     Case: 14-70034   Document: 00513905975     Page: 1   Date Filed: 03/10/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                 No. 14-70034                             FILED
                                                                    March 10, 2017

TROY CLARK,
                                                                     Lyle W. Cayce
                                                                          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


Before STEWART, Chief Judge, and HIGGINBOTHAM and OWEN, Circuit
Judges.

PRISCILLA R. OWEN, Circuit Judge:
      Troy Clark, convicted of capital murder and sentenced to death in Texas
state court, appeals the district court’s denial of his Federal Rule of Civil
Procedure 60(b)(6) motion for relief from the district court’s judgment denying
his federal habeas petition. Clark contends that his state habeas counsel, who
was also his federal habeas counsel, was ineffective because he failed to
investigate fully, and consequently failed to present fully, a claim that Clark’s
trial counsel was ineffective. The federal district court denied habeas relief;
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this court affirmed the district court’s judgment; 1 and the Supreme Court
denied Clark’s petition for certiorari. 2
      The Rule 60(b)(6) motion is based on the change in decisional law
effectuated by the Supreme Court’s decision in Trevino v. Thaler, 3 which held
that when “it [is] 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,” a habeas petitioner’s procedural default of a claim not
presented during an initial-review collateral proceeding can be excused if the
default was caused by state habeas counsel’s ineffectiveness. 4           This holding
was an extension of the Supreme Court’s reasoning in Martinez v. Ryan. 5
      After the Trevino decision issued, the state habeas court appointed new
counsel for Clark, and Clark filed a successive claim for habeas corpus relief in
state court, contending that a more fulsome ineffective-assistance-of-trial-
counsel claim should be considered by the state courts, in light of Martinez and
Trevino. The Texas Court of Criminal Appeals dismissed that petition as an
abuse of the writ. 6 Clark proceeded to federal district court and filed a Rule
60(b)(6) motion for relief from the district court’s prior denial of habeas relief.
Clark contended that his counsel in the federal habeas proceeding had a
conflict of interest because he could not be expected to argue his own
ineffectiveness as state habeas counsel. The district court denied the motion
and declined to issue a certificate of appealability (COA). We granted a COA,
and we now affirm the district court’s judgment. The district court did not




      1  Clark v. Thaler, 673 F.3d 410, 413 (5th Cir. 2012).
      2  Clark v. Thaler, 133 S. Ct. 179 (2012) (mem.).
       3 133 S. Ct. 1911 (2013).
       4 Id. at 1921.
       5 566 U.S. 1 (2012).
       6 Ex parte Clark, No. WR-55,996-02, 2014 WL 1910597, at *1 (Tex. Crim. App. May 7,

2014) (per curiam) (unpublished).
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                                  No. 14-70034
abuse its discretion in concluding that Clark’s Rule 60(b)(6) motion was
untimely.
                                        I
      Clark was convicted of capital murder in Texas state court in March
2000. The decision of the Texas Court of Criminal Appeals on direct appeal
reflects facts that were presented to the jury during the guilt phase of the trial
regarding Christina Muse’s murder:
            Clark lived with Tory Bush in Tyler, Texas, where the two
      used and sold methamphetamine. The victim, Christina Muse,
      lived with them for a short period of time. When Muse moved out,
      Clark became concerned that she would talk to the wrong people
      and “snitch” on him about his drug dealings.
            According to Bush, Muse came by Clark’s house on May 19,
      1998, and talked with Bush in the front bedroom. At some point
      during their conversation, Clark stunned Muse with a stun gun to
      her neck and told her she “should have kept [her] mouth shut.”
      When Muse fell to the floor, Clark bound her hands, legs, and
      mouth with duct tape. Clark then placed Muse in a closet in the
      second bedroom, and Bush could hear Clark talking to her. After
      “a couple of hours,” Clark moved Muse into the bathroom and told
      Bush to get him a board. Bush complied and returned to the
      kitchen, shortly after which she heard the loud “whack” of a board
      striking something. Clark yelled for Bush to come to the bathroom
      where she found Muse in the bathtub, blood on the back wall of the
      tub, and Clark filling the tub with water. Clark told Bush to help
      him hold Muse’s head under water and threatened her when she
      hesitated.
            After drowning Muse, Clark told Bush to go buy some lime.
      Bush then went across the street to Amber Scoggin’s [sic] house to
      get a ride to the store. When Bush returned, she took the lime to
      Clark in the back storage room of the house where she saw Muse’s
      body in a blue barrel filled with cement mix. Clark poured the lime
      into the barrel, mixed in water, and put a lid on the barrel. The
      next morning, Clark woke Bush and instructed her to clean up the
      backyard and to put some debris and garbage in the barrel over
      Muse’s body. When Ben Barnett, Mike Coats, and Amber Scoggins
      arrived later, Clark and the two men loaded the blue barrel in the
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                                     No. 14-70034
      back of Clark’s truck. After the others left, Clark and Bush
      transported the barrel and other trash to the property of their
      landlord, Velva Young. Bush told the jury that the last time she
      saw the barrel it was in Clark’s truck, which was parked by the
      trash pile on Young’s property. Bush then went to Young’s house,
      while Clark borrowed Young’s tractor and returned to the trash
      pile by himself for about an hour. 7
      With regard to the punishment phase, Clark’s counsel conducted a
limited investigation to determine if potentially mitigating evidence existed
and did not present any mitigating evidence at trial. Clark’s counsel was
prepared to subpoena Clark’s mother, father and other potential mitigation
witnesses to testify, but Clark confirmed in response to questions from the trial
court that he had instructed his counsel not to subpoena any witnesses.
Accordingly, counsel focused on Clark’s future dangerousness, calling one
expert witness who testified that Clark would not be a future danger in prison,
based on a risk assessment founded in actuarial data. 8
      Clark rejected his counsel’s advice and testified during the punishment
phase. As we set forth in a prior opinion,
      Clark took the stand on his own behalf, against the advice of
      counsel . . . . In a colloquy with counsel outside the presence of the
      jury, Clark confirmed that he had refused to allow his attorneys to
      call his mother and father to testify. Clark also acknowledged that
      he had personally contacted other potential mitigation witnesses
      and instructed them not to testify on his behalf. He expressed his
      desire to tell the jury that he wanted to receive the death penalty.
      In a contentious exchange with the prosecutor on cross-
      examination, Clark ultimately so testified. 9

