     Case: 15-70006      Document: 00513001204         Page: 1    Date Filed: 04/10/2015




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

                                      No. 15-70006
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                                April 10, 2015

ROBERT LYNN PRUETT,                                                            Lyle W. Cayce
                                                                                    Clerk
              Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:06-CV-465


Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
       Robert Pruett was sentenced to death for capital murder in Texas and is
scheduled to be executed on April 28, 2015. The district court granted a
Certificate of Appealability (COA) authorizing Pruett to appeal the denial of
his motion for relief under Federal Rule of Civil Procedure 60(b)(6). For the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-70006      Document: 00513001204      Page: 2   Date Filed: 04/10/2015



                                   No. 15-70006
reasons that follow, we hold that the district court did not abuse its discretion
and AFFIRM its denial of Rule 60(b) relief.
                                         I.
      In 2002, Pruett was sentenced to death for the murder of Texas
Department of Criminal Justice Correctional Officer Daniel Nagle, which he
committed while serving a life sentence for a prior murder. The Texas Court
of Criminal Appeals (TCCA) affirmed his conviction and sentence on direct
appeal. Pruett v. State, No. 74,370, 2004 WL 3093232 (Tex. Crim. App. 2004).
Pruett did not file a petition for a writ of certiorari.
      On May 30, 2002, Richard Rogers was appointed to represent Pruett in
state habeas proceedings. In his state habeas application, Pruett claimed that
his trial counsel rendered ineffective assistance by failing to investigate and
present mitigating evidence to the jury. The state habeas trial court held an
evidentiary hearing and recommended that Pruett’s conviction be set aside
with respect to two claims, but recommended denial of all of his other claims.
The state habeas trial court rejected Pruett’s ineffective assistance of trial
counsel (IATC) claim on the ground that Pruett did not specify what mitigating
evidence his trial counsel should have presented. The TCCA adopted the trial
court’s findings and conclusions, with the exception of those in which the trial
court recommended granting relief. Ex parte Pruett, 207 S.W.3d 767 (Tex.
Crim. App. Oct. 19, 2005).
      Although Pruett requested new counsel in federal court, the district
court appointed Rogers, who had represented Pruett in the state habeas
proceedings, to represent Pruett in federal court. Rogers filed a federal habeas
petition on behalf of Pruett, raising an IATC claim identical to the one he
presented in the state habeas proceedings. The district court denied relief on
the ground that Pruett had failed to identify any specific mitigating evidence
that should have been presented or would have been discovered had trial
                                          2
    Case: 15-70006     Document: 00513001204     Page: 3   Date Filed: 04/10/2015



                                  No. 15-70006
counsel performed the mitigation investigation Pruett asserted they should
have performed. The district court denied relief but granted a COA on two
issues. Pruett v. Thaler, No. C-06-CA-465-H (S.D. Tex., Aug. 12, 2010). This
Court affirmed the district court’s denial of relief and denied Pruett’s request
to expand the grant of a COA. Pruett v. Thaler, 455 F. App’x 478, 487, 490-91
(5th Cir. 2011), cert. denied, 133 S. Ct. 141 (2012).
      In 2012, the Supreme Court held in Martinez v. Ryan, 132 S. Ct. 1309
(2012), that ineffective assistance of state habeas counsel can constitute cause
to excuse the procedural default of an ineffective-assistance-of-trial-counsel
claim. Our Court held in Ibarra v. Thaler, 691 F.3d 677 (5th Cir. 2012), that
Martinez does not apply in Texas cases. On May 28, 2013, the Supreme Court
disagreed with our ruling in Ibarra and held that Martinez does apply in Texas
cases. Trevino v. Thaler, 133 S. Ct. 1911 (2013).
      On March 28, 2013, Pruett’s current counsel filed a motion to substitute
as counsel in place of Rogers. The district court granted the motion that same
day. Throughout April and May 2013, Pruett’s new counsel performed an
investigation and obtained affidavits in support of an amended IATC claim
based on trial counsel’s failure to investigate and present mitigating evidence
at the punishment phase of his capital murder trial. Pruett’s execution was
scheduled for May 2013, but that execution date was withdrawn to allow DNA
testing pursuant to an agreed motion filed by the State and Pruett.        At the
conclusion of the DNA testing, the trial court found that it was “not reasonably
probable that [Pruett] would have been acquitted had the new results been
available at trial.” Pruett v. Texas, No. AP-77,037 (Tex. Crim. App. Oct. 22,
2014) (unpublished order). The TCCA affirmed. Id. The Supreme Court
denied Pruett’s petition for a writ of certiorari on March 30, 2015. Pruett v.
Texas, No. 14-8097, 2015 WL 302598 (U.S. Mar. 30, 2015).


