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

                                      No. 15-70038
                                                                               Fifth Circuit

                                                                             FILED
                                                                          May 8, 2018

ANTHONY CARDELL HAYNES,                                                 Lyle W. Cayce
                                                                             Clerk
              Petitioner - Appellant

v.

LORIE DAVIS, 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. 4:05-CV-3424


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
       Petitioner Anthony Cardell Haynes appeals the district court’s denial of
his motion for relief from judgment pursuant to Federal Rule of Civil Procedure
60(b). For the reasons stated below, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-70038
                                       I
      Haynes was convicted by a jury of murdering an off-duty police officer
and sentenced to death. He was denied state habeas relief in 2004 and federal
habeas relief in 2007. In Haynes’ initial federal habeas petition, he contended
that his trial counsel was constitutionally deficient under Strickland v.
Washington, 466 U.S. 668 (1984) and Wiggins v. Smith, 539 U.S. 510 (2003),
because counsel failed to investigate and present available mitigating evidence
at the penalty phase of his capital trial. Haynes also alleged that his state
habeas counsel was ineffective, in part because counsel neglected to present
several meritorious constitutional claims on appeal. The district court found
that Haynes’ claims—including the relevant ineffective assistance of trial
counsel (“IATC”) claims—were unexhausted and procedurally barred; the
district court alternatively rejected his claims on the merits. This court
ultimately denied Haynes’ appeal, see Haynes v. Thaler, 438 F. App’x 324 (5th
Cir. 2011), the Supreme Court denied certiorari review, see Haynes v. Thaler,
566 U.S. 964 (2012), and the state set his execution date for October 18, 2012.
      Haynes proceeded to file a motion for relief from judgment in the district
court pursuant to Rule 60(b)(6). He claimed that the Supreme Court’s decision
in Martinez v. Ryan, 566 U.S. 1 (2012)—which held that inadequate assistance
of counsel at state collateral proceedings may establish cause for procedural
default of an IATC claim—constituted an “extraordinary circumstance”
warranting relief from judgment. The district court denied the motion on
several bases: (1) based on Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012), the
equitable exception announced in Martinez did not apply to Texas prisoners;
(2) Martinez was merely a change in law and did not constitute an
“extraordinary circumstance”; (3) relief was unnecessary because Haynes’
IATC claims had actually been adjudicated—and rejected—on the merits; and
(4) even if Martinez was applicable, Haynes could not demonstrate “actual
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                                  No. 15-70038
prejudice” arising from his state habeas counsel’s failure to raise his IATC
claim on collateral review.
      This court denied Haynes’ application for a certificate of appealability
and his motion for a stay of execution, agreeing with the district court that
Ibarra controlled. See Haynes v. Thaler, 489 F. App’x 770 (5th Cir. 2012). The
Supreme Court ultimately granted Haynes a stay of execution. See Haynes v.
Thaler, 568 U.S. 970 (2012). Following its decision in Trevino v. Thaler, 569
U.S. 413 (2013)—which held that Martinez does in fact apply to Texas
prisoners—the Supreme Court vacated and remanded the case, and this court
remanded to the district court for reconsideration of Haynes’ Rule 60(b) motion
in light of Trevino. The district court again denied Haynes’ motion, standing
by its three alternative, and independently adequate, grounds for rejecting
Haynes’ claims: (1) the change in decisional law does not, by itself, constitute
an “extraordinary circumstance” warranting relief; (2) the court had already
considered the underlying merits of Haynes’ claims and found no basis for
relief; and (3) Haynes failed to demonstrate actual prejudice stemming from
state habeas counsel’s failure to raise his IATC claim. This appeal follows.
                                        II
      This court reviews a denial of a Rule 60(b) motion for abuse of discretion.
Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013). Under this standard, “[i]t
is not enough that the granting of relief might have been permissible, or even
warranted[—]denial must have been so unwarranted as to constitute an abuse
of discretion.” Id. (quoting Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th
Cir. 1981)).
                                       III
      Rule 60(b) provides generally that the court may relieve a party from a
final judgment, order, or proceeding in the event of obvious error such as
mistake or inadvertence, newly discovered evidence, or fraud. See Fed. R. Civ.
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                                  No. 15-70038
P. 60(b)(1)–(3). Rule 60(b)(6), often referred to as the “catchall” provision, also
permits the court to relieve a party from judgment for “any other reason that
justifies relief.” Fed. R. Civ. P. 60(b)(6). This court has cautioned, however, that
“[t]he desire for a judicial process that is predictable mandates caution in
reopening judgments.” Carter v. Fenner, 136 F.3d 1000, 1007 (5th Cir. 1998)
(quoting Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990)).
Accordingly, relief under Rule 60(b)(6) is only appropriate upon a showing of
“extraordinary circumstances.” Rocha v. Thaler, 619 F.3d 387, 400 (5th Cir.
2010). The Supreme Court has stated that “[s]uch circumstances will rarely
occur in the habeas context.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
Furthermore, a change in decisional law does not, on its own, constitute an
“extraordinary circumstance” warranting relief from judgment. Adams v.
Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (citing Bailey, 894 F.2d at 160); see
also Gonzalez, 545 U.S. at 536. “[T]his rule applies with equal force in habeas
proceedings under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”).” Adams, 679 F.3d at 320 (internal quotations omitted).
      In Buck v. Davis, the Supreme Court explained that in determining
whether a petitioner has demonstrated “extraordinary circumstances,” courts
may consider a “wide range of factors,” which may include “‘the risk of injustice
to the parties’ and ‘the risk of undermining the public’s confidence in the
judicial process.’” 137 S. Ct. 759, 778 (2017) (quoting Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 864 (1988)). This court has articulated
a number of equitable factors relevant to the Rule 60(b) inquiry:
       (1) That final judgments should not lightly be disturbed; (2) that
       the Rule 60(b) motion is not to be used as a substitute for appeal;
       (3) that the rule should be liberally construed in order to achieve
       substantial justice; (4) whether the motion was made within a
       reasonable time; (5) whether if the judgment was a default or a
       dismissal in which there was no consideration of the merits the
       interest in deciding cases on the merits outweighs, in the
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                                  No. 15-70038
        particular case, the interest in the finality of judgments, and
        there is merit in the movant's claim or defense; (6) whether if
        the judgment was rendered after a trial on the merits the
        movant had a fair opportunity to present his claim or defense;
        (7) whether there are intervening equities that would make it
        inequitable to grant relief; and (8) any other factors relevant to
        the justice of the judgment under attack.

