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Crutsinger v. Davis

United States Court of Appeals, Fifth Circuit

July 3, 2019

BILLY JACK CRUTSINGER, Petitioner-Appellant,

          Appeal from the United States District Court for the Northern District of Texas

          Before SMITH, OWEN, and GRAVES, Circuit Judges.

          PRISCILLA R. OWEN, Circuit Judge.

         Billy Jack Crutsinger appeals from the district court's order transferring his motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6) to this court. The district court held that Crutsinger's motion was a second-or-successive petition for habeas relief within the meaning of 28 U.S.C. § 2244(b)(1), and therefore, that the court lacked jurisdiction. We conclude that the motion was not a successive habeas petition and therefore vacate the order of transfer. However, based on circuit precedent binding on this panel, we conclude that we lack jurisdiction to treat the transfer order and Crutsinger's requests for relief in this court as a request for a certificate of appealability (COA). Accordingly, we remand to the district court for further proceedings.


         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 application for authorization of funding and the appointment of an investigator pursuant to 18 U.S.C. § 3599(f).[7] The federal district court denied the request in a sealed order, finding that Crutsinger's application "fail[ed] to provide the information necessary to show that the claim he [sought] to develop [was] not procedurally barred from review." Crutsinger filed a motion for reconsideration, emphasizing his intention to "assert ineffective assistance of counsel in the investigation and presentation of mitigation evidence in the punishment phase of his trial." The court denied the motion.

         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, [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, [14] which held that "[i]nadequate 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 Federal Rule of Civil Procedure 59(e) motion to vacate the initial habeas judgment.[16] The district court denied the request, concluding that "the claim of ineffective trial counsel raised by Crutsinger had no merit and was, therefore, not 'substantial' as required by Martinez."[17]

         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 § 3599.[18] We considered the Supreme Court's decision in Martinez v. Ryan[19] and concluded that "[u]nder Martinez, Crutsinger has to establish that his underlying IAC claim is 'substantial' and that his state habeas counsel was ineffective."[20] We recognized that "Martinez makes this substantiality standard equivalent to the standard for obtaining a COA."[21]

         With respect to the § 3599 claim, we denied Crutsinger's request for a COA and affirmed the district court's disposition.[22] In applying the statutory standard of whether an investigator's services were "reasonably necessary for the representation of the defendant, "[23] our court construed "[r]easonably necessary in this context [to] mean[] 'that a petitioner must demonstrate "a substantial need" for the requested assistance.'"[24]

         Crutsinger then filed a petition for certiorari.[25] With regard to § 3599, he asserted that this court had improperly "hewed to Fifth Circuit precedent specifying that '[r]easonably necessary in this context means that a petitioner must demonstrate a substantial need for the requested assistance, '" and that the "'substantial need' criteria for § 3599 services" was an "outlier."[26] This was the only reference to the "substantial need" gloss that the Fifth Circuit had placed on the text of the statute. Crutsinger's argument and briefing focused on a "cart-before-horse" rationale.[27] Relying on the Supreme Court's decisions in Martinez v. Ryan[28] and Treviño v. Thaler, [29] Crutsinger asserted that his ineffective-assistance-of-trial-counsel claim, based on failure to investigate, was procedurally defaulted due to state habeas counsel's alleged ineffective assistance in failing to investigate mitigating evidence and failing to pursue the issue adequately in state habeas proceedings.[30] Crutsinger also argued that in evaluating the merits of his claims and the denial of funds under § 3599, the Fifth Circuit had erred by requiring him "to explain[] what the additional investigation he requests would reveal [and] how it would have changed the result of his trial and sentence."[31] The Supreme Court denied Crutsinger's petition for certiorari.[32]

         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 § 3599, and that this court's conclusion that funding for an investigation should not be granted if the claim was procedurally barred was incorrect.[33] The Supreme Court held, "[t]he difference between 'reasonably necessary' and 'substantially need' may be small, but the Fifth Circuit exacerbated the problem by invoking precedent to the effect that a habeas petitioner seeking funding must present 'a viable constitutional claim that is not procedurally barred.'"[34] In Ayestas, the Supreme Court expressly cited our court's decision in Crutsinger with disapproval, [35] and all agree that our decision in Crutsinger was accordingly abrogated regarding its analysis and application of § 3599.

