Case: 19-70012   Document: 00515092419     Page: 1   Date Filed: 08/26/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                No. 19-70012                      August 26, 2019
                                                                   Lyle W. Cayce
                                                                        Clerk


BILLY JACK CRUTSINGER,

                  Petitioner–Appellant,

versus

LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                  Respondent–Appellee.




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




Before SMITH, OWEN, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Billy Crutsinger moves for a Certificate of Appealability (“COA”) to
appeal whether, under Federal Rule of Civil Procedure 60(b)(6), extraordinary
circumstances require us to reopen the final judgment and grant funding for
representation services. He also moves for a stay of execution. Because Crut-
singer fails to show that reasonable jurists would debate whether the district
    Case: 19-70012      Document: 00515092419        Page: 2    Date Filed: 08/26/2019


                                    No. 19-70012

court abused its discretion in denying his motion, we deny a COA. Moreover,
because Crutsinger does not establish that the circumstances justify the exer-
cise of our equitable discretion, we deny the motion for a stay.

                                           I.
      In 2003, Billy Jack Crutsinger murdered eighty-nine-year-old Pearl
Magouirk and her seventy-one-year-old daughter, Patricia Syren. Crutsinger
v. Davis (Crutsinger III), 929 F.3d 259, 261 (5th Cir. 2019). He was convicted
of capital murder and sentenced to death, id., and is scheduled to be executed
on September 4, 2019.

      Last month, we remanded for consideration of Crutsinger’s Rule 60(b)(6)
motion, id. at 266, then denied his motion for a stay of execution, Crutsinger v.
Davis (Crutsinger IV), 930 F.3d 705, 706–09 (5th Cir. 2019) (per curiam). In a
thorough and well-reasoned opinion, the district court denied Crutsinger’s
Rule 60(b) motion, his 18 U.S.C. § 3599(f) funding request, and his request for
a COA. Crutsinger v. Davis (Crutsinger V), No. 4:07-CV-00703-Y, 2019 WL
3749530, at *1–9 (N.D. Tex. Aug. 8, 2019).

                                          II.
                                          A.
      As a jurisdictional prerequisite, a habeas petitioner must obtain a COA
before we may consider his appeal. 1 A COA is required to appeal the denial of
a Rule 60(b) motion. Buck v. Davis, 137 S. Ct. 759, 777 (2017). Issuance of a
COA requires the petitioner to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c). Ultimately, the central question is
“whether a reasonable jurist could conclude that the District Court abused its



      1  Raby v. Davis, 907 F.3d 880, 883 (5th Cir. 2018); accord Miller-El v. Cockrell,
537 U.S. 322, 335–36 (2003); see also 28 U.S.C. § 2253(c).
                                           2
     Case: 19-70012        Document: 00515092419          Page: 3     Date Filed: 08/26/2019


                                        No. 19-70012

discretion in declining to reopen the judgment.” 2

       Federal Rule of Civil Procedure 60(b)(6) permits relief from a judgment
or order for “any other reason that justifies relief.” FED. R. CIV. P. 60(b)(6). To
prevail on a Rule 60(b)(6) motion in the habeas context, a movant must
(1) make the motion within a reasonable time, FED. R. CIV. P. 60(c), and
(2) establish that extraordinary circumstances justify the reopening of the final
judgment, Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Such extraordinary
circumstances “will rarely occur in the habeas context.” Id. “A change in deci-
sional law after entry of judgment does not constitute extraordinary circum-
stances and is not alone grounds for relief from a final judgment.” 3

                                               B.
       Crutsinger maintains that he is entitled to relief under Rule 60(b)
because recent changes in decisional law, including Ayestas v. Davis, 138 S. Ct.
1080 (2018), Trevino v. Thaler, 569 U.S. 413 (2013), and Martinez v. Ryan, 566
U.S. 1 (2012), coupled with seven additional factors, 4 constitute extraordinary


