Anthony Haynes v. Rick Thaler, Director

Atlanta, Alba, De Melendez Armando

GA, se. pro HAYNES,

Anthony Cardell Petitioner-Appellant v. Depart- Director, STEWART, Judge, THALER, Chief Rick

Before Justice, Judges. CLEMENT, Circuit Correction- of Criminal ment KING and Division, Respondent- Institutions al * PER CURIAM: Appellee. appointed Public Defender The Federal 12-70030. No. De Alba Melendez Armando represent of Appeals, States United withdraw and leave to has moved Circuit. Fifth with Anders in accordance filed brief California, 15, 2012. Oct. States United L.Ed.2d Cir.2011). De Flores, F.3d 229 response. not filed

Alba has brief counsel’s reviewed

We have re- record portions

the relevant with counsel’s We concur

flected therein. no presents appeal that

assessment review. appellate issue for

nonfrivolous the extent note

We further the first time argue for might departed court

appeal in U.S.S.G. recommendation

from the 5Dl.l(c) three-year imposed when it

§ release, argument such supervised

term of re- this court’s be foreclosed under States Domin- opinion

cent United 324, 328-29 695 F.3d

guez-Alvarado,

Cir.2012). motion counsel’s Accordingly, GRANTED, coun- withdraw is

for leave responsibilities from further

sel is excused IS DISMISSED.

herein, the APPEAL R. 42.2.

See 5th Cir. ^[*] Pursuant published and is determined to 5th Cir. R. precedent opinion should 47.5, except not be under R. 47.5.4. limited circumstances set forth in 5m Ellis, Allen Richard Law Offices of A. Chiefly, S.Ct. 2546. Haynes argued that Ellis, CA, Valley, Richard Mill for Petition- his state counsel habeas had failed to raise er-Appellant. his ineffective-assistance-of-trial-counsel However, claim. the court relied on Fifth Greenwell,

Jeremy Craig Esq., Assistant precedent, Circuit General, provided that in- Attorney Attorney Office of the Austin, TX, effective General, for assistance habeas counsel Respondent-Ap- may pellee. provide cause for a procedural default that, therefore, federal law barred the

district reviewing court from Haynes’s unexhausted claims. The district court reviewed, alternative, in the JOLLY, mer- DENNIS, Before of Haynes’s its CLEMENT, ineffective assistance claim Judges. Circuit and held that purported deficient per- PER CURIAM:1 formance relief, entitle him to Anthony Cardell was convicted even if the claim was not barred.2 of shooting killing an off-duty police Haynes then filed a motion for relief officer and sentenced to death. Subse- judgment pursuant to Federal Rule quently, Haynes sought unsuccessfully 60(b)(6). of Civil Procedure Haynes ar- state and federal habeas review of his sen- gued that Supreme Court’s recent de- claims, tence. Among argued cision in Ryan, U.S.-, Martinez v. that his trial counsel (2012), 182 L.Ed.2d 272 representation under Strickland v. Wash- entitles him to relief. ington, 104 S.Ct. held that deficient (1984), per-

L.Ed.2d 674 preparation petitioner’s formance presentation evidence. counsel constitute cause under Cole- the district court denied relief man v. Thompson. The Court held: Haynes’s