         Crutsinger then returned to federal district court, asserting in a Rule 60(b)(6) motion that there was a defect in the integrity of his initial federal habeas proceedings because the district court had incorrectly applied the law in assessing his request for funds under § 3599.[36] He requested that the federal district court vacate its judgment and allow him to file a new § 3599 motion.[37] He did not seek to overturn the state court's judgment of conviction and death sentence, but it is clear from his motion that if substantial additional mitigating evidence is discovered, he would seek to set aside his state conviction, sentence, or both. The district court determined that his Rule 60(b) motion was "in actuality a second-or-successive petition for habeas relief," which deprived the court of jurisdiction.[38] Accordingly, the district court transferred the motion to this court.[39]


         The Supreme Court's decision and reasoning in Gonzalez v. Crosby[40]compels the conclusion that Crutsinger's Rule 60(b)(6) motion is not a successive petition for habeas relief within the meaning of 28 U.S.C. § 2244(b)(1).[41] The Gonzalez decision appears to establish that Crutsinger is not entitled to relief under Rule 60(b) because a change in the law does not constitute an extraordinary circumstance, which Rule 60(b)(6) requires.[42]However, we remand the case to the district court to decide the latter issue in the first instance.


         We must determine whether Crutsinger's Rule 60(b)(6) motion is actually a successive habeas petition within the meaning of the Antiterrorism and Effective Death Penalty Act (AEDPA).[43] If it is not, the district court's order transferring the case to this court must be vacated.

         Justice Scalia, writing for the Court in Gonzalez, explained that "'[a]s a textual matter, § 2244(b) applies only where the court acts pursuant to a prisoner's "application"' for a writ of habeas corpus, "[44] and courts "therefore must decide whether a Rule 60(b) motion filed by a habeas petitioner is a 'habeas corpus application' as the statute uses that term."[45] "[I]t is clear that for purposes of § 2244(b) an 'application' for habeas relief is a filing that contains one or more 'claims.'"[46] "These statutes, and [Supreme Court] decisions, make clear that a 'claim' as used in § 2244(b) is an asserted federal basis for relief from a state court's judgment of conviction."[47]

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 Rule 60(b) motion attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings."[49]

         In Gonzalez, the federal district court had dismissed 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, [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 Rule 60(b)(6) motion "contending that the District Court's time-bar ruling was incorrect under Artuz's construction of § 2244(d)."[53] The district court denied the motion, and the Eleventh Circuit concluded, en banc, that the Rule 60(b)(6) motion was in substance a second or successive habeas corpus petition.[54]

         The Supreme Court disagreed with the circuit court. The Supreme Court pointed out that the Rule 60(b)(6) motion at issue in Gonzalez "does not present a revisitation of the merits" but instead "confines itself not only to the first federal habeas petition, but to a nonmerits aspect of the first federal habeas proceeding."[55] "Because petitioner's Rule 60(b) motion challenges only the District Court's previous ruling on the AEDPA statute of limitations, it is not the equivalent of a successive habeas petition."[56]

         Crutsinger's motion for funding is analogous. It does not present a revisitation of the merits of the IATC claim. It is confined to the federal district court's denial of funding in the first federal habeas proceeding. It is not a successive habeas petition within the meaning of 28 U.S.C. § 2244(b)(1). The district court therefore had jurisdiction to consider the Rule 60(b)(6) motion.


         To prevail on a motion under Rule 60(b)(6), a movant must show "'extraordinary circumstances' justifying the reopening of a final judgment."[57]It would appear that the Supreme Court's holding in Gonzalez that "not every interpretation of the federal statutes setting forth the requirements for habeas provides cause for reopening cases long since final"[58] is at least instructive, if not dispositive, of Crutsinger's Rule 60(b) motion.

         However, a decision of our court has held that we are without jurisdiction unless the district 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 Rule 60(b)(6) motion in the first instance.

          JAMES E. GRAVES, JR., Circuit Judge, dissenting:

         Because I conclude that Billy Jack Crutsinger's motion under Federal Rule of Civil Procedure 60(b)(6) should be granted, I would vacate and remand for proper consideration of his funding motion. Thus, I respectfully dissent.

         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 18 U.S.C. § 3599(f) is merely that the defendant is indigent and "investigative, expert, or other services are reasonably necessary." The district court found that, under our case law, Crutsinger could not make the required showing "when the claim sought to be investigated is procedurally barred from review."

         Prior to the conclusion of Crutsinger's habeas, Martinez v. Ryan, 566 U.S. 1 (2012), was decided. As we know from Trevino 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 Fed.R.Civ.P. 59(e). In denying this motion, the district court addressed the Supreme Court's decision in Martinez and said that to overcome the default, Crutsinger had to establish that his claim was substantial and had merit. The district court then found that Martinez would not excuse the procedural default in this case, and, because the claim was unexhausted, evidentiary development would be inappropriate.

         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 Fed.Appx. 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 18 U.S.C. § 3599(f) and essentially makes it impossible for a defendant to ever obtain funding on such a claim. A defendant who has already ...

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