       2 Buck, 137 S. Ct. at 777; accord Miller-El, 537 U.S. at 336 (“[A] petitioner must show
that reasonable jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” (internal quotation marks, alteration, and citations omitted)).
       3Raby, 907 F.3d at 884 (internal quotation marks, alteration, and citations omitted);
accord Adams v. Thaler, 679 F.3d 312, 319–20 (5th Cir. 2012); Hernandez v. Thaler, 630 F.3d
420, 430 (5th Cir. 2011); Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990).
       4 Those factors include (1) “[t]he nature of the proceedings as habeas corpus, in which
traditional res-judicata rules have never applied, and the careful adjudication of which the
Supreme Court has called the highest duty of a federal court,” Crutsinger V, 2019 WL
3749530, at *2; (2) “[t]he nature of the case as a capital case,” id.; (3) “[t]he nature of the
alleged defect as a deprivation of guaranteed representation, which is structural in nature
and undermines public confidence in the judicial process,” id.; (4) “[t]he nature of the alleged
defect, which operated to preclude hearing the true merits of the case because it thwarted
Crutsinger’s ability ‘even to discover and allege material facts in support of claims he sought
to pursue in good faith,’” id.; (5) “[t]he fact that the Supreme Court specifically mentioned
this case in Ayestas,” id.; (6) “[t]he facts underlying the claims affected by the alleged defect
are egregious, including that petitioner’s trial counsel went to trial only five months after
being appointed in a capital case and state habeas counsel effectively abandoned him,” id.;
                                               3
     Case: 19-70012       Document: 00515092419         Page: 4     Date Filed: 08/26/2019


                                       No. 19-70012

circumstances. Crutsinger underscores that “[r]easonable jurists could . . .
debate whether . . . the ruling of the district court denying [Rule] 60(b) relief
and funding should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”

       In support of this, Crutsinger cites the dissent from our recent decision 5
and claims that the district court incorrectly analyzed the seven additional
factors he raised. He contends—contrary to Crutsinger IV, 930 F.3d at 707 &
n.1—that Diaz v. Stephens, 731 F.3d 370, 376 (5th Cir. 2013), and Adams,
679 F.3d at 319–20, do not bar relief under Rule 60(b). Crutsinger essentially
maintains that Adams and Diaz were wrongly decided because Martinez was
an equitable ruling as distinguished from a constitutional one.

       Crutsinger next recites the Ayestas standard for funding under § 3599(f),
asserting that “[t]he district court’s record-bound, merits-review conflicts with
Ayestas in how funding determinations are assessed.” He contends that he has
doggedly pursued his § 3599(f) right to funding over the last decade and that
his funding request is not frivolous. Crutsinger further emphasizes that the
extraordinary circumstances underlying his Rule 60(b) motion do not include
merely the changes in decisional law and his diligent pursuit of § 3599(f) fund-
ing. He posits that the risk this case will undermine public confidence in the
judicial process also supports his claim of extraordinary circumstances.

       Lastly, Crutsinger stresses that “Gonzalez did not announce any rule
that a change in law cannot constitute an extraordinary circumstance warrant-
ing relief from the judgment.”           In Gonzalez, 545 U.S. at 536, the Court



and (7) the fact that “Crutsinger has exercised extraordinary diligence in pursuing his repre-
sentation rights,” id.
       5 Crutsinger III, 929 F.3d at 266 (Graves, J., 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.”).
                                              4
     Case: 19-70012        Document: 00515092419          Page: 5     Date Filed: 08/26/2019


                                        No. 19-70012

remarked that “not every interpretation of the federal statutes setting forth
the requirements for habeas provides cause for reopening cases long since
final.” Importantly, Crutsinger asserts, this “does not mean that no erroneous
interpretation does” (emphasis omitted). In contrast to the circumstances in
Gonzalez, he asserts that he was “independently deprived . . . of a federally
guaranteed right” and that “[t]he deprivation of that right demands a remedy.”
Consequently, he contends that the totality of the circumstances warrants
relief under Rule 60(b).