based on failure to exhaust his remedies in state court. Haynes had Where, law, under state claims of inef- claims, raised most of his including his fective assistance trial counsel must claim, Strickland for the first in fed- time be raised in an initial-review collateral eral In arguing court. the district proceeding, procedural default will not court should consider his unexhausted bar a federal habeas court from hearing claims, exceptions asserted to the a substantial claim of ineffective assis- procedural bar doctrine in order to over- if, tance at the initial-review col- come his failure to exhaust. Under Cole- lateral there was no counsel man v. Thompson, 501 U.S. or counsel in that proceeding was inef- 115 L.Ed.2d 640 Haynes ar- fective. gued, the district court was allowed to Id. at hear 1320. Because petitioners his barred claims because Ari- he “[could] zona were demonstrate cause for the required default and ac- raise claims of inef- tual prejudice as a result of fective alleged of trial counsel on state violation of federal law.” Id. at review, deficient performance by considered, to 5th 47.5, Pursuant Cir. R. the court has 2. The court also district and re- opinion determined that this should not be jected under the Antiterrorism and Effective published precedent except and is not under Death Penalty Haynes’s Act of the limited circumstances set forth in 5th that were available review. R. 47.5.4. applica- DENY therefore other- We may excuse an state habeas appealability for a certifícate See id. tion bar. wise valid stay motion for moot his DENY denied However, pending appeal. execution First, 60(b)(6) re- motion. Rule Haynes’s 222, Thaler, F.3d 687 Ibarra lying on dissenting: DENNIS, Judge, Circuit Cir.2012), that (5th it concluded 227 be- rely not on Martinez could Haynes to Haynes is scheduled Anthony Cardell cause, capital unlike shortly Texas State of by the be executed Strick- Arizona, may raise Texas inmates Thursday, October p.m. 6:00 next after trial or for a new via a motion land claims trial counsel is that his His ultimate Second, on relying appeal. on direct adequately failing for to ineffective was (5th 312, Thaler, 320 679 Adams v. mitigation evi- investigate and present Cir.2012), that Martinez did it held his trial. phase of penalty the at dence extraordinary circumstance constitute view, I be- majority’s Contrary to the under judgment of reopening allowing showing has made a Haynes that lieve 60(b)(6). Third, it had it held that Rule stay of execu- both a to warrant sufficient Haynes’s of the merits already adjudicated of a appeal and certificate pending tion as a claim and that (“COA”) pro- entitling him appealability already requested has “the relief result believe, that the given further. I ceed Haynes had show failed granted” been stayed the execution Supreme Court has a pro- to overcome prejudice the requisite the same raising precisely cedural bar. the same Haynes precisely Ibarra, that of this court held panel Thaler, 12- No. see Balentine posture, exception does equitable Martinez’s - -, -, (12A173), U.S. petitioners. capital habeas apply to 729, L.Ed.2d 2012 WL S.Ct. same confronting the panel another As 2012), that (Aug. *1 issue reasoned: should Haynes requests stay of execution hurdle insurmountable Therefore, respectfully dis- granted. be Ibarra is that the [Haynes] encounters sent. of this controlling precedent ais decision “cannot overrule panel This

court. BACKGROUND panel; such of another decision by overruled only be decisions I. of the subsequent decision shooting and Haynes was convicted sitting en by the Fifth Circuit or and sen- officer off-duty police killing A & Univ. Lowrey v. Tex. M banc.” Cir.1997). trial, time At the to death.1 117 F.3d tenced Sys., con- no or had arrest young, was 12-70023, Thaler, Slip No. Balentine record, previously had no had viction 2012). Ibarra Aug. at 6 Op. fact, the law with enforcement. run-ins we Accordingly, precedent. controlling penalty phase case at the state’s the relief it forecloses hold that testimony regarding rob- focused trial seeks. police officer he was a ap- did not know that nothing he be noted 1. It should officer, he approached he because believed when he fired pearance of the officer, something he was a member in his Haynes, indicated that for who had reached Moreover, although Haynes ad- gun. police. reaching pocket, was back officer, argued that shooting he mitted beries that had occurred on the night same 80 L.Ed.2d 674 as the shooting. The presented defense in the preparation presentation of mit- little mitigating evidence. Haynes’s fa- igation evidence because he failed to dis- ther, grandmothers, a minister who was a thirty-nine cover witnesses father, colleague Haynes’s and a staff Haynes now seeks to call. Since filing his chaplain who spoke Haynes’s good be- petition federal Haynes has ac- havior while in jail awaiting knowledged his procedural default but con- However, testified. the state’s evi- sistently argued that the per- substandard dence that performed poorly in formance of his state habeas counsel the Reserve Officers’ Training Corps should excuse it. (“ROTC”) and that he history had a In the district court denied relief violence were effectively not challenged Haynes based on failure to exhaust his despite readily-available witnesses and evi- remedies in state court. raises dence to the contrary, including the head claims, most his including his Strickland Haynes’s program ROTC who would claim, for the first in time federal court. have rebutted story the state’s of Haynes’s arguing that the district court should engagement with the program. claims, consider his unexhausted Federal habeas compiled counsel has asserted exceptions procedural to the bar thirty-nine declarations of witnesses who in doctrine order to overcome his failure to would have testified on Haynes’s behalf at exhaust. Under Coleman v. Thompson, penalty phase. witnesses —fam- These 501 U.S. 111 S.Ct. 115 L.Ed.2d friends, teachers, ily, neighbors (1991), Haynes argued, the district Haynes’s prepared to offer evidence —were court was allowed to hear his barred crime; in speak to claims because he “can demonstrate cause Haynes’s character; good testify to his for the default and prejudice actual as a low risk of future dangerousness; to ex- result of the alleged violation of federal rebut, plain, or discredit evidence the law.” Id. at 111 S.Ct. 2546. Chiefly, on; put state had and to otherwise re- Haynes argued that his state habeas coun- spond to the state’s weak at the had failed to sel raise his ineffective-assis- penalty phase. Haynes had no criminal However, tance-of-trial-counsel claim. record, arrests, prior or convictions and court, federal district relying on Fifth Cir- well among friends, liked family, precedent provided cuit that ineffec- acquaintances, Nonetheless, and teachers. tive assistance of habeas counsel thirty-nine these witnesses were either default, provide procedural cause for a by Haynes’s never contacted trial counsel concluded that federal law barred or never asked to testify on his behalf. from reviewing Haynes’s court unexhaust- ed claims.2