The jury determined that Clark was a future danger to society and that no
mitigating factors warranted a life sentence. The trial court sentenced Clark



      7 Clark v. Texas, No. 73,816 (Tex. Crim. App. Nov. 25, 2002) (unpublished).
      8 Clark v. Thaler, 673 F.3d 410, 414 (5th Cir. 2012).
      9 Id.

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to death as state law required. The Texas Court of Criminal Appeals affirmed
on direct appeal. 10
      The state trial court appointed new counsel, Craig Henry, to represent
Clark in state habeas proceedings. Henry submitted an application for a writ
of habeas corpus asserting nine grounds for relief, the principal ground being
that Clark’s trial counsel rendered ineffective assistance by failing to
investigate potentially mitigating facts and by failing to present mitigating
evidence. Henry included a two-page affidavit from Clark’s mother, Cleta
Barrington, which recounts Clark’s troubled upbringing.                       Barrington’s
affidavit stated that: Clark was born with a cleft palate that led to speech
difficulties and ridicule by his peers; she used drugs for most of her adult life
and supported her habit through prostitution, resulting in her incarceration
for much of Clark’s life; Clark’s father had “very little to do with” him; Clark
cycled between living with different family members during his formative
years; while Clark lived with his mother’s brother-in-law he was subjected to
physical abuse; Clark married at fifteen to avoid being placed in the foster care
system; Clark’s brother committed suicide when Clark was twenty, and Clark
blamed himself because he had had an argument with his brother the night
before; and that she (his mother) had not been contacted by trial counsel but
would have spoken with counsel if given the opportunity. Henry spent a total
of five hours investigating possible mitigating circumstances in support of the
state habeas claim. The affidavit from Clark’s mother was the only evidence
submitted in support of the application.
      The state habeas court denied relief, concluding that trial counsel’s
performance was not deficient and that Clark had not demonstrated




      10   Clark v. Texas, No. 73,816 at *16 (Tex. Crim. App. Nov. 25, 2002) (unpublished).
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                                     No. 14-70034
prejudice. 11 The Texas Court of Criminal Appeals denied relief based on the
trial court’s findings and its own review. 12
      Henry was appointed to represent Clark in federal habeas proceedings.
He filed a federal habeas petition, again arguing that trial counsel’s failure to
investigate and failure to present mitigating evidence amounted to ineffective
assistance of counsel. However, Henry conducted further investigation and
found evidence that was potentially mitigating. In response to the State’s
motion for summary judgment, Henry attached a thirty-page report from a
mitigation specialist that detailed Clark’s social history through interviews
with Clark and Clark’s family members and an affidavit from one of Clark’s
trial attorneys stating that neither he nor co-counsel conducted any mitigation
investigation in preparation for the punishment phase.                 The mitigation
specialist’s report was prepared for the federal habeas proceeding and was not
part of the record before the state habeas courts.
      The district court, considering the affidavits from Clark’s mother, trial
counsel, and the mitigation specialist’s report, found that trial counsel’s failure
to investigate mitigating evidence amounted to ineffective assistance but
denied habeas relief because the federal district court found that the state
court’s conclusion that Clark had not demonstrated prejudice was not an
unreasonable application of federal law. The district court reasoned that the
mitigating evidence was not as strong as in some other habeas cases and that
it was “double-edged.”       The district court also explained that there was
“overwhelming evidence of . . . future dangerousness”:             in addition to the
heinous nature of the murder, “the jury heard evidence that [Clark] had
murdered two other people, committed several aggravated assaults and thefts,


      11 Clark, 673 F.3d at 415 (citing Ex parte Clark, No. 55996-01, 2003 Tex. Crim. App.
LEXIS 1033 (Tex. Crim. App. Oct. 1, 2003) (not designated for publication)).
      12 Id.

