     Case: 14-70027       Document: 00512760907         Page: 1     Date Filed: 09/08/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit


                                       No. 14-70027                                 FILED
                                                                            September 8, 2014
                                                                               Lyle W. Cayce
WILLIE TYRONE TROTTIE,                                                              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 Southern District of Texas
                             USDC No. 4:09-CV-00435


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Willie Tyrone Trottie was convicted of capital murder for the deaths of
Titus and Barbara Canada in 1993 and sentenced to death.                            Trottie is
scheduled to be executed September 10, 2014. On August 18, 2014, Trottie
filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure in the
district court for relief from the district court’s judgment that had denied his
petition for federal habeas relief. The district court denied Trottie’s motion on


       * Pursuant to Fifth Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth
Cir. R. 47.5.4.
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                                    No. 14-70027
September 2, 2014. Trottie v. Stephens, No. 4:09-cv-00435, 2014 WL 4354445,
(S.D. Tex. Sept. 2, 2014). Trottie now requests a COA on the district court’s
denial of the 60(b) motion. For the following reasons, Trottie’s application for
a COA is denied.
                                              I.
        A detailed factual background of this case is set out in the district court’s
order denying Trottie’s Rule 60(b) motion, Trottie, 2014 WL 4354445, and this
court’s previous opinion that denied Trottie’s previous application for a COA.
Trottie v. Stephens, 720 F.3d 231 (5th Cir. 2013). A brief overview is provided
here.
        Trottie and Barbara began dating in 1989 and soon thereafter began
living together and had a child. In September 1992, Trottie and Barbara
separated and she moved in with her family. After some time, the relationship
soured and Barbara moved out. Trottie threatened that he would kill her if she
did not return to him.       He repeated the threat regularly, called Barbara
constantly at home and at work, hit Barbara, bumped her car with his own
while traveling at highway speed, and once kidnapped Barbara. In March
1993, Barbara obtained a protective order against Trottie. In April 1993,
Trottie told Barbara that he would kill her if she did not return to him by May
1, 1993. On May 3, 1993, Trottie called Barbara and repeated his threat to kill
her and her brother Titus, because, Trottie claimed, Titus had gotten in the
way of their reunion.
        Trottie arrived at Titus’s house at approximately 11:00 p.m. on May 3,
1993, armed with a semi-automatic 9mm pistol. At the time, there were
numerous family members in the house, including five children under the age
of seven. Trottie opened fire immediately, wounding Barbara’s mother, sister,
and Titus.     Titus returned fire, wounding Trottie.        Trottie then cornered
Barbara and shot her eleven times, saying “B--ch, I told you I was going to kill
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                                  No. 14-70027
you.” Trottie then returned to where Titus lay wounded and shot him twice in
the back of the head.
      The state charged Trottie with the capital murders of Barbara and Titus
Canada. During the penalty phase the state provided evidence of multiple
prior criminal charges, probation violation, past violence toward Barbara and
evidence that the killing was “both premeditated and extreme.”               Trottie
presented testimony from his mother and sister about his childhood, during
which he experienced abandonment and neglect, eventually being placed in
foster care. Trottie also presented favorable testimony about his work history,
efforts   through    volunteer   programs,   good    disciplinary   record    while
incarcerated, positive testimony from his probation officer and expert
testimony regarding his abandonment and mental health issues.
      Following the jury trial, the trial court sentenced Trottie to death. The
Texas Court of Criminal Appeals affirmed Trottie’s conviction and sentence.
Trottie v. State, No. 71,793 (Tex. Crim. App. Sept. 20, 1995). Trottie filed a
state application for a writ of habeas corpus which was denied on February 11,
2009. Ex parte Trottie, No. 70,302-01 (Tex. Crim. App. Feb. 11, 2009). Trottie
filed a federal petition for a writ of habeas corpus on February 13, 2009, and
amended petitions on September 14, 2009, and March 10, 2010. The state
responded and moved for summary judgment on December 20, 2010. Trottie
responded and cross-moved for summary judgment on August 17, 2011. The
district court granted the state’s motion for summary judgment on September
30, 2011. This court subsequently denied Trottie’s application for a COA,
Trottie v. Stephens, 720 F.3d 231 (5th Cir. 2013), and the Supreme Court
denied Trottie’s petition for a writ of certiorari. Trottie v. Stephens, 134 S. Ct.
1540 (2014).
      On August 18, 2014, Trottie moved pursuant to Rule 60(b) for relief from
the district court’s judgment, which the district court denied in an order dated
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                                 No. 14-70027
September 2, 2014. Trottie, 2014 WL 4354445. Trottie now seeks a COA from
this court.
                                           II.
      This court reviews the denial of a Rule 60(b) motion under an abuse of
discretion standard. Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2010).
A COA is improper where reasonable jurists could not disagree that the district
court did not abuse its discretion. Id. “It is not enough that the granting of
relief might have been permissible, or even warranted . . . [the] denial must
have been so unwarranted as to constitute an abuse of discretion.” Diaz v.
Stephens, 731 F.3d 370, 374 (5th Cir.), cert. denied, 134 S. Ct. 48 (2013). A
movant is required “to show ‘extraordinary circumstances’ justifying the
reopening of a final judgment.’” Id. (quoting Gonzalez v. Crosby, 545 U.S. 524,
535 (2005)). “Such circumstances will rarely occur in the habeas context.”
Gonzalez, 545 U.S. at 535.
      The district court denied Trottie’s 60(b) motion as untimely. The district
court further determined that even if it were timely, Trottie’s motion merely
attacked the substance of the district court’s resolution of his habeas petition
on the merits.       Moreover, Trottie had failed to show extraordinary
circumstances that would entitle him to Rule 60(b) relief.
      As the district court noted, a Rule 60(b)(6) motion must “be made within
a reasonable time.” See Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014)
(holding that waiting eight months after relevant change in law to bring a 60(b)
motion was not within a reasonable time). Trottie’s motion came almost three
years after the district court had denied his petition and more than a year after
we denied a COA.      Trottie did not cite any newly discovered evidence or
intervening changes in law. Therefore, the district court did not abuse its
discretion in concluding that Trottie’s motion was not brought “within a
reasonable time,” and he did not show good cause for the delay.
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                                   No. 14-70027
      Turning to other bases for the district court’s determination, we next
consider whether the district court erred in determining that Trottie failed to
present “extraordinary circumstances.” A movant is required to “show
‘extraordinary circumstances’ justifying the reopening of a final judgment.”
Diaz, 731 F.3d at 374 (quoting Gonzalez, 545 U.S. at 535). Trottie did not
demonstrate any “extraordinary circumstances” justifying the reopening of the
district court’s final judgment.    Moreover, Trottie largely raised the same
arguments regarding the Texas capital murder statute and ineffective
assistance of counsel, which were previously considered and rejected by the
district court and for which this court denied a COA. Insofar as Trottie sought
to re-litigate claims that have already been litigated and resolved, “[a] Rule
60(b) motion is not a proper mechanism to re-litigate the merits of [previously
litigated claims] and surely not a proper vehicle for doing so when the
judgment from which [Trottie] seeks relief has been confirmed on appeal . . . .”
Hall v. Stephens, No. 3:10-CV-135, 2014 WL 4215329 (5th Cir. Aug. 27, 2014);
see United States v. Hernandes, 708 F.3d 680 (5th Cir. 2013) (holding Rule
60(b) motion should be construed as a successive habeas petition under § 2255
where it attacked the merits of the district court’s resolution of the initial
petition); Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (recognizing that
a Rule 60(b) motion is proper only to challenge a procedural, not substantive
error).
      In addition to seeking 60(b) relief, Trottie requested an evidentiary
hearing. It is unclear whether Trottie’s motion for a COA asks this court to
hold that the district court erred in not granting him an evidentiary hearing,
or asks this court directly to order such a hearing. In either case, Trottie is not
entitled to an evidentiary hearing. The district court did not err by refusing to
grant a hearing, and there is no reason for this court to grant a hearing in
response to the motion for a COA. A hearing is not appropriate where, as is
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                                       No. 14-70027
the case here, there are “no relevant factual disputes that would require
development in order to assess the claims.” Williams v. Taylor, 529 U.S. 420,
436 (2000). Furthermore, review of the state habeas proceeding “is limited to
the record that was before the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). Thus, in reviewing
any defects that Trottie alleges in his state habeas proceeding, the district
court would be limited to the record that was before the state court. See id.
       Trottie’s argument for an evidentiary hearing turns, again, in large part
on his ineffective assistance of counsel claims. 1 Trottie alleged that “[t]he state
court’s failure to consider the core of Trottie’s ineffective assistance claim—
that is, the inadequacy of the investigation conducted by trial counsel—opens
the door to an evidentiary hearing before the District Court.” Because these
claims have already been considered and rejected, Trottie is not entitled to re-
litigate them, and thus not entitled to an evidentiary hearing to develop them. 2
See § 2254(d); Trottie, 720 F.3d at 241–51. In addition, Trottie’s request for an
evidentiary hearing is foreclosed by § 2254(e)(2). See § 2254(e)(2) (restricting