II. Haynes then filed a motion for relief After his trial appeal, Haynes and direct judgment pursuant from to Federal Rule unsuccessfully sought state and federal ha- 60(b)(6). Civil Procedure review of ar- beas his sentence. Among his claims, Haynes gued that the argued that his trial Court’s recent de- coun- sel representation U.S.-, Ryan, un- cision Martinez v. der Strickland v. Washington, 132 S.Ct. 182 L.Ed.2d 272 considered, 2. The district court and re- claims that were available for re- jected under the and Effective Antiterrorism view. (“AEDPA”), Penalty Death Act of 1996 Martinez, a Arizona However, as did conviction judgment. from relief warrants held v. Thaler court in Ibarra of this relief. denied equitable create did not that Martinez III. from convictions exception for relief 222, 227 recog- courts. 687 Supreme Court prison- Cir.2012). a state to excuse new basis nized a habeas ineffec- brought federal er who point. on this Judge Graves dissented tive-assistance-of-trial-counsel (Graves, J., concurring in at 227-28 Id. failing barred procedurally held being reasoned part). He dissenting part court. See in state those claims present de- majority’s decision the Ibarra Thus, held: the Court at 1315. collat- “initial-review interpreting pends on law, inef- claims of Where, under state to mean state-mandated proceedings” eral must of trial counsel fective assistance Id. proceedings. initial-review collateral raised in initial-review be in- However, the Martinez Court at 228. will default announcing qualification no such cluded hearing habeas court a federal bar id. exception. See the assis- of ineffective a substantial Texas, al- that in if, argued col- Judge initial-review Graves in the tance at trial raise you no counsel where must there was “not a though lateral was inef- proceeding in that or counsel [ineffective-assistanee-of-trial-counsel] fective. collateral proceedings,” in collateral claims en- preferred the proceedings “[are] ex- Martinez Court Id. at 1320. raising claims. often, col- such that, couraged method” an “initial-review plained Thus, clearly are in- prisoner’s a ‘one proceeding [is] “[t]here lateral Id. to an ineffective-assistance will only proceeding appeal’ where a collateral stances . claim, may justify exception and this legitimately raise be the ‘first occasion’ no is that there the constitutional rule of trial a of ineffective proceedings.” counsel right to Id. in Texas.” omitted) (citation (quoting Cole- Id. at 1315 755, 501 U.S. Thompson, man v. DISCUSSION (1991)).3 The 115 L.Ed.2d out exception Court carved equitable the I. said, pro- necessary, “[t]o was AEDPA, obtain petitioner must Under potentially legitimate with a prisoners tect taken in appeal may be before an a COA coun- of trial claim of ineffective-assistance 2253(c); § 28 U.S.C. court. circuit noted, Martinez, was should be it sel.” Id. Cockrell, 537 U.S. Miller-El princi- longstanding repudiation “a 154 L.Ed.2d 123 S.Ct. default, which procedural ple governing (2003). “rea- warranted when A COA is consistently ap- other cases Coleman find the district jurists would sonable J., (Scalia, dissenting). at 1324 plied.” Id. of the constitutional assessment court’s IV. wrong.” Slack or debatable claims 473, 484, McDaniel, law prohibit Texas does Because (2000). When, as 146 L.Ed.2d of ineffective-assistance-of-tri- bringing turns here, claims raised resolution of appeal from on direct al-counsel mat- exception as a constitutional was that exists Court determined Martinez 3. The case, however, Id. whether ter.” to resolve "not the issue, on procedural the petitioner must conclude that Haynes’s has not made a “that jurists show reason would find it sufficient showing for a Strickland viola- debatable whether the petition states a tion as to his trial counsel. claim of valid the denial of a constitutional Haynes’s state habeas counsel filed right jurists and that of reason would find Haynes’s state habeas petition solely based it debatable whether the district was on the trial record any and without extra- procedural Slack, correct in its ruling.” record investigation. Thus, Haynes’s state 529 U.S. at 120 S.Ct. 1595. Haynes habeas counsel failed to comport with the has demonstrated this much and a COA statutory duty Texas imposes on habeas

