     Case: 12-70023     Document: 00511961254         Page: 1     Date Filed: 08/17/2012




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                    Fifth Circuit
                                 _____________________                      FILED
                                                                          August 17, 2012
                                     No. 12-70023
                                 _____________________                     Lyle W. Cayce
                                                                                Clerk
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
                                   (2:03-CV-39)
                           __________________________

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
           IT IS ORDERED that John Lezell Balentine’s motion for a stay of
execution is DENIED. We also determine that the district court properly
denied the Rule 60(b) motion. AFFIRMED.
        This appeal raises issues presented by a Supreme Court decision
handed down on March 20, 2012. See Martinez v. Ryan, 132 S. Ct. 1309
(2012). The Court recognized a new basis to excuse a state prisoner who has
brought federal habeas claims from being held procedurally barred for failing

       *
        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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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to present those claims first in state court:
             Where, under state law, claims of ineffective assistance of
      trial counsel must be raised in an initial-review collateral
      proceeding, a procedural default will not bar a federal habeas
      court from hearing a substantial claim of ineffective assistance at
      trial if, in the initial-review collateral proceeding, there was no
      counsel or counsel in that proceeding was ineffective.
Martinez, 132 S. Ct. at 1320.
      The Court at some length explained how its decision fit within the
preexisting caselaw interpreting the Sixth Amendment’s right to counsel. It
explained that an earlier ruling, Coleman v. Thompson, 501 U.S. 722 (1991),
had not resolved “whether a prisoner has a right to effective counsel in
collateral proceedings which provide the first occasion to raise a claim of
ineffective assistance at trial.” Id. at 1315. The Martinez Court stated that it
may be that the “initial-review collateral proceeding [is] a prisoner’s ‘one and
only appeal’ as to an ineffective-assistance claim, and this may justify an
exception to the constitutional rule that there is no right to counsel in
collateral proceedings.”   Id.   (quoting Coleman, 501 U.S. at 755-56). The
Court determined that Martinez was “not the case, however, to resolve
whether that exception exists as a constitutional matter.” Id.
       The Court held that the “rule of Coleman governs in all but the limited
circumstances recognized here,” which the Court elaborated on in this way:
             The holding in this case does not concern attorney errors in
      other kinds of proceedings, including appeals from initial-review
      collateral proceedings, second or successive collateral
      proceedings, and petitions for discretionary review in a State’s
      appellate courts. It does not extend to attorney errors in any
      proceeding beyond the first occasion the State allows a prisoner to
      raise a claim of ineffective assistance at trial, even though that
      initial-review collateral proceeding may be deficient for other
      reasons.

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             In addition, the limited nature of the qualification to
      Coleman adopted here reflects the importance of the right to the
      effective assistance of trial counsel and Arizona’s decision to bar
      defendants from raising ineffective-assistance claims on direct
      appeal. Our holding here addresses only the constitutional
      claims presented in this case, where the State barred the
      defendant from raising the claims on direct appeal.
Id. at 1320 (citations omitted).
      The Supreme Court granted a writ certiorari in Martinez on June 6,
2011, which Balentine’s brief filed today states was nine days before his
scheduled execution. The Court granted the writ on this issue: “Whether a
defendant in a state criminal case who is prohibited by state law from raising
on direct appeal any claim of ineffective assistance of trial counsel, but who
has a state-law right to raise such a claim in a first post-conviction
proceeding, has a federal constitutional right to effective assistance of first
post-conviction counsel specifically with respect to his ineffective-assistance-
of-trial-counsel claim.” Id. at 1326.
      On June 13, 2011, Balentine filed with the Texas Court of Criminal
Appeals a motion for stay of execution until the ruling in Martinez. The state
court denied the motion the next day. Ex parte Balentine, No. WR-54,071-03
(Tex. Crim. App. June 14, 2011). The Supreme Court granted a stay pending
further consideration one hour, according to Balentine’s brief, prior to his
scheduled execution. Balentine v. Texas, 131 S. Ct. 3017 (June 15, 2011).
      The decision ultimately handed down in Martinez did not recognize a
constitutional right to effective assistance of habeas counsel in state court,
which was the issue pressed by Balentine. Balentine’s petition for a writ of
certiorari was denied and the order staying execution ended. Balentine v.
Texas, 132 S. Ct. 1791 (Mar. 26, 2012).


