     Case: 18-70027   Document: 00515021537     Page: 1   Date Filed: 07/03/2019




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

                                                                       FILED
                                 No. 18-70027                       July 3, 2019
                                                                  Lyle W. Cayce
BILLY JACK CRUTSINGER,                                                 Clerk


             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 Northern District of Texas


Before SMITH, OWEN, and GRAVES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Billy Jack Crutsinger appeals from the district court’s order transferring
his motion for relief from judgment under Federal Rule of Civil Procedure
60(b)(6) to this court. The district court held that Crutsinger’s motion was a
second-or-successive petition for habeas relief within the meaning of 28 U.S.C.
§ 2244(b)(1), and therefore, that the court lacked jurisdiction. We conclude
that the motion was not a successive habeas petition and therefore vacate the
order of transfer. However, based on circuit precedent binding on this panel,
we conclude that we lack jurisdiction to treat the transfer order and
Crutsinger’s requests for relief in this court as a request for a certificate of
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                                       No. 18-70027
appealability (COA). Accordingly, we remand to the district court for further
proceedings.
                                               I
       In April 2003, “Crutsinger fatally stabbed eighty-nine-year-old Pearl
Magouirk and her seventy-one-year-old daughter, Patricia Syren.” 1 A jury
convicted Crutsinger of capital murder, and the state trial judge sentenced him
to death “based on the jury’s answers to the special issues in the court’s
charge.” 2    The Texas Court of Criminal Appeals “affirmed [Crutsinger’s]
conviction and sentence on direct appeal.” 3
       Crutsinger filed a state habeas petition raising eighteen grounds for
relief, including an ineffective-assistance-of-trial counsel (IATC) claim. 4 The
state trial court “issued findings of fact and conclusions of law recommending
that relief be denied.” 5       After “review[ing] the record with respect to the
allegations made by [Crutsinger],” the Court of Criminal Appeals adopted the
trial court’s recommendation and denied relief. 6
       Before initiating federal habeas proceedings, Crutsinger filed a sealed
application for authorization of funding and the appointment of an investigator
pursuant to 18 U.S.C. § 3599(f). 7 The federal district court denied the request
in a sealed order, finding that Crutsinger’s application “fail[ed] to provide the
information necessary to show that the claim he [sought] to develop [was] not



       1 Crutsinger v. Stephens, 576 F. App’x 422, 424 (5th Cir. 2014), abrogated on other
grounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018).
       2 Id.
       3 Id.; see also Crutsinger v. State, 206 S.W.3d 607, 608 (Tex. Crim. App.), cert. denied,

549 U.S. 1098 (2006).
       4 Crutsinger, 576 F. App’x at 424.
       5 Id.
       6 Ex Parte Crutsinger, No. WR-63,481-01, 2007 WL 3277524, at *1 (Tex. Crim. App.

Nov. 7, 2007).
       7 Crutsinger, 576 F. App’x at 424.



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                                     No. 18-70027
procedurally    barred    from    review.”      Crutsinger     filed    a   motion   for
reconsideration, emphasizing his intention to “assert ineffective assistance of
counsel in the investigation and presentation of mitigation evidence in the
punishment phase of his trial.” The court denied the motion.
      Crutsinger then filed a federal habeas petition. 8               In his petition,
“Crutsinger alleged that (1) the trial court failed to suppress evidence resulting
from his illegal arrest in violation of the Fourth Amendment, (2) his trial
counsel provided ineffective assistance in failing to timely initiate a social
history investigation, which caused counsel to overlook evidence of his mental
impairments caused by alcohol addiction, head trauma, depression, and low
intelligence, and (3) actual innocence.” 9        Despite Crutsinger’s “failure to
develop the factual basis of these claims in state court,” the district court
determined that “the record contain[ed] sufficient facts to make an informed
decision on the merits,” and it reviewed Crutsinger’s IATC claims de novo. 10
Applying the standard from Strickland v. Washington, 11 the district court
concluded that the representation by trial counsel did not fall below an
objective standard of reasonableness during the pretrial, guilt, or sentencing
phases. 12 The court also concluded that, in any event, the record failed to
support a finding of prejudice. 13
      After the district court’s initial ruling on Crutsinger’s federal habeas
petition, the Supreme Court issued Martinez v. Ryan, 14 which held that



      8  Id. at 425.
      9  Id.
       10 Crutsinger v. Thaler, No. 4:07–CV–703–Y, 2012 WL 369927, at *4 (N.D. Tex. Feb.

6, 2012).
       11 466 U.S. 668 (1984).
       12 Crutsinger, 2012 WL 369927, at *5-7, *8-12.
       13 Id. at *7-8, *12-13.
       14 566 U.S. 1 (2012).



