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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-51160                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
In re: MIGUEL A. PAREDES,                                                October 25, 2014
                                                                           Lyle W. Cayce
              Movant                                                            Clerk




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:05-CV-870


Before JOLLY, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       Miguel Paredes is scheduled to be executed on Tuesday, October 28,
2014. On Saturday, October 18, 2014, ten days before his scheduled execution,
he filed in the federal district court a “Motion for Relief from Judgment
Pursuant to Rule 60 of the Federal Rules of Civil Procedure and Stay of
Execution.” The federal district court dismissed the Rule 60(b) motion without
prejudice for want of jurisdiction and transferred the motion to this court,
citing 28 U.S.C. § 1631. The district court simultaneously denied the motion
for stay of execution and denied a certificate of appealability (COA) on all
claims. Paredes has applied to this court for a COA and in the alternative, has
filed a motion for an order authorizing consideration of a second petition for



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51160
writ of habeas corpus under 28 U.S.C. § 2244. He seeks a stay of his execution.
We deny the requested relief.
      Certain claims asserted in Paredes’s Rule 60(b) motion must be
construed as successive habeas claims. These claims do not rely on a new rule
of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable, or on facts that could not
have been discovered previously through the exercise of due diligence. 1 Other
of Paredes’s contentions in his Rule 60(b) motion are not successive because
they assert a defect in the integrity of the federal habeas proceedings. 2
However, Paredes has not overcome the limitation within Rule 60(b) that
requires a motion to be made within a reasonable time, if not governed by the
more specific one-year deadline, 3 and the requirement of the Supreme Court’s
decisions that there must be extraordinary circumstances to justify the
reopening of a final judgment. 4 To the extent that Paredes asserts that his
federal habeas counsel had a conflict of interest because he also served as state
habeas counsel, Paredes waited until thirty months after the Supreme Court’s
decision in Martinez v. Ryan, 5 and until seventeen months after the Supreme
Court’s decision in Trevino v. Thaler, 6 to assert the conflict of interest he
contends arose as a consequence of those decisions.                 Paredes’s Rule 60(b)
motion was not filed within one year after the district court’s 2007 final
judgment denying habeas relief.                 In any event, it was not filed within a
reasonable time after Martinez and Trevino provided Paredes grounds for


      1   See 28 U.S.C. § 2254.
      2   See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
      3   See FED. R. CIV. P. Rule 60(b)-(c).
      4   See Gonzalez, 545 U.S. at 535.
      5   132 S.Ct. 1309 (2012).
      6   133 S.Ct. 1911 (2013).
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                                       No. 14-51160
asserting that his federal habeas counsel had a conflict of interest that
precluded him from raising, for the first time in a federal habeas proceeding, a
claim that trial counsel was ineffective in failing to discover or present
mitigation evidence during the penalty phase of Paredes’s 2001 capital murder
trial. Even were Paredes’s Rule 60(b) motion timely, the change in the law
that the Supreme Court’s decisions effectuated in Martinez and Trevino does
not constitute extraordinary circumstances. 7
                                              I
      Paredes received a death sentence for his participation in the murder of
three people. Our court has previously considered an application for habeas
relief filed by Paredes. 8 We briefly recount some of the facts underlying his
conviction that were set forth in our last opinion in this case:
            Paredes, John Saenz, and Greg Alvarado, who were all
      members of the Hermanos Pistoleros Latinos gang, anticipated a
      confrontation regarding an illegal drug transaction and allegedly
      armed themselves, lay in wait, then shot and killed rival gang
      members Adrian Torres, Nelly Bravo, and Shawn Cain inside
      Saenz's home. The victims were slain within seconds of one
      another. Paredes was charged with murdering more than one
      person during the same criminal transaction under the Texas
      capital murder statute. . . . At trial, a witness testified that
      Paredes admitted to shooting Bravo, and other witnesses testified
      that Paredes remained silent when, in Paredes's presence, John
      Saenz recounted that Paredes had shot both Bravo and Cain. One
      witness, Eric Saenz, the brother of John Saenz, testified that after
      John Saenz, in Paredes's presence, had described in some detail
      how he, John Saenz, shot Torres, how Paredes shot Bravo in the
      head, and how Paredes then shot Cain, Paredes stated to Eric
      Saenz that Eric “should have been there, that [Eric] would have
      had some fun.” Medical evidence was consistent with testimony
      that Paredes was the shooter in the deaths of Bravo and Cain but

      7   See generally Gonzalez, 545 U.S. at 536-38.
      8  Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010); Paredes v. Quarterman, 574 F.3d
281 (5th Cir. 2009).
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                                        No. 14-51160
      not Torres. There was direct evidence that Paredes was in John
      Saenz's home at the time of the killings and assisted in cleaning
      blood off the floor and walls of the home and in disposing of the
      bodies afterwards. There was also strong circumstantial evidence
      that Paredes was present during the killing of each of the three
      decedents, and that at a minimum, he aided or attempted to aid
      Saenz in carrying out the plan to kill these individuals. 9
      A jury found Paredes guilty of capital murder in October 2001. At the
conclusion of the penalty phase of the trial, and in accordance with the jury’s
answer to the Texas special issues, the state trial court sentenced Paredes to
death that same month. On direct appeal, the Texas Court of Criminal Appeals
(TCCA) affirmed Paredes’s conviction and death sentence. 10 Paredes did not
seek relief from the United States Supreme Court at that time.
      Paredes then pursued habeas relief in state court in November of 2003.
When relief was denied, he sought habeas relief in federal court. As our prior
opinions reflect, we affirmed the district court’s denial of habeas relief in
Paredes’s original federal habeas proceedings. 11 The Supreme Court denied
Paredes’s petition for writ of certiorari in 2011. 12 No further proceedings have
occurred in state or federal court until October 2014.
      In the present proceedings, Paredes contends that his state habeas
counsel was ineffective regarding a claim that trial counsel was ineffective in
failing to discover and present mitigation evidence during the penalty phase of
the trial. Paredes further contends that because his state habeas counsel was
also his federal habeas counsel in his original federal habeas proceedings, his
federal habeas counsel had a conflict of interest. The motion filed in the federal


