Balentine v. Lumpkin

John Lezell Balentine, Petitioner-Appellant, v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 18-70035

United States Court of Appeals, Fifth Circuit

August 3, 2021

Appeal from the United States District Court for the Northern District of Texas USDC No. 2:03-CV-39.

Before Owen, Chief Judge, and Elrod and Duncan, Circuit Judges.

PER CURIAM:^[*]

John Balentine was convicted and sentenced to death for killing three teenagers while they slept. In the district court Balentine filed a Rule 60(b) motion to reopen the 2008 final judgment that denied him federal habeas relief under 28 U.S.C. § 2254. The district court determined that Balentine's case did not present extraordinary circumstances that warrant relief under Rule 60(b) and that the exception to a procedural bar under Martinez v Ryan, 566 U.S. 1 (2012) did not apply to Balentine's claim. We AFFIRM the district court's judgment.

I.

In 1998, John Balentine walked to the Amarillo home he used to share with his ex-girlfriend, and, once inside, shot and killed three teenagers. Two of them, he did not recognize. The other was Balentine's ex-girlfriend's brother who had allegedly previously threatened to assault or kill Balentine over Balentine's treatment of his sister.^[1] Balentine shot each victim in the head while they were asleep. Balentine, who was then thirty, was convicted of capital murder and sentenced to death the following year. State v. Balentine, No. 39, 532-D 1999 WL 34866401, (320th Dist. Ct., Potter Cnty., Tex. Apr. 21, 1999).

No mitigation evidence concerning Balentine's background, childhood, or family was presented at trial, and no witnesses were called by the defense at the punishment phase. The Texas Court of Criminal Appeals affirmed Balentine's conviction and sentence on direct appeal. Balentine v. State, 71 S.W.3d 763, 774 (Tex. Crim. App. 2002). Balentine did not petition the Supreme Court for certiorari. Instead, he filed a state habeas application in which he raised twenty-one grounds for relief, including that he was denied the effective assistance of counsel because his attorney failed to adequately investigate and present mitigation evidence. Balentine's application was denied. Ex parte Balentine, No. WR-54, 071-01 (Tex. Crim. App. Dec. 4, 2002) (not designated for publication).

Balentine filed an amended federal petition for writ of habeas corpus in 2004. He argued that his Eighth and Fourteenth Amendment rights to individualized sentencing under the Lockett doctrine, see Lockett v. Ohio, 438 U.S. 586 (1978), ^[2] were violated because his trial counsel failed to present any mitigating and risk-assessment evidence at trial.^[3] In support, Balentine relied upon arguments and evidence, such as affidavits from family members and experts, that were not presented to the state court. As such, the State argued that his claim was unexhausted and procedurally barred, and the federal district court heard oral argument on that point.

The district court concluded that Balentine's mitigation claim was unexhausted and did not constitute cause to excuse the default of the exhaustion requirement. Balentine v. Quarterman, No. 2:03-CV-39, 2008 WL 862992, at *20 (N.D. Tex. Mar. 31, 2008).^[4] The district court then denied Balentine a certificate of appealability on this issue. Balentine v. Quarterman, No. 2:03-CV-39, 2008 WL 2246456, at *3 (N.D. Tex. May 30, 2008) (concluding that trial counsel's failure to investigate and present mitigation evidence "does not allow the federal court to avoid the exhaustion requirement or excuse the procedural bar") (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991) and Martinez v. Johnson, 255 F.3d 229, 240-41 (5th Cir. 2001)). This court subsequently denied Balentine a certificate of appealability on this issue for the same reason. Balentine v. Quarterman, 324 Fed.Appx. 304, 306 (5th Cir.), cert. denied, 558 U.S. 971 (2009).

In 2009, the state court set Balentine's execution for September 30, 2009. State v. Balentine, No. 39, 532-D (320th Dist. Ct., Potter Cnty., Tex. June 22, 2009). Balentine then filed a motion for stay of execution along with a second (or first subsequent) habeas application in state court, again raising his ineffective-assistance-of-counsel claim but this time supported by exhibits developed during the federal habeas proceedings. Ex parte Balentine, Nos. WR-54071-01, WR-54071-02, 2009 WL 3042425, at *1 (Tex. Crim. App. Sept. 22, 2009) (not designated for publication). The Court of Criminal Appeals dismissed Balentine's application under Article 11.071 § 5 of the Texas Code of Criminal Procedure and denied his motion for stay of his execution. Id.

