). Similarly, we review a district
court’s decision to deny a stay of execution for abuse of discretion. Green v.
Thaler, 699 F.3d 404, 411 (5th Cir. 2012). “The party requesting a stay bears the
burden of showing that the circumstances justify an exercise of [judicial]
discretion.”   Id. (alteration in original) (internal quotation marks omitted)
(quoting Nken v. Holder, 556 U.S. 418, 433-34, 129 S. Ct. 1749, 173 L. Ed. 2d 550
(2009)).
                                DISCUSSION
      Diaz argues that the district court abused its discretion in denying his
Rule 60(b)(6) motion and motion for stay of execution because recent
developments in habeas law should allow federal consideration of his ineffective
assistance of trial counsel claims as they relate to the State’s offer of a plea
bargain and the penalty phase of his trial. As noted by the Supreme Court,
when seeking relief under Rule 60(b)(6), a movant is required “to show
‘extraordinary circumstances’ justifying the reopening of a final judgment.”
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Although “[s]uch circumstances
will rarely occur in the habeas context,” Id., Diaz contends that the recent
decisions in Martinez and Trevino amount to a “sea change” in habeas law that
warrants Rule 60(b)(6) relief. It has long been established that
      [i]n all cases in which a state prisoner has defaulted his federal
      claims in state court pursuant to an independent and adequate state
      procedural rule, federal habeas review of the claim is barred unless
      the prisoner can demonstrate cause for the default and actual

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        prejudice as a result of the alleged violation of federal law, or
        demonstrate that failure to consider the claims will result in a
        fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 115 L. Ed. 2d 640
(1991) (emphasis added). In addressing the “cause” prong for overcoming
procedural default, Coleman held that the ineffectiveness of state habeas counsel
could not constitute such cause. Id. at 752-53. However, in Martinez, the
Supreme Court recognized a “narrow exception” to Coleman, holding that where,
under state law, claims of ineffective assistance of trial counsel must be raised
in an initial-review collateral proceeding, “[i]nadequate assistance of counsel at
initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” 132 S. Ct. at
1315. Martinez reasoned that when inmates can only raise Strickland claims for
ineffective assistance of counsel on state habeas review, a state habeas
attorney’s deficient performance may forgive a federal procedural bar. Id. at
1312.
        This court subsequently held in Ibarra v. Thaler, 687 F.3d 222, 227 (5th
Cir. 2012), that Martinez did not apply to federal habeas cases arising from
Texas convictions and that Texas inmates were “not entitled to the benefit of
Martinez for . . . ineffectiveness claims” because Texas inmates are not limited
to raising Strickland claims in initial review collateral proceedings. In response,
the Supreme Court held in Trevino that Martinez does apply to cases arising
from Texas courts because “the Texas procedural system—as a matter of its
structure, design, and operation—does not offer most defendants a meaningful
opportunity to present a claim of ineffective assistance of trial counsel on direct
appeal.” 133 S Ct. at 1921. See also Hernandez v. Stephens, — F. App’x —, 2013
WL 3957796 at *9 (5th Cir. Aug. 2, 2013) (recognizing that Trevino overruled the
Fifth Circuit’s interpretation of Martinez); Preyor v. Stephens, — F. App’x —,