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“[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.” 15 Crutsinger then filed a Federal Rule of Civil Procedure
59(e) motion to vacate the initial habeas judgment. 16 The district court denied
the request, concluding that “the claim of ineffective trial counsel raised by
Crutsinger had no merit and was, therefore, not ‘substantial’ as required by
Martinez.” 17
       Crutsinger appealed, and we reviewed both the IATC claim and the
related claim that the district court had abused its discretion in denying
funding under § 3599. 18         We considered the Supreme Court’s decision in
Martinez v. Ryan 19 and concluded that “[u]nder Martinez, Crutsinger has to
establish that his underlying IAC claim is ‘substantial’ and that his state
habeas counsel was ineffective.” 20 We recognized that “Martinez makes this
substantiality standard equivalent to the standard for obtaining a COA.” 21
       With respect to the § 3599 claim, we denied Crutsinger’s request for a
COA and affirmed the district court’s disposition. 22 In applying the statutory
standard of whether an investigator’s services were “reasonably necessary for
the representation of the defendant,” 23 our court construed “[r]easonably



       15 Id. at 9.
       16 Crutsinger v. Stephens, 576 F. App’x 422, 425 (5th Cir. 2014), abrogated on other
grounds by Ayestas v. Davis, 138 S. Ct. 1080 (2018).
       17 Crutsinger v. Davis, No. 4:07-CV-00703-Y, 2018 WL 3743881, at *3 (N.D. Tex. Aug.

7, 2018).
       18 Crutsinger, 576 F. App’x at 426-31.
       19 566 U.S. 1 (2012).
       20 Crutsinger, 576 F. App’x at 430.
       21 Id.
       22 Id. at 428-31.
       23 18 U.S.C. § 3599(f) (“Upon a finding that investigative, expert, or other services are

reasonably necessary for the representation of the defendant, whether in connection with
issues relating to guilt or the sentence, the court may authorize the defendant's attorneys to

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necessary in this context [to] mean[] ‘that a petitioner must demonstrate “a
substantial need” for the requested assistance.’” 24
       Crutsinger then filed a petition for certiorari. 25 With regard to § 3599,
he asserted that this court had improperly “hewed to Fifth Circuit precedent
specifying that ‘[r]easonably necessary in this context means that a petitioner
must demonstrate a substantial need for the requested assistance,’” and that
the “‘substantial need’ criteria for § 3599 services” was an “outlier.” 26 This was
the only reference to the “substantial need” gloss that the Fifth Circuit had
placed on the text of the statute. Crutsinger’s argument and briefing focused
on a “cart-before-horse” rationale. 27 Relying on the Supreme Court’s decisions
in Martinez v. Ryan 28 and Treviño v. Thaler, 29 Crutsinger asserted that his
ineffective-assistance-of-trial-counsel claim, based on failure to investigate,
was procedurally defaulted due to state habeas counsel’s alleged ineffective
assistance in failing to investigate mitigating evidence and failing to pursue
the issue adequately in state habeas proceedings. 30 Crutsinger also argued
that in evaluating the merits of his claims and the denial of funds under § 3599,
the Fifth Circuit had erred by requiring him “to explain[] what the additional
investigation he requests would reveal [and] how it would have changed the




obtain such services on behalf of the defendant and, if so authorized, shall order the payment
of fees and expenses therefor . . . .”).
        24 Crutsinger, 576 F. App’x at 429 (quoting Riley v. Dretke, 362 F.3d 302, 307 (5th Cir.

2004)).
        25 Petition for Writ of Certiorari, Crutsinger v. Stephens, 135 S. Ct. 1401 (2015) (No.

14-6992).
        26 Id. at 21 (emphasis omitted) (quoting Crutsinger, 576 F. App’x at 429).
        27 Id. at 22.
        28 566 U.S. 1 (2012).
        29 569 U.S. 413 (2013).
        30 Petition for Writ of Certiorari at 10-14, Crutsinger v. Stephens, 135 S. Ct. 1401

(2015) (No. 14-6992).