warranted to enable this court to further attorneys to conduct a thorough extra-rec- consider merits of claims. investigation ord and identify factual is- sues would warrant relief. See Tex. A. 11.071(3). Code Crim Proo. art. Had he Under may over conducted even a minimal investigation of come a if default he “demon record, the trial strate[s] the underlying ineffective- presented, and the witnesses who assistance-of-trial counsel claim is a sub discovered, could have been Haynes’s state one, stantial say which is to [peti that the habeas counsel would have unearthed must tioner] demonstrate that the claim many of helpful witnesses whose decla- has some merit.” 132 S.Ct. at 1318-19 rations Haynes’s federal habeas counsel Miller-El, (citing 537 U.S. at has compiled. Haynes Accordingly, has 1029). The Haynes evidence that advanced arguments, are supported has presented regarding the constitutional with impressive array evidence, of ly performance deficient of his trial coun his trial and state habeas counsel per- sel and state habeas counsel meets this formed deficiently under Strickland. This standard. Because he has shown his is enough to warrant granting him a COA underlying ineffective-assistance-of-trial may so that proceed he further. merit,” counsel “has some he is enti tled to a COA allowing proceed him to B. First, further. Haynes’s trial counsel pre very sented little in the way mitigating of The district court determined that a mo- evidence during the penalty phase of his tion for relief from judgment was did not trial. Yet thirty- identified entitle to the relief he sought. helpful witnesses, nine residents and mem disagree and believe that posture does of community, bers his who would have not negate Haynes’s claim. behalf, testified on his for example, to his To 60(b)(6), merit relief under Rule lack of dangerousness, future but whom party show must of existence “extraor- his trial counsel never asked to testify. dinary circumstance.” Gonzalez v. Crosby, fact, Haynes’s trial counsel never investi 524, 536, 545 U.S. gated Haynes’s life community or or at (2005). L.Ed.2d 480 unique The circum- tempted many contact of these wit stances Haynes’s of case constitute the In light nesses. of the breadth of kind of extraordinary circumstances that witnesses that trial counsel failed warrant relief under this rule. to search for and in view ways Thaler, In Adams v. capi- another Texas witnesses, which these they available had tal petitioner sought been asked to habeas to take testify during penalty advan- phase, likely tage of Supreme have aided Court’s new rule in case, rebutted the state’s it is by filing difficult Martinez a motion for relief from Second, Adams 60(b)(6). suggested, previously See to Rule pursuant judgment way explanation, By Cir.2012). distinguishable. is A 312, 316 was not relief available unavail- Rule 60 held that relief of this he failed to because in Gonzalez petitioner “‘[a] because 60 motion via a Rule able his claim on review entry pursue diligently after law in decisional change Court. See Supreme exceptional or appeal not before does constitute judgment 537-38, 125 S.Ct. Gonzalez, at grounds 545 U.S. is not alone circumstances ” petitioner in true of the under is judgment’ final same from a relief Ryan habeas Bailey Adams, who, first federal (quoting in his Id. at 319 rule. Co., that ineffective argued 894 F.2d never Stevedoring omitted)). Thus, Cir.1990) (citations all counsel con of his state in deci- change default held is that for his that Adams stituted cause the kind of (he constitute assis law not that ineffective argued sional instead that warrant circumstances appellate extraordinary of his trial tance basis cause) if it the sole Rule 60 not raise relief under did who constituted Adams does circumstances. petition. for such Rath his certiorari this issue in Haynes’s argu- prevent consideration decided er, only after ment. issue of his raise the Adams Martinez did See performance. habeas counsel’s as a mere First, characterizing Martinez Thaler, By at 316. 679 F.3d Adams v. inaccurate. law is change decisional contrast, the Court Haynes, since before an unset- address simply Martinez did pressed, diligently issued statutory interpretation question tled claim. He first raised his supported, court’s appellate that differed petition his federal claim in Compare interpretation. then-prevailing decision in Supreme Court’s (prior to the Gonzalez, 125 S.Ct. 2641. Martinez) and, unlike the rep- the law change in Rather Martinez’s Gonzalez, Haynes appealed change dec- sea a remarkable resents Haynes v. ruling. See court’s adverse lower courts precedent-law ades-old (5th 189, 191 Cir. Quarterman, 526 F.3d settled.4 See understood litigants as Furthermore, 2008). in petitioner 1319; see also id. at 132 at S.Ct. argue did not explain to Adams failed J., (noting that (Scalia, dissenting) 1324 for cause. argument of his the merits long- repudiation is “a Martinez contrast, presented Haynes has Again, procedural governing standing principle very sub of his thorough documentation default, other cases which Coleman evidence could mitigation stantial consistently applied”). Ficco, Cir.2009); 556 F.3d Pre-Martinez, v. ineffective assis- that claims of 4. Yeboah-Sefah Cir.2009); Hall, 53, (1st v. 532 F.3d 75 not constitute Mize counsel could tance habeas (11th Cir.2008); 1184, v. Smith Bald 1191 was well- to default cause excuse 1127, (9th Cir.2007); win, circuit, 1146-47 Goff, 510 F.3d 250 re established in Artuz, 178, (2d 194 Cir. Cir.2001) ("[T]he 497 F.3d 273, (5th Murden v. F.3d 276 1131, Sirmons, 2007); 476 F.3d v. Anderson explicitly on this sub- spoken quite Walls, Cir.2007); (10th 313 1141 n. 9 emphasized Szabo repeatedly ject ... Collins, Cir.2002); 392, (7th Byrd v. 397 post- F.3d in a assistance (6th Cir.2000); Smith 516 209 F.3d as cause serve proceeding conviction cannot (4th 1997); Cir. F.3d Angelone, 1133 proceed- 111 habeas in a federal to excuse default (3d Freeman, Johnson, Cir. 991 F.2d Hull v. ing.”); Jones v. 1993). changed See 132 this. Cir.1999) all well- (5th (noting law is Martinez that "[this] J., 1316-18; (Scalia, circuit, id. at 1324 dis established”), at every other as well as Norris, senting). 578 F.3d see Wooten v. have, not, but presented at the penalty pared impressive roster of thirty-nine phase of trial. witnesses that were never asked to testify in his defense during the penalty phase of