      9   Paredes, 617 F.3d at 317.
      10   Paredes v. State, 129 S.W.3d 530 (Tex. Crim. App. 2004).
      11 Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010); Paredes v. Quarterman, 574 F.3d
281 (5th Cir. 2009).
      12   Paredes v. Thaler, 131 S.Ct. 1050 (2011).
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                                  No. 14-51160
district court that initiated the present proceedings, and the filings in our court
presently under consideration were submitted by new counsel that Paredes
retained in 2014.
      More specifically, Paredes’s October 2014 Rule 60(b) motion for relief
from the federal district court’s 2007 judgment asserts that although his state
habeas counsel, Michael Gross, had included a claim in the state habeas
petition that his trial counsel was ineffective in failing to discover and present
mitigating evidence during the punishment phase of Paredes’s trial, this claim
was expressly waived by Paredes, in open court, at the state habeas hearing
after Paredes had directed Gross not to pursue it. Paredes now contends that
Gross should have been aware of circumstances that would have raised doubt
as to Paredes’s competency to abandon this aspect of his ineffective-assistance-
of-counsel claim made in state habeas proceedings and that Gross was
therefore ineffective as state habeas counsel. Paredes contended in his Rule
60(b) motion in federal district court that his waiver of this part of his state
habeas claim violated Due Process. Paredes further contended in the Rule
60(b) motion that had the federal district court originally appointed, in 2006,
someone other than Gross as federal habeas counsel, his federal habeas
counsel could have further developed the ineffective assistance of trial counsel
claim and argued that Gross’s deficiency during the state habeas hearing
constituted cause to excuse the fact that the new mitigation evidence and the
mitigation claim had not been exhausted in state court. Paredes’s Rule 60(b)
motion to the district court asserted that alternatively, had the federal district
court appointed counsel other than Gross, that counsel could have asked the
district court to stay proceedings to allow a return to state court to exhaust the
new mitigation evidence claim. Paredes contends that Gross was precluded
from making these arguments in the original federal habeas proceeding
because a significant conflict of interest exists when an attorney must argue
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                                    No. 14-51160
that his representation at an earlier stage of litigation (in this case, the state
habeas proceedings) was ineffective.
      The district court construed Paredes’s Rule 60(b) motion as asserting
eight claims, and the district court denied relief on multiple grounds. 13 The
district court held that the Rule 60(b) motion was untimely, even assuming
that Paredes’s express waiver in his state habeas proceeding of the ineffective-
assistance-of-trial-counsel claim as to mitigation evidence was not valid. 14 The
district court reasoned that at least by the time that state habeas counsel filed
the state habeas petition in 2003, or during the November 2004 state habeas
hearing, Paredes knew that he had an ineffective-assistance-of-trial-counsel
claim as to mitigating evidence. 15
      As to the validity of the waiver that Paredes made in open court at the
state habeas hearing, the district court concluded that nothing in the record or
in Paredes’s October 2014 motion casts legitimate doubt as to Paredes’s mental
competence or intelligence on the date of the November 2004 state habeas
hearing. 16 The district court further concluded that during the subsequent ten
years before Paredes filed the 2014 motion for relief from judgment, the
medical records reflect that Paredes was fully capable of logical, rational
thought and suffered no debilitating effects from dysthymic disorder. 17 The
district court’s order sets forth considerable detail regarding Paredes’s




      13 Order Dismissing Rule 60(b) Motion and Denying Motion for Stay of Execution at
8-10, Paredes v. Stephens (No. SA-05-CA-870-FB) (W.D. Tex. Oct. 23, 2014).
      14   Id. at 12-15.
      15   Id. at 12.
      16   Id. at 12-13.
      17   Id. at 13.
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                                     No. 14-51160
condition and the lack of any grounds for contending that his waiver was
ineffective due to mental illness or mental incompetence. 18
       The district court also concluded that to the extent that Paredes’s Rule
60(b) motion challenged the district court’s prior denial of habeas corpus relief
in the 2007 final judgment, the motion was outside the scope of a Rule 60(b)
motion and was in substance a successive habeas corpus petition. 19
       Although the district court concluded that the merits of Paredes’s claim
that he was entitled to a new trial on the death penalty issue because of trial
counsel’s alleged ineffective representation in failing to investigate and present
mitigation evidence were not properly before the district court, the court
nevertheless addressed the merits. 20 In considering whether Paredes’s motion
had established the elements of a Strickland claim, the district court detailed
the mitigation evidence on which the motion relied. 21          The district court
concluded that in light of the evidence presented by the prosecutor to persuade
the jury to find facts leading to the imposition of the death penalty, “there is
no reasonable probability that, but for the failure of petitioner’s trial counsel
to introduce any of the new evidence identified in the affidavits of petitioner’s
brother, sister, former girlfriend, and family friends, the outcome of the
punishment phase of petitioner’s capital murder trial would have been any
different.” 22
       The district court also noted that Paredes did not offer any evidence
indicating that, at the time of trial, trial counsel were unaware of the



       18   Id. at 22-24.
       19   Id. at 15-16.
       20   Id. at 16-24.
       21   Id. at 19.
       22   Id.
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                                    No. 14-51160
mitigating facts set forth in the affidavits submitted in 2014 in support of
Paredes’s motion. 23 The district court observed that it was “quite possible
petitioner’s trial counsel were well aware,” from other sources, of the
information contained in the 2014 affidavits. 24 The district court also noted
that the state trial judge was the same judge who presided over the state
habeas proceedings, and the state habeas record reflects that this judge
recalled that Paredes’s trial counsel had relayed to the judge that Paredes told
his trial counsel that he did not want his family to testify at the punishment
phase of the trial. 25 The federal district court’s decision on the Rule 60(b)
motion then discussed the decisions of this court that have considered a client’s
objection to the presentation of certain types of mitigating evidence and
whether an attorney was ineffective for acceding to the client’s directive not to
present such evidence. 26
      We note that in one of the 2014 affidavits that Paredes submitted to the
federal district court, it is suggested that Paredes told his trial counsel not to
allow his family to testify during the penalty phase because Paredes feared
that his family would be harmed by gang members if they took the stand. 27
However, no such claim was argued in the motion and briefing that Paredes
filed in the federal district court, and no such claim has been presented in the
briefing or application to this court. The only basis on which Paredes has
challenged his express waiver, in the state habeas proceedings, of the
ineffective-assistance-of-trial-counsel claim regarding mitigation evidence is



      23   Id. at 20.
      24   Id.
      25   Id. at 20-21.
      26   Id. at 21-22.
      27   Newberry Aff. at 1.
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                                       No. 14-51160
Paredes’s assertion that his express waiver was not valid because he was
mentally ill or mentally incompetent.
       The district court’s order states that “[t]his Court concludes after an
independent, de novo, review, that petitioner’s new ineffective assistance claim
fails to satisfy either prong of Strickland analysis.” 28 The district court’s order
also details Paredes’s medical records and concludes that there were no facts
that should have put Paredes’s state habeas counsel on notice of a need for
further inquiry into Paredes’s competence to decide to waive one aspect of his
ineffective-assistance-of-trial-counsel claim. 29            Paredes did pursue other
ineffective-assistance-of-trial-counsel claims in both state and federal courts,
as our prior opinions addressing the claims in Paredes’s original federal habeas
proceeding reflect. 30
       The federal district court’s October 2014 order additionally considered,
then denied, Paredes’s motion for a stay of execution. 31                   The order also
discussed the requirements for granting a COA and denied a certificate. 32
       We are largely in agreement with the district court’s analysis and
resolution of Paredes’s October 2014 motion. We likewise deny relief. In his
application to this court, Paredes only cursorily addresses the district court’s