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                                       No. 18-70027
result of his trial and sentence.” 31 The Supreme Court denied Crutsinger’s
petition for certiorari. 32
       Three years later, in another case, Ayestas v. Davis, the Supreme Court
held that the Fifth Circuit’s requirement that a movant show a “substantial
need” to demonstrate that funds were “reasonably necessary” was not
supported by the text of § 3599, and that this court’s conclusion that funding
for an investigation should not be granted if the claim was procedurally barred
was incorrect. 33       The Supreme Court held, “[t]he difference between
‘reasonably necessary’ and ‘substantially need’ may be small, but the Fifth
Circuit exacerbated the problem by invoking precedent to the effect that a
habeas petitioner seeking funding must present ‘a viable constitutional claim
that is not procedurally barred.’” 34 In Ayestas, the Supreme Court expressly
cited our court’s decision in Crutsinger with disapproval, 35 and all agree that
our decision in Crutsinger was accordingly abrogated regarding its analysis
and application of § 3599.
       Crutsinger then returned to federal district court, asserting in a
Rule 60(b)(6) motion that there was a defect in the integrity of his initial
federal habeas proceedings because the district court had incorrectly applied
the law in assessing his request for funds under § 3599. 36 He requested that
the federal district court vacate its judgment and allow him to file a new § 3599
motion. 37 He did not seek to overturn the state court’s judgment of conviction



       31 Id. at 22 (alterations in original) (quoting Crutsinger, 576 F. App’x at 428).
       32 Crutsinger v. Stephens, 135 S. Ct. 1401 (2015) (No. 14-6992).
       33 Ayestas v. Davis, 138 S. Ct. 1080, 1093-94 (2018).
       34 Id. at 1093 (alteration in original) (quoting Ayestas v. Stephens, 817 F.3d 888, 895

(5th Cir. 2016), vacated sub nom. Ayestas v. Davis, 138 S. Ct. 1080 (2018)).
       35 Id. (citing Crutsinger, 576 F. App’x. at 431).
       36 ROA.677.
       37 ROA.703.



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                                        No. 18-70027
and death sentence, but it is clear from his motion that if substantial additional
mitigating evidence is discovered, he would seek to set aside his state
conviction, sentence, or both. The district court determined that his Rule 60(b)
motion was “in actuality a second-or-successive petition for habeas relief,”
which deprived the court of jurisdiction. 38            Accordingly, the district court
transferred the motion to this court. 39
                                              II
       The Supreme Court’s decision and reasoning in Gonzalez v. Crosby 40
compels the conclusion that Crutsinger’s Rule 60(b)(6) motion is not a
successive petition for habeas relief within the meaning of 28 U.S.C.
§ 2244(b)(1). 41 The Gonzalez decision appears to establish that Crutsinger is
not entitled to relief under Rule 60(b) because a change in the law does not
constitute an extraordinary circumstance, which Rule 60(b)(6) requires. 42
However, we remand the case to the district court to decide the latter issue in
the first instance.
                                              A
       We must determine whether Crutsinger’s Rule 60(b)(6) motion is
actually a successive habeas petition within the meaning of the Antiterrorism
and Effective Death Penalty Act (AEDPA). 43 If it is not, the district court’s
order transferring the case to this court must be vacated.


       38   Crutsinger v. Davis, No. 4:07-CV-00703-Y, 2018 WL 3743881, at *1 (N.D. Tex. Aug.
7, 2018).
       39 Id.
       40 545 U.S. 524, 535 (2005).
       41 See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas

corpus application under section 2254 that was presented in a prior application shall be
dismissed.”).
       42 See Gonzalez, 545 U.S. at 536-37 (construing FED. R. CIV. P. 60(b)(6)).
       43 See 28 U.S.C. § 2244(b)(1) (“A claim presented in a second or successive habeas

corpus application under section 2254 that was presented in a prior application shall be
dismissed.”).

