*1 foreign ves- apply seamen and 10501 wage penalty wish invoke
sels who 10313 and
provisions in sections correctly grant-
hold that in favor Stolt. summary
ed working, Kaluom was on which
The vessel types was not on
the DLB bring the vessel voyages statutes’ umbrella. penalty wage
under district court is judgment of the
AFFIRMED. RUIZ, Petitioner-Appellant,
Rolando Director, QUARTERMAN,
Nathaniel Department of Criminal Jus
tice, Institutions Divi Correctional Respondent-Appellee.
sion,
No. 07-70025. Appeals, States Court
United
Fifth Circuit.
Oct.
Jeremy Craig (argued), Greenwell Aus- TX, tin, Quarterman. HIGGINBOTHAM, Before DENNIS, BENAVIDES and Circuit Judges. HIGGINBOTHAM,
PATRICK E. Judge: Circuit is a death penalty This case from Bexar County, Texas. Petitioner Rolando Ruiz appeals the federal district court’s order denying his Rule 60 motion for relief from stay of execution. Ruiz brings charges incompetent serious counsel, ineffective trial but no federal court has considered the merits of his con- claims, stitutional stay and he obtained a execution, within minutes of his granted gain in order to sufficient time to properly consider appeal. briefing After further and oral argument, we continue the of execu- tion, reverse the dismissing the federal habeas and remand with instruction to the federal district court to the claim decide trial on merits after further proceedings necessary to do so.
Rolando Ruiz was convicted of murder jury a Texas and sentenced to death. At the state’s urging, objec- and over his tions, the state trial court ap- declined to point different appeal counsel on direct promise that any Sixth Amendment claim of ineffective counsel could be raised by state habeas counsel. It was not. meeting Without or conducting his client any investigation, Ruiz’s state habeas application counsel filed a boilerplate Moon, Morris H. Jared Tyler (argued), challenge did not the fail- Serv., Houston, TX, Tex. Def. Ruiz. ure of his trial investigate counsel to if this court were hold this [E]ven Tex- mitigating evidence. present (CCA) abeyance permit de- Appeals peti- cause so as as Court Criminal fairly present nied relief. tioner to the state habeas his unexhausted claim herein *3 and with a turned to federal court Ruiz time, an action the first such applica- lawyer filed a federal habeas new in .... futility be an exercise Petition- of assistance raising claims ineffective tion er’s reference to the recent of recision habeas and his state coun- by trial counsel rule long-standing which court relief due to The district denied sel. litigation hibited simultaneous of a claim petitioner’s failure of inexplicable “[t]he in and corpus both state federal habeas any of counsel to raise these state habeas proceedings sequitur.1 non habeas cor- during petitioner’s claims court ruled district pus proceeding.” juror issue, Armed with the COA on the defaulted procedurally that the claim was court, appealed Ruiz to at this the same he court to which would “the state because seeking time review the district court’s of find required to would now petition be rejection legal justification for of the fail- Although procedurally barred.” claims ure to exhaust. We affirmed the Su- state counsel that while Ruiz’s convinced preme Court denied certiorari. “egregious- incompetent” and “wholly persuade With the failure to the federal rejected court ly inept,” the district courts that his lack effective of habeas performance inept that contention exhaust, his to counsel excused failure failure ex- gave legal excuse suggestions with the CCA a return to entertain the claim of haust. refused futile, might longer to state court no counsel and trial ineffective ninety later approximately Ruiz filed appealabili- a certificate of refused issue application an for state habeas relief rais- claim. The federal district ty for that ing claim of assistance at a judge ap- did issue certificate court presentation trial in the of his first juror in upon a claimed error pealability application. The dis- state habeas CCA Then, in denying selection. motion an on application missed his judgment, alter made we depends, which much now as will ex- ruling that his rested on his conclu- clear dismissal of his plain. After CCA’s precludes petitioner that “Texas law sion application, Ruiz to federal dis- returned ruling obtaining merits court, filing trict a motion under Rule ... currently in a unexhausted light in for relief corpus applica- successive state which, ruling, re- argued, the CCA’s asked the tion.” Ruiz’s federal counsel merits on the jected Amendment his Sixth federal district court to claim ineffective trial counsel and allow Ruiz return to proceeding to doing from under the pulled so to exhaust the ineffective-assistance federal district court’s earlier claim, to the then-recent pointing CCA’s to hold dismissing refusing the