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2013 WL 3830160 at *8 (5th Cir. July 25, 2013) (same). Accordingly, Diaz
argues that the district court abused its discretion in denying both of his motions
because Martinez and Trevino constitute “extraordinary circumstances” within
the meaning of Rule 60(b)(6), and the failure of Diaz’s state habeas counsel to
advance his unexhausted and procedurally barred claims properly before state
court was the reason why he was held to have procedurally defaulted those
claims in the federal habeas proceeding.
I.    Diaz’s Rule 60(b)(6) Motion
      The threshold issue in reviewing Diaz’s Rule 60(b)(6) claim is whether
Diaz has demonstrated circumstances that are sufficiently extraordinary to
warrant relief from final judgment. Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir.
2002). In arguing that the district court abused its discretion in finding that
there were no extraordinary circumstances warranting relief, Diaz contends that
(1) the district court erroneously applied Adams, which, in light of Trevino, is not
controlling in this case; (2) to the extent Adams does control Diaz’s case, the
district court still failed to properly weigh other “equities” that support his
request for relief; and (3) as far as the Adams decision relates to Rule 60(b)(6),
Adams was invalidated by subsequent Supreme Court action.
      As Diaz acknowledges, this court has held that “[a] change in decisional
law after entry of judgment does not constitute exceptional circumstances and
is not alone grounds for relief from a final judgment” under Rule 60(b)(6). Bailey
v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990) (citations omitted).
See also Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747-49 (5th Cir. 1995)
(“Changes in decisional law based on constitutional principles are not of
themselves extraordinary circumstances sufficient to justify Rule 60(b)(6)
relief.”). This principle governed in Adams, which this court decided just weeks
after the Martinez decision and, through Adams, in the district court’s denial of
Diaz’s Rule 60(b)(6) motion. See Stephens, No. M-04-225 at 12 (Sept. 16, 2013).

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In Adams, we held that Martinez did not provide a sufficient basis for
Rule 60(b)(6) relief.
      [I]n denying Adams’s initial federal habeas petition, the district
      court correctly determined that Adams’s claims were procedurally
      defaulted pursuant to the then-prevailing Supreme Court precedent
      of Coleman. The Supreme Court’s later decision in Martinez, which
      creates a narrow exception to Coleman’s holding regarding cause to
      excuse procedural default, does not constitute an “extraordinary
      circumstance” under Supreme Court and our precedent to warrant
      Rule 60(b)(6) relief.

679 F.3d at 320.
      Diaz, however, argues that Adams does not control his Rule 60(b)(6)
motion because Trevino dramatically altered the parameters of Martinez. The
district court, on the other hand, held that Trevino “is simply a change in
decisional law,” which does not affect Adams’s applicability to this case.
Stephens, No. M-04-225 at 13 (Sept. 16, 2013) (quoting Adams, 679 F.3d at 320).
This court’s ruling in Adams that Martinez does not constitute an extraordinary
circumstance under Rule 60(b)(6) was not based on Martinez’s applicability, or
lack thereof, to cases arising from Texas courts. Rather, it was plainly based on
the conclusion that Martinez created a narrow, equitable exception to the rules
of procedural default, Adams, 679 F.3d at 320, and was “simply a change in
decisional law.” Id. Trevino’s recent application of Martinez to Texas cases does
not change that conclusion in any way. Moreover, “[i]t is hardly extraordinary
that subsequent[] [to Ibarra], . . . [the Supreme] Court arrived at a different
interpretation” of Martinez’s application to cases arising from courts that, the
Supreme Court concluded, do not offer a “meaningful opportunity” for review of
ineffective assistance of counsel claims on direct appeal. Trevino, 133 S. Ct. at
1921. See also Gonzalez 545 U.S. at 536.
      Adams cited this court’s decision in Hess construing Rule 60(b)(6) for
habeas cases:

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       Under our precedents, changes in decisional law . . . do not
       constitute the “extraordinary circumstances” required for granting
       Rule 60(b)(6) relief . . . . The dicta in Batts suggesting that the rule
       for changes in decisional law might be different in the habeas corpus
       context because finality is not a concern is now flatly contradicted
       by, among other things, AEDPA.