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       JUSTICE SCALIA, writing for the Court in Gonzalez, explained that “‘[a]s
a textual matter, § 2244(b) applies only where the court acts pursuant to a
prisoner’s “application”’ for a writ of habeas corpus,” 44 and courts “therefore
must decide whether a Rule 60(b) motion filed by a habeas petitioner is a
‘habeas corpus application’ as the statute uses that term.” 45 “[I]t is clear that
for purposes of § 2244(b) an ‘application’ for habeas relief is a filing that
contains one or more ‘claims.’” 46          “These statutes, and [Supreme Court]
decisions, make clear that a ‘claim’ as used in § 2244(b) is an asserted federal
basis for relief from a state court’s judgment of conviction.” 47
       A motion can . . . be said to bring a ‘claim’ if it attacks the federal
       court’s previous resolution of a claim on the merits, since alleging
       that the court erred in denying habeas relief on the merits is
       effectively indistinguishable from alleging that the movant is,
       under the substantive provisions of the statutes, entitled to habeas
       relief. 48
By contrast, “[t]hat is not the case . . . when a Rule 60(b) motion attacks, not
the substance of the federal court’s resolution of a claim on the merits, but
some defect in the integrity of the federal habeas proceedings.” 49
       In Gonzalez, the federal district court had dismissed the petitioner’s
habeas petition, concluding that it was barred by AEDPA’s statute of
limitations. 50 After that judgment had become final, the Supreme Court issued
a decision in Artuz v. Bennett, 51 which held “that an application for state



       44  Gonzalez, 545 U.S. at 530 (quoting Calderon v. Thompson, 523 U.S. 538, 554 (1998));
see also 28 U.S.C. § 2244(b)(1).
        45 Gonzalez, 545 U.S. at 530.
        46 Id.
        47 Id.
        48 Id. at 532 (footnote omitted).
        49 Id.
        50 Id. at 527.
        51 531 U.S. 4 (2000).



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                                       No. 18-70027
postconviction relief can be ‘properly filed’ even if the state courts dismiss it as
procedurally barred.” 52 Gonzalez then filed a Rule 60(b)(6) motion “contending
that the District Court’s time-bar ruling was incorrect under Artuz’s
construction of § 2244(d).” 53 The district court denied the motion, and the
Eleventh Circuit concluded, en banc, that the Rule 60(b)(6) motion was in
substance a second or successive habeas corpus petition. 54
       The Supreme Court disagreed with the circuit court. The Supreme Court
pointed out that the Rule 60(b)(6) motion at issue in Gonzalez “does not present
a revisitation of the merits” but instead “confines itself not only to the first
federal habeas petition, but to a nonmerits aspect of the first federal habeas
proceeding.” 55 “Because petitioner’s Rule 60(b) motion challenges only the
District Court’s previous ruling on the AEDPA statute of limitations, it is not
the equivalent of a successive habeas petition.” 56
       Crutsinger’s motion for funding is analogous. It does not present a
revisitation of the merits of the IATC claim. It is confined to the federal district
court’s denial of funding in the first federal habeas proceeding. It is not a
successive habeas petition within the meaning of 28 U.S.C. § 2244(b)(1). The
district court therefore had jurisdiction to consider the Rule 60(b)(6) motion.
                                              B
       To prevail on a motion under Rule 60(b)(6), a movant must show
“‘extraordinary circumstances’ justifying the reopening of a final judgment.” 57
It would appear that the Supreme Court’s holding in Gonzalez that “not every


       52 Gonzalez, 545 U.S. at 527.
       53 Id.
       54 Id. at 527-28 (citing Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1278, 1281-

82 (11th Cir. 2004), aff’d on other grounds sub nom. Gonzalez v. Crosby, 545 U.S. 524 (2005)).
       55 Id. at 534.
       56 Id. at 535-36.
       57 Id. at 535 (citing Ackermann v. United States, 340 U.S. 193, 199 (1950)).



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                                      No. 18-70027
interpretation of the federal statutes setting forth the requirements for habeas
provides cause for reopening cases long since final” 58 is at least instructive, if
not dispositive, of Crutsinger’s Rule 60(b) motion.
       However, a decision of our court has held that we are without jurisdiction
unless the district court either granted or denied a COA on the “specific issue”
before us. 59 Accordingly, we are foreclosed from treating the district court’s
transfer order and Crutsinger’s request for relief in our court as a COA.
Accordingly, we remand this case to the district court for further proceedings.
                                     *       *        *
       We VACATE the district court’s order transferring Crutsinger’s motion
to this court as a successive petition. We REMAND to the district court to
consider the Rule 60(b)(6) motion in the first instance.