       28Order Dismissing Rule 60(b) Motion and Denying Motion for Stay of Execution at
22, Paredes v. Stephens (No. SA-05-CA-870-FB) (W.D. Tex. Oct. 23, 2014).
       29   Id. at 22-24.
       30 Paredes v. Quarterman, 574 F.3d 281, 284 (5th Cir. 2009) (ineffective assistance
claims based on (1) failure to make Confrontation Clause objections; (2) failure to object to
the state’s purportedly untimely request for a jury shuffle; (3) failure to object to a jury
instruction that did not ensure juror unanimity; (4) failure to object to mitigation instruction
because instruction did not require state to prove lack of mitigating circumstances beyond a
reasonable doubt).
       31Order Dismissing Rule 60(b) Motion and Denying Motion for Stay of Execution at
25-26, Paredes v. Stephens (No. SA-05-CA-870-FB) (W.D. Tex. Oct. 23, 2014).
       32   Id. at 27-30.
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                                       No. 14-51160
conclusions that Paredes’s Rule 60(b) motion was untimely. Paredes cites no
authority that would support an argument that the district court abused its
discretion in holding that the Rule 60(b) motion was not filed within a
reasonable time. Nor does Paredes address the district court’s conclusion that
he failed to show extraordinary circumstances that could give rise to relief
under Rule 60(b). To the extent that Paredes’s claim constitutes a successive
petition, it must be denied, and no grounds exist for authorizing a second,
successive petition under 28 U.S.C. § 2244.
                                              II
      The first question that must be resolved is whether Paredes’s motion in
the district court was, in whole or in part, a successive federal habeas petition
within the meaning of 28 U.S.C. § 2244. The district court’s jurisdiction and
our jurisdiction over a habeas petition challenging a state court conviction or
sentence are constrained by the Antiterrorism and Effective Death Penalty Act
(AEDPA). 33 Congress has directed that a claim presented in a second or
successive application under § 2254 that was not presented in a prior
application shall be dismissed unless
            (A) the applicant shows that the claim relies on a new rule
      of constitutional law, made retroactive to cases on collateral review
      by the Supreme Court, that was previously unavailable; or
            (B)(i) the factual predicate for the claim could not have been
      discovered previously through the exercise of due diligence; and
             (ii) the facts underlying the claim, if proven and viewed in
      light of the evidence as a whole, would be sufficient to establish by
      clear and convincing evidence that, but for constitutional error, no
      reasonable factfinder would have found the applicant guilty of the
      underlying offense. 34



      33   Pub. L. No. 104-132, 100 Stat. 1214.
      34   28 U.S.C. § 2244(b)(2).
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                                       No. 14-51160
      It is undisputed that Paredes’s claim that his trial counsel and his state
habeas counsel were ineffective regarding mitigation evidence was not
presented in a prior federal habeas application. All of the facts on which
Paredes relies could have been discovered previously through the exercise of
due diligence. The mitigation evidence that Paredes says should have been
presented to the jury is in the nature of historical facts that were readily
available to Paredes, if not within his own personal knowledge. The medical
records on which Paredes relies in claiming that he was mentally ill or
mentally incapacitated were all in existence and accessible prior to the filing
in 2006 of the federal habeas petition.
      Paredes does not cite any new rule of constitutional law made
retroactively applicable to cases on collateral review by the Supreme Court on
which he relies. The Supreme Court’s decisions in Martinez and Trevino held
that state habeas counsel’s ineffectiveness in raising a claim in the first
collateral state proceeding that trial counsel was ineffective may excuse a
procedural default of an ineffective-assistance claim when the claim was not
properly presented in state court due to an attorney’s errors in an initial-review
collateral proceeding. 35 These decisions changed the law as it existed when the
federal district court issued its 2007 final judgment denying Paredes habeas
relief. When Paredes brought his first federal habeas petition, the Supreme
Court’s decision in Coleman v. Thompson 36 held that because “[t]here is no
constitutional right to an attorney in state post-conviction proceedings . . . a
petitioner cannot claim constitutionally ineffective assistance of counsel in




      35 See Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013); Martinez v. Ryan, 132 S. Ct.
1309, 1313 (2012).
      36   501 U.S. 722, 752 (1991).
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                                         No. 14-51160
such proceedings.” 37          The subsequent decisions in Martinez and Trevino
created a limited exception to the rule emanating from Coleman that
ineffective assistance of counsel in state habeas proceedings could not be raised
in a federal habeas proceeding. However, the holdings in Martinez and Trevino
were limited to the determination that ineffective assistance of counsel in the
first collateral proceeding regarding ineffective assistance of trial counsel could
excuse failure to exhaust the ineffective-assistance-of-trial-counsel claim in
state court. 38 Neither Martinez nor Trevino held that a conflict of interest can
arise if state habeas counsel is also the sole counsel in the federal habeas
proceeding or that if such a conflict of interest existed, it could serve as a basis
for habeas relief.
       However, the most important considerations in our analysis of whether
Paredes’s motion contained a successive claim are twofold. The first is that the
Supreme Court has not made either Martinez or Trevino retroactive to cases
on collateral review, within the meaning of 28 U.S.C. § 2244. “[A] new rule is
not made retroactive to cases on collateral review unless the Supreme Court
holds it to be retroactive.” 39 The second dispositive consideration is that the
decisions in Martinez and Trevino were not based on a rule of constitutional
law but on statutory rights. 40 Paredes is therefore unable to rely on a new and
retroactive rule of constitutional law. To the extent that Paredes challenges



       37   Id.
       38  Martinez, 132 S. Ct. at 1320 (“Our holding here addresses only the constitutional
claims presented in this case, where the State barred the defendant from raising the claims
on direct appeal.”); Trevino, 133 S. Ct. at 1921 (“[W]here, as here, state procedural
framework, by reasons of its design and operation, makes it highly unlikely in a typical case
that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance
of trial counsel on direct appeal, our holding in Martinez applies . . . .”).
       39   Tyler v. Cain, 533 U.S. 656, 663 (2001) (internal quotation marks omitted).
       40   Martinez, 132 S. Ct. at 1319-20.
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                                       No. 14-51160
the denial of habeas relief, his motion must be construed as a successive
petition and must be dismissed.
                                             III
       In his application in our court, Paredes proceeds directly to his argument
that he has a viable Strickland claim that his trial counsel provided ineffective
assistance in failing to discover and present mitigation evidence at the penalty
phase of his 2001 trial and that his state habeas counsel was ineffective in 2004
with regard to the mitigation evidence claim. Paredes’s application in our
court devotes virtually no argument to the jurisdictional issues that the district
court correctly recognized and resolved.              The district court did not have
jurisdiction over Paredes’s successive claims, and they were properly
dismissed. Because parts of Paredes’s Rule 60(b) motion in the district court
included a successive claim, he is not entitled to a COA from this court as to
that claim.
       But even assuming that Paredes could surmount the procedural bar
imposed by AEDPA, the new evidence proffered in his October 2014 filing
would not entitle him to relief under Strickland.
                                            A
       Paredes’s claim that trial counsel was ineffective in failing to discover
and present mitigating evidence at the penalty phase was not pursued in the
state courts, and therefore, the claims have not been “adjudicated on the merits
in State court proceedings” within the meaning of § 2254(d). 41 Nevertheless,



       41 28 U.S.C. § 2254(d) (An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the adjudication
of the claim--(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.”).
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                                        No. 14-51160
under 28 U.S.C. § 2254(b)(2), “[a]n application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.” 42 Because the claims have
not been “adjudicated on the merits in State court proceedings,” the § 2254(d)
deferential standard of review does not apply. Rather, a federal court’s review
of an unexhausted claim that counsel was deficient is reviewed de novo. 43
       The seminal decision in Strickland v. Washington contains two elements
necessary to establish ineffective assistance of counsel:
       First, the defendant must show that counsel's performance was
       deficient. This requires showing that counsel made errors so
       serious that counsel was not functioning as the “counsel”
       guaranteed the defendant by the Sixth Amendment. Second, the
       defendant must show that the deficient performance prejudiced
       the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable. Unless a defendant makes both showings, it
       cannot be said that the conviction or death sentence resulted from
       a breakdown in the adversary process that renders the result
       unreliable. 44

