     Case: 14-70034      Document: 00513215974         Page: 1    Date Filed: 10/01/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-70034
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
TROY CLARK,                                                               October 1, 2015
                                                                           Lyle W. Cayce
              Petitioner–Appellant,                                             Clerk

v.

WILLIAM STEPHENS, 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. 2:03-CV-357


Before STEWART, Chief Judge, and HIGGINBOTHAM and OWEN, Circuit
Judges.
PER CURIAM:*
       Troy Clark was convicted of capital murder in Texas state court in March
2000. For the punishment phase of Clark’s trial, Clark’s trial counsel failed to
investigate or present any mitigating evidence. Clark was sentenced to death.
Clark was appointed new counsel for his state habeas proceedings. Clark’s



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-70034
state habeas counsel investigated for five hours and obtained one affidavit to
support a claim that trial counsel were ineffective when they failed to present
any mitigating evidence. Clark’s state habeas petition was denied on the
merits, and he was represented by the same counsel during his federal habeas
proceedings. Although Clark’s habeas counsel obtained additional mitigating
evidence for the federal habeas proceedings, this court held that such evidence
could not be considered when reviewing the state habeas court’s judgment
under the Supreme Court’s decision in Cullen v. Pinholster, 1 and we affirmed
the district court’s denial of habeas relief. 2 Two weeks later, the Supreme
Court decided Martinez v. Ryan, and held that ineffective assistance by state
habeas counsel in an initial-review collateral proceeding may establish cause
to overcome a procedural default of a claim of ineffective assistance of trial
counsel (IATC). 3 The following term, in Trevino v. Thaler, the Court held that
the Martinez decision applies in Texas. 4
      Three months after Trevino was decided, the state trial court appointed
Clark new counsel to seek relief pursuant to Martinez and Trevino. Clark then
filed a new state habeas petition, which the Texas Court of Criminal Appeals
dismissed as an abuse of the writ almost three months after Clark filed it. 5
The federal district court then appointed Clark new counsel for federal
proceedings. Clark subsequently brought a Rule 60(b)(6) motion for relief from
the district court’s judgment denying habeas relief, on the grounds that his
previous counsel had a conflict of interest during federal habeas proceedings


      1   131 S. Ct. 1388 (2011).
      2   Clark v. Thaler, 673 F.3d 410, 417, 421-22 (5th Cir. 2012).
      3   132 S. Ct. 1309, 1318-20 (2012).
      4   133 S. Ct. 1911, 1918, 1921 (2013).
      5 Ex parte Clark, No. WR-55,996-02, 2014 WL 1910597, at *1 (Tex. Crim. App. May 7,
2014) (per curiam) (not designated for publication).
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                                       No. 14-70034
because he could not argue his own ineffectiveness to excuse a procedural
default. If Clark obtains Rule 60(b) relief, he would present a “new” claim of
IATC during the punishment phase, supported by evidence that was not
presented to the state habeas court in his first petition. He argues the evidence
is so substantial that it fundamentally alters his previous claim, rendering it
unexhausted such that equitable relief based on Martinez and Trevino is
potentially available to him. The district court denied the motion because it
was untimely and without merit and denied Clark a certificate of appealability
(COA). Clark now applies to this court for a COA.

                                              I
       Clark seeks a COA from the district court’s denial of his Rule 60(b)
motion to reopen the judgment denying him federal habeas relief. 6 Under 28
U.S.C. § 2253(c), a COA should issue only when “the applicant has made a
substantial showing of the denial of a constitutional right.” 7 When a petition
is denied on procedural grounds, “a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling.” 8 On Clark’s motion for a COA, the court “must determine
whether a jurist of reason could conclude that the district court’s denial of




      6  See Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir. 2007) (per curiam)
(explaining that a COA is needed to appeal a denial of a Rule 60(b) motion when that motion
sought to alter a judgment from a prior habeas proceeding).
      7   28 U.S.C. § 2253(c)(2).
      8   Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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                                            No. 14-70034
[Clark]’s motion was an abuse of discretion.” 9 If so, a COA will issue. 10 “[I]n
a death penalty case any doubts as to whether a COA should issue must be
resolved in the petitioner’s favor.” 11
                                                   II

