     Case: 17-70024       Document: 00514719689         Page: 1    Date Filed: 11/12/2018




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


                                      No. 17-70024                                 FILED
                                                                           November 12, 2018
                                                                              Lyle W. Cayce
TRACY LANE BEATTY,                                                                 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 Eastern District of Texas
                             USDC No. 4:09-CV-225


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Tracy Lane Beatty requests a certificate of appealability (COA) following
the district court’s denial of his Rule 60(b)(6) motion to re-open the district
court’s previous judgment denying habeas relief. We deny the COA because
reasonable jurists would not debate the conclusion that the district court did




       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                       No. 17-70024
not abuse its discretion in deciding that the motion was untimely and lacked
the “extraordinary circumstances” that Rule 60(b)(6) relief requires.
                                              I.
                                             A.
      This case comes to us, after a long history of habeas litigation, as an
appeal of a district court’s denial of a Rule 60(b) motion 1 and certificate of
appealability (COA). Tracy Lane Beatty was convicted and sentenced to death
for the capital murder of his mother, Carolyn Click. On direct appeal, the
Texas Court of Criminal Appeals affirmed his conviction. Beatty v. State, No.
AP-75010, 2009 WL 619191 (Tex. Crim. App. Mar. 11, 2009). While that direct
appeal was pending, Beatty, represented by attorney Jeff Haas, filed a state
application for writ of habeas corpus. The state trial court held an evidentiary
hearing, entered findings of fact and conclusions of law, and recommended that
relief be denied. The Texas Court of Criminal Appeals adopted the trial court’s
findings, with some exceptions, and denied Beatty’s application. Ex parte
Beatty, No. WR-59,939-02, 2009 WL 1272550, at *1 (Tex. Crim. App. May 6,
2009) (per curiam).
      Haas continued to represent Beatty in his federal habeas proceedings.
In June of 2010, Beatty filed a federal habeas petition raising two issues: (1) an
exhausted claim that his trial counsel failed to investigate and present
mitigating evidence at the punishment phase 2 (the “punishment-phase claim”);
and (2) an unexhausted claim that his trial counsel failed to investigate and
present evidence to show that Beatty did not commit a burglary, which was a
necessary element of his capital murder conviction (the “guilt-phase claim”).
In July of 2013, the district court denied the petition.                In assessing the



      1   See Fed. R. Civ. P. 60(b).
      2   Beatty brought this claim under Wiggins v. Smith, 539 U.S. 510 (2003).
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                                    No. 17-70024
unexhausted guilt-phase claim, the district court held that it was procedurally
defaulted, even in light of the Supreme Court’s newly released decisions in
Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013).
Those cases provide an exception to the procedural-default rule in cases in
which the petitioner makes “a substantial claim of ineffective assistance at
trial.” Trevino, 569 U.S. at 429. But because the district court held that Beatty
made no substantial showing that his trial counsel was ineffective, the
exception did not apply. Trevino, 569 U.S. at 429. Beatty responded to this
ruling with a motion for reconsideration, reiterating his claims based on
Trevino. He also asked for a new attorney on appeal. The district court denied
the motion for reconsideration but granted the request for a new attorney on
the appeal.
                                         B.
         Thus, on August 30, 2013, Beatty proceeded with Scott Smith as his new
attorney. Three months later, Smith sought a COA from this court on both the
punishment-phase and guilt-phase claims. Beatty v. Stephens, 759 F.3d 455,
461 (5th Cir. 2014). It is helpful to summarize our reasons for rejecting a COA
on those issues. We held that the guilt-phase claim was procedurally barred
because Martinez and Trevino did not excuse Beatty’s failure to raise it in state
court.     Id. at 465.   Martinez and Trevino excuse these failures only if a
petitioner shows: “(1) that his claim of ineffective assistance of counsel at trial
is ‘substantial’ (i.e., ‘has some merit’); and (2) that his habeas counsel was
ineffective for failing to present those claims in his first state habeas
application.” Id. at 465–66 (quoting Martinez, 566 U.S. at 14).
