    Case: 18-70027    Document: 00515041587    Page: 1   Date Filed: 07/19/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                No. 18-70027                    FILED
                                                            July 19, 2019
                                                           Lyle W. Cayce
                                                                Clerk

BILLY JACK CRUTSINGER,

                  Petitioner–Appellant,

versus

LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                  Respondent–Appellee.




                Appeal from the United States District Court
                     for the Northern District of Texas




Before SMITH, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:

      Billy Crutsinger was convicted and sentenced to death. Crutsinger v.
Davis, No. 18-70027, 2019 WL 2864445, at *1 (5th Cir. July 3, 2019). He is
scheduled to be executed on September 4, 2019. After our decision to vacate
the order transferring his Rule 60(b)(6) motion to this court, id. at *5, Crut-
singer moved for a stay of execution.       Finding that Crutsinger fails to
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                                  No. 18-70027
demonstrate that the circumstances justify the exercise of our equitable
discretion, we deny the motion.

                                        I.

      “[A] stay of execution is an equitable remedy. It is not available as a
matter of right, and equity must be sensitive to the [s]tate’s strong interest in
enforcing its criminal judgments without undue interference from the federal
courts.” Hill v. McDonough, 547 U.S. 573, 584 (2006); see also Sepulvado v.
Jindal, 729 F.3d 413, 420 (5th Cir. 2013).

      “[A] motion to [a court’s] discretion is a motion, not to its inclination, but
to its judgment; and its judgment is to be guided by sound legal principles.”
United States v. Burr, 25 F. Cas. 30, 35 (C.C.D. Va. 1807) (No. 14,692D)
(Marshall, C.J.). Consequently, we weigh four factors when deciding whether
to grant a stay of execution. Murphy v. Collier, 919 F.3d 913, 915 (5th Cir.
2019) (per curiam); Charles v. Stephens, 612 F. App’x 214, 218 n.7 (5th Cir.
2015) (per curiam); see also Nken v. Holder, 556 U.S. 418, 425–26 (2009). First,
“whether the stay applicant has made a strong showing that he is likely to
succeed on the merits.” Charles, 612 F. App’x at 218 n.7 (citation omitted).
Second, “whether the applicant will be irreparably injured absent a stay.” Id.
(citation omitted). Third, “whether issuance of the stay will substantially
injure the other parties interested in the proceeding.” Id. (citation omitted).
And fourth, “where the public interest lies.” Id. (citation omitted).

      “The first two factors of the traditional standard are the most critical. It
is not enough that the chance of success on the merits be better than negli-
gible.” Nken, 556 U.S. at 434 (internal quotation marks and citation omitted).
“Once an applicant satisfies the first two factors, the traditional stay inquiry
calls for assessing the harm to the opposing party and weighing the public

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                                  No. 18-70027
interest.” Id. at 435. Moreover, “[t]hese factors merge when the Government
is the opposing party,” id., and “courts must be mindful that the Government’s
role as the respondent in every . . . proceeding does not make the public inter-
est in each individual one negligible,” id.

                                       II.
                                        A.
      Crutsinger asserts that he has “made a strong showing that he is likely
to succeed” on the merits of his claim such that “this case should proceed in
federal court without the pressures of a state execution setting.” He highlights
our determination that his Rule 60(b)(6) motion was not a second-or-successive
habeas petition, while emphasizing that the dissent “conclude[d] that . . .
Crutsinger’s motion under Federal Rule of Civil Procedure 60(b)(6) should be
granted” (quoting Crutsinger, 2019 WL 2864445, at *5 (Graves, J., dissenting)).
Therefore, he maintains that he has satisfied the first factor.

      In response, the state contends that “Crutsinger cannot demonstrate a
strong likelihood of success on the merits.” The state cites precedent estab-
lishing that “a movant seeking relief under Rule 60(b)(6) [must] show ‘extra-
ordinary circumstances’ justifying the reopening of a final judgment.” Gon-
zalez v. Crosby, 545 U.S. 524, 535 (2005) (citation omitted). “Such circum-
stances will rarely occur in the habeas context.” Id. Moreover, the state avers
that “the Supreme Court has made abundantly clear that mere changes in
decisional law are hardly extraordinary.”

      The state also maintains that the various cases relied upon by Crut-
singer to justify relief under Rule 60(b)(6)—i.e., Ayestas v. Davis, 138 S. Ct.
1080 (2018), Trevino v. Thaler, 569 U.S. 413 (2013), and Martinez v. Ryan,
566 U.S. 1 (2012)—are merely changes in decisional law insufficient to warrant
such relief. In fact, the state emphasizes that our precedent forecloses any
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                                       No. 18-70027
reliance on Martinez or Trevino. 1 Moreover, the state asserts that if, as in
Gonzalez, “a change in law that entirely precluded merits review is not
sufficient to warrant Rule 60(b)(6) relief,” then, as in Ayestas, “a change in the
law on a lesser matter—funding to possibly support a claim for relief—
necessarily cannot warrant Rule 60(b)(6) relief.” Consequently, the state con-
cludes that “Crutsinger . . . wholly fails to establish extraordinary circum-
stances or that he is likely to succeed on the merits of his claims.”

       The state’s conclusion accords with our decision in Crutsinger. Though
acknowledging that we were without jurisdiction to make a merits determina-
tion on his Rule 60(b)(6) motion, we underscored that Crutsinger was unlikely
to establish that “extraordinary circumstances” exist to justify the reopening
of the final judgment because “not every interpretation of the federal statutes
setting forth the requirements for habeas provides cause for reopening cases
long since final.” Crutsinger, 2019 WL 2864445, at *4 (quoting Gonzalez,
545 U.S. at 536). Crutsinger’s motion, with its focus on mere changes in deci-
sional law, provides us with no occasion to doubt that conclusion. Conse-
quently, because Crutsinger is unlikely to succeed on the merits, this factor
weighs against granting a stay.

