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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 19-70005                    United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                       January 28, 2019
ROBERT MITCHELL JENNINGS,
                                                                        Lyle W. Cayce
              Petitioner - Appellant                                         Clerk


v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:09-CV-219


Before STEWART, Chief Judge, SOUTHWICK and HAYNES, Circuit Judges.
PER CURIAM:*
       Robert Mitchell Jennings, a Texas state prisoner on death row convicted
in 1989 and scheduled to be executed on January 30, 2019, filed a Rule 60(b)(6)
motion in district court. From 1996 until October 2018, he had the same
counsel representing him in state and federal habeas matters. Through newly
appointed counsel, Jennings filed his motion on January 22, 2019. He claimed



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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that his longtime attorney had a conflict of interest that caused him not to take
advantage of United State Supreme Court authority that would have allowed
presentation of issues that depended on proof of that pre-existing counsel’s
ineffectiveness. The district court denied all relief on the grounds that the Rule
60(b)(6) motion was untimely, refused to stay the execution, and granted a
certificate of appealability on the issue of timeliness. We AFFIRM and DENY
a stay of execution.
                 FACTUAL AND PROCEDURAL BACKGROUND
      The background facts of this case are set forth in our original opinion
from 2013, so we refer to them only briefly here. Jennings v. Stephens, 537 F.
App’x 326, 327-29 (5th Cir. 2013) (Jennings I), rev’d and remanded, 135 S. Ct.
793 (2015) (Jennings II). Jennings was convicted in 1989 for the murder of
Houston, Texas police officer Elston Howard.          Jennings’ conviction and
sentence were affirmed by the Texas Court of Criminal Appeals in 1993.
Attorney Randy Schaffer began to represent Jennings in post-conviction
proceedings, filing a state habeas application in September 1996 and
supplementing it in 2001.      The trial court entered findings of fact and
conclusions of law in 2006. The Texas Court of Criminal Appeals denied relief
in 2008.
      In 2009, Jennings filed an application for a writ of habeas corpus under
28 U.S.C. § 2254 in the United States District Court for the Southern District
of Texas. The district court granted the application, finding that Jennings had
received ineffective assistance of counsel. Specifically, the court found that
counsel was ineffective for failing to present mitigation evidence regarding

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Jennings’ disadvantaged background and for failing to investigate Jennings’
mental health. Texas appealed.
      This panel handed down its first opinion in Jennings’ habeas proceedings
in July 2013. Jennings I, 537 F. App’x at 336. We found that the district court
erred in granting relief on two of Jennings’ ineffective assistance of counsel
claims under Wiggins v. Smith, 539 U.S. 510 (2003). Id. at 330-35. As an
alternative ground, we also addressed an argument concerning mitigation that
the district court did not consider because it had found the claim was not
exhausted in the state habeas proceeding; we held that the claim was meritless
and unexhausted. Id. at 335-37 (citing Penry v. Lynaugh, 492 U.S. 302 (1989)
and Penry v. Johnson, 532 U.S. 782 (2001)). Finally, we dismissed a “cross-
point” Jennings raised under Smith v. Spisak, 558 U.S. 139 (2010) for lack of
jurisdiction because Jennings did not first seek a COA from the district court
on that point. Jennings I, 537 F. App’x at 338-39.
      In response, Jennings filed a petition for rehearing in our court. He
relied on the newly issued Trevino opinion and on Martinez, then argued that
if we had been correct in concluding that Jennings’ “state counsel failed to
exhaust this argument in state court, then clearly he was ineffective.” He
requested a remand to district court to develop the issue. We denied rehearing,
which effectively denied the argument about the new caselaw. Jennings did
not raise this point again until recently.
      The Supreme Court granted certiorari solely on the question of whether
Jennings was required to take a cross-appeal or seek a certificate of
appealability on his cross-point; the Court held he was not. Jennings II, 135

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S. Ct. at 798, 802. On remand, this panel in 2015 affirmed the district court’s
denial of relief on the cross-point. Jennings v. Stephens, 617 F. App’x 315, 319
(5th Cir. 2015) (Jennings III).
       Jennings filed a subsequent state habeas application in May 2016 and
supplemented it in July 2016. The Texas Court of Criminal Appeals dismissed
the subsequent applications in May 2018. The court denied reconsideration on
September 19, 2018. A petition for a writ of certiorari from that decision
remains pending in the Supreme Court. Case No. 18-6848 (filed Nov. 20, 2018).
       On September 20, 2018, Jennings, still represented by Schaffer, filed a
motion for appointment of conflict-free counsel in the United States District
Court for the Southern District of Texas. The district court granted the motion,
appointing Edward Mallett as counsel on October 23, 2018, then appointing
two Federal Public Defenders as co-counsel a month later. On December 21,
2018, Jennings’ new counsel filed a motion for a stay of execution in the district
court. On January 22, 2019, Jennings filed a motion for relief from judgment
under Rule 60(b)(6). The district court denied the motion and dismissed the
motion to stay.      Jennings appealed and filed another motion to stay his
execution with this court.
                                     DISCUSSION
       We have two matters before us. One is whether to grant the motion to
stay the imminent execution. 1 The other is whether there has been a sufficient