Third, discussed, previously words, his trial. In other Ibarra had no claims of ineffective of counsel opportunity to have sufficient merit reach the question to warrant relief un- Martinez’s, 60(b)(6). der Rule See id. at 195 whether (noting equitable exception applies seeks to Texas capital petitioners habeas to present “significant”). Accordingly, who, because of the circumstances of their unlike the in Gonzalez and claim, cannot raise an ineffectiveness claim Adams, Haynes has demonstrated the outside of collateral fact, proceedings. of extraordinary kind circumstances that in argued only Ibarra permit relief under Rule and this Martinez apply should to every Texas cap- court’s prior opinion in Adams does not ital petitioner. Ibarra thus had no provide otherwise. opportunity to consider the realities of Texas capital habeas procedure, discussed C. below, fully more or the nature the vast

Ibarra held that Martinez did not create majority of ineffective-assistanee-of-trial- equitable exception for relief from con- counsel claims. victions Texas state courts. 687 F.3d at this, Because of I continue to believe However, 227. distinguishable Ibarra is that this court’s decision in Ibarra would and, light of Martinez and in view of the benefit from further consideration for the reality of capital procedure, same reasons I my stated in dissent from the premises on which Ibarra rests are the denial of en banc in rehearing Balen highly questionable. enough This is tine Thaler. See granting Haynes warrant 692 F.3d he COA re- Cir.2012) quests (Dennis, J., in order to further consider his dissenting from the ineffective-assistance-of-trial-eounsel claim. banc); of rehearing denial en see also id. J., 355 (Higginson, dissenting from the banc). of rehearing now, denial en For Ibarra a “short though, it is enough state that I believe summary” of the facts underpinning Ibar- prevent Ibarra does not granting Haynes claim, ra’s id. at enough these are the COA he has requested order to distinguish Ibarra from the case here. further consider the merits of his claim. Ibarra claimed that his “virtually counsel duty abandoned their prepare for sen- tencing” and instead exclusively focused on Martinez, Scalia, dissent, Justice in (internal innocence an defense. quota- Id. observed: omitted). marks tion argument, Ibarra’s ... seeks to restrict its however, was that his trial pre- counsel holding to in cases which the State has only sented two history social witnesses— “deliberately to move the cho[sen]” as- this, wife and a sibling his in and of —and serted claim direct-ap- “outside itself, attorney’s performance rendered his peal process[.]” line any That lacks constitutionally ap- deficient. Id. Ibarra basis, principled and will not last. Is pears to have made no investigation and there any relevant difference between argument advanced no regarding wit- cases in called, says which the that nesses who should have State cer- been could called, have been tain helped brought and would have claims can be on only col- contrast, By case. pre- his lateral review and cases which those test, two-part because Strickland’s is only can be This their nature claims case, may not be satisfied review, every they nearly since on collateral brought ap- presentation investigation until manifest themselves absent do not Moreover, be evidence. complete? is process of extra-record pellate trial presume Texas courts cause (internal n. 1 132 S.Ct. at adequate assistance “rendered counsel omitted). myself agree- find citations the exer significant decisions all that made and believe with Justice Scalia ment judgment,” professional reasonable cise of distinguish basis principled no there is (Tex. Varelas, nature 45 S.W.3d by their Ex parte claims that and disfavor that trial only review. in the event brought Crim.App.2001), be on only can patently ineffective-assis- is performance particular, deficient counsel’s is the kind of claim will a counsel record alone tance-of-trial the trial from obvious only be can “by their nature claim which extra-rec prevail absent claim Strickland review, they do since on collateral brought investigation.5 ord until the appellate themselves not manifest Thus, these circumstances it is under Id. This is because complete.” is process offers proceeding Article 11.071 that an constitutionally deficient uncovering the prisoner opportunity first realistic re- Haynes’s trial counsel