Seven Elves, 635 F.2d at 402. Though we have never explicitly held that the
“Seven Elves factors” bear on the extraordinary circumstances analysis under
Rule 60(b)(6) specifically, we have used them as a guide in evaluating the
strength of a motion brought pursuant to Rule 60(b)(6). See, e.g., Diaz, 731 F.3d
at 377 (stating that “[w]e will assume arguendo that Seven Elves may have
some application in the Rule 60(b)(6) context”); Matter of Al Copeland Enters.,
Inc., 153 F.3d 268, 272 (5th Cir. 1998) (noting that several Seven Elves factors
weighed in favor of sustaining the lower court’s grant of the party’s Rule
60(b)(6) motion).
       We have recognized, however, that “in the context of habeas law, comity
and federalism elevate the concerns of finality, rendering the 60(b)(6) bar even
more daunting.” Diaz, 731 F.3d at 376 n.1. Furthermore, while the viability of
a petitioner’s underlying constitutional claim may be tangentially relevant to
the Rule 60(b) analysis, see, e.g., Buck, 137 S. Ct. at 778, the Rule may not be
used to attack “the substance of the federal court’s resolution of a claim on the
merits.” Gonzalez, 545 U.S. at 532 (emphasis added); see also Adams, 679 F.3d
at 319. Such motions constitute improper successive habeas petitions under
AEDPA. Id. Instead, Rule 60(b) motions must allege “some defect in the
integrity of the federal habeas proceedings,” Gonzalez, 545 U.S. at 532, and
may     challenge   only   erroneous   rulings   “which     precluded   a    merits
determination[—]for example, a denial for such reasons as failure to exhaust,
procedural default, or statute-of-limitations bar,” id. at n. 4.