       1   Jennings contends that we are required to grant a stay, given the district court’s
grant of a COA. However, the law is to the contrary, as granting a stay is discretionary. 28
U.S.C. § 2251(a). Further, granting a stay based upon the appointment of counsel in the
district court is limited to 90 days, a time period that has already passed. § 2251(a)(3).
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showing under Rule 60(b)(6) to set aside the judgment in Jennings’ federal
habeas claim, resolved against him finally in 2015. The district court granted
Jennings a certificate of appealability (“COA”) on the issue of whether the Rule
60(b)(6) motion, filed by newly appointed counsel the week prior to our ruling
today, should be denied because it was untimely. As we will explain, the COA
brought us jurisdiction to consider all other record-based grounds to support
the denial. If we conclude that the Rule 60(b)(6) motion was properly denied,
there is no reason for us to grant a stay of execution.
      Among Jennings’ arguments is that we must give de novo review to the
district court’s denial. Our caselaw is to the contrary. Clark v. Davis, 850 F.3d
770, 778 (5th Cir. 2017) (applying abuse of discretion standard). Ultimately,
however, our resolution of this appeal does not depend on the standard of
review. We conclude that issues of the ineffectiveness of trial counsel that
Jennings wishes to raise were resolved against him years ago. He may not use
the vehicle of a Rule 60(b)(6) motion to reopen that issue, even if he is using
allegedly intervening Supreme Court authority in the attempt.
      A. Rule 60(b)(6) motion to set aside denial of federal habeas relief
      The procedural right Jennings wishes to use was initially identified in a
Supreme Court decision in 2012, in which the Court held that “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
v. Ryan, 566 U.S. 1, 17 (2012).      It is fair to say that there was at least
uncertainty that Martinez would apply to ineffective assistance of counsel

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claims in Texas until, 14 months later, the Court extended the rationale of
Martinez to Texas convictions where procedural rules made it “highly unlikely
in a typical case that a defendant will have a meaningful opportunity to raise
a claim of ineffective assistance of trial counsel on direct appeal.” Trevino v.
Thaler, 569 U.S. 413, 429 (2013). To assert the rights identified in these
decisions, capital habeas petitioners may have conflict-free counsel appointed
in federal court. See Clark, 850 F.3d at 780.
      We note here that in both Martinez and Trevino, the inmate was bringing
his initial application for a writ of habeas corpus under 28 U.S.C. § 2254. See
Martinez, 566 U.S. at 7-8; Trevino, 569 U.S. at 419-20. Rather differently,
Jennings is seeking to use the mechanism of a Rule 60(b)(6) motion to set aside
the initial federal judgment denying relief under Section 2254. Under that
rule, a “court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons: . . . (6) any other
reason that justifies relief.” FED. R. CIV. P. 60(b)(6). The “any other reason”
means a reason other than those set out in subparts (1) through (5). Rocha v.
Thaler, 619 F.3d 387, 389-400 (5th Cir. 2010). Other reasons must constitute
“extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
      The Rule 60(b) questions present some potentially credible issues of what
is “extraordinary” and how timeliness is measured in the “conflicted counsel”
arena.   Among the relevant legal principles is that Martinez and Trevino
together qualify as a “‘change in decisional law after entry of judgment”; such
a change does not constitute [extraordinary] circumstances and is not alone
grounds for relief from a final judgment.’’’ Raby v. Davis, 907 F.3d 880, 884