performance assis- a claim of ineffective to raise into investigation thorough quired In part, in Texas. trial counsel tance not have de- Haynes could Haynes’s life. prison- capitally-sentenced is because viability of ineffective- termined raise a required to first virtually ers are until he assistance-of-counsel of trial coun- assistance of ineffective habe- at the state opportunity, See proceedings. during collateral sel record trial to evaluate State, 425, 430 n. 14 226 S.W.3d Mata investigation. Such and conduct (“As rule, general (Tex.Crim.App.2007) ... claim, therefore, not manifest “[does] an issue of not raise one should Id. review.” brought on collateral until appeal.” on direct of counsel be- Thus, no distinction principled is there omitted)); (internal marks quotation that, inas those tween these claims State, 68 S.W.3d Mitchell re- Arizona, on collateral brought must be (noting that (Tex.Crim.App.2002) and because of this view. Because Tex- appropriate [in vehicle corpus “is raising effectively bars investigate ineffective-assistance as] assistance of of ineffective State, claims”); 16 S.W.3d Robinson rely extra-record (observing (Tex.Crim.App.2000) pro- of collateral commencement until the writ proceeding, post-conviction “a Ibarra’s cabined I believe that ceedings, trial, for new than motion likely rather be—and reading of Martinez should the facts gathering method for preferred will be—revisited. a Strickland necessary to substantiate” provide proceedings Collateral claim). Furthermore, majority of the vast adjudicate a Strickland first occasion of counsel proceed- claim are initial-review be- appeal on direct may not be reviewed of meaning Martinez. ings within State, 506-07 125 S.W.3d Indeed, Freeman v. Appeals of Criminal the Texas ("We several have held (Tex.Crim.App.2003) failing to for recently reversed lower record on like this 'the that in cases usually an times review is recognize that "direct undeveloped and can- simply appeal is raising ... direct [Strick- vehicle inadequate failings trial State, adequately reflect S.W.3d 363 claim.” land] 591, Menefield ”). also counsel.’ (Tex.Crim.App.2012); see 592-92 779 cause the alleged deficiencies are not typi- claims before the trial court following con cally “firmly founded in the record” on viction via a trial,” motion for a new Ibar State, ra, direct appeal. Thompson See 687 F.3d at when no would relief S.W.3d see (Tex.Crim.App.1999); be available in posture absent defi Varelas, parte also Ex 45 S.W.3d at performance 629 cient that is patently obvious (“In cases, most ap- record direct Moreover, on on the trial record. the Su peal ‘inadequate an ineffec- develop preme recognized Court has that “[c]laims tive assistance claim’ very because ‘the of ineffective assistance at trial often re may prevent ineffectiveness claimed quire investigative work and an under record from containing the information standing of trial strategy,” ”). necessary to substantiate claim.’ S.Ct. at provides and Texas funding Therefore, collateral proceedings present for extra-record investigation only in habe- opportunity first to raise these claims. proceedings, see Tex.Code CRiM. PROC. Only “in 11.071(3). the rare case where the record art. appeal direct is sufficient to prove that Furthermore, requiring claims of inef- performance counsel’s was ] deficient fective assistance of counsel to be raised [should] court ... appellate address the avia motion for a new trial the counsel Robinson, claim in the first instance.” allegedly who performed deficiently will S.W.3d at (emphasis added); 813 n. 7 grave interest, create conflicts of further Thompson, 9 S.W.3d at (“Rarely underscoring Ibarra’s incorrect denial of will a reviewing court be provided the Martinez’s holding to capital opportunity make its determination on petitioners. example, For Texas law pro- direct appeal awith record capable pro hibits courts from appointing an attorney viding a fair evaluation of the merits of the previously who has been determined to such a involving allegation.”). serious have rendered ineffective assistance in a That a petitioners may few be able to raise capital case to act as lead any counsel in an ineffective assistance of trial counsel capital proceeding absent a finding by a claim on direct appeal does not assist the separate committee. Tex.Code.Crim. Proc. great who, majority petitioners effec 26.052(d). 11.071(2)(d), §§ such cir- Under