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                                      No. 15-70038
       Haynes acknowledges that the change in decisional law effectuated by
Martinez and Trevino is insufficient, on its own, to demonstrate “extraordinary
circumstances.” He maintains, however, that the balance of individual equities
this court considers when reviewing a Rule 60(b) motion weighs in his favor.
The gravamen of Haynes’ argument is that, because he has demonstrated that
he has a substantial IATC claim and that his state habeas counsel was
deficient in failing to raise it, he has established “extraordinary circumstances”
warranting relief from judgment. We disagree.
       First, whether “there is merit in [Haynes’] claim” only becomes a
relevant factor in the Rule 60(b) analysis if “there was no consideration of the
merits” below. Seven Elves, 635 F.2d at 402. Here, the district court reviewed
the merits of Haynes’ underlying IATC claim on multiple occasions.
Furthermore, as the district court has repeatedly noted, the merits of Haynes’
IATC claim are not particularly compelling. 1 Despite Haynes’ efforts to
demonstrate the contrary, the record indicates that Haynes’ trial counsel was
more than adequate and that counsel’s penalty-phase investigation was
sufficiently diligent. See Wiggins, 539 U.S. at 522–23. The thrust of Haynes’
argument seems to be that there may have been a better mitigation strategy
available to defense counsel. But this amounts to no more than a claim that a
different strategy could have been “more effective,” which falls far short of the
required showing that “but for counsel’s errors, the result of the proceeding
would have been different.” Coble v. Quarterman, 496 F.3d 430, 436 (5th Cir.
2007). Accordingly, even if we were to agree with Haynes that he has raised a



       1 Although we touch briefly on the merits of Haynes’ IATC claim, as they are arguably
relevant to our “extraordinary circumstances” analysis, we are precluded from conducting a
comprehensive merits review. Gonzalez, 545 U.S. at 532; see also Adams, 679 F.3d at 319.
Haynes’ Rule 60(b) motion may not be used to attack the substance of the district court’s
resolution of Haynes’ IATC claim on the merits or to circumvent the requirements imposed
by AEDPA. Gonzalez, 545 U.S. at 532.
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                                  No. 15-70038
colorable claim with respect to the adequacy of his state habeas counsel, he
would still be unable to claim the benefit of Martinez and Trevino. See
Martinez, 566 U.S. at 14 (stating that “to overcome [] default, a prisoner must
also demonstrate that the underlying [IATC] claim is a substantial one”).
      The balance of the remaining equitable factors also weighs against
granting relief under Rule 60(b)(6). In addition to considering whether the
district court conducted a merits review, we also take into account the fact that
“final judgments should not be lightly disturbed” and that “the Rule 60(b)
motion is not to be used as a substitute for appeal.” Seven Elves, 635 F.2d at
402. Again, finality is a particularly strong consideration in the habeas context.
See Diaz, 731 F.3d at 376 n. 1. Haynes was convicted by a jury in state court
nearly twenty years ago. He has been litigating his claims in federal court for
over a decade, and this case has gone through multiple cycles of review. As the
court stated in Diaz, the “State’s strong interest in the finality of [Haynes’]
conviction and sentence[] and the delay that will undoubtedly result from
reopening this long-closed case all weigh in favor of denying [his] Rule 60(b)(6)
motion.” Id. at 378. Moreover, to the extent that the underlying purpose of
Haynes’ motion is to force this court to review the merits of his IATC claim, he
is impermissibly using Rule 60(b)(6) as a “substitute for appeal.” Seven Elves,
635 F.2d at 402. Haynes has already received a more in-depth merits review of
his claims than he was likely entitled from the district court, and his Rule
60(b)(6) motion is an improper vehicle for relitigating them.
      In sum, Haynes has not demonstrated “extraordinary circumstances”
warranting relief from judgment. The district court did not abuse its discretion
in denying his Rule 60(b)(6) motion.
                                       IV
      For the foregoing reasons, we AFFIRM.