         The guilt-phase claim failed to meet either requirement. First, it did not
have “some merit.” Martinez, 566 U.S. at 14. To have merit, an ineffective-
assistance-of-trial-counsel (IATC) claim must prove: (1) that counsel’s
performance was deficient; and (2) that such deficient performance prejudiced
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                                 No. 17-70024
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). We held that
the district court’s conclusion on the first Strickland prong was not debatable.
Beatty’s IATC argument was this: Trial counsel failed to present available
witness testimony establishing how abusive his mother was to him (and to
others) and how dysfunctional their relationship had become. Beatty, 759 F.3d
at 466. Without this evidence, it appeared that Beatty’s motive in murdering
his mother was to steal her belongings, not because the two had a strained
relationship. Id. This helped the prosecution establish that Beatty committed
burglary in the course of the murder, which in turn established that Beatty
had committed capital murder. In sum, Beatty claimed that his trial counsel’s
failure to present the evidence about Beatty’s relationship with his mother
elevated his conviction from non-capital to capital murder. Id. at 466–67.
      We held that the trial counsel’s failure to introduce this evidence was not
deficient under Strickland because counsel reasonably decided “to attack the
evidence supporting the burglary element”—rather than introducing separate
evidence about Beatty’s dysfunctional relationship with his mother—because
none of the evidence about his mother’s personality would be “more mitigating
than aggravating.” Id. at 465, 467. Beatty’s trial counsel explained, “from a
strategic standpoint, the danger you have in trying to make the victim of a
homicide, who is the mother of a defendant, into the reason for her own death,
has got to be clear, nearly to the point of a smoking gun.” Id. at 465. We
reached the same conclusion on the district court’s analysis of the second
Strickland prong. It was “unclear how the failure to investigate and present
evidence of [his mother]’s personality, behavioral problems, or past abuse of
other children prejudiced Beatty at the guilt stage.” Id. at 468. Because of this
Strickland analysis, we also held in the alternative that, even assuming
arguendo that Beatty had not procedurally defaulted the guilt-phase claim,
that claim did not warrant a COA. Id.
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                                   No. 17-70024
      The guilt-phase claim also failed to establish that Beatty’s “habeas
counsel was ineffective for failing to present those claims in his first state
habeas application,” which is required to come within Martinez/Trevino’s
exception to the procedural-default rule. Id. at 465–66. We held that the
connection between the habeas evidence and the guilt phase of the trial was
“neither clear nor strong enough to establish that Beatty’s habeas counsel was
ineffective for failing to raise this issue.” Id. at 466.
      We also denied a COA on the punishment-phase claim because, while it
was not procedurally barred, Beatty did not make “a substantial showing of
the denial of a constitutional right,” as required for a COA to issue. 28 U.S.C.
§ 2253(c)(2).   On the first Strickland prong, we explained that the lead
counsel’s investigations “did not turn up any witnesses who would have had
anything good to say about Beatty or any evidence that was more mitigating
than aggravating.” Beatty, 759 F.3d at 467 (citing Harrington v. Richter, 562
U.S. 86, 106–07 (2011)). Hence, the failure to pursue further evidence of his
mother’s   personality    did   not   fall       below    “an      objective   standard   of
reasonableness.” Id. (quoting Strickland, 466 U.S. at 688). On the second
Strickland prong, we noted that Beatty made “no discrete argument as to why
the defense team’s alleged failure to investigate mitigating evidence prejudiced
Beatty at the punishment phase.” Id. (citing Strickland, 466 U.S. at 695). In
light of the “two-edged” nature of the evidence he wanted his trial counsel to
introduce, we concluded that there was “no debate over the district court’s
conclusion that the evidence was not enough to satisfy the prejudice prong for
the punishment-phase claim.” Id.
                                         C.
      In August of 2014, Smith filed a petition for panel rehearing and
requested a remand to the district court so that he could investigate state
habeas counsel’s investigation.         He argued that the district court’s
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                                  No. 17-70024
Martinez/Trevino review had been tainted because the record was developed
by a lawyer laboring under a conflict of interest: Jeff Haas was arguing in the
federal proceedings that Jeff Haas was ineffective in the state proceedings. We
rejected that argument because Beatty had conflict-free counsel on appeal—
Scott Smith—and he failed to explain what his conflict-free counsel would have
done differently in the district court. See On Petition for Rehearing at 2, Beatty
v. Stephens (No. 13-70026) (5th Cir. Nov. 3, 2014).