       To establish constitutionally deficient performance, a defendant must
show that counsel’s representation “fell below an objective standard of
reasonableness” based on “prevailing professional norms.” 45 We judge the



       42 28 U.S.C. § 2254(b)(2); see Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997) (“The
AEDPA amended 28 U.S.C. § 2254(b) to allow a federal court to deny an application on the
merits, ‘notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State.’ We note that amended § 2254(b)(2) is permissive (‘[a]n application . . .
may be denied . . .’). The district court, after finding Nobles's claim procedurally defaulted,
found in the alternative that his claim would not have succeeded on the merits. We review
the district court's resolution of this mixed question of law and fact de novo.”).
       43   See Porter v. McCollum, 558 U.S. 30, 39 (2009).
       44   Strickland v. Washington, 466 U.S. 668, 687 (1984).
       45 Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 688)
(internal quotation marks omitted).
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                                          No. 14-51160
reasonableness of counsel’s conduct based on the particular facts at the time of
the conduct. 46 “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” 47
       To establish prejudice, the second part of the Strickland test, “[t]he
defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” 48 In the context of a defendant who argues that
his trial counsel “fail[ed] to investigate and present sufficient mitigating
evidence during the penalty phase of his trial,” 49 the defendant must show “a
reasonable probability that a competent attorney, aware of [the available
mitigating evidence], would have introduced it at sentencing, and that had the
jury been confronted with this . . . mitigating evidence, there is a reasonable
probability that it would have returned with a different sentence.” 50                  “In
assessing prejudice, we reweigh the evidence in aggravation against the
totality of available mitigating evidence.” 51
       Trial counsel for Paredes did not affirmatively present any witnesses
during the punishment phase of the trial. They did cross-examine witnesses
called by the prosecution. Evidence was adduced in the punishment phase that
favored Paredes on the mitigation question.                Jesus Hernandez, Paredes’s



      46   Strickland, 466 U.S. at 690.
      47   Id.
      48   Id. at 694; Wiggins, 539 U.S. at 534.
      49   Wong v. Belmontes, 558 U.S. 15, 16 (2009) (per curiam).
      50 Id. at 20 (alteration in original) (quoting Wiggins, 539 U.S. at 535-36) (internal
quotation marks omitted).
      51   Wiggins, 539 U.S. at 534.
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                                     No. 14-51160
supervisor when he was paroled from the Texas Youth Commission (TYC),
testified that Paredes quickly completed the TYC program and his required
community service. 52 He also noted that when Paredes entered TYC custody,
his girlfriend, who was approximately fourteen years old, was three months
pregnant. 53 Hernandez stated that Paredes worked to support the mother and
child but at one point lost his job. 54 Paredes also spoke to Hernandez about
obtaining visitation rights to see his child more frequently. 55          On cross-
examination, Hernandez said that Paredes was not threatening and was
respectful during his interactions in the parole office. 56
      Dr. Catherine King, an associate psychologist with the TYC, also
testified. 57 She performed a psychological evaluation of Paredes on February
8, 1998. 58 She testified that on a test of nonverbal intelligence, Paredes scored
an 89, at the high end of the low range, meaning that he did not suffer from
mental retardation. 59 She diagnosed Paredes with a conduct disorder. 60 She
also told the jury that he suffered from anxiety due to his incarceration and
struggled with trusting others and controlling his anger. 61 She noted that
Paredes tried to support his pregnant girlfriend and his family by working in




      52   20 RR 91, 93.
      53   20 RR 93.
      54   20 RR 93.
      55   20 RR 110.
      56   20 RR 108.
      57   20 RR 111.
      58   20 RR 112.
      59   20 RR 116-17.
      60   20 RR 117.
      61   20 RR 118.
                                          16
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                                        No. 14-51160
a tire shop. 62 Paredes had informed Dr. King that he began drinking alcohol
at age eight and smoking marijuana at thirteen, and she diagnosed him with
marijuana and alcohol abuse. 63
      The State also introduced Paredes’s TYC records and Dr. King’s report. 64
These records largely corroborate Dr. King’s and Hernandez’s testimony. They
reflect that Paredes had a good relationship with his parents, even though he
disobeyed them, but that his relationship with his brothers was strained
because they disagreed with his illegal acts. 65 The records also show that his
parents lacked disciplinary skills. 66
      Trevino, who was one of Paredes’s two counsel at trial, presented closing
argument in the punishment phase. Trevino urged the jury to review Paredes’s
TYC records and noted that they showed that Paredes was one of twenty
children and lived in a gang-filled neighborhood. 67 Trevino reminded the jury
that the family was providing alcohol to Paredes by age eight and that he joined
a gang by age twelve for protection because he had no other choice for
survival. 68 Trevino argued to the jury in the context of the mitigation question
that Paredes had a two-year-old son and encouraged the jury to “break the
circle of violence” by making sure Paredes’s son would have a father. 69
      Using recently procured affidavits, Paredes points to three areas of
mitigating evidence that trial counsel allegedly failed to procure and introduce


      62   20 RR 114.
      63   20 RR 118.
      64   24 RR 1-437 (State’s Exs. 202, 203).
      65   24 RR 28, 36.
      66   24 RR 36.
      67   21 RR 16-17.
      68   21 RR 17.
      69   21 RR 22-23.
                                              17
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                                         No. 14-51160
during punishment.          First, Paredes points to the fact that he grew up
surrounded by gang violence. Second, he points to the lack of support he
received from his parents. And finally, he contends that he had a history of
mental illness from childhood onwards. 70
      Contrary to his assertion, evidence of Paredes’s upbringing in gang-
infested areas was placed before the jury. Paredes contends that the jury did
not know that when he was young, his family moved from Chicago to Mexico
because of a gang war. It does not appear that the reason for the move is in
the state trial record. 71 Paredes also asserts that the jury was unaware that
when he moved to San Antonio around the age of seven, he was confronted
with more significant gang violence. 72 But at least some evidence of this nature
was presented to the jury. Hernandez testified that the TYC records showed
that Paredes joined a gang around the age of twelve or twelve and a half. 73 Dr.
King corroborated this testimony. 74 His counsel also made much of the gang
problem in San Antonio during closing argument. He noted that Paredes’s
family left Mexico and began living in San Juan Courts, a “gang infested
neighborhood.” 75 Trial counsel also told the jury that a twelve-year old child
in the San Juan neighborhood would “face[] the choice of getting beaten every
day just going to school or joining a gang for protection.” 76 Paredes asserts that
the jury did not know that he was run over by gang members in a car, but his




