                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 24 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JAMES LYNN STYERS,                               No. 13-15755

              Petitioner - Appellant,            D.C. No. 2:98-cv-02244-JAT

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                James A. Teilborg, Senior District Judge, Presiding

                      Argued and Submitted October 24, 2013
                            San Francisco, California

Before: FARRIS, KOZINSKI, and BEA, Circuit Judges.

       James Lynn Styers appeals a district court order denying his motion for

relief from judgment under Federal Rule of Civil Procedure 60(b). Styers argues

that the Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012),

furnishes a ground for the district court to re-open his federal habeas proceeding



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
because under Martinez, he can show cause for his procedural default of his claim

for ineffective assistance of counsel (“IAC”) at sentencing. Styers argues that

Martinez changed the law and that the change was an extraordinary circumstance

such that he should be relieved from the prior judgment that foreclosed review of

his sentencing IAC claim. We review the district court’s order for abuse of

discretion. Lopez v. Ryan, 678 F.3d 1131, 1133 (9th Cir. 2012). The district court

abuses its discretion when it does not apply the correct legal rule, or when it makes

a finding that is illogical, implausible, or without support in inferences which can

be drawn from the record. United States v. Hinkson, 585 F.3d 1247, 1262-63 (9th

Cir. 2009) (en banc). We conclude that the district court did not abuse its

discretion, and we affirm.

      To decide whether a change in law constitutes a ground for re-opening a

final judgment, a court must find extraordinary circumstances and may consider

whether (1) the intervening change in law overruled an otherwise settled legal

precedent in petitioner’s favor; (2) the petitioner was diligent in pursuing the issue;

(3) the final judgment caused one or more of the parties to change his position in

reliance on the judgment; (4) there is delay between the finality of the judgment

and the motion for Rule 60(b)(6) relief; (5) there is a close connection between the

original and intervening decisions at issue in the Rule 60(b) motion; and (6) relief


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from judgment would upset the principles of comity governing the interaction

between coordinate sovereign judicial systems. Phelps v. Alameida, 569 F.3d

1120, 1135–40 (9th Cir. 2009). Here, the district court applied the correct rule of

law when it considered the Phelps factors.

      First, the district court correctly found that the change in law under Martinez

overruled settled precedent and that the first factor weighed in favor of Styers. On

consideration of the second factor, the district court found that Styers was not

diligent because when Styers filed his habeas petition, he claimed that the

procedural default of his sentencing IAC claim should be excused for cause

because his PCR counsel was ineffective. The district court did not excuse the

procedural default, and Styers did not appeal that decision.

      Because Styers failed to appeal the finding of procedural default of the

sentencing IAC claim, the district court did not abuse its discretion in finding that

this factor weighs against Styers. As to the third factor, the district court found that

the State of Arizona had changed its position in reliance on the denial of habeas

corpus, because the State stopped defending claims of ineffective assistance of

counsel at sentencing, and this finding was not an abuse of discretion. This factor

weighs against Styers. As to the fourth factor, the district court found that Styers

had not delayed seeking 60(b) relief after the district court’s judgment, because


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Styers litigated his death sentence following the grant of a conditional writ of

habeas corpus and any delay before his 60(b) motion was not significant.

Weighing this factor in Styers’s favor was not an abuse of discretion. The district

court found that the fifth factor weighed against Styers because there was not a

close connection between the original judgment finding his sentencing IAC

procedurally defaulted and the intervening decision in Martinez. The district court

made its decision without the benefit of Trevino v. Thaler, 133 S. Ct. 1911 (2013),

which clarified the boundaries of Martinez. However, considering the district

court’s finding even in light of Trevino, the finding that the relationship between

the order denying habeas corpus to Styers was not closely connected to Martinez

was not illogical, implausible, or without support in inferences that can be drawn

for the record.

      The district court did abuse its discretion as to the sixth factor when it found

that comity was not implicated by Styers’s 60(b) motion and that the factor

weighed neither for nor against Styers. This finding was illogical, because it was

based on a finding that “[a] number of claims. . . . were addressed on the merits in

both the district court and appellate courts.” Under Phelps, the comity factor

weighs in favor of a petitioner when federal court review of the merits of a




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petitioner’s claim is barred, and no federal court has addressed the merits of

Styers’s sentencing IAC claim.

      The district court’s finding that the comity factor did not weigh in favor of

Styers was an abuse of discretion. However, even given its abuse of discretion as

to the sixth factor, the district court did not abuse its discretion when it weighed the

factors and determined that there were not sufficient extraordinary circumstances

to warrant relief from judgment under Rule 60(b)(6). The district court’s finding

that Styers had not shown extraordinary circumstances was not illogical,

implausible, or without inferences that can be drawn from the record. Though

“one could weigh the six factors differently” the factors “provide little overall

support for reopening [petitioner’s] case.” Lopez, 678 F.3d at 1137. Further, even

if Martinez did apply, any alleged ineffectiveness did not result in prejudice. Thus,

Styers’s IAC claim was not substantial. See Martinez, 132 S. Ct. at 1318.

Therefore, we AFFIRM.




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