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(5th Cir. 2018) (quoting Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012)
(alteration in original). Our Clark decision examines closely how to determine
timeliness. 850 F.3d at 781-83. Further, finality is important in all decisions,
but “in the context of habeas law, comity and federalism elevate the concerns
of finality, rendering the 60(b)(6) bar even more daunting.” Diaz v. Stephens,
731 F.3d 370, 376 n.1 (5th Cir. 2013). The Supreme Court itself has addressed
the use of Rule 60(b)(6) in a death penalty case when a COA was denied. See
Buck v. Davis, 137 S. Ct. 759, 778-79 (2017). An additional issue is presented
by   the   fact   that   “conflicted   counsel”   actually   presented   this   very
Martinez/Trevino issue five years ago in his petition for rehearing in this
court, so it is not truly “new.” After we denied rehearing, Jennings’ counsel did
not raise it in the Supreme Court or before any court that we know of until the
motion in the district court filed by new counsel this month. Neither party
addresses how the fact that conflicted counsel previously, belatedly, and
unsuccessfully raised this point intersects with Rule 60(b).
      We conclude it is unnecessary to answer these various questions. Even
were we to answer all of them in his favor, Jennings’ underlying
Martinez/Trevino argument lacks merit. As we move to that dispositive issue,
we dispense with a false limit Jennings would place on our analysis. We may
go beyond what the district court held, which was to deny relief solely due to
the untimeliness of the motion. The Supreme Court’s 2015 decision in
Jennings’ own case explains why:
           An appellee who does not take a cross-appeal may ‘‘urge in
      support of a decree any matter appearing before the record,


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       although his argument may involve an attack upon the reasoning
       of the lower court.’’
Jennings II, 135 S.Ct. at 798 (quoting United States v. Am. R. Express Co., 265
U.S. 425, 435 (1924)). Our resolution of the underlying issue is a “matter
appearing before the record.”
           B. Initial resolution of Jennings’ Penry claims
       Jennings, through his new counsel, argues that the initial habeas
counsel, Schaffer, was ineffective at the state level in presenting his Penry
claim. The 2013 panel of this court considered Jennings’ mitigation evidence
claims at some length. 2 The standard he needed to meet, and still does, was
that the state habeas court’s decision denying him relief
       (1) “was contrary to, or involved an unreasonable application of,
       clearly established Federal law, as determined by the Supreme
       Court of the United States” or (2) “was based on an unreasonable
       determination of the facts in light of the evidence presented in the
       State court proceeding.”
28 U.S.C. § 2254(d).
       The argument at that time was that his trial counsel had failed to
present proper evidence either of Jennings’ mental impairment or of his
disadvantaged background. Jennings I, 537 F. App’x at 329. As to his mental
capacity, we concluded that Jennings had failed to show prejudice because the
evidence presented in the habeas proceedings was conflicting, which was not
sufficient to show that the state habeas court has acted unreasonably in


       2  Jennings did “not advance a pure-Penry argument. Instead, he argues that the
failure to offer mitigating evidence of his background deprived him of an argument on appeal
that the nullification instruction violated his Eighth and Fourteenth Amendment rights,
which could have resulted in overturning his sentence.” Jennings, 537 F. App’x 336-37.
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rejecting the claim. Id. at 334. On Jennings’ disadvantaged background, the
evidence was both favorable and unfavorable, “a ‘double-edged’ sword” that
“might permit an inference that he is not as morally culpable for his behavior,
[but] also might suggest [that he], as a product of his environment, is likely to
continue to be dangerous in the future.” Id. at 335 (quoting Ladd v. Cockrell,
311 F.3d 349, 360 (5th Cir. 2002)) (alterations in original). There, too, the state
habeas court had not acted unreasonably in rejecting the claim. Id.
      After making those determinations, which were sufficient to deny relief,
we stated that “we need not consider whether counsel’s decision prejudiced
Jennings.” Id. Nonetheless, we did consider. Our holding was that counsel
“did not provide the Texas Court of Criminal Appeals with a fair opportunity
to consider the substance of his argument [on state habeas review] — he
inserted it in a footnote at the end of his brief.” Id. at 337. That additional
holding does present an issue of counsel ineffectiveness but only on a point that
was an independent reason for denying relief.
      In summary, our 2013 decision addressed the underlying issue of
mitigation evidence now asserted to support the claim. We held that the state
habeas court had not unreasonably applied federal law nor unreasonably
determined the facts. The final judgment denying Jennings’ Section 2254
application was not based on procedural default but instead on the upholding
of the state habeas court’s decision regarding the mixed nature of the evidence.
Yes, we discussed procedural default as an alternative ground, but our holding
did not depend on that.



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      At most what is being argued now is that Schaffer may have been able
to argue more than he did about the mitigation evidence. We already held in
our 2013 opinion that the state habeas court had not been unreasonable in
holding that trial counsel had satisfied his constitutional obligation of
representation in deciding what evidence to present. Thus, the prerequisite
for applying Trevino, which is “a procedural default” that otherwise would “bar
a federal habeas court from hearing a substantial claim of ineffective
assistance at trial,” Martinez, 566 U.S. at 17, does not exist in this case.
      We AFFIRM the denial of the Rule 60(b)(6) motion. We DENY the
motion for a stay of execution and the motion for a stay pending appeal.




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