      The Supreme Court then decided Christeson v. Roper, 135 S. Ct. 891
(2015), and Beatty asked us to recall our mandate in light of that decision. We
denied his motion because Christeson did not provide him relief. Christeson
held that “a petitioner was entitled to new counsel to pursue his federal habeas
relief because his original counsel would have had to argue his own
ineffectiveness.” Beatty v. Stephens, No. 13-70026, slip op. at 1 (5th Cir. Feb.
26, 2015).   But unlike the petitioner in Christeson, Beatty “was, and is,
represented by indisputably conflict-free counsel in his federal appeal.
Moreover, appellate counsel raised the ineffective-assistance-of-counsel claims
under Martinez . . . which we held did not warrant a COA, assuming arguendo
that there was no procedural bar.” Id. at 1–2. Beatty then petitioned the
Supreme Court for certiorari, but that was also denied. Beatty v. Stephens, 135
S. Ct. 2312 (2015).
      The State set Beatty’s execution for August 13, 2015. Seven days before
that, Beatty filed another state habeas application with three claims for relief.
The Texas Court of Criminal Appeals stayed the execution but ultimately
dismissed the application as an abuse of the writ. Ex parte Beatty, No. WR-
59,939-03, 2015 WL 6442730 (Tex. Crim. App. Oct. 14, 2015).
      In October of 2015, twenty-nine months after the Supreme Court issued
Trevino, Beatty went back to the federal district court to try to get Rule 60(b)
relief from its original judgment denying habeas relief. The court denied that
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                                  No. 17-70024
motion because it was untimely and Beatty did not show the “extraordinary
circumstances” that a Rule 60(b)(6) motion requires. The court also denied a
COA. Beatty then filed a motion in the district court to alter or amend the
judgment under Rule 59(e). The court denied that motion, too. Beatty now
seeks a COA on the district court’s denial of Rule 60(b) relief.
                                         II.
      We review COA requests by determining whether “jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right, and [whether] jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.”        Slack v.
McDaniel, 529 U.S. 473, 478 (2000). Beatty seeks a COA in order to obtain
relief under Rule 60(b). “[T]he decision to grant or deny relief under Rule 60(b)
lies within the sound discretion of the district court and will be reversed only
for an abuse of that discretion.” Hernandez v. Thaler, 630 F.3d 420, 428 (5th
Cir. 2011) (quoting Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir. 2010)). Thus,
we “must determine whether a jurist of reason could conclude that the district
court’s denial of [his] motion was an abuse of discretion.” Id.
                                         III.
      The district court denied Beatty’s Rule 60(b) motion and COA application
for two reasons. First, it held that Beatty’s motion was untimely. Second, it
held that, even if it were timely, Beatty failed to establish the “extraordinary
circumstances” that Rule 60(b) relief requires. We hold that reasonable jurists
would not debate the conclusion that the district court did not abuse its
discretion in reaching either holding.
                                         A.
      A Rule 60(b) motion “‘must be made within a reasonable time,’ unless
good cause can be shown for the delay.” In re Edwards, 865 F.3d 197, 208 (5th
Cir. 2017) (quoting Fed. R. Civ. P. 60(c)(1)); see also Preyor v. Davis, 704 F.
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App’x 331, 342 (5th Cir. 2017). “‘Good cause’ for a reasonable delay must be
‘evaluated on a case-by-case basis.’” In re Edwards, 865 F.3d at 208 (quoting
In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004)). “The timeliness of the motion
is measured as of the point in time when the moving party has grounds to make
such a motion, regardless of the time that has elapsed since the entry of
judgment.” Id. (quoting First RepublicBank Fort Worth v. Norglass, Inc., 958
F.2d 117, 120 (5th Cir. 1992)).
      In Clark v. Davis, we held that the “contention that a conflict of interest
may arise when state habeas counsel in Texas is also federal habeas counsel
flows from Trevino.” 850 F.3d 780, 781 (5th Cir. 2017). Hence, the timeliness
clock started on May 28, 2013, the date of the Trevino decision. Beatty began
citing Trevino twenty-two days after it issued, but he did so to receive conflict-
free counsel for his appeal.      Three weeks after he requested conflict-free
counsel, he received it and appeared satisfied. See Motion for Certificate of
Appealability and Brief in Support at 24, Beatty v. Stephens (No. 13-70026)
(5th Cir. Nov. 22, 2013) (representing that post-conviction counsel’s
investigation was adequate). The defect that he alleged was removed.