Hess, 281 F.3d at 216. Neither Adams nor Hess cites the Seven Elves factors as
bearing on the analysis of extraordinary circumstances under Rule 60(b)(6).
       Diaz attempts to demonstrate extraordinary circumstances by arguing
that other equitable factors outlined in Seven Elves must be considered.1 Ruling
on the question whether to reopen a default judgment, Seven Elves stated that
the factors that should inform the district court’s consideration of a motion under
Rule60(b) are:
       (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 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;


       1
         Judge Jones notes that Seven Elves reflects factors most applicable to relief sought
under Rule 60(b)(1)-(5), provisions that enumerate specific grounds for relief. See Gonzalez,
545 U.S. at 535, 125 S. Ct. at 2649 Motions under Rule 60(b)(6), however, require truly
"extraordinary circumstances" precisely because there is no specification of the basis for relief.
Were it otherwise, Rule 60(b)(6) could supersede the companion provisions. Moreover, in the
context of habeas law, comity and federalism elevate the concerns of finality, rendering the
60(b)(6) bar even more daunting. From this perspective, Diaz's claim seeking to avoid a
judgment of procedural default based on intervening case law is not unlike that of Hernandez,
who asserted an intervening Supreme Court decision to support reopening his habeas claim
that had been held untimely. Hernandez v. Thaler, 630 F.3d 420, 430 (5th Cir. 2011). Relying
on Gonzalez and Hess, but not Seven Elves, this court rejected Hernandez's assertion of
extraordinary circumstances. Id.

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      and (8) any other factors relevant to the justice of the judgment
      under attack.

Seven Elves, 635 F.2d at 402. We will assume arguendo that Seven Elves may
have some application in the Rule 60(b)(6) context.
      Diaz asserts that the totality of circumstances in his case is fundamentally
different from that in Adams. Diaz first points out that the lower court had the
opportunity to reassess its prior denial of habeas relief in light of Trevino’s
“dramatic” shift in the law, whereas the Adams court did not have that benefit.
Although this is true, Trevino in itself is “hardly extraordinary,” as previously
discussed. This “distinction” makes no difference. Diaz also contends that his
extraordinary diligence in asserting his ineffective state habeas counsel
argument materially distinguishes this case from Adams.          He has in fact
pursued the issue of ineffective state habeas counsel consistently in his federal
habeas suit.
      The remaining equitable factors that, according to Diaz, distinguish this
case from Adams include his extensive documentation of state habeas counsel’s
alleged failings, his pleading “far more compelling Sixth Amendment violations”
than the appellant in Adams pled, and his alleging more “special circumstances”
warranting relief. Concluding that because Diaz did “more” in relation to his
Rule 60(b)(6) motion, he asserts he should be entitled to relief from final
judgment. The district court noted, however, that Diaz’s circumstances “are no
more unique or extraordinary than any other capital inmate who defaulted
claims in state court prior to Trevino.” Stephens, No. M-04-225 at 14 (Sept. 16,
2013).
      The district court was right. Even assuming arguendo that state habeas
counsel was “ineffective” under Trevino and that Adams does not fully bar
Rule 60(b)(6) relief, Diaz makes a poor showing of equitable factors necessary to
reopen his judgment. In its earlier decision, this court has already found that

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Diaz’s claim of inadequate mitigating evidence investigation fails for lack of
Strickland prejudice and because he did not want his trial attorneys to call
family members to the stand for mitigation. Diaz, 239 F. App’x at 889-90. This
court denied a COA on claims that trial counsel mishandled Dr. Pinkerman’s
testimony and improperly emphasized residual doubt rather than mitigation in
closing argument, because both claims arose solely from the alleged inadequate
investigation of mitigating evidence. Diaz, 228 F. App’x at 424-27. Several
pages of trial transcript reflect colloquy between the trial court and all counsel,
and the court and Diaz, concerning a proffered plea bargain and Diaz’s rejection
of it on two separate occasions before trial.
      Further, applying the other Seven Elves factors, the district court’s
consideration of the merits of Diaz’s mitigating evidence claim, see Diaz,
2005 WL 2264966 at *9-*10; the general expectation that final judgments will
not be lightly overturned; the State’s strong interest in the finality of Diaz’s
conviction and sentence; and the delay that will undoubtedly result from
reopening this long-closed case all weigh in favor of denying Diaz’s Rule 60(b)(6)
motion. Cf. Lopez v. Ryan, 678 F.3d 1131, 1135-37 (9th Cir. 2012) (considering
multiple equitable factors to determine whether “extraordinary circumstances”
existed and finding that they provided “little overall support for reopening [the
petitioner’s] case” under Rule 60(b)(6)).
      Finally, Diaz contends that because the Supreme Court granted temporary
relief in two cases while Trevino was pending, the Court implicitly invalidated
Adams. Alternatively, he contends that the disposition of those cases raises
another equitable factor favoring 60(b)(6) relief. We disagree. This court issued
two opinions while Trevino was pending before the Supreme Court that explicitly
relied on the holding in Adams that Martinez did not amount to an
extraordinary circumstance within the meaning of Rule 60(b)(6). See Haynes v.
Thaler, 489 F. App’x 770 (5th Cir. 2012); Balentine v. Thaler, 692 F.3d 357 (5th