Balentine then filed his first Rule 60(b) motion (along with another motion for stay of execution) in federal district court, contending that the Court of Criminal Appeals ruling undermined the conclusion that his ineffective-assistance-of-counsel claim was procedurally barred. Balentine v. Thaler, No. 2:03-CV-39, 2009 WL 10673148, at *1 (N.D. Tex. Sept. 28, 2009). The district court denied relief, holding that the Court of Criminal Appeals ruling was based on independent and adequate state-law grounds, did not consider or rule on the merits, and did not open the claim to federal habeas review. Id. at *3. The district court did, however, grant Balentine's application for a certificate of appealability. Balentine v. Thaler, No. 2:03-CV-39, 2009 WL 10710124, at *1 (N.D. Tex. Sept. 28, 2009). The Fifth Circuit originally disagreed and granted Balentine's stay of execution (denied by the district court) and reversed the denial of Rule 60(b) relief. Balentine v. Thaler, 609 F.3d 729, 738 (5th Cir.) (determining that prior Fifth Circuit precedent compelled it "to construe the . . . Court of Criminal Appeals ruling as one on federal grounds, because it was not clearly based on an adequate state ground independent of the merits"), withdrawn, 626 F.3d 842 (5th Cir. 2010).

This court then substituted a new opinion that affirmed the district court's denial of Balentine's Rule 60(b) motion and held that the Court of Criminal Appeals denial of Balentine's subsequent application was based upon independent and adequate state procedural grounds. See Balentine v. Thaler, 626 F.3d 842, 857 (5th Cir. 2010). A petition for rehearing en banc was denied, Balentine v. Thaler, 629 F.3d 470 (5th Cir. 2010), as was a petition for writ of certiorari, Balentine v. Thaler, 564 U.S. 1006 (2011).

The state court set another execution date for June 15, 2011. On June 13, Balentine moved to stay his impending execution and filed a third state habeas application (second subsequent application), which again presented his claim that trial counsel failed to conduct an adequate investigation in his initial state habeas application. The Court of Criminal Appeals denied his request for a stay and dismissed his application. Ex parte Balentine, No. WR-54, 071-03, 2011 WL 13213991, at *1 (Tex. Crim. App. June 14, 2011) (not designated for publication). Balentine filed a petition for writ of certiorari, along with a motion for stay of execution. The Supreme Court granted the motion for stay, Balentine v. Texas, 564 U.S. 1014 (2011), which expired on the denial of certiorari, Balentine v. Texas, 566 U.S. 904 (2012).

The state court then set another execution date for August 22, 2012. On July 12, 2012, Balentine filed another Rule 60(b) motion in the federal district court, claiming that Martinez v. Ryan, 566 U.S. 1 (2012), ^[5] excused the procedural default of his ineffective-assistance claim. The district court denied Balentine's motion but granted a certificate of appealability. Balentine v. Thaler, No. 2:03-CV-39, 2012 WL 3263908, at *1 (N.D. Tex. Aug. 10, 2012) ("[B]inding circuit precedent has determined that the exception created in Martinez does not apply to this case."). The Fifth Circuit affirmed the district court. Balentine v. Thaler, No. 12-70023, slip op. at 6 (5th Cir. Aug. 17, 2012) (unpublished), supplemented, 692 F.3d 357 (5th Cir. 2012). Balentine's motion for rehearing en banc was denied. Balentine v. Thaler, 692 F.3d 357 (5th Cir. 2012). The Supreme Court, however, granted Balentine's certiorari petition, vacated the judgment, and remanded the case to this court for further consideration in light of Trevino v. Thaler, 569 U.S. 413 (2013).^[6]Balentine v. Thaler, 569 U.S. 1014 (2013). This court in turn remanded the case to the district court to "conduct further proceedings consistent with the Supreme Court's ruling in Trevino." Balentine v. Stephens, 553 Fed.Appx. 424, 425 (5th Cir. 2014).

Following the Fifth Circuit's remand with instructions, the district court held an evidentiary hearing "for the purpose of examining the exception to procedural bar," which necessarily included the presentation of evidence relating to the merits of Balentine's underlying ineffective-assistance claim. Balentine v. Stephens, No. 2:03-CV-39, 2016 WL 1322435, at *4 (N.D. Tex. Apr. 1, 2016). Following the hearing, the magistrate judge recommended that Rule 60(b) relief be denied because "Balentine's claim has no merit and does not come within the Martinez exception to procedural bar." Balentine v. Davis, No. 2:03-CV-39, 2017 WL 9470540, at *16 (N.D. Tex. Sept. 29, 2017). The district court adopted the magistrate judge's recommendation and denied Balentine a COA. Balentine v. Davis, No. 2:03-CV-39, 2018 WL 2298987, at *1 (N.D. Tex. May 21, 2018).

Balentine moved for a COA from this court to appeal the district court's denial of his Rule 60(b) motion. Based on the limited, threshold inquiry appropriate at the COA stage, this panel granted Balentine's motion for a COA, and the appeal is before us now.

II.

Federal Rule...