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      We now look further back in the Balentine proceedings to explain what
has previously occurred on the claim he now presents. Beginning with his
first application under 28 U.S.C. § 2254 in December 2003, Balentine has
argued that his appointed counsel at trial failed to investigate and develop
“mitigation and risk assessment evidence at all.” Balentine v. Thaler, 626
F.3d 842, 848 (5th Cir. 2010).       A failure to make either a reasonable
investigation or a reasonable decision that investigation was unnecessary has
been held to be ineffective assistance of counsel. Wiggins v. Smith, 539 U.S.
510, 521 (2003). We held, though, that Balentine failed to present that claim
in his initial state habeas application, and he had also not secured a ruling on
the merits of the Wiggins claim in a later application in state court.
Balentine, 626 F.3d at 848, 849-56. Consequently, the claim was procedurally
barred. Id. at 857.
      In light of Martinez, on July 12, 2012, Balentine filed a Rule 60(b)(6)
motion in the district court seeking to vacate that court’s final judgment of
March 31, 2008.       That 2008 decision, which we affirmed, is the one that
denied him relief on the Wiggins claims because they were procedurally
barred. He again seeks to present his claim of ineffective assistance of trial
counsel for failing to make an adequate investigation for mitigating evidence
at the punishment phase of his trial, in accordance with Wiggins.
      The district court, in its order denying the claim, summarized the
relevant procedural history:
            Balentine’s counsel in the original state habeas review of
      his conviction and death sentence failed to exhaust this claim,
      and this Court has found that it was procedurally barred by the
      Texas abuse-of-the-writ doctrine from a review on the merits in
      federal court. These determinations have been upheld by the
      United States Court of Appeals for the Fifth Circuit. Balentine


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      seeks to set aside those prior determinations by asserting the
      equitable exception created by the Supreme Court in Martinez v.
      Ryan, 132 S. Ct. 1309 (2012).
      Balentine’s claim immediately encounters a post-Martinez decision by
this court that is controlling precedent for whether Texas state procedures for
considering ineffective-assistance-of-counsel claims were the kind that
Martinez required before a failure to exhaust could potentially be excused.
Ibarra v. Thaler, No. 11-70031, --- F.3d ----, 2012 WL 2620520, at *4 (5th Cir.
June 28, 2012); see also Ibarra v. Thaler, No. 11-70031 at Slip Op. 12 n.1 (5th
Cir. Aug. 17, 2012).
      Because Texas does not prohibit the bringing of ineffective-assistance
claims on direct appeal from a conviction as did the Arizona procedure
discussed in Martinez, we held in Ibarra that Martinez did not create an
equitable exception for relief from convictions in Texas state courts:
             The [Texas Court of Criminal Appeals (“TCCA”)] made
      clear that a state habeas petition is the preferred vehicle for
      developing ineffectiveness claims. Robinson v. State, 16 S.W.3d
      808, 809-10 (Tex. Crim. App. 2000). Yet Texas defendants may
      first raise ineffectiveness claims before the trial court following
      conviction via a motion for new trial, when practicable, and the
      trial court abuses its discretion by failing to hold a hearing on an
      ineffectiveness claim predicated on matters not determinable
      from the record. Holden v. State, 201 S.W.3d 761, 762-63 (Tex.
      Crim. App. 2006). A prisoner who develops such a record through
      a new trial motion can of course pursue the denial of an
      ineffectiveness claim through direct appeal, but the TCCA has
      indicated that a new trial motion is neither a sufficient nor
      necessary condition to secure review of an ineffectiveness claim
      on direct appeal. Indeed, an ineffectiveness claim may simply be
      raised on direct appeal without the benefit of a motion for new
      trial. Robinson, 16 S.W.3d at 813. As a result, both Texas
      intermediate courts and the TCCA sometimes reach the merits of
      ineffectiveness claims on direct appeal. Thompson v. State, 9


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      S.W.3d 808, 813-14 (Tex. Crim. App. 1999). Where they do not,
      Texas habeas procedures remain open to convicted defendants.
      Ex parte Nailor, 149 S.W.3d 125, 129, 131 (Tex. Crim. App. 2004).
      In short, Texas procedures do not mandate that ineffectiveness
      claims be heard in the first instance in habeas proceedings, and
      they do not by law deprive Texas defendants of counsel-and
      court-driven guidance in pursuing ineffectiveness claims.
Ibarra, 2012 WL 2620520, at *4.
      The district court denied relief to Balentine in reliance on Ibarra. The
court nonetheless granted a certificate of appealability because it found that
reasonable jurists could debate its determination “regarding the application
of the Martinez exception to Texas cases under the specific facts of this case.”
Balentine has brought a Rule 60(b) motion to set aside a prior judgment
based upon exhaustion.       Generally this circuit requires a certificate of
appealability under 28 U.S.C. § 2253 for this type of Rule 60(b) motion. See,
e.g., Canales v. Quarterman, 507 F.3d 884, 887-88 (5th Cir. 2007).
      The insurmountable hurdle that Balentine encounters is that the
Ibarra decision is a controlling precedent of this court. This panel “cannot
overrule the decision of another panel; such panel decisions may be overruled
only by a subsequent decision of the Supreme Court or by the Fifth Circuit
sitting en banc.” Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.
1997).
      We discern no basis to distinguish our circuit precedent from the facts
presented to us in this appeal. Balentine’s Rule 60(b) Motion for Relief from
Judgment was therefore properly denied. AFFIRMED.




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