BILLY JACK CRUTSINGER v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
No. 18-70027
United States Court of Appeals for the Fifth Circuit
July 3, 2019
Appeal from the United States District Court for the Northern District of Texas
Before SMITH, OWEN, and GRAVES, Circuit Judges.
Billy Jack Crutsinger appeals from the district court‘s order transferring his motion for relief from judgment under
I
In April 2003, “Crutsinger fatally stabbed eighty-nine-year-old Pearl Magouirk and her seventy-one-year-old daughter, Patricia Syren.”1 A jury convicted Crutsinger of capital murder, and the state trial judge sentenced him to death “based on the jury‘s answers to the special issues in the court‘s charge.”2 The Texas Court of Criminal Appeals “affirmed [Crutsinger‘s] conviction and sentence on direct appeal.”3
Crutsinger filed a state habeas petition raising eighteen grounds for relief, including an ineffective-assistance-of-trial counsel (IATC) claim.4 The state trial court “issued findings of fact and conclusions of law recommending that relief be denied.”5 After “review[ing] the record with respect to the allegations made by [Crutsinger],” the Court of Criminal Appeals adopted the trial court‘s recommendation and denied relief.6
Before initiating federal habeas proceedings, Crutsinger filed a sealed apрlication for authorization of funding and the appointment of an investigator pursuant to
Crutsinger then filed a federal habeas petition.8 In his petition, “Crutsinger alleged that (1) the trial court failed to suppress evidence resulting from his illegal arrest in violation of the Fourth Amendment, (2) his trial counsel provided ineffective assistance in failing to timely initiate a social history investigation, which caused counsel to overlook evidence of his mental impairments caused by alcohol addiction, head trauma, depression, and low intelligence, and (3) actual innocence.”9 Despite Crutsinger‘s “failure to develop the factual basis of these claims in state court,” the district court determined that “the record contain[ed] sufficient facts to make an informed decision on the merits,” and it reviewed Crutsinger‘s IATC claims de novo.10 Applying the standard from Strickland v. Washington, 466 U.S. 668 (1984),11 the district court concluded that the representation by trial counsel did not fall below an objective standard of reasonableness during the pretrial, guilt, or sentencing phases.12 The court also concluded that, in any event, the record failed to support a finding of prejudice.13
After the district court‘s initial ruling on Crutsinger‘s federal habeas petition, the Supreme Court issued Martinez v. Ryan, 566 U.S. 1 (2012),14 which held that “[i]nadequаte assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner‘s procedural default of a claim of ineffective assistance at trial.”15 Crutsinger then filed a
Crutsinger appealed, and we reviewed both the IATC claim and the related claim that the district court had abused its discretion in denying funding under
With respect to the
Crutsinger then filed a petition for certiorari.25 With regard to
Three years later, in another case, Ayestas v. Davis, the Supreme Court held that the Fifth Circuit‘s requirement that a movant show a “substantial need” to demonstrate that funds were “reasonably necessary” was not supported by the text of
Crutsinger then returned to federal district court, asserting in a
II
The Supreme Court‘s decision and reasoning in Gonzalez v. Crosby, 545 U.S. 524, 535 (2005)40 compels the conclusion that Crutsinger‘s
A
We must determine whether Crutsinger‘s
JUSTICE SCALIA, writing for the Court in Gonzalez, explained that “[a]s a textual matter,
A motion can . . . be said to bring a ‘claim’ if it attacks the federal court‘s previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.48
By contrast, “[t]hat is not the case . . . when a
In Gonzalez, the federal district court had dismissеd the petitioner‘s habeas petition, concluding that it was barred by AEDPA‘s statute of limitations.50 After that judgment had become final, the Supreme Court issued a decision in Artuz v. Bennett, 531 U.S. 4 (2000),51 which held “that an application for state postconviction relief can be ‘properly filed’ even if the state courts dismiss it as procedurally barred.”52 Gonzalez then filed a
The Supreme Court disagreed with the circuit court. The Supreme Court pointed out that the
Crutsinger‘s motion for funding is analogous. It does not present a revisitation of the merits of the IATC claim. It is
B
To prevail on a motion under
However, a decision of our court has held that we are without jurisdiction unless the distriсt court either granted or denied a COA on the “specific issue” before us.59 Accordingly, we are foreclosed from treating the district court‘s transfer order and Crutsinger‘s request for relief in our court as a COA. Accordingly, we remand this case to the district court for further proceedings.
