Ruiz v. Lumpkin

653 F.Supp.3d 331

Wesley RUIZ, Petitioner, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent

Civil No. 3:12-CV-5112-N

United States District Court, N.D. Texas, Dallas Division

Signed January 27, 2023

Shawn Nolan, Federal Community Defender for the Eastern District of PA Eastern District of Pennsylvania, Philadelphia, PA, for Petitioner.

Tomee Morgan Heining, Edward L. Marshall, Office of the Texas Attorney General, Austin, TX, for Respondent TDCJ-CID Director.

MEMORANDUM OPINION AND ORDER DENYING RULE 60(b) MOTION AND TRANSFERRING POTENTIALLY SUCCESSIVE PETITION

David C. Godbey, Chief United States District Judge

The matter before the Court is Ruiz's motion for relief from judgment pursuant to Rule 60(b), FED. R. CIV. P., filed January 25, 2023 (ECF no. 50). For the reasons set forth below, Ruiz is not entitled to any relief from this court, is not entitled to a Certificate of Appealability, and this cause will be transferred immediately to the Fifth Circuit pursuant to 28 U.S.C. § 1631 to avoid any further delay in disposing of Ruiz's claims prior to Ruiz's scheduled February 1, 2023 execution.¹

BACKGROUND

In 2008 Ruiz was convicted in state court of fatally shooting a Dallas police officer at the conclusion of a high-speed chase. The jury answered the Texas capital sentencing special issues in a manner requiring the imposition of a sentence of death. The Texas Court of Criminal Appeals affirmed Ruiz's conviction and sentence on direct appeal. Ruiz v. State, AP-75,968, 2011 WL 1168414 (Tex. Crim. App. Mar. 2, 2011). The United States Supreme Court denied certiorari review. Ruiz v. Texas, 565 U.S. 946, 132 S.Ct. 402, 181 L.Ed.2d 263 (2011).

Ruiz filed a state habeas corpus application and a supplemental application. The Texas Court of Criminal Appeals denied Ruiz's initial application on the merits and dismissed his supplemental application as a subsequent writ pursuant to Article 11.071, § 5 of the Texas Code of Criminal Procedure. Ex parte Ruiz, WR-78,129-01 & WR-78,129-02, 2012 WL 4450820 (Tex. Crim. Sept. 26, 2012).

Ruiz then filed his federal habeas corpus action (ECF no. 14) and an unopposed motion for stay and abatement to permit him to return to state court and exhaust state habeas corpus remedies on purportedly new claims (ECF no. 15). This court granted Ruiz's motion for stay (ECF no. 16).

Ruiz returned to state court and filed another state habeas application in which he asserted a variety of claims, including assertions that a prosecution expert witness testified falsely during the punishment phase of his capital murder trial regarding the details of the Texas Department of Criminal Justice's ("TDCJ's") inmate classification system. More specifically, Ruiz argued that prosecution classification expert A.P. Merillat erroneously testified at Ruiz's 2008 trial that, if sentenced to serve a term of life imprisonment without the possibility of parole, after serving a period of ten years' incarceration, Ruiz would be eligible for a reduction in his inmate classification status to a less restrictive level. For many years prior to September 1, 2005, Merillat's description of the TDCJ inmate classification system would have been factually accurate. At the time of Ruiz's 2008 trial, however, his testimony was inaccurate. Effective September 1, 2005, TDCJ changed its inmate classification policy to provide that an inmate convicted of capital murder enters the TDCJ system for classification purposes at the G-3 level and remains ineligible for a reduction in classification status during the remainder of his term of incarceration. Ruiz v. Davis, 819 F. App'x 238, 241 (5th Cir. 2020); Estrada v. State, 313 S.W.3d 274, 286-88 (Tex. Crim. App. 2010). Merillat committed the same error in testimony he gave at several other Texas capital murder trials. See, e.g., Estrada, 313 S.W.3d at 286-87. Merillat's mistake was neither intentional nor malicious. See Ruiz, 819 F. App'x at 244 ("The Texas prison-classification system is complex."). In fact, at Ruiz's 2008 trial, Ruiz's own classification expert, Fitzgerald, erroneously agreed that Merillat had accurately described the TDCJ's inmate classification scheme, including Ruiz's eligibility for a reduction in classification level after ten years. The Texas Court of Criminal Appeals summarily dismissed what by then was Ruiz's third state habeas application under the Texas writ-abuse statute. Ex parte Ruiz, WR-78,129-03, 2014 WL 6462553 (Tex. Crim. App. Nov. 19, 2014).