      70   Paredes App. for COA at 27-28.
      71   20 RR 114.
      72   Paredes App. for COA at 27.
      73   20 RR 106-07
      74   20 RR 115-16.
      75   21 RR 17.
      76   21 RR 26.
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                                         No. 14-51160
counsel expressly mentioned this during closing argument. 77 In sum, although
the jury was unaware of the gang issues that Paredes encountered during his
first five years of life, there was considerable evidence of his experience with
gangs from age seven to the time of his trial, when he was nineteen years old.
      Paredes contends that the 2014 affidavits show that he received little
support from his parents and that the jury was unaware of this fact. But the
jury heard several pieces of evidence on this issue. Hernandez, the parole
officer, testified that he only met Paredes’s mother but not his father. 78 He
further stated that the mother and a brother approached Hernandez
complaining that Paredes was staying out late and hanging around gang
members. 79 His TYC records show that his parents were older and therefore
lacked disciplinary skills. 80 However, another portion of the reports also noted
that “[h]e has the support of his parents and older siblings who are caring and
concerned for his well-being.” 81 Finally, counsel remarked during closing that
that Paredes was the youngest of twenty children, so he “ran loose” and his
parents were exhausted by this time. 82 Accordingly, on the issue of his family
background, the jury received substantial information, weighing both for and
against mitigation.
      Finally, Paredes asserts that he “likely suffered from mental illness from
the time he was very young.” 83 To support this assertion, he points to affidavits
from his relatives that state that from an early age and throughout his


      77   21 RR 18.
      78   20 RR 106.
      79   20 RR 95.
      80   24 RR 36.
      81   24 RR 43.
      82   20 RR 17.
      83   Paredes App. for COA at 27.
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                                         No. 14-51160
childhood, he would beat his head against the wall or a floor when he became
upset. 84 We agree with Paredes that the jury did not hear that he would beat
his head against hard surfaces during his childhood.                  Though perhaps
mitigating in and of itself, this evidence is not evidence of a mental illness. For
the reasons considered at length in the district court’s October 2014 order, we
agree with the district court that Paredes’s October 2014 motion did not
present any competent evidence that Paredes suffered from mental illness.
      Our examination of Paredes’s “new” evidence indicates that much of the
evidence Paredes faults trial counsel for failing to procure and introduce
concerned matters of which the jury was aware and on which evidence was
presented. The only truly new evidence Paredes presents pertains to his head
banging.
      The evidence weighing against mitigation was substantial. Some of it is
recounted in the district court’s order denying the October 2014 Rule 60(b)




      84   Paredes App. for COA at 27.
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                                            No. 14-51160
motion. We quote from that order in the margin. 85 Additionally, Dr. King
testified that Paredes understood the difference between right and wrong. 86
         On balance, Paredes has not presented new mitigating evidence that
would call into question the jury’s verdict during the punishment phase of the
trial.




         85   The district court’s order provided:
                 The punishment phase of petitioner’s capital murder trial began
         October 23, 2001. The prosecution presented witnesses who testified about (1)
         the historyof the HPLgang and its activities; (2) petitioner’s involvement in an
         incident on June 15, 1997 in which petitioner threw a pistol under the vehicle
         he had been driving when police stopped petitioner’s vehicle based on a report
         it had been involved minutes earlier in a drive-by shooting; (3) an incident on
         November 3, 1999 in which petitioner was arrested for driving while
         intoxicated, without a license, and unlawfully carrying a firearm; (4)
         petitioner’s involvement in an incident on January 15, 2000 in which several
         shots were fired from an assault rifle into a crowd of persons outside a
         convenience store; (5) the recovery of the military assault rifle used in that
         shooting from petitioner’s residence on February 1, 2000; (6) an incident on
         May 21, 2000, in which petitioner and Fred Galvan were jointly arrested for
         criminal trespass; (7) petitioner’s fatal shooting of Pedro “Pete” Pedraza on
         June 23, 2000; (8) an incident on June 28, 2000, in which Greg Alvarado drove
         a vehicle containing petitioner at a dangerous rate of speed through a
         residential neighborhood in an unsuccessful attempt to flee from pursuing
         police vehicles and, when Alvarado crashed the vehicle into a house, petitioner
         attempted to flee on foot; (7) the recovery of a loaded handgun apparently
         thrown from Alvarado’s vehicle during the pursuit on June 28, 2000; (8)
         petitioner and Fred Galvan’s aggravated kidnaping of Joe Rodriguez on July
         5, 2000; (9) the recovery of multiple firearms from beneath the mattress in
         petitioner’s bedroom on July 5, 2000; (10) petitioner’s involvement in the fatal
         shooting of Danny Sandoval on September 1, 2000; (11) petitioner’s efforts to
         dispose of the body of a drug overdose victim by setting her body on fire on
         September 12, 2000; (12) petitioner’s failures to report as required to his parole
         officer and petitioner’s failures to inform his parole officer regarding his
         multiple arrests while on parole; and (13) the absence of any evidence of either
         (a) a mental deficiency or learning disability, (b) a history of physical,
         emotional, or sexual abuse, or (c) a history of long-term narcotics abuse from
         petitioner’s background.
       Order Dismissing Rule 60(b) Motion and Denying Motion for Stay of Execution at 2-
3, Paredes v. Stephens (No. SA-05-CA-870-FB) (W.D. Tex. Oct. 23, 2014).
         86   20 RR 123.
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                                         No. 14-51160
                                               B
       Paredes contends that his state habeas counsel, Michael Gross, rendered
ineffective assistance because he permitted Paredes to waive, without a
competency hearing, his ineffective-assistance-of-counsel claim regarding trial
counsel’s performance in the mitigation phase of the trial. 87 A habeas
petitioner must be competent to waive the right to collateral review, and such
waiver must be knowing and voluntary. 88 However, a court need not make a
competency determination in every case in which a defendant seeks to waive a
right: “a competency determination is necessary only when a court has reason
to doubt the defendant's competence.” 89 The relevant questions, therefore, are:
(1) whether Gross should have had reason to doubt Paredes’s competency to
waive his right to pursue the ineffective-assistance claim as to trial counsel’s
penalty-phase performance; and (2) whether Paredes’s waiver was knowing
and voluntary. Paredes bears the burden of proving a bona fide doubt existed
as to his competency to waive collateral review of a particular issue. 90 He has
failed to carry this burden. We conclude that, even had Gross reviewed all the