claim and accept abandonment of its refusal abeyance claim in while Ruiz application so long state court habeas to state court with his unexhaust- returned petitioner had a federal habeas ed claim. defended pending. refusing to hold the federal motion, abeyance, earlier dismissal and denied the federal district rejecting contention CCA’s court observed: 03-CV-303, 2005). Dretke, (W.D.Tex. Sept. *2 No. WL relief, indepen- or upon presents decision had not rested claim for when it new ground. support As already dent state law evidence of a claim explain litigated,6 change will an error of or when it the latter was asserts a claim, governing and the former an of discretion. the substantive law law when it attacks the federal previous II Signif- of a claim on resolution the merits. icantly, explained Court then We first address whether Ruiz’s there no new [a habeas claim “when subject to the motion is addi petitioner] merely previous asserts “second or apply tional restrictions ruling precluded a merits determi- under *4 corpus petitions successive” habeas nation example, was error —for a denial persuaded AEDPA.2 We are not exhaust, for such reasons as failure to petition. motion was a successive default, procedural or statute-of-limitations 60(b) Rule allows a to seek losing party bar.”7 from a limited set of relief under fraud, mistake, including circumstances Such is case here. The dis- federal newly previous discovered evidence.3 Relief is trict claim denial of Ruiz’s 60(b) is, available under pro- Rule in habeas was not “on the merits.” That ceedings, but of conformity course district did not court rule that were there AEDPA, with including grounds entitling its limits succes- no corpus to habeas 2254(a) petitions.4 subsequent (d), sive federal §§ is a relief under U.S.C. corpus application whenever but rather denied relief proce- based on presents exhaust, Rule 60 motion for ha- a “claim” dural default failure to two relief. Supreme has rulings specifically beas Court identified the Court guidance, holding vided neither as rulings precluding “[i]f a merits determina- motion itself nor the federal tion. jurisdiction So the district court had 60(b) which it substantively motion, seeks relief to consider Ruiz’s Rule free grounds setting jurisdictional addresses federal for aside constraints of AEDPA conviction, allowing the movant’s state upon petitions. short, successive In proceed motion to as denominated creates is pursuing first federal with inconsistency no with the habeas statute or its claim that trial ineffec- provided helpful failing rules.”5 The Court exam- tive in to investigate and otherwise ples, explaining case,8 that a Rule motion develop mitigation is “Wiggins” a habeas claim presents when it a new claim. so,
2.
prior application,”
If
then under
AEDPA the
in a
and rested
instead
2244(b)(2)(B)’s
jurisdiction
must dismiss for lack of
until Ruiz
requirement
section
of a more
permission
60(b).
obtains
to file a
convincing
showing
this court
factual
than Rule
petition.
531,
successive
Id. at
III
best,
At
CCA did
make clear
have
federal court below would
or
whether
relied on state
federal law
if,
claim
as the
before
no
dismissing
application.
As the CCA
concluded,
inde-
applied an
the CCA
aware,
keenly
language
its choice of
ground to
state law
pendent
background legal
made
stan-
the petition would
deny relief.9 Moreover
directs the CCA in either
dard —which
and Rule 60
have been successive
then
application
an
escape
granting
succes-
consideration
Ruiz to
would not allow
subsequent
limits AEDPA.
dismissing
appli-
writ
claims or
sive
as an
of the writ —that
cation
re
deciding
whether the CCA
law.
interwoven
upon
relief
state-law
fused
peti
upon
the merits of Ruiz’s
Procedure,
The Texas Code of Criminal
bright
light
áre
tion we
aided
CCA,
interpreted by
provides
Michigan Long:
(1)
applications where
fac-
subsequent
fairly
... a
decision
legal
subsequent
tual or
basis for
law,
primarily
on federal
appears
rest
*5
(2)
previously unavailable
where
was
and
law,
with federal
or to be interwoven
alleged
the facts
would constitute a federal
adequacy
indepen-
and when the
and
likely
constitutional violation
any
state
ground
of
law
possible
dence
the
or
require relief from either
conviction
opinion,
clear
the face of the
boilerplate
sentence.11 The
dismissal
as the most reasonable
accept
we will
anof
for abuse of the
application
the CCA
the state
decided
explanation that
being
this point,
is itself uncertain on
writ
it be-
way
case
it did because
the
the
was
unclear whether
the CCA decision
required
law
it to do
lieved that federal
element,
on the first
a state-law
based
so.10
element, ques-
or on
a
question,
the second
gives to
courts
principle
This settled
state
law.
tion of
constitutional
their
over
federal review of
control
the
any event
decisional
here is
In
basis
a
rule at the
has become
rote
opinions.