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                                  No. 15-70038
JAMES L. DENNIS, Circuit Judge, dissenting:
      At the time of the capital crime in question, Anthony Haynes was
nineteen years old, had no prior criminal record, and was apparently under the
influence of drugs. At the punishment phase of his capital trial, Haynes was
deprived of the opportunity to present his best defense. Haynes was deprived
of the opportunity to raise his ineffective assistance of trial counsel claim in
state court by what appears to have been egregiously deficient post-conviction
counsel. And he was deprived of federal review of his claim by a procedural
bar that the Supreme Court has since expressly lifted. The majority opinion
now refuses to allow Haynes’s claim to go forward, on the theory that Haynes’s
claim lacks merit and that, in any event, he has already had a fair shot at
litigating it. Because I believe that Haynes presents a substantial ineffective-
assistance-of-trial-counsel claim that has never been properly considered and
that the district court abused its discretion in failing to reopen his case, I
respectfully dissent.
                                       *
      Haynes’s claim is before us on appeal from the denial of a motion for
relief from judgment under Federal Rule of Civil Procedure 60(b)(6), which
requires   Haynes       to   demonstrate   the   presence     of   “extraordinary
circumstances.”   See Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).            “In
determining whether extraordinary circumstances are present, a court may
consider a wide range of factors. . . . [including] ‘the risk of injustice to the
parties’ and ‘the risk of undermining the public’s confidence in the judicial
process.’” Buck v. Davis, 137 S. Ct. 759, 778 (2017) (quoting Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 863–64 (1988)).
      We review a district court’s Rule 60(b) determination deferentially, and
extraordinary circumstances are just that, extraordinary. But that does not
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                                  No. 15-70038
mean that a district court’s discretion is limitless, or that relief is all but
impossible to obtain. See, e.g., Buck, 137 S. Ct. at 778. A district court “must
exercise its discretion within the bounds set by . . . relevant, binding
precedents.” In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008).
Such relevant, binding precedents here include Osborne v. Homeside Lending,
Inc. (In re Osborne), 379 F.3d 277, 283 (5th Cir. 2004), which directs that
circumstances supporting Rule 60(b) relief “must necessarily be evaluated on
a case-by-case basis”; Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.
1981), which provides a non-exclusive list of factors to be considered in
balancing the equities of a Rule 60(b) motion, including whether a claim is
substantial, yet previously unreviewed; and Gonzalez v. Crosby, 545 U.S. at
537, which recognizes the salience of diligence to Rule 60(b) motions that are
premised, in part, on a change in decisional law. In this case, the district court
failed to consider all of the relevant factors and misevaluated the factors it did
consider. While the majority opinion at least places this case in the proper
framework, it stumbles in its assessment of significant factors.
      Initially, it is important to keep in mind that this case is before us
because Haynes’s claim was denied merits review by a procedural bar that was
lifted shortly after final judgment was entered in his federal habeas case.
Through its decisions in Martinez v. Ryan, 566 U.S. 1, 17 (2012), and
Trevino v. Thaler, 569 U.S. 413, 429 (2013), the Supreme Court made it
possible for a petitioner like Haynes to present his procedurally-barred
ineffective-assistance-of-trial-counsel claim if his claim is “substantial” and if
his state habeas counsel was ineffective in failing to bring the claim. See
Trevino, 569 U.S. at 429; Martinez, 566 U.S. at 17. In so doing, the Court
effected a remarkable sea change in decades-old precedent that lower courts
and litigants previously understood as settled. See Martinez, 566 U.S. at 15;
id. at 23 (Scalia, J., dissenting) (noting that Martinez is “a repudiation of the
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                                 No. 15-70038
longstanding principle governing procedural default, which Coleman and other
cases consistently applied”); id. at 2 (describing Martinez as “a radical
alteration of our habeas jurisprudence”). The change adopted in Martinez and
expanded in Trevino “was also important, crafted, as it was, to ensure that
fundamental constitutional claims receive review by at least one court.” Cox
v. Horn, 757 F.3d 113, 124 (3d Cir. 2014). Though not alone an “extraordinary
circumstance” warranting Rule 60(b) relief, this significant change in habeas
jurisprudence provides an important baseline for our review of Haynes’s
particular circumstances.
      The majority opinion insists that “the district court reviewed the merits
of Haynes’ underlying IATC claim on multiple occasions.” Op. at 6. But, as I
have previously noted, though purporting to address the merits, the district
court’s opinion denying Haynes habeas relief entirely failed to engage with the
specifics of Haynes’s ineffective-assistance-of-counsel claim. See Haynes v.
Stephens, 576 F. App’x 364, 366 (5th Cir. 2014) (Dennis, J. concurring). The
district court addressed Haynes’s fact-intensive claim in three sentences:
      [A]s noted by respondent, Haynes’ argument is essentially “not
      that counsels’ performance should have been better, rather, his
      argument is that counsel should have investigated and presented
      evidence at the punishment phase in a completely different
      manner.” The record indicates that the defense counsel (as well as
      the prosecution and trial court) went to great lengths to ensure
      that Haynes’ constitutional rights were protected and viable
      defenses pursued. Haynes’ allegations do not show flagrant
      omissions by the players involved in his trial; rather, they merely
      demonstrate the exercise of strategy and typify the maxim that
      “the Constitution entitles a criminal defendant to a fair trial, not
      a perfect one.”