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                                      No. 14-70034
and dealt drugs over a long period of time.” The district court noted that Clark
testified before the jury, “often assuming a taunting, argumentative, and
sarcastic demeanor.” He “sparred with the prosecutor, stating that he wanted
the death penalty rather than spending the rest of his life locked up for
something he ‘didn’t do,’” thereby refusing to accept responsibility for the crime
and exhibiting no remorse. The district court denied habeas relief but granted
a COA on the ineffective assistance of trial counsel claim.
      Subsequently, the Supreme Court held in Cullen v. Pinholster that under
28 U.S.C. § 2254(d)(1), federal courts are limited to the record that was before
the state court when reviewing the state court’s denial of habeas relief. 13
Accordingly, in Clark’s first appeal to this court, we considered only the facts
presented to the state habeas court. 14 We concluded that “fairminded jurists
could disagree on the correctness of the state court’s determination that
counsel’s performance was not deficient.” 15 We also concluded, as an alternate
basis for affirming the district court’s judgment denying habeas relief, that the
state court’s determination that Clark did not demonstrate prejudice was not
an unreasonable application of federal law. 16 Among other considerations, we
concluded “most importantly, the aggravating evidence in Clark’s case was
overwhelming, a circumstance which . . . makes it ‘virtually impossible to
establish prejudice.’” 17 We noted that along with his long criminal history, the
State also “demonstrated that Clark had committed two other murders,
including one murder that occurred after Muse’s death but prior to Clark’s
apprehension. As the Supreme Court recently recognized, evidence that a




      13 563 U.S. 170, 180-81 (2011).
      14 Clark, 673 F.3d at 416-17, 419-20.
      15 Id. at 422.
      16 Id.
      17 Id. at 424 (quoting Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002)).

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                                     No. 14-70034
defendant ‘committed another murder [is] the most powerful imaginable
aggravating evidence.’” 18
      Two weeks after our decision, the Supreme Court held in Martinez v.
Ryan that ineffective assistance by state habeas counsel in an initial-review
collateral proceeding may establish cause to overcome procedural default of an
ineffective-assistance-of-trial-counsel claim when state law required that such
a claim be raised for the first time during the initial collateral proceeding. 19
The following term, in Trevino v. Thaler, the Court extended the rationale of
Martinez to Texas convictions when state procedural rules do not require the
defendant to raise an ineffective-assistance-of-trial-counsel claim in an initial-
review collateral proceeding but also do not provide a meaningful opportunity
to raise such a claim on direct appeal. 20
      The Supreme Court denied Clark’s petition for certiorari on October 1,
2012, after Martinez but before Trevino was decided on May 28, 2013. 21 On
August 21, 2013, the state trial court held a hearing to set Clark’s execution
date. Bobby Mims, one of Clark’s trial counsel, Jeffrey Haas, Clark’s counsel
for his direct appeal to the Texas Court of Criminal Appeals, and Henry, his
state and federal habeas counsel, were present at the hearing.                   All three
attorneys argued to the court that in light of the Supreme Court’s decisions in
Martinez and Trevino, additional counsel should be appointed to determine if
there were claims that should have been raised in state habeas court that were
not raised due to Henry’s potential ineffectiveness as state habeas counsel.
The court and the attorneys expressed confusion about where a newly-
appointed attorney should file Clark’s potential claims based on Martinez and



      18 Id. (quoting Wong v. Belmontes, 558 U.S. 15, 28 (2009) (per curiam)).
      19 566 U.S. 1, 13-17 (2012).
      20 133 S. Ct. 1911, 1918, 1921 (2013).
      21 Clark v. Thaler, 133 S. Ct. 179 (2012) (mem.).

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Trevino. The state court stated that it would be the new counsel’s decision
whether to file in state or federal court. Nonetheless, the court subsequently
appointed the Office of Capital Writs (OCW), a state agency prohibited by a
Texas statute from representing a defendant in federal habeas proceedings, 22
as Clark’s new counsel.
       On February 19, 2014, OCW filed Clark’s Subsequent Application for a
Writ of Habeas Corpus in state court. The application was supported by
evidence that was not presented in the initial state habeas proceeding,
including affidavits from Mims and Henry discussing the limits of the
mitigation investigations they performed; affidavits from two experts on Fetal
Alcohol Syndrome (FAS) concluding that Clark likely suffers from FAS and
that evidence was available at the time of trial that should have led trial
counsel to conduct an FAS evaluation; and affidavits from nine of Clark’s
family members providing detailed accounts of Clark’s troubled upbringing
and family history. On May 7, 2014, the Texas Court of Criminal Appeals
dismissed Clark’s application “as an abuse of the writ without considering the
merits of the claim.” 23
       Six days later, on May 13, 2014, a motion seeking to substitute David
Dow and Jeffrey Newberry as Clark’s counsel and to permit Henry to withdraw
was filed in the federal district court. That motion did not assert that Henry
had a conflict of interest but stated that “Mr. Henry was not involved in the
successive state court litigation,” and that “Mr. Dow and Mr. Newberry are
conversant with the issue raised in the state court litigation.” The motion was
granted on May 19, 2014. On September 19, 2014, four months after the