Although
uncertain.
seven members
writing
of
every
member
fingertips
joinder of five
participated,
the court
studied
courts of last resort —where
necessary for
judges remained
a decision.12
clarity
in the
foot-
ambiguity
decisional
four-judge plu-
assuming
even
So
clarity
an art
and an absence of
ing is
form
rejected
application as an
rality
opinion
inadvertent. Cali-
in an
is seldom
on the first ele-
writ based
mediating
uncertainty
play
can
a
brated
ment,
fifth
for an
there is still no
vote
garnering support
an outcome.
role
ground.
Judge
independent
state-law
make
point,
that the CCA did not
To
fifth
provided the
vote for dis-
Womack
that its
rested on an inde-
clear
decision
missal,
opinion in
filing concurring
a
opens
merits of
pendent
418,
722,
parte
421
Thompson,
Campbell, 226 S.W.3d
501 U.S.
111
11. Ex
9. Coleman
2546,
(Tex.Crim.App.2007);
also Tex.Code Crim.
640
see
S.Ct.
L.Ed.2d
115
11.071, 5(a).
Art.
Proc.
1040-41,
Michigan
Long, 463 U.S.
Const.,
4(b) ("When
(1983);
§5
con-
see
Art.
S.Ct.
offered no these persuasively, without recent de- diligence lack of due perceived cisions he would have donated his time immediately presenting unex- to this case. hausted ineffective-assistance Ironically brought was Ruiz who them. court when it earlier dismissed modification of two-forum rule to Texas’s lack of due dili- Pointing perceived to his the attention of the district court and that Ruiz district court insisted gence, the asked that it hold federal case to allow despite should have returned explained, him to exhaust.17 As litigation state-court case, to hold the refused given futile CCA’s would have been that a to state court observing return summary writ. dismissal Rather, granted futile. COA would be conclusion of the district court’s While point on another law. made, it has futility been was sound dilatory Ruiz was agree We cannot by recent undermined decisions pursuing appeal January the CCA decided CCA. rejection proffered of his excuses Hood, indicating for first parte
Ex
*7
as well as the
for default under federal law
judicially-created
that there are
ex-
time
claim
which
district
Witherspoon
this
for
section five.15 Before
deci-
ceptions to
his
first
petitioner’s failure to exhaust
(Tex.Crim.App.2007).
15.
A
despite
consider the last-minute
“fundamental un-
an application
proceedings,
nature of
execution fairness” of his habeas
*8
grant
in deciding
equitable
why
whether to
re-
the district court now faults the law-
lief,18 but we do not see this
a last-
yers
previ-
who first
the
of
exposed
work
Court,
03-CV-303,
Dretke,
18.
v. United
Dist.
States
20.
No.
Gomez
2005 WL
653, 654,
U.S.
(W.D.Tex.
13, 2005).
118 L.Ed.2d
at *2
Oct.
(1992)
curiam);
Johnson,
(per
Harris v.
(5th Cir.2004)
curiam).
(per
Both these
wrong
are
question.
equities,
pay
answer the
We
we must
balancing
review,
considering an
dealing
equities
to our standard of
careful attention
Rather,
only. The
claim.
examine
is for abuse of discretion
unexhausted
application” of Rule
“is
equities
re-considering
a dismissal
“main
*9
of a
cases in which the true merits
baggage
freed
threat-
those
of a claim now
25.Coleman,
752,
Quarterman,
638,
(5th
at
U.S.