       1 Trottie argues that he is entitled to an evidentiary hearing under Trevino v. Thaler,
133 S. Ct. 1911 (2013). Trevino extended the application of Martinez v. Ryan, 566 U.S. 1
(2012), to Texas cases. In Martinez, the Supreme Court held that “an otherwise procedurally
defaulted claim of ineffective assistance of counsel may be heard by a federal habeas court
where it was not properly raised in the state habeas court on initial review due to state
habeas counsel’s ineffective representation.” Escamilla v. Stephens, 749 F.3d 380, 395 (5th
Cir. 2014) (emphasis omitted). “Martinez does not apply to claims that were fully adjudicated
on the merits by the state habeas court because those claims are, by definition, not
procedurally defaulted.” Id. Trottie stated in his previous motion for a COA that he fully
exhausted his ineffective assistance of counsel claims before the state habeas court. Thus,
by Trottie’s own admission, this is not a Martinez case, nor does Trottie assert that Martinez
applies in his current motion for a COA. Thus, Trottie is not entitled to relief under Martinez
or Trevino, and an evidentiary hearing is not warranted.

       2 Trottie makes much of the fact that neither state nor federal habeas counsel has
been able to contact or procure an affidavit from Connie Williams, the trial counsel. The
exact type of evidence Trottie seeks does not alter the conclusion that his ineffective
assistance of counsel claims may not be re-litigated because they were already considered
and rejected on the merits. See § 2254(d).
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                                 No. 14-70027
evidentiary hearings to narrow circumstances). Accordingly Trottie’s request
for a COA is DENIED.
      Trottie also requests a stay of execution. A stay of execution is an
equitable remedy. Adams v. Thaler, 679 F.3d 312, 318 (5th Cir. 2012) (citing
Hill v. McDonough, 547 U.S. 573, 584 (2006)). Nothing in Trottie’s application
for a COA requires further time for adjudication and Trottie has not
demonstrated that he is entitled to a stay of execution. As such, his motion for
a stay is DENIED.




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