      At that time, he could have asked this Court to stay proceedings so that
he could return to the district court to file a Rule 60(b) motion. See, e.g., Order
Granting Petitioner’s Motion to Stay Proceedings Pending the Filing of a Rule
60(b) Motion, Gamboa v. Davis (No. 16-70023) (5th Cir. Feb. 13, 2017). He
could have asked this court to remand under 18 U.S.C. § 3599 to allow him to
challenge state habeas counsel’s performance. See, e.g., Mendoza v. Stephens,
783 F.3d 203 (5th Cir. 2015); Speer v. Stephens, 781 F.3d 784 (5th Cir. 2015).
He could have requested remand when he filed his petition for a COA. But he
did none of those things. Instead, he represented to this Court that “post-
conviction counsel’s investigation was adequate.” See Motion for Certificate of
Appealability and Brief in Support at 24, Beatty v. Stephens (No. 13-70026)
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                                 No. 17-70024
(5th Cir. Nov. 22, 2013). Then, fourteen months after the Trevino decision, he
asked this Court for a remand so that he could investigate his state habeas
counsel’s performance, presumably to show that it was inadequate. He finally
filed his Rule 60(b)(6) motion, the subject of this appeal, in October of 2015—
twenty-nine months after Trevino had been issued.
      Reasonable jurists would not debate the conclusion that the district court
did not abuse its discretion in concluding that this motion is untimely. In
Clark, we recognized that the sixteen months between Trevino and a Rule
60(b)(6) motion and, alternatively, the twelve months between appointment of
conflict-free counsel and a Rule 60(b)(6) motion were both untimely. Clark,
850 F.3d at 782.     We also recognized that courts have denied motions as
untimely when filed as few as five months after the starting date. See id. at
782 n. 63 (citing Treadway v. Parke, 79 F.3d 1150, 1996 WL 117182, *1 (7th
Cir.) (five months); Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (less
than eight months); Pruett v. Stephens, 608 F. App’x 182, 185–86 (5th Cir.
2015) (petitioner waited fourteen months after Trevino to raise ineffective-
assistance claim in state court); Paredes v. Stephens, 587 F. App’x 436, 438 (5th
Cir. 2014) (three years); Lewis v. Lewis, 326 F. App’x 420, 420 (9th Cir. 2009)
(mem.) (six months)). Beatty’s twenty-nine month delay is not excused by the
fact that his petition for certiorari was pending in the Supreme Court or that
his subsequent writ was pending in state court.           He could have made
concurrent filings. See Clark, 850 F.3d at 783 (declining to excuse the time
during which Clark had pending litigation in state court).          Accordingly,
reasonable jurists would not debate the conclusion that the district court did
not abuse its discretion in determining that Beatty’s twenty-nine month delay
was untimely.




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                                        No. 17-70024
                                               B.
       Even if Beatty’s motion were timely, reasonable jurists would not debate
the conclusion that the district court did not abuse its discretion by holding
that Beatty lacked the “extraordinary circumstances” that a Rule 60(b)(6)
motion requires. See In re Edwards, 865 F.3d at 203; Preyor, 704 F. App’x at
342.       We have repeatedly held that “[u]nder our precedents, changes in
decisional law . . . do not constitute the ‘extraordinary circumstances’ required
for granting Rule 60(b)(6) relief.” Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir.
2002). Applying this rule to the very changes in decisional law that Beatty
invokes, we have held that a district court does not “abuse[] its discretion in
finding that Martinez, even in light of Trevino, does not create extraordinary
circumstances warranting relief from final judgment.” Diaz v. Stephens, 731
F.3d 370, 376 (5th Cir. 2013); Adams v. Thaler, 679 F.3d 312, 320 (5th Cir.
2012). Even in Beatty’s past visits to this court, we rejected his arguments
based on the Martinez/Trevino/Christeson trilogy: In his initial request for a
COA, we rejected his reliance on Martinez and Trevino. Beatty, 759 F.3d at
465–66. When he asked us to recall our mandate on Christeson grounds, we
rejected that argument, too. 3 Beatty, No. 13-70026, slip op. at 1–2.