Ruiz then returned to this court, where he argued that Merillat's inaccurate testimony about the details of the TDCJ's inmate classification system constituted violations of his federal constitutional rights under the Supreme Court's holdings in (1) Brady v. Maryland, 373 U.S. 83, 97, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), (2) Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), and (3) Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). This court concluded that all of these claims were procedurally defaulted and denied Ruiz a Certificate of Appealability ("CoA"). Ruiz v. Davis, 2018 WL 6591687, *5-*7 (N.D. Tex. Dec. 14, 2018). The Fifth Circuit likewise denied Ruiz a CoA. Ruiz v. Davis, 819 F. App'x 238, 241-43 (5th Cir. 2020). The United States Supreme Court denied Ruiz's petition for writ of certiorari. Ruiz v. Lumpkin, — U.S. —, 142 S. Ct. 354, 211 L.Ed.2d 188 (2021).

RULE 60(b) MOTIONS GENERALLY

Rule 60(b) provides that a district court may grant relief from a final judgment, order, or proceeding for any of the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable, or

(6) any other reason that justifies relief.

Motions filed based upon reasons (1), (2), and (3) listed above must be filed within one year after entry of the judgment, order, or date of the proceeding. Rule 60(c)(1), FED. R. CIV. P. Unlike a Rule 59(e) motion, a motion made under Rule 60 does not affect the judgment's finality or suspend its operation. Rule 60(c)(2), FED. R. CIV. P. A Rule 60(b)(6) motion must (1) be made within a reasonable time and (2) establish extraordinary circumstances justifying the reopening of the final judgment. Crutsinger v. Davis, 936 F.3d 265, 267 (5th Cir. 2019); In re Robinson, 917 F.3d 856, 862 (5th Cir. 2019); Clark v. Davis, 850 F.3d 770, 779 (5th Cir. 2017). The Fifth Circuit has held that (1) a Rule 60(b)(6) motion must be made within a reasonable time unless good cause can be shown for the delay, Clark, 850 F.3d at 780; and (2) waiting twelve months after the Supreme Court's decision in Trevino v. Thaler to raise a potential conflict of interest arising from the same attorney serving as both federal and state habeas counsel was not reasonable, Id., 850 F.3d at 782-83. The Fifth Circuit has also held that a delay of eight months (after the Supreme Court's opinion in McQuiggin v. Perkins, 569 U.S. 383, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013)) made a Rule 60(b)(6) motion untimely. Tamayo v. Stephens, 740 F.3d 986, 991 (5th Cir. 2014).

Factors a court should consider in ruling on a Rule 60(b) motion include: (1) that final judgments should not lightly be disturbed; (2) that the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be liberally construed in order to achieve substantial justice; (4) whether the motion was made within a reasonable time; (5) whether, if the judgment was a default or a dismissal in which there was no consideration of the merits, the interest in deciding cases on the merits outweighs, in the particular case, the interest in the finality of judgments, and there is merit in the movant's claim or defense; (6) whether if the judgment was rendered after a trial on the merits where the movant had a fair opportunity to present his claim or defense; (7) whether there are intervening equities that would make it inequitable to grant relief; and (8) any other factors relevant to the justice of the judgment under attack. Raby v. Davis, 907 F.3d 880, 885 (5th Cir. 2018); Diaz v. Stephens, 731 F.3d 370, 377-78 (5th Cir. 2013); In re Marinez, 589 F.3d 772, 777 (5th Cir. 2009); Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981); United States v. Gould, 301 F.2d 353, 355-56 (5th Cir. 1962).

Rule 60(b)(6) is the grand reservoir of equitable power to do justice but applies only in extraordinary circumstances. Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005); Diaz, 731 F.3d at 376; Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012); Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002). Such extraordinary circumstances will rarely occur in the habeas context. Gonzalez, 545 U.S. at 535, 125 S.Ct. 2641; Crutsinger, 936 F.3d at 267; In re Johnson, 935 F.3d 284, 289 (5th Cir. 2019); In re Robinson, 917 F.3d at 862; Diaz, 731 F.3d at 376; Adams, 679 F.3d at 319. Changes in decisional law do not constitute the extraordinary circumstances required for granting Rule 60(b)(6) relief. Crutsinger, 936 F.3d at 267, 270; Priester v. JP Morgan Chase Bank, N.A., 927 F.3d 912, 913 (5th Cir. 2019); Raby, 907 F.3d at 884; Clark, 850 F.3d at 784; Diaz, 731 F.3d at 374; Adams, 679 F.3d at 319; Hess, 281 F.3d at 216. For example, the Fifth Circuit has repeatedly held that the Supreme Court's holdings in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, 569 U.S. 413, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), do not...