       58Id.
       59Black v. Davis, 902 F.3d 541, 545 (5th Cir. 2018); see also Hernandez v. Thaler, 630
F.3d 420, 428 (5th Cir. 2011) (per curiam) (citing Ochoa Canales v. Quarterman, 507 F.3d
884, 888 (5th Cir. 2007) (per curiam)).
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                                  No. 18-70027
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      Because I conclude that Billy Jack Crutsinger’s motion under Federal
Rule of Civil Procedure 60(b)(6) should be granted, I would vacate and remand
for proper consideration of his funding motion. Thus, I respectfully dissent.
      The   district    court   denied   Crutsinger’s   requested   funding    for
investigative and expert assistance in the development of his ineffective
assistance of counsel claim because his claim was unexhausted and
procedurally barred from review.         Crutsinger later included the claim,
presented without the benefit of those funds, in his habeas petition to preserve
it. The State did not then assert a procedural bar. The district court declined
to apply a procedural bar sua sponte and found that the undeveloped claim
failed on the merits.
      The district court denied funding solely on the basis of the procedural
bar and used language that could be interpreted as indicating it would not have
denied funding but for the procedural bar. Specifically, the district court said,
in relevant part:
             Petitioner’s present motion for funding and attachments set
      forth tragic circumstances that appear to have been all too common
      in the post-conviction investigation and presentation of habeas-
      corpus claims. This Court is not insensitive to the plight of
      inmates who are precluded from presenting such claims in federal
      court due to the failure of their counsel to raise those claims in the
      state-court proceedings. However, as set out below, this Court may
      not use such circumstances to excuse the failure to present these
      claims to the state courts.

      The necessary finding the district court must make to authorize funding
under 18 U.S.C. § 3599(f) is merely that the defendant is indigent and
“investigative, expert, or other services are reasonably necessary.” The district
court found that, under our case law, Crutsinger could not make the required



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                                 No. 18-70027
showing “when the claim sought to be investigated is procedurally barred from
review.”
      Prior to the conclusion of Crutsinger’s habeas, Martinez v. Ryan, 566
U.S. 1 (2012), was decided. As we know from Trevino v. Thaler, 569 U.S. 413
(2013), Martinez clearly applies to Texas.      Under Martinez, Crutsinger’s
ineffective assistance of counsel claim was not procedurally barred.
      Crutsinger subsequently filed a motion to alter or amend under Fed. R.
Civ. P. 59(e). In denying this motion, the district court addressed the Supreme
Court’s decision in Martinez and said that to overcome the default, Crutsinger
had to establish that his claim was substantial and had merit. The district
court then found that Martinez would not excuse the procedural default in this
case, and, because the claim was unexhausted, evidentiary development would
be inappropriate.
      In later denying a certificate of appealability, this court concluded that
the denial of funding was justified because Crutsinger had not established that
his underlying ineffective assistance of counsel claim was substantial. See
Crutsinger v. Stephens, 576 F. App’x 422, 430 (2014); see also Martinez, 566
U.S. at 14.
      In other words, the court concluded that Crutsinger must prove his claim
of ineffective assistance of counsel to be able to establish that “investigative,
expert, or other services are reasonably necessary” to then be able to prove his
claim of ineffective assistance of counsel.     Such a circular application is
illogical. It heightens the standard required under 18 U.S.C. § 3599(f) and
essentially makes it impossible for a defendant to ever obtain funding on such
a claim. A defendant who has already proven his claim of ineffective assistance
of counsel would have no need for additional investigative, expert, or other
services.


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                                 No. 18-70027
      Martinez provides an exception for claims such as Crutsinger’s.
Martinez was an equitable ruling. To say that 18 U.S.C. § 3599(f) only allows
those defendants who can already prove their underlying ineffective assistance
of counsel claims to obtain funding is not equitable. Likewise, repeatedly
denying relief on the basis of the procedural bar but then later addressing on
the merits the defendant’s attempt to preserve his claim is not equitable.
While it is correct that Martinez does not mandate pre-petition funding, it is
also correct that Martinez neither prohibits pre-petition funding nor amends
the standard for obtaining it.
      Additionally, the Supreme Court has explicitly stated that denying
funding in this very situation may be error. In Ayestas v. Davis, the Court said:
             The difference between “reasonably necessary” and
      “substantially need[ed]” may be small, but the Fifth Circuit
      exacerbated the problem by invoking precedent to the effect that a
      habeas petitioner seeking funding must present “a viable
      constitutional claim that is not procedurally barred.” 817 F.3d, at
      895 (internal quotation marks omitted). See also, e.g., Riley v.
      Dretke, 362 F.3d 302, 307 (C.A.5 2004) (“A petitioner cannot show
      a substantial need when his claim is procedurally barred from
      review”); Allen, supra, at 638–639 (describing “ ‘our rule that a
      prisoner cannot show a substantial need for funds when his claim
      is procedurally barred from review’ ” (quoting Crutsinger v.
      Stephens, 576 Fed.Appx. 422, 431 (C.A.5 2014) (per curiam)));
      Ward, supra, at 266 (“The denial of funding will be upheld ... when
      the constitutional claim is procedurally barred”).
             The Fifth Circuit adopted this rule before our decision in
      Trevino, but after Trevino, the rule is too restrictive. Trevino
      permits a Texas prisoner to overcome the failure to raise a
      substantial ineffective-assistance claim in state court by showing
      that state habeas counsel was ineffective, 569 U.S., at 429, 133
      S.Ct. 1911 and it is possible that investigation might enable a
      petitioner to carry that burden. In those cases in which funding
      stands a credible chance of enabling a habeas petitioner to
      overcome the obstacle of procedural default, it may be error for a
      district court to refuse funding.