       Knowing this all too well, Beatty tries to shoehorn his case into
extraordinary circumstances by supplementing the changes in decisional law



       3  Beatty tries to sidestep this problem by claiming that the district court failed to
address the relevant change in decisional law: our decisions in Speer and Mendoza, not the
Supreme Court’s decisions in Martinez and Trevino. Beatty claims that Speer and Mendoza
“broke new ground” by establishing the right, upon request, to conflict-free counsel to
investigate state habeas counsel’s performance. But changes in decisional law, by
themselves, do not create “extraordinary circumstances.” This argument also misreads those
cases. We have explicitly held that “we do not interpret Martinez or Trevino as creating the
right to new or additional counsel.” Speer, 781 F.3d at 784; see also Speer, 781 F.3d at 787 n.
5 (“We also do not interpret . . . Christeson . . . as supporting appointment of new or additional
counsel.”). Martinez and Trevino are not “extraordinary circumstances,” and neither are our
precedents that merely apply them.
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                                  No. 17-70024
with “other factors.” Specifically, he alleges that: (1) he is the lone petitioner
who has not been allowed to return to district court with conflict-free counsel;
(2) there are legitimate concerns that he may be innocent; (3) his state habeas
counsel admitted error in failing to raise the guilt-phase claim in the state
habeas proceedings; and (4) he has been prompt and diligent in asserting his
argument for conflict-free counsel.
       We reject Beatty’s reliance on these “other factors.” As a starting matter,
just as in Diaz, these circumstances “are no more unique or extraordinary than
any other capital inmate who defaulted claims in state court prior to Trevino.”
731 F.3d at 371. And even if they were unique, they would not support Rule
60(b)(6) relief. The first falls short because it is not even correct. See, e.g.,
Court Order Denying Motion to Appoint Counsel, Roberson v. Stephens (No.
14-70033) (5th Cir. May 22, 2015) (finding it sufficient that conflict-free counsel
at the appellate level reviewed Martinez/Trevino issues). Moreover, Martinez
and Trevino did not create a new right to conflict-free counsel on collateral
review; they provide only remedial relief to procedural bars standing in the
way of presenting defaulted claims in federal courts. See Speer, 781 F.3d at
785.
       Beatty’s claim of “legitimate concerns” about his innocence is also not
enough. To get past the successive-petition bar, Beatty must do more than
raise “legitimate concerns”: he must establish by clear and convincing evidence
that “no reasonable factfinder would have found him guilty of the underlying
offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). His conclusory argument directs us to
no new information other than a Texas Court of Criminal Appeals dissent that
would have found that Beatty did not “lack consent” to enter his mother’s home
on the night of the murder, as required to conclude that he committed a
burglary in the course of that murder. This argument fails to satisfy the
standard of 28 U.S.C. § 2244.
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                                    No. 17-70024
      The third of Beatty’s factors fails because we already held, in Beatty’s
first appeal to this Court, that his guilt-phase claim is without merit, 4 so any
failure to raise it in state habeas proceedings, confessed or not, was harmless
anyway. Beatty, 759 F.3d at 465–66. The fourth claim, asserting that he was
diligent, is undermined by our timeliness analysis.
      Moreover, none of these “other factors” rise to the level of the
circumstances in Buck v. Davis, such that they would “risk injustice to the
parties” or raise “the risk of undermining the public’s confidence in the judicial
process.” 137 S. Ct. 759, 778 (2017). In Buck, there was a legitimate concern
that “Buck may have been sentenced to death because of his race” due to expert
testimony, and the state proactively consented to resentencing in all five other
cases that same expert testified in. Id. at 778–79. No such concern calling into
account the integrity of the initial judicial proceedings in the public’s mind is
present here. Accordingly, the combination of Martinez/Trevino’s change in
decisional law and these “other factors” would not allow reasonable jurists to
conclude that the district court abused its discretion in determining that
Beatty failed to show the “extraordinary circumstances” required for Rule
60(b)(6) relief.
                                        ***
      For these reasons, we DENY Beatty’s request for a COA.




      4   See supra pp. 3–5.
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