tively, are presenting barred from extra- cumstances, there is little incentive for record claims of ineffective assistance until counsel who has allegedly performed below commencement the state habeas the standard required by Strickland to proceeding. zealously argue the client’s best defense. Haynes’s present federal Thomas, U.S.-, Maples See performed a thorough investigation (2012) 925 n. 181 L.Ed.2d 807 thirty-nine identified witnesses who (noting when law firm representing behalf, have testified on but were a death row inmate missed a filing crucial never asked by Haynes’s deadline, to do so trial conflict significant “a interest counsel. To insist that this extra-record arose” because “the firm’s interest investigation place take within parame- avoiding damage reputation to its own ters of a for a new motion or on direct odds with argu- [the strongest inmate’s] appeal inequitable. i.e., would be is of little It attorneys had aban- ment — comfort to Haynes him, like him doned therefore he had to be cause default”).6 he “may first raise ineffectiveness relieved from Additionally, 6. The Texas Rules of Professional Conduct required See Tex. to be called as a witness. prevent raising trial counsel from a 1.15(a)(1). Strickland Disc. R. Prof. Conduct. against claim they themselves when would be

780 rehearing en of dissenting from the denial not available typically record is the J., (Higginson, banc); at 355 a new trial also id. for of a motion filing the before of such en rehearing of during pendency the denial dissenting even from the due or is 21.4 See, e.g., Tex banc). a motion. R.App. Proc. any investigate a defendant (requiring via a motion to make he wishes claim II. judgment). thirty days of within