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                                      No. 18-70027
Ayestas, 138 S.Ct. 1080, 1093-94 (2018). 1
       Following Ayestas, Crutsinger filed a Rule 60(b) motion asserting that
there was a defect in the integrity of his initial federal habeas proceedings
because the district court applied an incorrect standard. Crutsinger asked the
district court to vacate its judgment and grant him leave to file a new §3599
motion. The district court then determined that Crutsinger’s motion was a
second-or-successive petition for habeas relief that it lacked jurisdiction to hear
and transferred the motion to this court. Crutsinger v. Davis, No. 4:07-CV-
00703, 2018 WL 3743881, at *1 (N.D. Tex. Aug. 7, 2018).
       The majority now concludes Crutsinger’s Rule 60(b)(6) motion was not a
successive habeas petition and vacates the order of transfer. Simultaneously,
the majority concludes that it lacks jurisdiction to treat the transfer order and
Crutsinger’s requests for relief as a certificate of appealability (COA), which it
determines is required under Black v. Davis, 902 F.3d 541, 545 (5th Cir. 2018);
Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011); and Ochoa Canales v.
Quarterman, 507 F.3d 884,888 (5th Cir. 2007). However, those cases are either
distinguishable or do not support any such conclusion.
       In Black, the district court denied habeas relief and a COA. A single
judge of this court granted a COA on two issues that had not been presented
to the district court. A panel of this court later vacated the COA and dismissed
the appeal without prejudice because the absence of the district court’s
determination regarding a COA on the two new issues posed a jurisdictional




       1In Ayestas, as quoted above, the Supreme Court also made clear that this issue is an
overlap of Ayestas, Trevino, and, necessarily, Martinez. Id. at 1093-94. Martinez and Trevino
were decided prior to the conclusion Crutsinger’s habeas. This court has already conceded
the application of Martinez and Trevino. Crutsinger, 576 F. App’x at 430-31. Moreover, the
majority now concedes that Ayestas abrogated this court’s prior decision in Crutsinger
regarding his request for funding under § 3599.

