     Case: 12-70023      Document: 00512517603         Page: 1    Date Filed: 01/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                      No. 12-70023                             FILED
                                                                        January 30, 2014
                                                                          Lyle W. Cayce
JOHN LEZELL BALENTINE,
                                                                               Clerk

                                                 Petitioner - Appellant
v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:03-CV-39


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before STEWART, Chief Judge, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Petitioner John Lezell Balentine filed a Rule 60(b) motion with the
district court on July 12, 2012, arguing that the Supreme Court’s holding in
Martinez v. Ryan, 132 S. Ct. 1309 (2012), entitled him to relief. The district
court denied the motion, relying on our precedent that Martinez was not
relevant to a habeas petitioner convicted under Texas law because Texas


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 12-70023
permits criminal defendants to raise ineffective assistance of trial counsel
claims on direct appeal. See Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012),
overruled by Trevino v. Thaler, 133 S. Ct. 1911 (2013). On appeal, we affirmed.
      The Supreme Court overruled this circuit’s interpretation that Martinez
was inapplicable to claims that counsel had been ineffective in Texas state
habeas proceedings. See Trevino v. Thaler, 133 S. Ct. 1911 (2013). Balentine’s
petition for a writ of certiorari was granted, our judgment was vacated, and
the cause was remanded for further proceedings.
      On remand, we ordered letter briefs that would identify the remaining
issues and discuss whether the case should be returned to the district court.
We specifically requested each party to discuss a case which had held, prior to
Trevino, that Martinez was not a ruling that would justify relief under Rule
60(b). See Adams v. Thaler, 679 F.3d 312, 320 (5th Cir. 2012).
      Because the district court’s denial of Balentine’s Rule 60(b) motion was
premised on the now-overruled decision in Ibarra, we must decide the most
efficacious procedure for determining whether, and if so how, Martinez applies
to Balentine’s claims.
      Balentine argues that the Texas Court of Criminal Appeals has
expressed a willingness to consider defaulted ineffective assistance of trial
counsel claims after Trevino. He asks that we stay his appeal and allow him
to return to state court to exhaust his potentially defaulted constitutional
claim, or in the alternative to remand the case to the district court for further
development of the remaining fact-bound issues. Further, he asserts that
Adams does not prohibit this court from granting relief because its holding was
closely tied to the facts in that case, facts which he distinguishes.
      The State argues that, regardless of Trevino, any further attempt by
Balentine to pursue his ineffective assistance of trial counsel claim in state
court would be futile because the Texas Court of Criminal Appeals will not
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                                 No. 12-70023
consider the merits of that defaulted claim. Further, the State argues that this
court cannot grant Rule 60(b) relief because Adams remains applicable, and,
as that court held, there are no extraordinary circumstances warranting Rule
60(b) relief in this case.
      An appellate court’s role does not usually resolve legal issues that have
not previously been presented to a trial court. Due to the questions raised
regarding whether it is likely futile to allow the Texas Court of Criminal
Appeals to consider Balentine’s current claims in light if Martinez and Trevino,
and because the relevance of Adams may depend on whether Balentine returns
to state court, we REMAND in order that the district court may conduct further
proceedings consistent with the Supreme Court’s ruling in Trevino. We DENY
Balentine’s motion that we stay the proceedings now and allow him to return
to state court in order to exhaust his claim.
      REMANDED.




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