                                        3
    Case: 15-70006    Document: 00513001204      Page: 4   Date Filed: 04/10/2015



                                 No. 15-70006
      On July 8, 2014, while the DNA proceedings were pending in state court,
Pruett’s counsel filed a subsequent state habeas application claiming that trial
counsel were ineffective for failing to adequately investigate and present
mitigating evidence. That application remained pending in the state court
until December 10, 2014, when the TCCA dismissed it as an abuse of the writ.
Ex parte Pruett, No. 62,099-02 (Tex. Crim. App. Dec. 10, 2014).           Pruett’s
petition for a writ of certiorari is pending in the Supreme Court. Pruett v.
Texas, No. 14-8837 (2015). Pruett also filed in the TCCA a motion for leave to
file a petition for a writ of prohibition. That motion remains pending.
      On January 6, 2015, more than four years after the entry of judgment
denying federal habeas relief, Pruett filed in the district court the motion for
relief from the judgment under Federal Rule of Civil Procedure 60(b)(6) that is
now on appeal before this Court. In the Rule 60(b)(6) motion, he sought to
present the IATC claim that he had presented in his subsequent state habeas
application. Pruett alleged that his previous attorney, Richard Rogers, failed
to properly present the IATC claim in his federal habeas petition because of a
conflict of interest stemming from Rogers’s representation of Pruett in both the
state and federal habeas proceedings.       Pruett argued that if he had been
represented in federal court by someone other than Rogers, that attorney could
have argued that Rogers rendered ineffective assistance in the state habeas
proceedings, which would have excused the default of any new evidence that
was not presented to the state court in support of his IATC claim. Pruett
argued that the failure to appoint the conflict-free counsel he requested at the
outset of federal habeas proceedings, coupled with the likelihood that doing so
would have enabled new counsel to develop and present the amended IATC
claim he sought to raise and have the claim and all the supporting evidence
considered by the federal courts, constituted the extraordinary circumstances
necessary to justify relief pursuant to Rule 60(b)(6).
                                        4
    Case: 15-70006      Document: 00513001204   Page: 5   Date Filed: 04/10/2015



                                 No. 15-70006
      The district court held that Pruett’s motion was not filed within a
reasonable time under Rule 60(b)(6). Pruett filed a Federal Rule of Civil
Procedure 59(e) motion to alter or amend the order denying Rule 60(b) relief.
The district court denied the Rule 59(e) motion, but it granted a COA on the
issue of whether Pruett’s Rule 60(b)(6) motion was filed within a reasonable
time and whether Pruett has made a substantial showing of the denial of a
constitutional right.
                                       II.
      Pruett filed his Rule 60(b)(6) motion more than four years after the entry
of judgment. A motion made pursuant to Rule 60(b)(6) must be filed “within a
reasonable time.” Fed. R. Civ. P. 60(c)(1). To demonstrate “any other reason
that justifies relief” under Rule 60(b)(6), a petitioner must show “extraordinary
circumstances.” See Gonzalez v. Crosby, 545 U.S. 524, 536 (2005). “Such
circumstances will rarely occur in the habeas context.” Id. at 535.
      We review the denial of a Rule 60(b) motion for an abuse of discretion.
Hernandez v. Thaler, 630 F.3d 420, 428 (5th Cir. 2011). “It is not enough that
the granting of relief might have been permissible, or even warranted . . . .
[The] denial of relief must have been so unwarranted as to constitute an abuse
of discretion.” Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013) (citation
omitted.
      Pruett acknowledges that this Court has held that the change in
decisional law brought about by Martinez and Trevino does not constitute an
extraordinary circumstance that would justify reopening the judgment under
Rule 60(b)(6). See Diaz, 731 F.3d at 376; Adams v. Thaler, 679 F.3d 312, 320
(5th Cir. 2012). He contends, however, that the extraordinary circumstance in
his case arises from the fact that Rogers represented him in the initial federal
habeas proceedings despite the fact that his professional, reputational, and
pecuniary interests were adverse to Pruett’s because, to adequately represent
                                       5
     Case: 15-70006      Document: 00513001204        Page: 6     Date Filed: 04/10/2015