* * *
We VACATE the district court‘s order transferring Crutsinger‘s motion to this court as a successive petition. We REMAND to the district court to consider the
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
Because I conclude that Billy Jack Crutsinger‘s motion under
The district court denied Crutsinger‘s requested funding for investigative and expert assistance in the development of his ineffective assistance of counsel claim because his claim was unexhausted and procedurally barred from review. Crutsinger later included the claim, presented without the benefit of those funds, in his habeas petition to preserve it. The State did not then assert a procedural bar. The district court declined to apply a procedural bar sua sponte and found that the undeveloped claim failed on the merits.
The district court denied funding solely on the basis of the procedural bar and used language that could be interpreted as indicating it would not have denied funding but for the procedural bar. Specifically, the district court said, in relevant part:
Petitioner‘s present motion for funding and attachments set forth tragic circumstances that appear to have been all too common in the post-conviction investigation and presentation of habeas-corpus claims. This Court is not insensitive to the plight of inmates who are precluded from presenting such claims in federal court due to the failure of their counsel to raise those claims in the state-court proceedings. However, as set out below, this Court may not use such circumstances to excuse the failure to present these claims to the state courts.
The necessary finding the district court must make to authorize funding under
Prior to the conclusion of Crutsinger‘s habeas, Martinez v. Ryan, 566 U.S. 1 (2012), was decided. As we know from Treviño v. Thaler, 569 U.S. 413 (2013), Martinez clearly applies to Texas. Under Martinez, Crutsinger‘s ineffective assistance of counsel claim was not procedurally barred.
Crutsinger subsequently filed a motion to alter or amend under
In later denying a certificate of appealability, this court concluded that the denial of funding was justified because Crutsinger had not established that his underlying ineffective assistance of counsel claim was substantial. See Crutsinger v. Stephens, 576 F. App‘x 422, 430 (2014); see also Martinez, 566 U.S. at 14.
In other words, the court concluded that Crutsinger must prove his claim of ineffective assistance of counsel to be able to establish that “investigative, expert, or other services are reasonably necessary” to then be able to prove his claim of ineffective assistance of counsel. Such a circular application is illogical. It heightens the standard required under
Martinez provides an exception for claims such as Crutsinger‘s. Martinez was an equitable ruling. To say that
Additionally, the Supreme Court has explicitly stated that denying funding in this very situation may be error. In Ayestas v. Davis, the Court said:
The difference between “reasonably necessary” and “substantially need[ed]” may be small, but the Fifth Circuit exacerbated the problem by invoking precedent to the effect that a habeas pеtitioner seeking funding must present “a viable constitutional claim that is not procedurally barred.” 817 F.3d, at 895 (internal quotation marks omitted). See also, e.g., Riley v. Dretke, 362 F.3d 302, 307 (С.А.5 2004) (“A petitioner cannot show a substantial need when his claim is procedurally barred from review“); Allen, supra, at 638-639 (describing “our rule that a prisoner cannot show a substantial need for funds when his claim is procedurally barred from review” (quoting Crutsinger v. Stephens, 576 Fed.Appx. 422, 431 (C.A.5 2014) (per curiam))); Ward, supra, at 266 (“The denial of funding will be upheld ... when the constitutional claim is procedurally barred“).
The Fifth Circuit adopted this rule before our decision in Trevino, but after Trevino, the rule is too restrictive. Trevino permits a Texas prisoner to overcome the failure to raise a substantial ineffective-assistance claim in state court by showing that state habeas counsel was ineffective, 569 U.S., at 429, 133 S.Ct. 1911 and it is possible that investigation might enable a petitioner to carry that burden. In those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.
Ayestas, 138 S.Ct. 1080, 1093-94 (2018).1
Following Ayestas, Crutsinger filed a
The majority now concludes Crutsinger‘s
In Black, the district court denied habeas relief and a COA. A single judge of this court granted a COA on two issues that had not been presented to the district court. A panel of this court later vacated the COA and dismissed the appeal without prejudice because the absence of the district court‘s determination regarding a COA on the two new issues posed a jurisdictional bar to this court‘s consideration. Importantly, Black involved the denial of habeas relief, not a
The relevant portion of Hernandez cited by the majority states that a petitioner in Hernandez‘s situation must obtain a COA before he can appeal the denial of a
In Dunn v. Cockrell, 302 F.3d 491, 492-93 (5th Cir. 2002), this court said: “Dunn filed both a timely notice of appeal and a motion for certificate of appealability. As this case presents only Dunn‘s appeal from the denial of his
This court in Ochoa Canales adopted a narrow interpretation of Dunn, as set out above. This case falls within that narrow interpretation, as the purpose of Crutsinger‘s motion is to reassert appellate jurisdiction over the original denial of habeas relief to allow the proper consideration of his motion for funding. Thus, a COA is not required. See also Gonzalez v. Crosby, 545 U.S. 524, 535, n. 7 (2005).