          Rule 60(b)(6) may only be invoked in “extraordinary circumstances.” 12
Although a mere change in decisional law ordinarily does not constitute an
extraordinary circumstance under the rule, 13 Clark argues that it was a defect
in the integrity of his federal habeas proceeding that constituted an
extraordinary circumstance. In particular, Clark argues that Craig Henry, his
federal habeas counsel, had a conflict of interest because he also served as
Clark’s state habeas counsel and, in light of the Supreme Court’s decisions in
Martinez and Trevino, Henry could not be expected to argue his own
ineffectiveness to overcome the procedural default of the “new” IATC claim
Clark seeks to present if the Rule 60(b) motion is granted. According to Clark,
Henry was ineffective in the state habeas proceeding, because although he did
conduct some investigation, his investigation was conducted in a very limited
amount of time (a maximum of five hours) and consisted only of interviews of
Clark’s mother and a few other witnesses from whom no evidence was



         Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011) (per curiam); see also Seven
          9

Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. Unit A Jan. 1981) (“Motions under Rule
60(b) are directed to the sound discretion of the district court, and its denial of relief upon
such motion will be set aside on appeal only for abuse of that discretion.” (citation omitted)).
          10   See Hernandez, 630 F.3d at 428; see also Clark v. Thaler, 673 F.3d 410, 425 (5th Cir.
2012).
          11   Clark, 673 F.3d at 425 (quoting Johnson v. Quarterman, 483 F.3d 278, 285 (5th Cir.
2007)).
          12   Hernandez, 630 F.3d at 429 (quoting Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir.
2010)).
          13   See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 536-37 (2005); Hernandez, 630 F.3d at
429-30.
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                                          No. 14-70034
obtained. 14 Finally, Clark contends that the IATC claim he now seeks to
present is supported by substantially more evidence than the claim presented
to the state habeas court in 2004 and therefore is “so fundamentally different”
that it that it “constitutes a new claim for purposes of federal habeas review,”
meaning that a federal habeas court would not be barred from considering it
under Pinholster.
       The State argues that Clark’s Rule 60(b)(6) motion should be construed
as an impermissible successive habeas petition.                Relying on Gonzalez v.
Crosby, 15 the State asserts that Clark should not be able to use a Rule 60(b)
motion to relitigate the merits of his IATC claim. A Rule 60(b) motion is not
successive under Gonzalez if it 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.” 16 However, 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.” 17
       The State also argues that even if Clark is granted Rule 60(b) relief due
to a defect in the prior federal habeas proceeding, it would not benefit him,
because subsequently he would be unable to introduce the new evidence under
Pinholster. Moreover, the State asserts that even if the claim is a new one,
Clark would be unable to show that it was defaulted in the prior federal habeas


       14See Escamilla v. Stephens, 749 F.3d 380, 392 (5th Cir. 2014) (“[C]ounsel spent only
a limited amount of time interviewing a select handful of [Escamilla’s] family members and
acquaintances . . . .”).
       15 545 U.S. 524, 531 (2005) (Rule 60(b) motions that attempt to “present new claims
for relief from a state court’s judgment of conviction” must be dismissed under AEDPA’s
requirements for filing a successive petition.).
       16   Id. at 532.
       17   Id. at 532 n.5 (citation omitted).
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                                         No. 14-70034
proceeding, because by presenting some evidence and advancing an IATC
claim, Clark’s state habeas attorney was not in fact ineffective. The State also
argues that Clark’s underlying IATC claim remains meritless even in light of
additional evidence. Finally, according to the State, if Clark’s claim is new,
then he failed to file it within the statute of limitations period provided in 28
U.S.C. § 2244(d).
       If Clark is correct that his IATC claim is new, the result would be that
Clark would now present a claim to the district court which would not have
been adjudicated on the merits in state court; instead, the new claim would be
one that had been procedurally defaulted. 18 The Martinez/Trevino exception
could apply to excuse the default of such a claim, because it was arguably
caused by the ineffectiveness of Clark’s state habeas counsel. 19 Additionally,
Pinholster might not apply to prevent the admission of new evidence because
this new claim was never adjudicated on the merits in state court, thus
rendering § 2254(d) inapplicable. 20 Finally, although Clark would be asserting
his new claim more than one year after the latest of any of the dates specified
in § 2244(d)(1), equitable tolling might apply to excuse the delay. 21