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                                  No. 18-70027
bar to this court’s consideration. Importantly, Black involved the denial of
habeas relief, not a Rule 60(b)(6) motion. Also, the two issues on which Black
was granted a COA had not been presented to the district court. Here, we are
dealing with a Rule 60(b)(6) motion that was presented to the district court.
Thus, Black has no applicability here.
      The relevant portion of Hernandez cited by the majority states that a
petitioner in Hernandez’s situation must obtain a COA before he can appeal
the denial of a Rule 60(b) motion. Hernandez, 630 F.3d at 428. Hernandez
cites Ochoa Canales, quoting, “We . . . hold that Dunn's conclusion that a COA
is not required to appeal the denial of a Rule 60(b) motion applies only when
the purpose of the motion is to reinstate appellate jurisdiction over the original
denial of habeas relief.” Id. at n. 37. Hernandez involved a time bar issue,
which necessarily was an appeal from the merits of the habeas petition.
      In Dunn v. Cockrell, 302 F.3d 491, 492-93 (5th Cir. 2002), this court said:
“Dunn filed both a timely notice of appeal and a motion for certificate of
appealability. As this case presents only Dunn's appeal from the denial of his
60(b) motion, and not an appeal from the merits of his habeas petition, no
certificate of appealability is required at this time.” Id. at 492.
      This court in Ochoa Canales adopted a narrow interpretation of Dunn,
as set out above. This case falls within that narrow interpretation, as the
purpose of Crutsinger’s motion is to reassert appellate jurisdiction over the
original denial of habeas relief to allow the proper consideration of his motion
for funding. Thus, a COA is not required. See also Gonzalez v. Crosby, 545
U.S. 524, 535, n. 7 (2005).
      I note that the majority opinion is unclear and seems contradictory. The
majority concludes that a COA is required and that it has no jurisdiction, but
then exercises jurisdiction to determine that Crutsinger’s Rule 60(b)(6) motion
was not a successive habeas petition. The effect of that determination is a
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                                  No. 18-70027
conclusion that the district court abused its discretion, as I state herein.
However, the majority never mentions abuse of discretion.           Because the
majority concludes that it lacks jurisdiction to consider Crutsinger’s appeal
without a COA, it seems the appropriate remedy would be to remand for the
district court to grant or deny a COA. Instead, the majority remands for the
district court to consider the Rule 60(b)(6) motion in the first instance. But,
the district court already considered the Rule 60(b)(6) motion in the first
instance and determined that it is “in actuality a second-or-successive petition
for habeas relief," hence, the transfer.
      Regardless, I agree with the majority that the Supreme Court’s decision
in Gonzalez compels the conclusion that Crutsinger’s Rule 60(b)(6) motion is
proper and not a successive petition. However, I disagree with the majority’s
determination that Gonzalez appears to establish that a change in the law
cannot constitute an extraordinary circumstance.
      In Gonzalez, the petitioner’s only ground for reopening the judgment
denying his first habeas petition was that the decision in Artuz v. Bennett, 531
U.S. 4 (2000), changed the interpretation of the Antiterrorism and Effective
Death Penalty Act statute of limitations and the district court’s statute-of-
limitations ruling was incorrect. Id. at 536. The court stated: “The District
Court's interpretation was by all appearances correct under the Eleventh
Circuit's then-prevailing interpretation of 28 U.S.C. § 2244(d)(2). It is hardly
extraordinary that subsequently, after petitioner's case was no longer pending,
this Court arrived at a different interpretation.” Gonzalez, 545 U.S. at 536.
The court explained that “not every interpretation of the federal statutes
setting forth the requirements for habeas provides cause for reopening cases
long since final.” Id. Clearly, this indicates the possibility that some changes
provide cause for reopening cases. Further, the court said:


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                                 No. 18-70027
             The change in the law worked by Artuz is all the less
      extraordinary in petitioner's case, because of his lack of diligence
      in pursuing review of the statute-of-limitations issue. At the time
      Artuz was decided, petitioner had abandoned any attempt to seek
      review of the District Court's decision on this statute-of-limitations
      issue. . . . This lack of diligence confirms that Artuz is not an
      extraordinary circumstance justifying relief from the judgment in
      petitioner’s case.

Id. at 537.   Here, Crutsinger had not abandoned anything and had been
diligently trying to get someone to review the denial of funding.
      Additionally, the Gonzalez court cited Ackermann v. United States, 340
U.S. 193 (1950), and Klapprott v. United States, 335 U.S. 601 (1949). In
Klapprott, the Court determined that the facts revealed far more than mere
allegations of excusable neglect in a denaturalization case. Id. at 613-14.
Specifically, the Court said:
      The basis of his petition was not that he had neglected to act in his
      own defense, but that in jail as he was, weakened from illness,
      without a lawyer in the denaturalization proceedings or funds to
      hire one, disturbed and fully occupied in efforts to protect himself
      against the gravest criminal charges, he was no more able to
      defend himself in the New Jersey court than he would have been
      had he never received notice of the charges. Under such
      circumstances petitioner's prayer for setting aside the default
      judgment should not be considered only under the excusable
      neglect, but also under the ‘other reason’ clause of 60(b), to which
      the one year limitation provision does not apply.

Id. at 614.
      Likewise, the Court engaged in a factual analysis in Ackermann, also a
denaturalization case, to determine whether Ackermann had set forth
extraordinary circumstances under Rule 60(b)(6). Ackerman, 340 U.S. at 197-
202. The Court ultimately concluded:
             From a comparison of the situations shown by the
      allegations of Klapprott and Ackermann, it is readily apparent

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                                    No. 18-70027
      that the situations of the parties bore only the slightest
      resemblance to each other. The comparison strikingly points up
      the difference between no choice and choice; imprisonment and
      freedom of action; no trial and trial; no counsel and counsel; no
      chance for negligence and inexcusable negligence. Subsection 6 of
      Rule 60(b) has no application to the situation of petitioner. Neither
      the circumstances of petitioner nor his excuse for not appealing is
      so extraordinary as to bring him within Klapprott or Rule 60(b)(6).