                                     No. 15-70006
Pruett, he would have had to argue that he had rendered ineffective assistance
when representing Pruett in the state habeas proceedings. For support, Pruett
relies on the Supreme Court’s decision in Christeson v. Roper, 135 S. Ct. 891
(2015) (per curiam). Pruett argues that his Rule 60(b) motion was timely filed
under Christeson because the Court in Christeson held that the petitioner could
pursue Rule 60(b) relief eight years after the district court had entered
judgment denying habeas relief.
      Christeson’s first federal habeas petition was dismissed as untimely
because his court-appointed counsel missed the filing deadline. 135 S. Ct. at
892. Because his counsel “could not be expected to argue that Christeson was
entitled to the equitable tolling of the statute of limitations,” inasmuch as such
a motion would require that counsel argue “their own malfeasance,” Christeson
requested conflict-free substitute counsel. Id. at 892-93. The district court
denied the motion for substitution of counsel and the Eighth Circuit Court of
Appeals affirmed. Id. at 893. The Supreme Court reversed. Id. The Court
held that counsel’s conflict of interest was grounds for substitution of counsel
under 18 U.S.C. § 3599, in the “interests of justice.” Id. at 894-95. The Court
stated that although Christeson, with substituted counsel, “might properly
raise a claim for relief pursuant to Rule 60(b), . . . to obtain such relief he must
demonstrate both the motion’s timeliness” and “extraordinary circumstances.”
Id. at 895. Thus, nothing in Christeson supports Pruett’s contention that his
Rule 60(b) motion was filed within a reasonable time or that he has
demonstrated the “extraordinary circumstances” required to reopen the
judgment. 1


      1  This Court’s recent decisions in Speer v. Stephens, ___ F.3d ___, 2015 WL 1449798
(5th Cir. Mar. 30, 2015), and Mendoza v. Stephens, ___ F.3d ___, 2015 WL 1472131 (5th Cir.
Mar. 30, 2015), do not lend any support to Pruett’s argument that his Rule 60(b) motion was
timely filed. In both of those cases, the petitioners were represented in federal habeas
proceedings by the same counsel who had represented them in the state habeas proceedings.
                                            6
     Case: 15-70006       Document: 00513001204          Page: 7     Date Filed: 04/10/2015



                                       No. 15-70006
       Pruett’s current, conflict-free counsel were appointed on March 28, 2013.
Two months later, on May 28, 2013, the Supreme Court issued its decision in
Trevino.     By the time Trevino was decided, Pruett’s counsel had been
conducting their investigation for two months and had obtained all but one of
the affidavits upon which they rely to support the amended IATC claim that
they seek to present. 2
       There can be no question but that the decision in Trevino provided
grounds for Pruett to file a Rule 60(b) motion asserting that Rogers, his initial
federal habeas counsel, who also represented him in the state habeas
proceedings, had a conflict of interest that precluded him from asserting his
own ineffectiveness to excuse the failure to discover and present the mitigating
evidence supporting the amended IATC claim that Pruett seeks to raise. And
yet Pruett waited until January 6, 2015—more than nineteen months after
Trevino was decided and his conflict-free counsel had completed their
investigation of the claim—to file his Rule 60(b) motion.
       Pruett argues that the district court failed to give proper consideration
to the various pleadings his counsel had filed in state court and therefore failed
to respect the important federalism principle that the state courts should be
given the first opportunity to correct constitutional errors. However, Pruett
did not file his subsequent state habeas application raising his amended IATC



Our Court, in the interests of justice, appointed supplemental counsel for the petitioners
under 18 U.S.C. § 3599. As we have noted, Pruett was appointed conflict-free, substitute
counsel on March 28, 2013, more than two years ago.