new trial least, Haynes’s imminent very At the Appeals Thus, of Criminal the Texas Court the because “expansion stayed be although should execution has observed in a mo accomplished the execution stayed be the record Supreme Court often trial, is that vehicle new appeal, tion for Balen factually-indistinguishable a and constraints of time because inadequate (12A173), Thaler, No. 12-5906 tine generally the trial because U.S.-,-, 183 L.Ed.2d 133 S.Ct. parte Ex point.” at this been transcribed (Aug. *1 at WL 2012 (Tex.Crim. Torres, 943 S.W.2d grant to 2012), whether while it considers at see also App.1997); issue that on the same certiorari (“Abbreviated expand to deadlines equita the namely whether presents, now allow may not appeal record on direct the carved out Mar the Court exception ble investi attorney an to time for adequate peti capital habeas to Texas applies tinez claim.”). the ineffective-assistance gate to entitles and therefore tioners relief case when particularly is This relief. into investigation require extensive Balentine, claimed that petitioner fam background, educational petitioner’s investigate and history. More to social counsel failed his trial ily upbringing, over, have determined risk assessment “mitigation could develop Thaler, had a ineffective-assistance- that he viable at all.” Balentine op until Cir.2010). of-trial panel A F.3d trial record to evaluate portunity court, however, that Balentine held this specific miti identify the investigate this claim present had failed been, but that could have gating evidence and had application initial state Accordingly, not, trial. at presented was merits; ruling on to secure also failed like opportunity real the first this, ruled that his because ineffective-assis present an Haynes has to Id. at barred. procedurally claim was with the aid tance-of-trial-counsel Martinez, Balentine light 849-567. access to information attorney with 60(b)(6) in the district motion filed Rule during the claim is bring the needed to court, court denied. which proceeding. 12-70023, Thaler, Slip No. Balentine basis, premises question On 2012). August Balen- Op. at based panel’s opinion was the Ibarra which court, from this sought a COA tine then application that the and continue believe that Ibarra was panel concluded but the to Texas exception equitable of Martinez’s the dis- affirmed controlling and therefore who seek capital Balentine’s Rule denial of trict court’s ineffective-assistance-of-trial-counsel raise 60(b) motion. have with evidence should claims and of Balentine posture trial and presented discovered been posture distinguished cannot be bene- habeas court would the state before confronted here. we are with informed consideration. further fit from that he J., ultimate claim (Dennis, Balentine, at 353 See denied ineffective assistance of trial coun-

sel attorney’s because of his failure to ade-

quately investigate present UNITED America, STATES of

evidence at punishment phase of his Plaintiff-Appellee court, trial. however, The district conclud- ed that unexhausted and therefore procedurally barred. In light of David RAINWATER, Carroll Martinez, Haynes filed a motion for relief Defendant-Appellant. from judgment, arguing that Supreme No. 11-11110 Court’s him decision entitles to the relief Conference Calendar. he seeks. The district court denied his motion, now seeks a COA United States Court of Appeals, from this court. Fifth Circuit. light of Haynes’s imminent execution Oct. date and because the Supreme Court has Nancy Larson, E. Assistant Attor- U.S. stayed the execution of petitioner raising ney, U.S. Attorney’s Office, Northern Dis- precisely the same and in precisely Texas, Worth, trict of TX, Fort for Plain- posture, Balentine, same U.S. tiff-Appellee. at-, 2012 WL Kevin Joel Federal Page, Public Defend- *1, it inequitable would be deny Office, Dallas, TX, er’s Helen Lig- Miller stay he seeks while we await further gett, Esq., Assistant Federal Public De- direction from on this fender, Federal Office, Public Defender’s

important issue.

Lubbock, TX, for Defendant-Appellant.

CONCLUSION

For the reasons, foregoing grant

Haynes’s application for a stay COA his execution pending appeal. I respect- HIGGINBOTHAM, Before SMITH, and fully dissent. HAYNES, Judges. Circuit *

PER CURIAM: The Federal Public appointed Defender to represent David Carroll Rainwater has moved for leave to withdraw and has filed a brief in accordance with Anders Cali- fornia, U.S.

L.Ed.2d 493 States v. United Flores, (5th Cir.2011). 632 F.3d 229 Rain- water has not response. filed a We have reviewed counsel’s brief and the relevant portions of the record reflected therein. 47.5, * Pursuantto 5th Cir. R. the court has the limited circumstances set in 5th forth determined opinion that this should not be R. 47.5.4. published and precedent is not except under

Case Details

Case Name: Anthony Haynes v. Rick Thaler, Director

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 15, 2012

Citation: 489 F. App'x 770

Docket Number: 12-70030

Court Abbreviation: 5th Cir.