532 Thus, case might never considered.”26 I “egregiously inept,” and do not doubt although rarely we reverse a district that he was. Whether ineffective habeas deny court’s a counsel excuses failure exercise discretion to Ruiz’s to exhaust 60(b) motion,27 his ineffective trial Rule we reversed before have courts, prevent Texas’s so precludes “where denial relief as to the claim examina- here, cause,” being procedurally a tion of the full barred merits of the ex- question. difficult ques- difficult plaining that in such “even a instances tion district court slight justify answered it may reversal.”28 This 2005, negative panel when this af- lesser applied standard of review has been firmed the district liberally re-open most motions de- 2006, and presented when it was to the fault judgments,29 but has also been ex- Texas Court of Criminal Appeals tended where a on the merits (“TCCA”) eight days before Ruiz’s sched- pretermitted by strict time limits in a uled year. execution this bankruptcy court’s local rules.30 And as explained, have no federal court has nothing changed But has since the dis- considered the merits of Ruiz’s constitu- opinion trict court rendered its that war- say tional proce- claims. that a We the extraordinary setting rants measure of erroneously dural hurdle was placed least, At very aside. not enough has path, universally that courts favor changed make the district court’s refus- merits, judgment on the and that the un- al to set it aside an abuse of discretion. derlying case is sufficiently “signifi- here majority believes the TCCA’s potentially cant [and] meritorious” ambiguous order, one-page per curiam off should not be cut at its Equity knees. which it had all of four to render deny would not hearing given execution, the impending compels merits. 60(b) disagree. Rule relief. I also be- lieve the fact that presentation Ruiz’s first of execution is CONTINUED. claim to the Texas courts just came The district court’s order denying Ruiz’s eight days before his scheduled execution 60(b) Rule motion is REVERSED supports the district court’s finding that he case is REMANDED for consideration of diligent. was not I respectfully dissent. counsel on the merits. I. DISCUSSION
BENAVIDES, Judge, Circuit A. Rule and the TCCA’sOpinion dissenting: 60(b) provides grounds six for re-
Rolando habeas counsel was prior lief judgment. While Ruiz found “wholly to be incompetent” and specify does not he is Bell, 734, (5th (5th Cir.1975) 564 26. curiam). F.2d 735 Fackelman v. F.2d (per 228-29 Cir.1977). ("For Warfield, 436 at F.3d 557 these Cf. reasons, and because court’s deni- (5th al 436 of Littlewood's Rule 27. F.3d motion did not Byron, Warfield Cir.2006). preclude examination of merits of the case, discretion.”). the court did not abuse its Elves, Eskenazi, 28. Seven 635 F.2d Inc. v. (5th Cir.1981); Elves, 635 F.2d 29. Seven see also Harrell DCS Equip. Corp., 951 F.2d Leasing (5th Cir.1992); Rouge Interests, Greater Baton TNB See Fin. v. Parker Golf Comm'n, (5th Cir.2001). Ass’n v. Recreation Park
533
60(b)
a Rule
motion
on
question
The
ground is
relevant
on,
ceeding
in
than
the Cole-
different
relief is much
from a
for relief
allowing
provision
catchall
typi-
petitioner
A Coleman
man context.
jus-
“any other reason
on
based
judgment
state
claims to the
brings his habeas
cally
operation
from the
relief
tifying
denied, then the
60(b)(6).
If relief is
courts first.
Such
P.
R. Civ.
judgment.”
Fed.
ha-
a federal
may entertain
district court
only under
and
rarely
granted
relief
judg-
the state court’s
unless
beas claim
Batts v.
circumstances.
extraordinary
indepen-
and
on
ment was based
Co.,
745
Tow-Motor Forklift
Coleman,
grounds.
U.S.
dent state
Cir.1995).
(5th
pre-
730-32,
2546. The Coleman
111 S.Ct.
the district
dispute
no
There is
evaluating
play
into
when
comes
sumption
relief on
denying
judgment
first
court’s
opinion
previous
whether the
correct
was
grounds
default
procedural
grounds;
on
was based
2005.
issued in
when was
any ambiguous
to treat
courts
it instructs
it was
agreed
argument
at oral
ruling
on
decisional basis as
al-
decision,
court has
and this
reasonable
review.
merits,
federal
thereby permitting
to the
points
it. But
ready affirmed
734-35, 111
Id. at
S.Ct.
relief
denying
order
most recent
TCCA’s
Here,
brought his unexhaust-
Ruiz first
intervening factor
case as
in this
to federal
ed ineffective
inequitable.
now renders
there
no state
Because
court.