       22  TEX. GOV’T CODE ANN. § 78.054(b) (West) (“The office may not represent a defendant
in a federal habeas review.”).
        23 Ex parte Clark, No. WR-55,996-02, 2014 WL 1910597, at *1 (Tex. Crim. App. May

7, 2014) (per curiam) (unpublished).
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motion for substitution was granted, Clark, through new counsel, filed a Rule
60(b)(6) motion for relief from the district court’s judgment denying Clark’s
federal habeas petition. Clark argued that Henry had an inherent conflict of
interest once the decision in Martinez issued and that extraordinary
circumstances existed for granting Rule 60(b)(6) relief because Henry had
remained Clark’s counsel of record before the federal district court for
seventeen months after Martinez was decided.
      In support of the Rule 60(b) motion, Clark also submitted a Proposed
Amended Claim indicating what he would file with the district court if granted
Rule 60(b) relief. The Proposed Amended Claim contains one ground for relief:
Clark’s trial counsel was ineffective by failing to conduct a reasonable
mitigation investigation. This claim is supported by the evidence submitted to
the state trial court in the second state habeas application: affidavits from
Clark’s previous counsel, FAS experts, and numerous family members.
      A magistrate judge recommended that Clark’s Rule 60(b)(6) motion be
denied as untimely and meritless and denied a COA. The district court agreed
and adopted the magistrate’s recommendations. This court granted a COA. 24
                                           II
      Federal Rule of Civil Procedure 60(b)(6) permits a court to relieve a party
from a final judgment for “any . . . reason that justifies relief.” 25 To obtain
relief under Rule 60(b)(6), Clark’s motion must have been made “within a
reasonable time” 26 and must “show ‘extraordinary circumstances’ justifying
the reopening of a final judgment.” 27 We review the denial of a Rule 60(b)



      24 Clark v. Stephens, No. 14-70034, 2015 WL 5730638 (5th Cir. 2015) (per curiam)
(unpublished).
      25 FED. R. CIV. P. 60(b)(6).
      26 FED. R. CIV. P. 60(c)(1).
      27 Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (quoting Ackermann v. United States,

340 U.S. 193, 199 (1950)).
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motion for abuse of discretion. 28 The district court determined that Clark’s
motion should be denied as both untimely and without merit.
                                            III
       We first address whether Clark’s Rule 60(b)(6) motion is prohibited
under the provisions of the Antiterrorism and Effective Death Penalty Act
(AEDPA) pertaining to second-or-successive habeas petitions. 29                     As the
Supreme Court explained in Gonzalez v. Crosby, “Rule 60(b), like the rest of
the Rules of Civil Procedure, applies in habeas corpus proceedings under 28
U.S.C. § 2254 only ‘to the extent that [it is] not inconsistent with’ applicable
federal statutory provisions and rules.” 30 Three requirements are imposed on
second or successive habeas petitions by 28 U.S.C. § 2244(b)(1)-(3). 31 They are
(1) “any claim that has already been adjudicated in a previous petition must
be dismissed;” 32 (2) “any claim that has not already been adjudicated must be
dismissed unless it relies on either a new and retroactive rule of constitutional
law or new facts” 33 that “could not have been discovered previously through
the exercise of due diligence” 34 and “show[] a high probability of actual
innocence;” 35 and (3) “before the district court may accept a successive petition
for filing, the court of appeals must determine that it presents a claim not




       28 Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011); see also Diaz v. Stephens,
731 F.3d 370, 374 (5th Cir. 2013) (“In applying such a standard, ‘[i]t is not enough that the
granting of relief might have been permissible, or even warranted[—]denial must have been
so unwarranted as to constitute an abuse of discretion.’”) (quoting Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981)).
       29 28 U.S.C. § 2244.
       30 545 U.S. at 529 (quoting 28 U.S.C. § 2254 Rule 11fJuni) (footnote omitted).
       31 Id.
       32 Id. at 529-30 (citing 28 U.S.C. § 2244(b)(1)).
       33 Id. at 530.
       34 28 U.S.C. § 2244(b)(2)(B)(i).
       35 Gonzales, 545 U.S. at 530 (citing 28 U.S.C. § 2244(b)(2)).