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Cir. 2012). The Supreme Court stayed the executions of both petitioners pending
disposition of certiorari petitions. After issuing Trevino, the Supreme Court
issued “GVR” (“grant, vacate, remand”) orders in Haynes and Balentine, thereby
granting their certiorari petitions, vacating the judgments below, and remanding
the cases to this court for further consideration in light of Trevino.2 Haynes v.
Thaler, __ U.S. __, 133 S. Ct. 2764, 186 L. Ed. 2d 214 (2013); Balentine v. Thaler,
__U.S. __, 133 S. Ct. 2763, 186 L. Ed. 2d 214 (2013).
      A GVR makes no decision as to the merits of a case. Kenemore v. Roy,
690 F.3d 639, 642 (5th Cir. 2012). See also Tyler v. Cain, 533 U.S. 656, 666 n.6,
121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001). “When the Supreme Court utilizes its
GVR power . . . it is not making a decision that has any determinative impact on
future lower-court proceedings.” Kenemore, 690 F.3d at 641. Rather, “[a] GVR
is a Supreme Court practice whereby the Court allows a circuit court to
reconsider its opinion, often after a change in the law or factual circumstances
occurs that might lead to a different result[.]” Id. When the Supreme Court
grants a GVR, the lower court to which the case is remanded “is free to
determine whether its original decision is still correct in light of the changed
circumstances or whether a different result is more appropriate.” Id. at 642.
      Given that a GVR makes no determinative impact on an underlying case,
it stands to reason that a GVR similarly has no impact on the merits of a wholly
separate and independent case. Indeed, a finding to the contrary would seem
utterly illogical.
      For these reasons, Diaz has failed to show that Adams does not control his
Rule 60(b)(6) motion or that the district court abused its discretion in finding
that Martinez, even in light of Trevino, does not create extraordinary
circumstances warranting relief from final judgment. Moreover, Diaz has failed

      2
        The practice of granting a GVR is thoroughly explained in Lawrence v. Chater,
516 U.S. 163, 165-74, 116 S. Ct. 604, 133 L. Ed. 2d 545 (1996) (per curiam).

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to show that the remaining “equities” of his case constitute extraordinary
circumstances within the meaning of Rule 60(b)(6).
II.     Diaz’s Motion for Stay of Execution
        Diaz appeals the district court’s denial of his motion for a stay of
execution. In deciding whether to issue a stay of execution, a court must
consider:
        (1) whether the stay applicant has made a strong showing that he
        is likely to succeed on the merits; (2) whether the applicant will be
        irreparably injured absent a stay; (3) whether issuance of the stay
        will substantially injure the other parties interested in the
        proceeding; and (4) whether the public interest lies.

Green, 699 F.3d at 411 (quoting Nken, 556 U.S. at 434, 129 S. Ct. 1749).
        Diaz’s motion for a stay of execution depends on the availability of Rule
60(b)(6) review in this case. Because we have rejected this vehicle to reopen the
final judgment, Diaz has not made a showing of a likelihood of success on the
merits of his Rule 60(b)(6) motion. The district court did not abuse its discretion
in denying a stay of execution.
                                   JUDGMENT AFFIRMED; STAY DENIED




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