Haynes v. Quarterman, No. H-05-3424, 2007 WL 268374, at *9 (S.D. Tex. Jan.
25, 2007) (citations omitted). The Supreme Court has rejected a similarly



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                                       No. 15-70038
cursory alternative holding as insufficient to constitute review on the merits.
Cone v. Bell, 556 U.S. 449, 474–75 (2009).
       And even if the district court had engaged in some meaningful merits
review, Haynes did not receive full consideration of his claim because, although
he sought to appeal the district court’s merits holding, this court did not grant
review of that issue, instead denying a certificate of appealability on the
ground that it was procedurally barred. See Haynes v. Quarterman, 526 F.3d
189, 194–96 (5th Cir. 2008). “A party who seeks review of the merits of an
adverse ruling, but is frustrated by the vagaries of circumstance, ought not in
fairness be forced to acquiesce” to that ruling. See U.S. Bancorp Mortg. Co. v.
Bonner Mall Pshp., 513 U.S. 18, 25 (1994). Indeed, when a district court’s
judgment is based on alternative holdings and this court addresses only one of
these holdings on appeal, the district court’s ruling is only conclusive as to that
holding. See Borst v. Chevron Corp., 36 F.3d 1308, 1314 n.11 (5th Cir. 1994)
(“Because we do not consider whether or not a partial vertical (or horizontal)
termination occurred, the district court’s ruling on this issue is not conclusive
between the parties.”); Dow Chem. v. EPA, 832 F.2d 319, 323 (5th Cir. 1987)
(“The federal decisions agree that once an appellate court has affirmed on one
ground and passed over another, preclusion does not attach to the ground
omitted from its decision.”) (quoting 18 CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE & PROCEDURE § 4421 (1981)). Because the final judgment
as to Haynes’s ineffective-assistance-of-counsel claim rested solely on
procedural grounds, the majority opinion’s suggestion that our current review
is constrained by 28 U.S.C. § 2244, which applies when a claim has been
adjudicated on its merits, is unfounded. 1


       1 Nor was the district court’s cursory discussion of the merits at the Rule 60(b) phase
a sufficient merits review. In Buck v. Davis, the Supreme Court held that the district court
abused its discretion by declining to reopen a petitioner’s case, notwithstanding the Court’s
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                                      No. 15-70038
       The majority opinion further errs by dismissing Haynes’s claim as “not
particularly compelling.” See Op. at 6. This conclusion is tenable only if, like
the district court and the majority opinion, one does not actually engage with
the specifics of Haynes’s ineffective-assistance claim. 2             In support of his
contention that trial counsel’s penalty-phase investigation and presentation
were unconstitutionally deficient, Haynes relies on the report of a mitigation
specialist who opines that counsel’s investigation was extremely limited in
depth and breadth as a function of its unreasonably late start. He also points
to significant mitigation evidence amassed by federal post-conviction counsel,
which trial counsel either did not discover, did not present, or both. Haynes’s
evidence supports a substantial claim both that trial counsel’s penalty phase
performance was deficient and that the deficiency prejudiced him.
       Haynes confessed, on tape, to shooting the victim with the belief that he
was a police officer. Faced with a strong case for Haynes’s guilt of capital
murder, part of counsel’s defense was that Haynes may have “believed” that
the victim was a police officer, but did not “know” that this was true. Because
their guilt-phase argument was unlikely to be successful, reasonable counsel
would have begun to focus on the penalty phase early on.                    Cf. Walbey v.
Quarterman, 309 F. App’x 795, 801 (5th Cir. 2009) (“Given the Texas law
establishing that the facts of [defendant’s] crime are themselves legally
sufficient to support a finding of future dangerousness, the virtually impossible




observation that the district court had discussed the merits of the claim in its Rule 60(b)
order. 137 S. Ct. at 772, 778. In any event, the district court’s alternative holdings have
again deprived Haynes of appellate review of this issue.
       2 The majority opinion contends that “we are precluded from conducting a