TCCA
the latest
is that
argument
His
Cole-
interpret
through the
compels
ambiguous,
opinion was
court had
the district
presumption,
man
based
it as merits
to treat
district court
“Would
Coleman,
question:
hypothetical
answer a
Long
directives
under the
prisoner
to which
the state court
requiring
therefore
claims
present
have to
petition.
habeas
the merits
entertain
procedurally
them find
1032, 103
exhaust
U.S.
Long,
v.
Michigan
Dretke, 426 F.3d
barred?” Kittelson
(1983);
Coleman
3469,
opinion assistance claim February, 2004, was rendered only after four proceeded he consideration due to federal court. Ruiz’s fast- He should approaching have view, execution.2 In exhausted my his claim in does not cast Texas courts in a sufficient second doubt on the state habeas peti- dis- trict tion. court’s If his judgment to warrant this ex- was denied as an relief, ceptional writ, much abuse of the less to find that he then could have pressed court abused its argument discretion not before the federal granting relief. While courts that ambiguity he had a legal valid excuse for TCCA’s compels reaching raising his ineffective assistance claim merits in context, the Coleman ambiguity his first petition. Notably, AED- context, in this where it is incumbent PA’s statute of limitations would have been Ruiz to show exceptional circumstances tolled during any second state warranting relief, cuts the other way. Johnson, ceeding. Villegas v. Ruiz brought (5th unexhausted Cir.1999). claim the explana- court, forcing it to make an Eñe tion Ruiz offers for not taking this ap- 2. Given the extraordinarily short timeframe trict prior judgment was correct the TCCAhad to handle this Rule showing a subsequent agree- Texas decision motion, surprising it is not ing two of the it. It with is Ruiz must who show that the judges nine participate, could albeit for was incorrect inequita- or otherwise unspecified disagree Moreover, reasons. I ma- ble. the wisdom jority's search "fifth vote” that, for the adopting same approach practical as a disagree reason I matter, with its entire approach to encourages applications last-minute hopes in the of getting non-participating argument. 60(b) context, In the Rule judges, is not thereby decreasing the chances of upon prove incumbent Texas to the dis- finding definitive grounds. on state-law *12 press futile to it was proach of: CRUTCHER-TUFTS In the Matter ha- in a second
ineffective INC.; RESOURCES, have been Crutcher-Tufts it would because petition beas Resources, L.P., Howev- the writ. Debtors. abuse of as an dismissed slightly at is at least er, argument this LLC, Part supra Energy Appellant, See first one. Tufts
odds exhausting not explanation I.A. is that petition his claim second futile, it makes have been Party
it would Bryan, Responsible Trevor G. odd, inequitable, perhaps exceptionally Resources, L.P. and of Crutcher-Tufts complain him hear now Resources, Inc.; Tufts Crutcher-Tufts that he reject a claim wrong court was Gas-III, L.P.; &Oil Crutcher Oil & point He does considered frivolous. Family Trust; Gas-III, L.P.; JDT/CLT explain caselaw intervening state some Family Trust; Priscilla GPH/LTH signifi- it seems none of anomaly, but Crutcher; Reiss; Michael Eaves John being claim from take his enough cant Bowman; Rodan; Cathy Rodan E. being correct. frivolous to completely Weese; Dobie; E. A. Dennis Charles three than more Ruiz waited Resources, Inc., That Crutcher-Tufts in his was denied after certiorari months Bryan, Liquidator; through Trevor G. to file his second state case Tufts, Liberto III and Claudia J. Davis three and him. While works also Trust; Trust; Pe Tufts Childrens unreason- normally not months is half Becker, place of the Succession ter filing, Ruiz time for such able amount Becker; Beck Penelope Christian proceed- several through already gone er, Appellees. assis- this exact regarding ings No. 06-30978. days be- eight until Waiting claim. tance is somewhat execution scheduled fore his Appeals, Court of States United now seeks when he concerning, especially Fifth Circuit. resulting imprecision to benefit rushed order. the TCCA’s 11, 2007. Oct. all of easy think balance
I do not disagree might in this case. equities them, court balanced
with how stepped outside not I do think
but it found here discretion
bounds diligent and judg- compel relief did
equities
ment.
II. CONCLUSION court’s order affirm
I would deny motion
denying Ruiz’s stay of his execution.
any further