I note that the majority оpinion is unclear and seems contradictory. The majority concludes that a COA is required and that it has no jurisdiction, but then exercises jurisdiction to determine that Crutsinger‘s
Regardless, I agree with the majority that the Supreme Court‘s decision in Gonzalez compels the conclusion that Crutsinger‘s
In Gonzalez, the petitioner‘s only ground for reopening the judgment denying his first habeas petition was that the decision in Artuz v. Bennett, 531 U.S. 4 (2000), changed the interpretation of the Antiterrorism and Effective Death Penalty Act statute of limitations and the district court‘s statute-of-limitations ruling was incorrect. Id. at 536. The court stated: “The District Court‘s interpretation was by all appearances correct under the Eleventh Circuit‘s then-prevailing interpretation of
The change in the law worked by Artuz is all the less extraordinary in petitioner‘s case, because of his lack of diligence in pursuing review of the statute-of-limitations issue. At the time Artuz was decided, petitioner had abandoned any attempt to seek review of the District
Court‘s decision on this statute-of-limitations issue. . . . This lack of diligence confirms that Artuz is not an extraordinary circumstance justifying relief from the judgment in petitioner‘s case.
Id. at 537. Here, Crutsinger had not abandoned anything and had been diligently trying to get someone to review the denial of funding.
Additionally, the Gonzalez court cited Ackermann v. United States, 340 U.S. 193 (1950), and Klapprott v. United States, 335 U.S. 601 (1949). In Klapprott, the Court determined that the facts revealed far more than mere allegations of excusable neglect in a denaturalization case. Id. at 613-14. Specifically, the Court said:
The basis of his petition was not that he had neglected to act in his own defense, but that in jail as he was, weakеned from illness, without a lawyer in the denaturalization proceedings or funds to hire one, disturbed and fully occupied in efforts to protect himself against the gravest criminal charges, he was no more able to defend himself in the New Jersey court than he would have been had he never received notice of the charges. Under such circumstances petitioner‘s prayer for setting aside the default judgment should not be considered only under the excusable neglect, but also under the ‘other reason’ clause of 60(b), to which the one year limitatiоn provision does not apply.
Likewise, the Court engaged in a factual analysis in Ackermann, also a denaturalization case, to determine whether Ackermann had set forth extraordinary circumstances under
From a comparison of the situations shown by the allegations of Klapprott and Ackermann, it is readily apparent that the situations of the parties bore only the slightest resemblance to each other. The comparison strikingly points up the difference between no choice and choice; imprisonment and freedom of action; no trial and trial; no counsel and counsel; no chance for nеgligence and inexcusable negligence. Subsection 6 of
Rule 60(b) has no application to the situation of petitioner. Neither the circumstances of petitioner nor his excuse for not appealing is so extraordinary as to bring him within Klapprott orRule 60(b)(6) .
More recently, the Supreme Court addressed a similar issue in the context of the denial of a COA in Buck v. Davis, 137 S.Ct. 759 (2017). Duane Buck sought to reopen a 2006 judgment under
The district court and this court both concluded that Buck had failed to demonstrate extraordinary circumstances and denied a COA. The Supreme Court concluded that the district court abused its discretion in denying Buck‘s
Crutsinger has not abandoned this issue and has been extremely diligent. Gonzalez merely held that Artuz combined with a complete lack of diligence did not establish an extraordinary circumstance in that case, while acknowledging that there are situations where a subsequent change in the law may provide cause for reopening habeas cases long since final. Gonzalez, 545 U.S. at 536. The risk of injustice to Crutsinger in not reopening the judgment and properly deciding his funding motion is great, while the risk of injustice to the government is nonexistent. There also exists a risk of undermining the public‘s confidence in the judicial process by allowing an erroneous decision, the denial of funding based on procedural bar, to dictate the outcome of every decision that follows rather than just requiring the proper consideration of the motion for funding.
A district court‘s ruling on a
Proper application of the “reasonably necessary” standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way.
Id. Further, “[t]o be clear, a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks.” Id.
The guidance from Ayestas and the equitable nature of Martinez indicate that heightening the standard for funding, thus penalizing Crutsinger for any failures of counsel outside his control, is improper. Instead, funding should be decided solely under the requirements of
Because there has been a change in the law establishing that the denial of funding was potentially a defect in the integrity of the proceeding and Crutsinger has diligently pursued review of this issue, Crutsinger has shown that extraordinary circumstances exist to justify reopening the final judgment on his habeas petition. See Gonzalez, 545 U.S. at 535-36.
For these reasons, I would conclude that the district court abused its discretion in transferring Crutsinger‘s