comprehensive merits review.” Op. at 6. Neither Gonzalez v. Crosby, 545 U.S. 524 (2005),
nor Adams v. Thaler, 679 F.3d 312 (5th Cir. 2012), supports this assertion. However, I do
agree that it is not our task at this stage to decide whether Haynes has a meritorious claim,
only whether the merits of his claim are substantial.
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                                  No. 15-70038
battle that [counsel] faced on future dangerousness makes all the more
unreasonable [his] failure to investigate a mitigation defense thoroughly.”).
      Yet the record reflects that counsel delayed psychological evaluations
until after the trial had begun. Given Haynes’s history of significant mental-
health interventions, of which competent counsel should have been aware,
counsel should not have waited until the last minute to solicit expert
evaluations. Cf. Escamilla v. Stephens, 749 F.3d 380, 386, 392 (5th Cir. 2014)
(granting COA on plaintiff’s ineffective-assistance-of-counsel claim where
counsel, inter alia, “failed to obtain a psychological evaluation for their client
until after trial began”); Busby v. Davis, 677 F. App’x 884, 886, 893 (5th Cir.
2017) (holding that reasonable jurists could debate whether habeas petitioner
had presented a viable ineffective-assistance-of-counsel claim where counsel
“waited approximately nineteen months to assemble a mitigation investigation
team[,] hired a mitigation specialist days before voir dire,” and hired a mental-
health expert a week after voir dire started). According to Haynes’s post-
conviction expert, mental-health professionals would not have had sufficient
time to make a reasonable assessment within the timeframe counsel’s tardy
investigation allowed. Unsurprisingly, then, the trial experts’ reports were
unhelpful, and extensive mental-health evidence presented by the State went
unchallenged and uncontextualized.
      Moreover, counsel waited until shortly before trial to conduct most lay-
witness interviews. When they finally did begin their investigation, they failed
to speak to multiple character witnesses suggested by Haynes’s parents and
turned away witnesses who reached out to them.           Several witnesses who
testified at trial claimed that counsel did not properly prepare them. Trial
counsel presented only a handful of mitigation witnesses, some of whom did
not seem to know Haynes well.