       87   Application for COA at 28.
       88See Godinez v. Moran, 509 U.S. 389, 400 (1993); Mata v. Johnson, 291 F.3d 324, 329
& n.2 (5th Cir. 2000).
       89Godinez, 509 U.S. at 401 n.13 (citation omitted); see also TEX. CODE CRIM. PROC.
art. 46B.003(a).
       90  Cf. Wood v. Quarterman, 491 F.3d 196, 205 (5th Cir. 2007) (concluding that a
petitioner who instructed trial counsel not to present mitigating evidence was not entitled to
habeas relief because he failed to point to any evidence that would put his competence to
stand trial into question); Enriquez v. Procunier, 752 F.2d 111, 113 (5th Cir. 1984) (citing
Reese v. Wainwright, 600 F.2d 1085, 1091 (5th Cir. 1979)) ("A petitioner seeking habeas relief
based on the trial court's alleged failure to comply with Pate, has the burden of proving that
the objective facts known to the trial court were sufficient to raise a bona fide doubt as to his
competency [to stand trial].”); Godinez, 509 U.S. at 398 n.9 (explaining that there is “there is
no indication” that the “rational choice” standard for competency to waive a certiorari petition
differs from the “rational understanding” standard for competency to stand trial); id.at 400
(to plead guilty or waive constitutional right to counsel, defendant must be competent to
stand trial).
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                                       No. 14-51160
evidence now before this court, and introduced that evidence in the state
habeas proceeding, neither he nor the state habeas court would have had
reason to doubt Paredes’s competence.
      A bona fide doubt did not exist as to Paredes’s competence. 91 A defendant
is competent if he has “sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding and has a rational as well as
factual understanding of the proceedings against him.” 92
      At trial, Jesus Hernandez, Paredes’s parole officer, and Dr. Catherine
King, a psychologist who had evaluated Paredes while he was in the custody
of the TYC, both testified. Hernandez stated that Paredes did not suffer from
mental retardation and did not need special-education services. 93 Dr. King
opined that Paredes’s behavior was “unremarkable,” and that on a test of
nonverbal intelligence, he scored an 89, at the high end of the low range,
meaning that he did not suffer from mental retardation. 94 She also stated she
had diagnosed him with a conduct disorder, and that he suffered from anxiety
due to his incarceration and struggled with trusting others and controlling his
anger. 95 Finally, she noted that while Paredes had been abusing drugs and
alcohol since an early age, he did understand the difference between right and
wrong. 96 This testimony paints a portrait of a person with an unfortunate past,
but is not the type of evidence that could have given rise to a reason to doubt




      91   Godinez, 509 U.S. at 400.
      92Mata, 210 F.3d at 329 n.2 (quoting Godinez, 509 U.S. at 396 (internal quotation
marks omitted)).
      93   20 RR 90, 104.
      94   20 RR 116-17.
      95   20 RR 118.
      96   20 RR 118, 123.
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                                          No. 14-51160
Paredes’s “rational and factual understanding of the proceedings against
him.” 97
      Gross appended to the state habeas petition an affidavit from Dr. Jack
Ferrell, a clinical psychologist who had interviewed Paredes during the
summer of 2002. 98                Dr. Ferrell reported much of the same information
eventually included in the petition itself: that Paredes dropped out of school in
the eighth grade; that he lacked any semblance of a functional family life; and
that his involvement in gang activity “took the place of family support.” 99 Dr.
Ferrell concluded Paredes was nevertheless a candidate for rehabilitation
because he performed well in school as a small child and seemed to respond
positively to an experience at a boot camp in Texarkana, Texas. 100 Notably,
he did not indicate at any point that he believed Paredes to be incompetent. 101
      During the state habeas proceeding, the court accepted Paredes’s waiver
of his argument that his trial counsel was ineffective to the extent it failed to
present mitigating evidence during his sentencing hearing. 102 Upon learning
of Paredes’s desire to waive this argument, the court questioned Paredes to
ensure that he understood the right he was forfeiting. 103
             MR. GROSS: Excuse me, Judge. I’m sorry to interrupt. I
      should have mentioned before we started, I’ve been asked by Mr.
      Paredes to drop the lack of any mitigation evidence prong of our
      [ineffective assistance of counsel] claim; I forgot to mention that
      earlier. So as far as whether or not they submitted any kind of


      97Mata, 291 F.3d at 329 & n.2 (quoting Godinez, 509 U.S. at 396 (internal quotation
marks omitted)).
      98   Ferrell Aff. at 1.
      99   Ferrell Aff. at 1-2.
      100   Ferrell Aff. at 1-2.
      101   Ferrell Aff. at 1-2.
      102   ROA at 268-72.
      103   ROA at 268-72.
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                                No. 14-51160
     mitigation evidence or witnesses at the sentencing phase, Mr.
     Paredes has asked me not to pursue that ground of that claim.
           MR. SHAUGHNESSY: So is it my understanding that there
     is going to be an expressed waiver of a claim that the attorneys
     were—functioned in a manner in violation of the Sixth
     Amendment at the punishment phase?
            MR. GROSS: Correct. There will be no claims about
     punishment phase at the trial, Your Honor.
            MR. SHAUGNESSY: One thing, Your Honor, I’ve had this
     happen on prior occasions, no disrespect to Mr. Gross, but I think
     due to the nature of the waiver I’d like to get that from Mr. Paredes
     himself, if the Court would be so accommodating. I think it’s a
     sufficient amount of magnitude---
            MR. GROSS: That’s fine, Judge.
          MR. SHAUGHNESSY: ---in the aspect of the waiver I think
     Mr. Paredes should be admonished regarding precisely what he’s
     waiving in this regard.
           THE COURT: Do you want that oral, right now?
          MR. SHAUGHNESSY: I would appreciate it if you could,
     Your Honor.
           THE COURT: Mr. Paredes, you understood what your
     attorney just said?
           [PAREDES]: I understood exactly everything he said. I’m
     aware of that, and I’m waiving it.
           THE COURT: You’re waiving it. And you’re sure about that?
           [PAREDES]: I’m sure about it.
     After a short recess, the court again sought confirmation of Paredes’s
understanding of his waiver.
           THE COURT: Okay. So --- I’m sorry. Let me ask you again,
     Mr. Paredes, you’re sure that you want---you don’t want to proceed
     with that?
           [PAREDES]: I don’t want to raise no mitigation evidence at
     all.
           MR.SHAUGHNESSY: Well, really, Your Honor, the claim--
     -the assertion that is being waived, and I’d like clarification on, is
     whether he wants to waive the claim that his lawyers were
     ineffective for not putting on certain evidence.
                                      25
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                                       No. 14-51160
              THE COURT: Oh, I see.
              MR. SHAUGHNESSY: That’s really what—that’s what’s
       being waived, the claim, not the putting on of the evidence now.
       It’s the failure on the part of his lawyers previously that he’s now
       waiving. I think that is what has to be clarified.
              THE COURT: Okay. So, Mr. Paredes, are you saying—
              [PAREDES]: Can you give me a minute to—
              THE COURT: Oh, sure. Sure. You take your time.
              [PAREDES]: Your Honor?
              THE COURT: Yes, sir.
              PAREDES: We’re waiving the one for the punishment phase
       but not the guilt/innocence. 104
       The state habeas court had ample opportunity to observe Paredes and
form an opinion as to his competency to waive an argument. 105 The state
habeas judge had also served as the trial judge. Nothing in the record of the
state habeas hearing indicates that the state habeas court or Gross should
have had a bona fide doubt as to Paredes’s competency.
       During Gross’s cross-examination of Granados, Paredes’s state trial
counsel, Granados testified that Paredes was always helpful and pleasant and
could read and write in English. 106            He noted that, during jury selection,
Paredes would take notes, and counsel would discuss pros and cons with him
before Paredes made the final decision on whether to strike a potential juror. 107
He also stated he believed Paredes was competent, as defined in Chapter 46 in