       2 In his reply brief, Pruett claims that his counsel’s investigation was not complete in
May 2013, and that he never made such a statement to the district court. However, the
district court’s order states that Pruett’s counsel represented to the court that they had
performed the investigation necessary to establish Pruett’s ineffective assistance of counsel
claim during April and May of 2013. Furthermore, all of the affidavits, except for the June
2014 affidavit of the jury foreman, that Pruett relies on in support of his amended IATC
claim, are dated in April and May 2013.
                                              7
     Case: 15-70006       Document: 00513001204         Page: 8     Date Filed: 04/10/2015



                                       No. 15-70006
claim until July 2014, fourteen months after his conflict-free counsel
discovered the evidence he relies on to support it. The only explanation Pruett
offers for that fourteen-month delay is that counsel made reasonable decisions
as to which claims to pursue first, and that they were busy presenting his
motion for clemency, filed on April 30, 2013, and his request for forensic
testing, filed on May 14, 2013. He asserts that between the time he filed the
forensic testing request on May 14, 2013, and the time it was denied by the
state court on April 2, 2014, the trial court conducted four 3 hearings; counsel
had to file multiple motions to compel the State’s lab to produce a copy of its
file; and counsel sought and obtained expert assistance in reviewing the
analysis done by the State’s lab.
       Pruett’s explanation for the delay fails to persuade us that the district
court abused its discretion in holding that his Rule 60(b) motion was not filed
within a reasonable time. Again, as we have noted, the Supreme Court handed
down its decision in Trevino, which provided the basis for the conflict of
interest argument that Pruett asserted in his Rule 60(b) motion, on May 28,
2013. Pruett’s conflict-free counsel had been appointed two months earlier
and, by the time Trevino was decided, they had already been investigating the
IATC claim and had obtained all but one of the affidavits that Pruett relies on
in support of his amended IATC claim. Yet Pruett waited fourteen months to
present his IATC claim in state court, and nineteen months to file his Rule
60(b)(6) motion in federal court.           Pruett has not offered any satisfactory
explanation for why the clemency and DNA proceedings pending in state court
prevented him from filing his subsequent state habeas application for fourteen
months after he had obtained the evidence in support of the IATC claim, and



       3The State contends that the state court’s docket reflects only three court appearances
in the DNA proceedings.
                                              8
     Case: 15-70006       Document: 00513001204          Page: 9     Date Filed: 04/10/2015



                                       No. 15-70006
prevented him from filing his Rule 60(b) motion until January 2015.
Accordingly, we hold that the district court did not abuse its discretion in
concluding that Pruett’s Rule 60(b) motion was not filed within a reasonable
time. See Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014) (per curiam)
(holding that Rule 60(b) motion filed nearly eight months after relevant
Supreme Court decision, and two days before scheduled execution, was not
filed within a reasonable time). 4
                                             III.
       For the foregoing reasons, the judgment of the district court is
                                                                                AFFIRMED.




       4 Our conclusion that the district court did not abuse its discretion is fully consistent
with this Court’s unpublished decision in In re Paredes, 587 F. App’x 805 (5th Cir. 2014). In
that case, Paredes contacted conflict-free counsel in June 2014, thirteen months after the
Supreme Court issued its opinion in Trevino, and filed his Rule 60(b) motion four months
later, in October 2014. Id. at 825. This Court held that the motion was not filed within a
reasonable time, “even assuming that the first time that Paredes should have been aware of
[habeas counsel’s] conflict of interest was when Trevino issued.” Id. See also Trottie v.
Stephens, 581 F. App’x 436, 438 (5th Cir. 2014) (holding that Rule 60(b) motion filed almost
three years after the district court denied federal habeas relief was not filed within a
reasonable time).
                                               9