Id. at 202.
      More recently, the Supreme Court addressed a similar issue in the
context of the denial of a COA in Buck v. Davis, 137 S.Ct. 759 (2017). Duane
Buck sought to reopen a 2006 judgment under Rule 60(b)(6), arguing that
Martinez and Trevino “had changed the law in a way that provided an excuse
for his procedural default, permitting him to litigate his claim on the merits.
In addition to this change in the law, Buck's motion identified ten other factors
that, he said, constituted the ‘extraordinary circumstances . . . .’” Id. at 767.
The district court and this court both concluded that Buck had failed to
demonstrate extraordinary circumstances and denied a COA. The Supreme
Court concluded that the district court abused its discretion in denying Buck’s
Rule 60(b)(6) motion. Id. at 778. The court also concluded that this court erred
in denying Buck a COA, and that he was entitled to Rule 60(b)(6) relief. In its
analysis,     the   court   said,   “[i]n   determining   whether    extraordinary
circumstances are present, a court may consider a wide range of factors. These
may include, in an appropriate case, ‘the risk of injustice to the parties’ and
‘the risk of undermining the public's confidence in the judicial process.’” Id. at
778 (citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64
(1988).
      Crutsinger has not abandoned this issue and has been extremely
diligent. Gonzalez merely held that Artuz combined with a complete lack of

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                                  No. 18-70027
diligence did not establish an extraordinary circumstance in that case, while
acknowledging that there are situations where a subsequent change in the law
may provide cause for reopening habeas cases long since final. Gonzalez, 545
U.S. at 536. The risk of injustice to Crutsinger in not reopening the judgment
and properly deciding his funding motion is great, while the risk of injustice to
the government is nonexistent. There also exists a risk of undermining the
public’s confidence in the judicial process by allowing an erroneous decision,
the denial of funding based on procedural bar, to dictate the outcome of every
decision that follows rather than just requiring the proper consideration of the
motion for funding.
      A district court’s ruling on a Rule 60(b) motion is reviewed for an abuse
of discretion. Dunn, 302 F.3d at 492. This court also reviews for an abuse of
discretion the denial of funding. Woodward v. Epps, 580 F.3d 318, 334 (5th
Cir. 2009). “A natural consideration informing the exercise of that discretion
is the likelihood that the contemplated services will help the applicant win
relief.” Ayestas, 138 S.Ct. at 1094. Section 3599 requires only a “reasonably
necessary” standard. As the Supreme Court said in Ayestas:
            Proper application of the “reasonably necessary” standard
      thus requires courts to consider the potential merit of the claims
      that the applicant wants to pursue, the likelihood that the services
      will generate useful and admissible evidence, and the prospect
      that the applicant will be able to clear any procedural hurdles
      standing in the way.

Id. Further, “[t]o be clear, a funding applicant must not be expected to prove
that he will be able to win relief if given the services he seeks.” Id.
      The guidance from Ayestas and the equitable nature of Martinez indicate
that heightening the standard for funding, thus penalizing Crutsinger for any
failures of counsel outside his control, is improper. Instead, funding should be
decided solely under the requirements of Section 3599, keeping in mind the

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                                No. 18-70027
consideration of whether funding stands a credible chance of enabling
Crutsinger to overcome the procedural bar. See Ayestas, 138 S.Ct. at 1094; see
also 18 U.S.C. § 3599(f). If funding is reasonably necessary, then once the
petitioner presents his habeas petition with the benefit of those funds, the
court should make the separate determination of whether the claim in question
is substantial. To do otherwise negates the very purposes of Section 3599,
Martinez and Ayestas.
      Because there has been a change in the law establishing that the denial
of funding was potentially a defect in the integrity of the proceeding and
Crutsinger has diligently pursued review of this issue, Crutsinger has shown
that extraordinary circumstances exist to justify reopening the final judgment
on his habeas petition. See Gonzalez, 545 U.S. at 535-36.
      For these reasons, I would conclude that the district court abused its
discretion in transferring Crutsinger’s Rule 60(b)(6) motion and that it should
be granted. Because I would vacate and remand for proper consideration of
Crutsinger’s funding motion, I respectfully dissent.




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