       104   ROA at 268-72.
       105Mata v. Johnson, 210 F.3d 324, 330 (5th Cir. 2000) (“The opportunity for face-to-
face dialogue between the court and the petitioner and the ability of the court to personally
observe the petitioner is likewise important to the equation.”); see also Drope v. Missouri, 420
U.S. 162, 180 (1975) (“[E]vidence of a defendant’s irrational behavior, his demeanor at trial,
and any prior medical opinion on competence to stand trial are all relevant in determining
whether further inquiry is required . . . .”).
       106   ROA at 252,
       107   ROA at 253.
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                                        No. 14-51160
the Texas Code of Criminal Procedure. 108 He noted he had informed Paredes
of the nature of the offense and the state’s allegations, the state’s burden, and
the potential punishment, including the special issues that would be submitted
to the jury during the punishment phase if he were convicted of capital
murder. 109 He then asserted that Paredes “fully understood the legal as well
as the practical aspects of his situation.” 110 Finally, he indicated Paredes “did
assist us in punishment evidence as far as his background, you know, his
family.” 111     While this evidence obviously speaks to Paredes’s competence at
the time of trial, it supports an inference that neither Gross nor the state
habeas court had reason to doubt Paredes’s competence at the state habeas
hearing.
       Paredes now argues that evidence of his treatment for mental health
issues, if presented to the state habeas court, would have raised a bona fide
doubt as to his competency to waive part of his ineffective-assistance-of-counsel
claim. Paredes asserts that the fact he was prescribed anti-depressant drugs
through the time of his state habeas hearing is evidence enough that he was
suffering from a mental illness and incompetent to make a waiver. 112 But a
review of the Texas Department of Criminal Justice (TDCJ) medical records
indicates otherwise.          After first being arrested, Paredes was prescribed
Doxepin, an anti-depressant, Mellaril, an anti-psychotic, and Xanax, an anti-
anxiety medication. 113          Paredes’s medications sometimes also included




       108   ROA at 253.
       109   ROA at 260.
       110   ROA at 261.
       111   ROA at 264.
       112   Application for COA at 31-32.
       113   ROA at 678.
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                                        No. 14-51160
Thorazine, a different anti-psychotic drug. 114 In April 2004, seven months
prior to his state habeas hearing, Paredes was diagnosed with dysthymic
disorder, a form of depression. 115           But in the months leading up to and
immediately after Paredes’s waiver, he was responding well to his prescription
medications and did not display any sign of mental incompetency. 116                     In
January 2005, the TDCJ determined that Paredes was displaying no further
signs of depression. 117      TDCJ confirmed this diagnosis in March 118 and July
2005 119 and Paredes remained on the same medication plan. Paredes does not
cite to any other evidence that casts a doubt on his mental competency to make
a waiver.       There is no evidence he has even attempted to solicit expert
testimony to demonstrate he was incompetent during the state habeas
proceeding. Therefore, Paredes’s medical history would not have provided
Gross with a bona fide doubt of Paredes’s competency to waive a single
argument in his multi-pronged collateral attack.
      A court must find the waiver to be “knowing and voluntary.” 120 Paredes
does not argue that his waiver was unknowing or involuntary. 121
                                         IV
      Paredes has presented an issue that cannot be considered a successive
motion for habeas corpus relief. He contends that in the wake of the Supreme
Court’s decisions in Martinez and Trevino, his initial federal habeas counsel,


      114   ROA at 675.
      115   ROA at 298.
      116   ROA at 457-516.
      117   ROA at 470.
      118   ROA at 460-464.
      119   ROA at 458.
      120   Godinez, 509 U.S. at 400.
      121   See generally Application for COA at 26-28.
                                              28
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                                        No. 14-51160
Gross, had a conflict of interest because Gross also served as state habeas
counsel.      Gross could not be expected to contend in the federal habeas
proceedings that his performance in the first collateral proceeding (the state
habeas proceeding) was deficient regarding Paredes’s claim that trial counsel
was ineffective in investigating and presenting mitigation evidence. Similarly,
Gross could not be expected to contend in the federal habeas proceedings that
his own investigation and presentation of the ineffective-assistance-of-trial-
counsel claim was deficient. We will assume, without deciding, that Gross did
have a conflict of interest regarding these issues when he acted as federal
habeas counsel.
      The assertion that Paredes’s federal habeas counsel had a conflict of
interest and that Paredes is entitled to reopen the final judgment and proceed
in the federal habeas proceedings with conflict-free counsel is a claim that
there was a defect in the integrity of the federal habeas proceedings. 122 Such
a claim does not assert or reassert claims of error in the state conviction. 123
Allowing Paredes’s motion to proceed as a Rule 60(b)(6) motion is not
inconsistent with 28 U.S.C. § 2244(d). 124
      Federal Rule of Civil Procedure 60(b) states:
      On motion and just terms, the court may relieve a party or its legal
      representative from a final judgment, order, or proceeding for the
      following reasons: (1) mistake, inadvertence, surprise, or excusable
      neglect; (2) newly discovered evidence that, with reasonable
      diligence, could not have been discovered in time to move for a new
      trial under Rule 59(b); (3) fraud (whether previously called
      intrinsic or extrinsic), misrepresentation, or misconduct by an
      opposing party; (4) the judgment is void; (5) the judgment has been
      satisfied, released or discharged; it is based on an earlier judgment


      122   See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
      123   See id. at 535.
      124   See id.
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                                         No. 14-51160
       that has been reversed or vacated; or applying it prospectively is
       no longer equitable; or (6) any other reason that justifies relief. 125
A Rule 60(b)(6) motion “must be made within a reasonable time,” 126 unless good
cause can be shown for the delay. 127 What is considered reasonable will depend
on “the particular facts and circumstances of the case.” 128 However, if the
reason for the motion is “mistake, inadvertence, surprise, or excusable
neglect,” the motion must be made within no more than a year after the entry
of judgment. 129 Additionally, a movant under subsection (6) of Rule 60(b) must
show “‘extraordinary circumstances’ justifying the reopening of a final
judgment.” 130 This court reviews the denial of a Rule 60(b)(6) motion under an
abuse-of-discretion standard. 131




       125   FED. R. CIV. P. 60(b).
       126FED. R. CIV. P. 60(c)(1); accord Gonzalez, 545 U.S. at 535 (“Rule 60(b) contains its
own limitations, such as the requirement that the motion ‘be made within a reasonable
time.’”).
       127In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004) (citing Pryor v. U.S. Postal Serv.,
769 F.2d 281, 287-88 (5th Cir. 1985)).
       128 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) and
Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (“What constitutes ‘reasonable time’
depends on 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.” (internal quotation marks omitted))).
       129   FED. R. CIV. P. 60(c)(1).
       130   Gonzalez, 545 U.S. at 535 (quoting Ackermann v. United States, 340 U.S. 193, 1999
(1950)).
       131  See, e.g., Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011) (“A habeas
petitioner in Hernandez's situation must obtain a COA before he can appeal the denial of a
Rule 60(b) motion, so both the procedural posture of this appeal and our standard of review
remain unchanged. . . . On Hernandez's motion for a COA, then, we must determine whether
a jurist of reason could conclude that the district court's denial of Hernandez's motion was
an abuse of discretion.”); Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013) (“This court
reviews the denial of a Rule 60(b)(6) motion under an abuse of discertion standard.” (citation
omitted)).
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                                         No. 14-51160
                                                    A
       First, the district court determined that Paredes’s motion was not filed
within a reasonable time, as required by Federal Rule of Civil Procedure
60(c)(1). 132 The district court did not abuse its discretion in reaching this
conclusion.
       As the district court noted, the application for habeas relief that was filed
in state court in 2003 set forth a detailed claim that trial counsel was
ineffective in failing to discover and present mitigation evidence during the
penalty phase of the trial. Paredes waived this claim in open court during the
2004 state habeas corpus hearing, after being questioned by the state judge if
he understood what he was waiving. Accordingly, at least by 2004, Paredes
was aware that he had an ineffective-assistance-of-trial-counsel claim
regarding mitigation evidence, that he had waived that claim, and that his
state habeas counsel had participated in that waiver process. He did not seek
different counsel in the federal habeas proceedings.
       The final judgment under challenge in the present proceeding was issued
in 2007. 133 In 2012, the Supreme Court issued its decision in Martinez. 134
Arguably, that decision could have put Paredes on notice that his counsel had
a conflict of interest. However, our court held in Trevino v. Thaler 135 that the
Martinez decision did not apply to the Texas habeas procedure. The Supreme
Court reversed our Trevino decision on May 28, 2013. 136 The Supreme Court’s