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                                  No. 15-70038
      By contrast, federal habeas counsel has presented affidavits from dozens
of Haynes’s friends, family, and acquaintances, representing a veritable cross-
section of Haynes’s community. Affidavits from two of Haynes’s ex-girlfriends,
in addition to affirming Haynes’s good character, describe how upset and
remorseful Haynes was after the shooting. Other affidavits attest that Haynes
was a “good kid” and “very respectable,” that he was not violent, and that he
was not likely to be a future danger. Several affidavits state that Haynes was
not hostile toward authority figures or police officers.      An affidavit from
Haynes’s teacher avers that Haynes was among the best students in his
school’s ROTC program. There is no basis in this record to conclude that
counsel’s failure to present these witnesses resulted from a strategic decision
when their principal mitigation theory seems to have been that Haynes was a
good kid. Rather, trial counsel’s mitigation presentation appears to have been
needlessly and inexplicably meager.
      In addition, federal habeas counsel has presented evidence of Haynes’s
history of mental-health problems and Attention Deficit Hyperactivity
Disorder, Haynes’s drug use at the time of the murder, and his low risk of
future violence. Because of their late and limited investigation, trial counsel
failed to present this evidence, which would have augmented Haynes’s case for
a life sentence in multiple, significant ways, presenting a stronger case for both
mitigation and a lack of future dangerousness.
      Additional details of Haynes’s childhood would have shown a more
complete picture of chaos and abuse, undercutting the idea that Haynes had a
privileged upbringing—one of the principal themes of the prosecution’s
penalty-phase case. Cf. Sears v. Upton, 561 U.S. 945, 951 (2010) (“[E]vidence
[of a personality disorder] might not have made Sears any more likable to the
jury, but it might well have helped the jury understand Sears, and his
horrendous acts—especially in light of his purportedly stable upbringing.”).
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                                  No. 15-70038
The evidence would have presented a stronger case that Haynes was
distraught and immediately remorseful after the murder, countering another
one of the prosecution’s principal themes.
      A robust mitigation presentation would also have revealed that Haynes
was predisposed to addiction and likely high on methamphetamine on the
night in question, presenting a much stronger argument to support trial
counsel’s theory that Haynes was a fundamentally good person whose night of
violent crime was influenced by drug dependency and intoxication. See Cone,
556 U.S. at 475 (vacating decision that ignored that substance addiction may
be mitigating even if it is not exculpatory); cf. Williams v. Taylor, 529 U.S. 362,
398 (2000) (evidence that defendant’s “violent behavior was a compulsive
reaction rather than the product of cold-blooded premeditation” weighed in
favor of prejudice). It would also have explained the interrelation of Haynes’s
home life, mental-health problems, behavioral problems, and substance-abuse
problems, with likely repercussions for the jury’s assessment of Haynes’s moral
blameworthiness. See Sears, 561 U.S. at 951. Additional evidence would have
“humanize[d]” Haynes by showing how many people in his life thought of him
as a good person: As the affidavits of over forty lay witnesses show, he was well
liked by his family members, friends, acquaintances, and teachers. See Neal
v. Puckett, 286 F.3d 230, 244 (5th Cir. 2002) (en banc) (undiscovered evidence
that defendant had people in his life who saw his worth contributed to finding
of prejudice). Furthermore, it would have provided the jury with a better
framework for assessing Haynes’s risk of future violence in prison, which was
likely to be low given Haynes’s good behavior in institutional settings and the
fact that experts thought the structure of prison would abate the risk of
violence.
      The majority opinion once again misrepresents the relevant legal
standard by suggesting that Haynes must establish that counsel’s deficient
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                                  No. 15-70038
performance necessarily altered the outcome of his case. See Op. at 6. In fact,
Haynes’s ultimate burden is only to show “a probability sufficient to undermine
confidence in that outcome.”     Porter v. McCollum, 558 U.S. 30, 44 (2009)
(cleaned up). And his only burden at this stage is to show that his claim is
substantial. See Martinez, 566 U.S. at 14; Seven Elves, 635 F.2d at 402.
      “Capital punishment must be limited to those offenders who commit a
narrow category of the most serious crimes and whose extreme culpability
makes them the most deserving of execution.” Roper v. Simmons, 543 U.S.
551, 568 (2005) (cleaned up). Before the night of the offense, Haynes had no
criminal record, let alone one that would portend a capital offense. Given the
relatively limited case in aggravation, which mainly included Haynes’s actions
the night of the murder and evidence of his mental-health problems, this was
a case in which presentation of the available mitigation evidence was very
likely to persuade at least one juror that Haynes was not “deserving of
execution.” See id. In sum, Haynes has made a substantial showing with
respect to the merits of his claim.
      In light of the above, a proper balancing of equitable factors weighs in
favor of Rule 60(b) relief: for reasons already established, Haynes’s claim is
substantial yet unreviewed; his “motion was made within a reasonable time,”
just months after the landmark decision in Martinez lifted the procedural bar
to his claim; and Rule 60(b) “should be liberally construed in order to achieve
substantial justice,” here, ensuring that a death penalty petitioner’s
substantial ineffective assistance of trial counsel claim has been considered.
See Seven Elves, 635 F.2d at 402.
      The majority opinion repeatedly cites to finality interests, but this
cannot overcome the strong showing in favor of reopening Haynes’s case. The
majority opinion cites Diaz v. Stephens, 731 F.3d 370 (5th Cir. 2013), for the
proposition that “in the context of habeas law, comity and federalism elevate
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                                 No. 15-70038
the concerns of finality, rendering the 60(b)(6) bar even more daunting.” But,
as is clear from that opinion, the quoted language is a statement by one judge
only, not joined by the other panel members. See id. at 376 n.1 (statement of
Jones, J.) (“Judge Jones notes that . . . . in the context of habeas law, comity
and federalism elevate the concerns of finality, rendering the 60(b)(6) bar even
more daunting.”). In any case, whatever weight this statement might carry is
strongly tempered by the Supreme Court’s recent rejection of the notion that
finality is the overriding concern when assessing Rule 60(b) motions in habeas
cases. Buck, 137 S. Ct. at 779. As the Court explained, “the whole purpose of
Rule 60(b) is to make an exception to finality.” Id. (cleaned up).
      I would add that the whole purpose of federal habeas review is to make
an exception to finality.    Indeed, in this context, our duty to search for
constitutional error is at its apex. See Burger v. Kemp, 483 U.S. 776, 785 (1987)
(“Our duty to search for constitutional error with painstaking care is never
more exacting than it is in a capital case.”). I believe Haynes’s claim deserves,
but has not received, close consideration. I would hold that the district court’s
ruling constituted an abuse of discretion and remand for plenary consideration
of the merits of his claim. For these reasons, I respectfully dissent.




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