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previously raised that is sufficient to meet § 2244(b)(2)’s new-rule or actual-
innocence provisions.” 36
      However, “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,” 37 it is properly considered a Rule
60(b) motion for relief from judgment. A Rule 60(b) motion based on “habeas
counsel’s omissions ordinarily does not go to the integrity of the proceedings,
but in effect asks for a second chance to have the merits determined
favorably.” 38 Clark argues in his initial brief in our court that his Rule 60(b)
motion challenges a defect in the integrity of his federal habeas proceeding and
is therefore not barred by AEDPA because, he contends, Henry, who served as
both state and federal habeas counsel, had a conflict of interest in light of the
Supreme Court’s decisions in Martinez 39 and Trevino, 40 and could not be
expected to argue his own ineffectiveness to overcome the “default” in state
habeas proceedings of Clark’s claim that trial counsel was ineffective. Though
the principal issue that Henry raised in the initial state habeas proceeding was
trial counsel’s failure to investigate for mitigation evidence, Clark asserts that
Henry was himself ineffective in failing to investigate mitigation evidence
more thoroughly and consequently failing to present a fully developed claim in
the initial state habeas proceeding.
      Henry did not contend in the federal habeas proceeding that he had been
ineffective in the state habeas proceeding, and when Martinez issued shortly
after this court affirmed the denial of habeas relief, Henry did not withdraw or
seek reconsideration or further relief based on Martinez. Clark contends that


      36 Id. (citing 28 U.S.C. § 2244(b)(3)).
      37 Id. at 532.
      38 Id. at 532 n.5 (citation omitted).
      39 Martinez v. Ryan, 566 U.S. 1 (2012).
      40 Trevino v. Thaler, 133 S. Ct. 1911 (2013).

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this prevented him from having his ineffective-assistance-of-trial-counsel
claim reviewed on the merits in the federal habeas proceeding and that the
federal habeas proceeding should be reopened to allow him to present his now
fully-developed claim that trial counsel was ineffective because they did not
discover or present mitigating evidence.
       Capital habeas petitioners have a statutory right to conflict-free
counsel. 41 We have recently indicated in an unpublished opinion that a Rule
60(b) motion premised on federal habeas counsel’s conflict of interest need not
be considered a successive habeas petition. 42 To the extent that Clark’s Rule
60(b)(6) motion attacks not the substance of the federal court’s resolution of
the claim of the merits, but asserts that Henry had a conflict of interest that
resulted in a defect in the integrity of the proceedings, the motion is not an
impermissible successive petition.
                                                IV
       A motion under Rule 60(b)(6) must be made “within a reasonable time,” 43
“unless good cause can be shown for the delay.” 44 Reasonableness turns on the
“particular facts and circumstances of the case.” 45 We consider “whether the


       41  See Juniper v. Davis, 737 F.3d 288, 290 & n.2 (4th Cir. 2013); see also Mendoza v.
Stephens, 783 F.3d 203, 210 (5th Cir. 2015) (per curiam) (mem.) (OWEN, J., concurring)
(“Mendoza is statutorily entitled to conflict-free counsel at this stage in his habeas
proceedings.”) (citing Juniper, 737 F.3d 288; Gray v. Pearson, 526 F. App’x 331 (4th Cir.
2013); 18 U.S.C. § 3599(a)); Christeson v. Roper, 135 S. Ct. 891, 895 (2015) (recognizing that
grounds for substitution under § 3599 exist when an attorney’s personal interests prevent
her from advancing her client’s best arguments).
        42 In re Paredes, 587 F. App’x 805, 822-23 (5th Cir. 2014) (per curiam) (“Paredes has

presented an issue that cannot be considered a successive motion for habeas corpus relief.
He contends that in the wake of the Supreme Court’s decisions in Martinez and Trevino, his
initial federal habeas counsel, Gross, had a conflict of interest because Gross also served as
state habeas counsel.”).
        43 FED. R. CIV. P. 60(c)(1).
        44 In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004) (citing Pryor v. U.S. Postal Serv.,

769 F.2d 281, 287-88 (5th Cir. 1985)).
        45 Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994) (citing

First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117, 119 (5th Cir. 1992)); see also
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                                         No. 14-70034
party opposing the motion has been prejudiced by the delay in seeking relief
and . . . whether the moving party had some good reason for his failure to take
appropriate action sooner.” 46 “[T]imeliness . . . is measured as of the point in
time when the moving party has grounds to make [a Rule 60(b)] motion,
regardless of the time that has elapsed since the entry of judgment.” 47
       Because Clark’s contention that his Rule 60(b)(6) motion was timely is
intertwined with arguments he asserts regarding the Supreme Court’s
decisions in Martinez v. Ryan, 48 and Trevino v. Thaler, 49 we again briefly
address the import of those decisions. Prior to Martinez, the Supreme Court’s
decision in Coleman v. Thompson foreclosed federal habeas petitioners from
asserting, as excuse for the procedural default of an issue, that state habeas
counsel had provided ineffective assistance. 50 The Martinez decision changed
the law in this regard by recognizing an exception that applies when state law
prohibits a defendant from raising any ineffective-assistance-of-trial-counsel
claim on direct appeal. 51 In such a circumstance, because collateral review is
the first opportunity to raise a contention that trial counsel was ineffective, a
petitioner seeking federal habeas relief may assert that his state habeas
counsel was ineffective for failing to raise trial counsel’s ineffectiveness and
therefore that the procedural default of the claim regarding trial counsel’s


Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (per curiam) (“What constitutes
‘reasonable time’ depends upon the facts of each case, taking into consideration the interest
in finality, the reason for delay, the practical ability of the litigant to learn earlier of the
grounds relied upon, and prejudice to other parties.”).
        46 Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976) (quoting 11

WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2866, at 228-29).
        47 First RepublicBank, 958 F.2d at 120.
        48 566 U.S. 1 (2012).
        49 133 S. Ct. 1911 (2013).
        50 501 U.S. 722, 757 (1991).
        51 Martinez, 566 U.S. at 9, 13-14; see also Trevino v. Thaler, 133 S. Ct. 1911, 1914

(2013) (explaining that the procedural rule at issue in Martinez “required a defendant
convicted at trial to raise a claim of ineffective assistance of trial counsel during his first state
collateral review proceeding—or lose the claim”).
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                                      No. 14-70034
ineffectiveness should be excused. 52            Under Texas law, few ineffective-
assistance-of-trial-counsel claims can be asserted and decided on direct
appeal. 53 In Trevino, the Supreme Court extended the Martinez exception to a
Texas conviction because the first opportunity to obtain review of the
ineffective-assistance-of-trial-counsel claim in that case could not have been
adjudicated on direct appeal and therefore, the first opportunity to obtain
review would have been in a state collateral review proceeding. 54
       Clark argued in his Rule 60(b)(6) motion that “Henry should have asked
[the federal district court] to appoint new counsel as soon as the Supreme Court
handed down its opinion in Martinez,” and that Henry “became fatally afflicted
by a conflict of interest on March 20, 2012,” the date that Martinez issued. If
March 20, 2012 is utilized as the date that the grounds for Clark’s Rule 60(b)
motion materialized, then Clark’s Rule 60(b)(6) motion, filed September 19,
2014, was submitted two years and six months after Martinez was decided.
His motion would be untimely, based on that analysis. 55
       However, it is more appropriate to conclude that Henry’s potential
conflict of interest while acting as Clark’s federal habeas counsel did not arise
until Trevino v. Thaler 56 was decided.           The Supreme Court explained in
Trevino that “we qualified our holding” in Martinez. 57 “We said that the
holding applied where state procedural law said that ‘claims of ineffective


       52 Id. at 13-14, 16.
       53 Trevino, 133 S. Ct. at 1918-1919.
       54 Id. at 1921.
       55 Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (per curiam) (holding that

the district court did not abuse its discretion in denying a Rule 60(b) motion when the
relevant change in law occurred eight months prior, and petitioner filed the motion two days
before his execution); In re Paredes, 587 F. App’x 805, 824-25 (5th Cir. 2014) (per curiam)
(holding that a defendant who had waited thirteen months after Trevino was decided before
seeking appointment of conflict-free counsel had not filed his Rule 60(b) motion within a
reasonable time).
       56 133 S. Ct. 1911 (2013).
       57 Id. at 1914.

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                                        No. 14-70034
assistance of trial counsel must be raised in an initial-review collateral
proceeding.’” 58     Texas law, the Court noted, did not come within that
qualification. 59 The decision in Trevino extended Martinez to convictions from
Texas and other jurisdictions when an ineffective-assistance-of-trial-counsel
claim could not be raised effectively in a direct appeal. 60 The contention that
a conflict of interest may arise when state habeas counsel in Texas is also
federal habeas counsel flows from Trevino. 61 Accordingly, the touchstone for
Clark’s Rule 60(b) motion, which is that Henry had a conflict of interest, came
into existence on May 28, 2013, the date of the Trevino decision.
       Clark contends that the relevant date for determining timeliness of his
Rule 60(b)(6) motion is the date on which the federal district court permitted
new counsel to be substituted for Henry, which was May 19, 2014. The federal
district court disagreed, concluding that “Rule 60(c) timeliness requirements
are not reset every time a litigant obtains a new attorney,” and reasoned that
the motion was filed “more than fifteen months after Trevino was decided.” We
agree with this analysis. Additionally, we note that conflict-free counsel was
appointed by the state court to represent Clark in August of 2013. The Trevino
decision had been extant for twelve months, since May 2013, by the time that
Clark asked the federal district court to substitute new counsel for Henry.