       18 See Ex parte Clark, No. WR-55,996-02, 2014 WL 1910597, at *1 (Tex. Crim. App.
May 7, 2014) (per curiam) (not designated for publication) (denying Clark’s claim “as an abuse
of the writ without considering the merits of the claim”).
       19See Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012) (“Inadequate assistance of
counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.”).
       20 See Cullen v. Pinholster, 131 S. Ct. 1388, 1400 (2011) (“If a claim has been
adjudicated on the merits by a state court, a federal habeas petitioner must overcome the
limitation of § 2254(d)(1) on the record that was before that state court.”).
       21 See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding that § 2244(d) is subject
to equitable tolling if the petitioner shows “‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing”
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005))).
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                                         No. 14-70034
       We conclude that reasonable jurists could debate whether Clark’s federal
habeas proceeding was defective, either because the counsel the federal district
court appointed to represent Clark labored under a conflict of interest, or
because Henry’s failure to argue his own ineffectiveness as state habeas
counsel is sufficient to satisfy Rule 60(b) even though it is an “omission.” We
further conclude that reasonable jurists could debate whether Clark is likely
to succeed in introducing new evidence if his Rule 60(b) motion is granted.

                                               III
       A motion under Rule 60(b)(6) must be made “within a reasonable time,” 22
“unless good cause can be shown for the delay.” 23 Reasonableness turns on the
“facts and circumstances of the case.” 24 The court considers “whether the 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.” 25 We measure the timeliness of the motion “as of
the point in time when the moving party ha[d] grounds to make such a motion,
regardless of the time that has elapsed since the entry of judgment.” 26




       22   FED. R. CIV. P. 60(c)(1).
       23In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004) (citing Pryor v. U.S. Postal Serv.,
769 F.2d 255, 257-58 (5th Cir. 1985)).
       24 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
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.”).
       Lairsey v. Advance Abrasives Co., 542 F.2d 928, 930 (5th Cir. 1976) (quoting 11
       25

WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2866).
       26   First RepublicBank, 958 F.2d at 120.
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                                       No. 14-70034
      Here, the change in decisional law provides the starting point for
calculating timeliness. 27 The appropriate date is that on which Trevino was
issued, which is May 28, 2013.              Clark’s Rule 60(b) motion was filed on
September 19, 2014, meaning that the motion was filed almost sixteen months
after Trevino issued. Clark argues that the petition was nonetheless timely,
because (1) the three-month period during which his 2014 state habeas petition
was pending is analogous to AEDPA’s statutory tolling period and thus should
not count against him; (2) his appointed counsel in state court was limited by
statute from representing him in federal court; and (3) his underlying claim—
a Wiggins 28 ineffective assistance of counsel claim based on the failure to
investigate and present mitigation evidence—required time to prepare, such
that the time spent preparing should not all count against him.
      These arguments are questionable, because (1) AEDPA’s statutory
tolling period does not expressly apply to a Rule 60(b) motion, and Clark could
have made concurrent filings in state and federal court and sought a stay of
the federal petition while he exhausted his state court remedies; (2) the state
court might have been able to obtain another attorney to file a concurrent Rule
60(b) motion in federal court; and (3) Clark relied on largely the same evidence
in state and federal court, suggesting that the months federal counsel spent
preparing the motion should be counted against Clark.
      We conclude that in light of these arguments, and because this court has
not established a bright-line rule for when a Rule 60(b)(6) motion is filed within
a reasonable time, jurists of reason could debate whether Clark’s delay could
be discounted to a period of sufficiently short duration such that it was not
untimely.


      27   See Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (per curiam).
      28   Wiggins v. Smith, 539 U.S. 510 (2003).
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                                 No. 14-70034
                                 *     *      *
      In light of the foregoing, Clark’s application for a certificate of
appealability is GRANTED on all issues, namely whether the district court
abused its discretion when denying Clark’s Rule 60(b) motion for (1) being
untimely and (2) failing to present extraordinary circumstances. Clark has
thirty days to submit any additionally briefing; the State will have thirty days
to respond; Clark will have two weeks to reply.




                                       9
