     Case: 12-70026     Document: 00511995384         Page: 1     Date Filed: 09/21/2012




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                    Fifth Circuit
                                 _____________________                      FILED
                                                                        September 21, 2012
                                     No. 12-70026
                                 _____________________                     Lyle W. Cayce
                                                                                Clerk
CLEVE FOSTER,

              Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee
                          __________________________

                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:07-CV-210
                           __________________________

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        IT IS ORDERED that Cleve Foster’s motion for a stay of execution is
DENIED. We also determine that the district court properly denied the Rule
60(b) motion. AFFIRMED.
        Foster requests a Certificate of Appealability challenging the district
court’s denial of relief. See 28 U.S.C. § 2253(c). Foster’s COA request relies
on a Supreme Court decision handed down on March 20, 2012. See Martinez
v. Ryan, 132 S. Ct. 1309 (2012). The Court recognized a new basis to excuse a

       *
        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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-70026   Document: 00511995384        Page: 2   Date Filed: 09/21/2012




                                  No. 12-70026

state prisoner who has brought federal habeas claims from being held
procedurally barred for failing to present those claims first in state court:
             Where, under state law, claims of ineffective assistance of
      trial counsel must be raised in an initial-review collateral
      proceeding, a procedural default will not bar a federal habeas
      court from hearing a substantial claim of ineffective assistance at
      trial if, in the initial-review collateral proceeding, there was no
      counsel or counsel in that proceeding was ineffective.
Martinez, 132 S. Ct. at 1320.
      In light of Martinez, on June 1, 2012, Foster filed a Rule 60(b)(6) motion
in the district court seeking to vacate that court’s final judgment of December
2, 2008. That 2008 decision, which we affirmed, denied him relief in part due
to failure to exhaust certain claims in state court. Foster v. Thaler, 369 F.
App’x 598 (5th Cir. 2010).
      On August 13, 2012, the district court refused to grant relief from
judgment. The district court relied on a Fifth Circuit decision that held Texas
state procedures for considering ineffective-assistance-of-counsel claims were
not the kind that Martinez required before a failure to exhaust could
potentially be excused. Ibarra v. Thaler, 687 F.3d 222, 227 (5th Cir. 2012);
see also Ibarra v. Thaler, No. 11-70031, 2012 WL 3537826, at *6 n.1 (5th Cir.
Aug. 17, 2012).
      The district court also relied on a different Fifth Circuit precedent that
the “decision in Martinez . . . does not constitute an ‘extraordinary
circumstance’ under Supreme Court and our precedent to warrant Rule
60(b)(6) relief.” Adams v. Thaler, 679 F.3d 312, 320 (5th Cir. 2012) (citing
Gonzalez v. Crosby, 545 U.S. 524, 536 (2005)).
      This court has recently reviewed these same issues. A majority of the

                                        2
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                                  No. 12-70026

court refused to reconsider en banc a decision that denied relief in reliance on
Ibarra. See Balentine v. Thaler, No. 12-70023, 2012 U.S. App. LEXIS 17370,
at *6-9 (5th Cir. Aug. 17, 2012), reh’g en banc denied, No. 12-70023, 2012 WL
3570766 (5th Cir. Aug. 21, 2012). The panel also denied rehearing and
supplemented its original decision by relying upon the decision in Adams.
Balentine v. Thaler, No. 12-70023, 2012 WL 3570772 (5th Cir. Aug. 21, 2012).
      The denial of the Rule 60(b) Motion for Relief from Judgment is
AFFIRMED. The motion for stay of execution is DENIED. The request for a
COA is DENIED.




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