       58  Id. at 1914-15.
       59  Id. at 1915 (The court explained: “In this case Texas state law does not say ‘must.’
It does not on its face require a defendant initially to raise an ineffective-assistance-of-trial-
counsel claim in a state collateral review proceeding. Rather, that law appears at first glance
to permit (but not require) the defendant initially to raise a claim of ineffective assistance of
trial counsel on direct appeal. The structure and design of the Texas system in actual
operation, however, make it ‘virtually impossible’ for an ineffective assistance claim to be
presented on direct review. We must now decide whether the Martinez exception applies in
this procedural regime. We conclude that it does.” (citation omitted)).
        60 See id.
        61 In re Paredes, 587 F. App’x 805, 824-25 (5th Cir. 2014) (per curiam); see also Pruett

v. Stephens, 608 F. App’x 182, 186 (5th Cir. 2015) (per curiam) (noting that Trevino “provided
the basis for the conflict of interest argument” raised in the Rule 60(b) motion).
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                                       No. 14-70034
Clark’s Rule 60(b) motion did not explain why he did not seek new counsel in
the federal district court sooner than he did. The date that the federal district
court permitted new counsel to appear should not be the starting point for
measuring timeliness of the Rule 60(b)(6) motion in this case.
       As noted, Clark filed his Rule 60(b) motion on September 19, 2014,
almost sixteen months after Trevino was decided on May 28, 2013. 62 If, rather
than the date Trevino issued, we utilize August 2013, the date that conflict-
free counsel was appointed by the state habeas court, then the Rule 60(b)(6)
motion was filed twelve months after new counsel was appointed. Using either
date, the Rule 60(b)(6) motion was untimely.
       This court and others have concluded that periods of delay similar to or
shorter than the period at issue here can constitute unreasonable delay under
Rule 60(b). 63 In Tamayo v. Stephens, we affirmed the district court’s judgment,
which held that a Rule 60(b) motion, filed nearly eight months after the
pertinent change in decisional law, was untimely. 64 In Pruett v. Stephens, the
petitioner waited more than nineteen months after Trevino was decided to file
his Rule 60(b) motion. 65 We concluded that the district court did not abuse its
discretion in holding the motion was not filed within a reasonable time. 66




       62 133 S. Ct. 1911 (2013).
       63 See, e.g., Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (per curiam) (eight
months after change in law was untimely); Trottie v. Stephens, 581 F. App’x 436, 438 (5th
Cir. 2014) (per curiam) (three years from district court denial of petition and over a year from
denial of a COA not timely); Buck v. Thaler, 452 F. App’x 423, 429-30 (5th Cir. 2011) (per
curiam) (over a year after denial of certiorari and no extenuating circumstances not within
reasonable time); cf. Lewis v. Lewis, 326 F. App’x 420, 420 (9th Cir. 2009) (mem.)
(unpublished) (six-month delay without any explanation not reasonable); Tredway v. Parke,
79 F.3d 1150, at *1 (7th Cir. 1996) (unpublished) (five-month delay was unreasonable when
motion only challenged court’s prior analysis).
       64 Tamayo, 740 F.3d 986, 991 (5th Cir. 2014).
       65 Pruett, 608 F. App’x at 186.
       66 Id.

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                                          No. 14-70034
         Clark asserts that his motion was nevertheless timely because (1) the
nine-month period during which his 2014 state habeas petition was prepared
and pending should be excused; and (2) the four months in 2014 in which newly
appointed federal counsel prepared the Rule 60(b) motion should be excused.
Under Rule 60(b), unreasonable delay can be excused if “good cause” is shown
for the delay. 67          “What constitutes ‘good cause’ . . . ‘must necessarily be
evaluated on a case-by-case basis.’” 68
         Clark could have made concurrent state and federal filings, and
therefore, the nine month period in which OCW prepared his 2014 successive
state habeas petition and during which that petition was pending before the
state court should not be excused. Although OCW was barred by a Texas
statute from representing Clark in any federal proceeding, 69 OCW was not
barred from advising Clark to seek federal habeas counsel and pursue
concurrent federal proceedings. 70 Furthermore, Clark was physically present
in August 2013 when the state trial court considered whether a conflict of
interest had arisen in the wake of Trevino due to Henry’s representation of
Clark in both state and federal habeas proceedings. In addition to Henry,
Clark’s trial counsel and direct appeal counsel were also present and voiced
their concerns about Henry’s conflict of interest in that proceeding. Henry
indicated to the trial court that it would be prudent to appoint additional
habeas counsel. There was a discussion as to whether further filings should
be made in state or federal court. That question was not resolved by the state




         67   In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004).
         68   In re Jasper, 559 F. App’x 366, 372 (5th Cir. 2014) (quoting Osborne, 379 F.3d at
283)).
         TEX. GOV’T CODE ANN. § 78.054(b) (West).
         69