       132   FED. R. CIV. P. 60(c)(1).
       133   Paredes v. Quarterman, Civ. No. SA-05-CA-870-FB, 2007 WL 760230, at *1 (Mar.
8, 2007).
       134   Martinez v. Ryan, 132 S.Ct. 1309 (2012).
       135   449 Fed. Appx. 415.
       136   133 S.Ct. 1911 (2013).
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                                      No. 14-51160
decision in Trevino provided the basis for the conflict of interest argument that
Paredes now asserts.
       Paredes argues that Gross remained as his counsel until new counsel
entered an appearance in federal district court in October 2014, and that as
long as Gross continued as Paredes’s counsel, there were no grounds for filing
a Rule 60(b) motion. We disagree. As indicated, at least when the Supreme
Court’s decision in Trevino issued, Paredes had a basis for the contention that
Gross had a conflict of interest. Paredes’s unawareness of the Trevino decision
could be described, at best, as mistake, inadvertence, or excusable neglect in
keeping apprised of the law that pertained to his state conviction. Under Rule
60(b), when there is mistake, inadvertence, or excusable neglect, a Rule 60(b)
motion must be filed within one year after the entry of judgment. By analogy,
even assuming that the first time that Paredes should have been aware of
Gross’s conflict of interest was when Trevino issued, Paredes waited seventeen
months to file his Rule 60(b)(6) motion asserting the conflict of interest.
Paredes contacted conflict-free counsel in June 2014, thirteen months after
Trevino issued. He took no further action, however, until his conflict-free
counsel filed the Rule 60(b)(6) motion four months later in October 2014.
Paredes did not timely file his motion. 137
                                             B
       Even if Paredes’s motion was not untimely, it did not present
extraordinary circumstances, a necessary element for relief under Rule




       137See Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (per curiam) (“[W]e agree
with the district court that Tamayo's claim was not brought within a ‘reasonable time.’ The
Court's opinion in Perkins was issued on May 28, 2013, nearly 8 months ago. Tamayo waited
until January 20, 2014, two days before his scheduled execution, to file [the Rule 60(b)(6)]
motion. The district court did not abuse its discretion in concluding that this was not a
‘reasonable time’ and in denying the motion.”) (footnotes omitted) (citation omitted).
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                                          No. 14-51160
60(b)(6). The Supreme Court has stated that extraordinary circumstances
“will rarely occur in the habeas context.” 138
       As discussed above, Paredes’s claims regarding the performance of his
federal habeas counsel are based on the Supreme Court’s rulings in Martinez
and Trevino. “Under our precedents, changes in decisional law . . . do not
constitute the ‘extraordinary circumstances’ required for granting Rule
60(b)(6) relief.” 139 More specifically, we have held that Martinez and Trevino
are changes in decisional law and do not, by themselves, constitute
“extraordinary circumstances.” 140 This is consistent with the Supreme Court’s
reasoning in Gonzalez v. Crosby. 141 In Gonzalez, a district court had held that
a defendant’s habeas petition was barred by AEDPA’s statute of limitations. 142
After the district court’s judgment was final, the Supreme Court issued a
decision in Artuz v. Bennett, 143 which “showed the error of the District Court’s
statute-of-limitations ruling.” 144 The defendant filed a Rule 60(b) motion to
reopen the judgment denying habeas relief. 145 The Supreme Court held that
the change in the then-prevailing law in the Eleventh Circuit brought about
by the Artuz decision did not constitute “extraordinary circumstances.” 146 The
Supreme Court also remarked that this change in the law “is all the less



       138Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (quoting Ackermann v. United States,
340 U.S. 193, 1999 (1950)).
       139   Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002).
       140Diaz v. Stephens, 731 F.3d 370, 376 (5th Cir. 2013); Adams v. Thaler, 679 F.3d 312,
320 (5th Cir. 2012).
       141   545 U.S. 524, 536 (2005).
       142   Id. at 527.
       143   531 U.S. 4 (2000).
       144   Gonzalez, 545 U.S. at 536.
       145   Id.
       146   Id.
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                                        No. 14-51160
extraordinary in petitioner’s case, because of his lack of diligence in pursuing
review of the statute-of-limitations issue” in an application for a COA or a
petition for rehearing in the Eleventh Circuit. In the present case, Paredes
has exhibited a similar lack of diligence. He certainly knew in 2004 that he
had an ineffective-assistance-of-trial-counsel claim regarding mitigation
evidence. He not only expressly waived that claim in state court, he did not
ask for new counsel in the subsequent federal habeas proceedings, he did not
ask Gross to pursue the question in the federal habeas proceeding, and he
waited until seventeen months after the Trevino decision to attempt to
resurrect the claim.
                                               V
      A stay of execution is an equitable remedy. 147 In deciding whether to
grant a stay, we consider: (1) whether the inmate has made a strong showing
he is likely to succeed on the merits; (2) whether the inmate will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties; (4) where the public interest lies; and (5) the extent to which
the inmate has delayed unnecessarily in bringing the claim. 148
      Two factors weigh heavily against granting a stay of Paredes’s execution.
First, Paredes has not demonstrated any likelihood of success on the merits.
His claims are either barred as successive habeas petitions by § 2254(b) or were
properly denied under Rule 60(b). Second, Paredes delayed too long before
bringing these claims before the court. “Given the State's significant interest
in enforcing its criminal judgments . . . , there is a strong equitable
presumption against the grant of a stay where a claim could have been brought




      147   Nelson v. Campbell, 541 U.S. 637, 649 (2004).
      148   See Nken v. Holder, 556 U.S. 418, 434 (2009); Nelson, 541 U.S. at 649.
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                                        No. 14-51160
at such a time as to allow consideration of the merits without requiring entry
of a stay.” 149 We therefore deny Paredes’s motion for a stay of execution.
                                        *       *          *
      We therefore AFFIRM the district court’s denial of Paredes’s Rule 60(b)
motion and DENY Paredes’s motion to stay. We DENY the application for a
certificate of appealability.




      149   Nelson, 541 U.S. at 650 (citations omitted).
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