                                              B.
       Crutsinger’s inability to establish a likelihood of success on the merits
is, effectively, dispositive of the motion for stay. See Adams, 679 F.3d at 320.
But even assuming arguendo he could establish a likelihood of success, the


       1 See Adams v. Thaler, 679 F.3d 312, 319–20 (5th Cir. 2012) (concluding that Martinez
was merely a change in decisional law and did not constitute extraordinary circumstances
sufficient to justify relief from a final judgment); see also Haynes v. Davis, 733 F. App’x 766,
769 (5th Cir. 2018) (noting the petitioner’s “acknowledge[ment] that the change in decisional
law effectuated by Martinez and Trevino [was] insufficient, on its own, to demonstrate
‘extraordinary circumstances’”); Diaz v. Stephens, 731 F.3d 370, 376 (5th Cir. 2013) (affirming
that Trevino did not undermine Adams).
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                                       No. 18-70027
other factors also weigh in favor of the state and against a stay.

       With respect to the risk of irreparable injury to the applicant, 2 Crut-
singer contends that he “will be irreparably injured absent a stay” because he
“is exposed to the substantial risk that meritorious habeas corpus claims will
never be heard.” Citing McFarland v. Scott, 512 U.S. 849, 858 (1994), and
Battaglia v. Stephens, 824 F.3d 470, 475 (5th Cir. 2016), Crutsinger avers that
he “may not be executed until he has been afforded the representation in fed-
eral collateral proceedings that he is due under 18 U.S.C. § 3599.” Conse-
quently, Crutsinger requests that we “stay [his] execution to permit the orderly
adjudication of the legality of his confinement under federal law.”

       Crutsinger also claims that the public interest weighs in favor of grant-
ing a stay because he “has not had a meaningful opportunity in either state or
federal court to present his Sixth Amendment IATC failure-to-investigate
claim.” He notes the dissent’s assertion that the majority “risk[ed] . . . under-
mining the public’s confidence in the judicial process by allowing an erroneous
decision, the denial of funding based on procedural bar, to dictate the outcome
of every decision that follows rather than just requiring the proper considera-
tion of the motion for funding” (quoting Crutsinger, 2019 WL 2864445, at *9
(Graves, J., dissenting)). Accordingly, Crutsinger concludes that we should
grant his stay motion.

       In response, the state contends that Crutsinger misreads McFarland
and Battaglia. McFarland, the state maintains, stands for the unremarkable


       2 Charles, 612 F. App’x at 218 n.7. Crutsinger addresses the second and third stay
factors in conjunction with one another. Concerning the harm to the state, Crutsinger notes
that “a stay will not substantially injure Director Davis, the other party interested in the
proceeding.” He also quotes the Crutsinger dissent, which stated that “[t]he risk of injustice
to Crutsinger in not reopening the judgment and properly deciding his funding motion is
great, while the risk of injustice to the government is nonexistent.” 2019 WL 2864445, at *9
(Graves, J., dissenting).
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proposition that “[u]nder ordinary circumstances, a capital defendant presum-
ably will have sufficient time to request the appointment of counsel and file a
formal habeas petition prior to his scheduled execution” (quoting McFarland,
512 U.S. at 858). Battaglia, the state stresses, “similarly does not avail him,
as it dealt with the complete abandonment of counsel and the need for new,
unfamiliar counsel to have time to raise new claims, not with any right to dis-
covery.” Crutsinger, however, has been well-represented by his counsel for
approximately eleven years, and there is no indication that, as in McFarland
or Battaglia, “he would be deprived of meaningful counsel absent a stay.”

      Moreover, the state also avers that “Crutsinger cannot show irreparable
harm because the courts have enough time to rule on the issues presented.”
The state emphasizes that “the parties have already briefed the merits of the
Rule 60(b) motion and the merits of the underlying funding request in the court
below.” The deadline for any supplemental briefing the parties wish to submit
is July 19, 2019, approximately six weeks before the execution date of Septem-
ber 4, 2019. Consequently, the state asserts that the district court will have
enough time to rule on the issues presented by Crutsinger’s motion—issues
that have already been reviewed by numerous state and federal courts, includ-
ing this one.

      Finally, the state emphasizes that it “has a strong interest in carrying
out a death sentence properly imposed for a senseless capital murder that
occurred over fifteen years ago,” and it underscores that “the public’s interest
lies in executing a sentence duly assessed and for which more than a decade’s
worth of judicial review has terminated without finding reversible error.” Con-
sequently, because “[p]rotecting against abusive delay is an interest of justice,”
Martel v. Clair, 565 U.S. 648, 662 (2012), the state avers that we should deny
a stay.

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                                  No. 18-70027
      Even if Crutsinger could establish a likelihood of success on the merits—
which he cannot—the other factors weigh in favor of the state. At this point, a
denial of his stay motion would not prevent him from fully and fairly litigating
the merits of his Rule 60(b)(6) motion before the district court. If, in the coming
weeks, that court finds that a stay of execution becomes necessary, it has the
equitable power to grant one.

      Moreover, “equity must be sensitive to the [s]tate’s strong interest in
enforcing its criminal judgments without undue interference from the federal
courts.” Hill, 547 U.S. at 584. Ultimately, because Crutsinger cannot show a
likelihood of success on the merits, and because the other factors weigh in favor
of the state, the motion for a stay of execution is DENIED.



                                  * * * * *



JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      I conclude that the four relevant factors considered in whether to grant
a stay of execution, as set out by the majority, weigh in favor of Billy Jack
Crutsinger. Because I would grant the stay of execution, I respectfully dissent.




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