         Cf. TEX. CODE CRIM. PROC. ANN. art. 11.071 § 2(e) (West) (providing time periods
         70

for when state habeas counsel must move to appoint federal habeas counsel after the court of
criminal appeals denies relief).
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                                        No. 14-70034
trial court during the hearing. Clark could have filed in federal court and then
sought a stay of the federal petition while he exhausted state court remedies.
The defect which forms the basis of Clark’s Rule 60(b) motion—conflicted
counsel—was removed in August 2013 when conflict-free counsel was
appointed, not in May 2014 when Clark’s 2014 state petition was denied and
additional counsel was appointed for federal habeas proceedings.
      In In re Paredes, an unpublished decision, Paredes argued that as long
as a conflicted attorney remained his counsel, there were no grounds for filing
a Rule 60(b) motion and that period of time should not be counted in assessing
whether Paredes’s Rule 60(b) motion was timely. 71 We rejected that argument,
noting that Paredes had the basis for asserting that his counsel was conflicted
as soon as Trevino was issued. 72 We are persuaded that this conclusion is
sound.
      We cannot say that the district court abused its discretion in finding
Clark’s Rule 60(b)(6) motion untimely.
                                               V
      The district court denied Clark’s Rule 60(b)(6) motion on additional,
independent grounds, which were that Clark was attempting to relitigate
issues that had been decided on the merits in the federal habeas corpus
proceeding, and that Clark had not shown extraordinary circumstances, as
required by Rule 60(b)(6). The district court adopted all of the magistrate
judge’s finding and conclusions, which addressed these issues as well. Because
we conclude that the Rule 60(b)(6) motion was untimely, we do not address
whether the district court abused its discretion in determining that Clark




      71   In re Paredes, 587 F. App’x 805, 824-25 (5th Cir. 2014) (per curiam).
      72   Id.
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                                      No. 14-70034
failed to demonstrate “circumstances that are sufficiently extraordinary to
warrant relief from final judgment.” 73
      Nor do we address whether, to the extent that Clark seeks in his Rule
60(b)(6) motion to have the district court reopen and reconsider the ineffective-
assistance-of-trial-counsel claim, his claim is a successive habeas petition that
must be dismissed under 28 U.S.C. § 2244. We note that the Supreme Court
held in Gonzalez v. Crosby that a change in substantive law is not a “reason
justifying relief” under Rule 60(b)(6), and that a Rule 60(b)(6) motion cannot
be “used to circumvent § 2244(b(2)(A)’s dictate that the only new law on which
a successive petition may rely is ‘a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.’” 74 Neither Martinez nor Trevino announced a new
rule of constitutional law, and neither has been made retroactive to cases on
collateral review. The Supreme Court further observed in Gonzalez that “an
attack based on . . . habeas counsel’s omissions . . . ordinarily do[] not go to the
integrity of the proceedings, but in effect asks for a second chance to have the
merits determined favorably.” 75
      Clark contends, somewhat inconsistently, that the mitigation evidence
developed by his new state habeas counsel, which Clark has presented to the
district court in his Rule 60(b)(6) motion, is so “fundamentally different” from
the claim raised in state court, it is a new claim not previously reviewed on the
merits. He asserts in his reply brief that though the claim is new, it should not
be barred by 28 U.S.C. § 2244(d).
      We need not decide whether Clark presents a new claim because, to the
extent that he does, any such claim would be time-barred under 28 U.S.C.


      73 Diaz v. Stephens, 731 F.3d 370, 375 (5th Cir. 2013).
      74 545 U.S. 524, 531-32 (2005).
      75 Id. at 532 n.5 (citation omitted).

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                                         No. 14-70034
§ 2244(d). We first note that Clark has not sought leave to file a successive
petition from this court; he has only appealed the district court’s denial of the
Rule 60(b)(6) motion. If we were to consider part of his motion a new claim,
however, it was not filed until September 19, 2014, almost two years after the
Supreme Court denied his petition for certiorari. 76                Clark contends that
equitable tolling excuses any delay and the resulting noncompliance with the
statute of limitations requirements of § 2244(d)(1). Although § 2244(d)(1) is
subject to equitable tolling, 77 tolling is only available in “rare and exceptional
circumstances.” 78 For the same reasons we conclude that Clark’s Rule 60(b)(6)
motion is untimely, any available equitable tolling ended when Clark had
actual knowledge in August 2013 that his federal habeas counsel had a conflict
of interest. Furthermore, Clark was in fact appointed conflict-free counsel in
August 2013, over a year before any new habeas petition was filed. Clark’s
claim, if new, is time-barred.


                                     *        *         *


       We AFFIRM the district court’s judgment denying relief from its prior
September 19, 2007 judgment, in which it denied Clark’s petition for writ of
habeas corpus on the merits.




       76 Clark v. Thaler, 133 S. Ct. 179 (2012) (mem.).
       77 See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding that § 2244(d) is subject
to equitable tolling if the petitioner demonstrates “‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented
timely filling” (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005))).
       78 Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998).

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