       In response, the state maintains that reasonable jurists would not debate
whether the district court abused its discretion in declining to reopen because
Gonzalez and circuit precedent, forecloses such relief. In Gonzalez, 545 U.S. at
536, the Court stated that “[i]t is hardly extraordinary that subsequently, after
petitioner’s case was no longer pending, this Court arrived at a different inter-
pretation” of a federal statute. We reiterated this sentiment in both of our
recent Crutsinger decisions. 6 The state further underscores that “[i]f a change
in law that entirely precluded merits review—as in Gonzalez—is not sufficient
to warrant Rule 60(b)(6) relief, then the change in the law . . . on a lesser
matter—funding to possibly support a claim for relief—necessarily cannot
warrant Rule 60(b)(6) relief.”

       Echoing our recent statements in Crutsinger IV, 930 F.3d at 707 & n.1,
the state avers that “this [c]ourt’s precedent forecloses reliance on Martinez
and Trevino to achieve relief under Rule 60(b).” The state cites our recent pub-
lished decision in In re Johnson, Nos. 19-20552, 19-70013, 2019 WL 3814384,



       6 Crutsinger IV, 930 F.3d at 707; Crutsinger III, 929 F.3d at 266 (“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
is at least instructive, if not dispositive, of Crutsinger’s Rule 60(b) motion.” (internal quota-
tion marks and citation omitted)).
                                               5
     Case: 19-70012       Document: 00515092419         Page: 6     Date Filed: 08/26/2019


                                       No. 19-70012

at *3 (5th Cir. Aug. 15, 2019), to buttress that contention. In Johnson, relying
on Raby, 907 F.3d at 884, we reaffirmed that a claim of deficient representta-
tion, without more, is insufficient to obtain Rule 60(b) relief. Johnson, 2019
WL 3814384, at *3. Moreover, we emphasized there, as here, that the movant
failed to offer “any authority that [§] 3599 has ever provided relief pursuant to
Rule 60(b).” Id. at *4. Consequently, we denied a COA. 7

       Finally, the state contends that the other factors raised by Crutsinger
weigh against Rule 60(b) relief because they are not extraordinary. The state
notes that Diaz and Haynes v. Davis, 733 F. App’x 766, 768–70 (5th Cir. 2018),
found that changes in decisional law (specifically, Trevino and Martinez),
coupled with various other “equities,” were not enough to establish extraordin-
ary circumstances. In Diaz, 731 F.3d at 377), we emphasized that the peti-
tioner’s circumstances were “no more unique or extraordinary than any other
capital inmate who defaulted claims in state court prior to Trevino.” (Citation
omitted.) So, too, with Crutsinger’s funding request after Ayestas.

       Moreover, in Haynes, 733 F. App’x at 770,we maintained that “finality is
a particularly strong consideration in the habeas context.” The state empha-
sizes that here, as in Haynes, Crutsinger has been litigating his claims in
federal court for more than a decade and has received multiple stages of review.
In both cases, we found that Rule 60(b) relief was not warranted. See id.; Diaz,
731 F.3d at 379.

       Ultimately, the state contends, “Crutsinger cites no authority for the
proposition that a district court’s entirely discretionary denial of funding in



       7 Id. The state also maintains that the district court’s thorough opinion explicitly
addressed the Crutsinger III dissent’s concerns—that the denial of funding risked undermin-
ing the public’s confidence in the judicial process and producing an unjust result, Crut-
singer III, 930 F.3d at 271 (Graves, J., dissenting)—by “discussing the prior merits review of
the claim” and providing a proper review of Crutsinger’s funding request under Ayestas.
                                              6
     Case: 19-70012      Document: 00515092419        Page: 7     Date Filed: 08/26/2019


                                     No. 19-70012

any way deprived him of his statutory right to representation.” Consequently,
because none of the other factors he cites establishes extraordinary circum-
stances, “he cannot show that reasonable jurists would debate the lower court’s
denial of that motion.”

                                            C.
       Crutsinger is not entitled to a COA because reasonable jurists would not
debate whether the district court abused its discretion in denying his Rule
60(b) motion. A petitioner “seeking relief under Rule 60(b)(6) [must] show
extraordinary circumstances justifying the reopening of a final judgment.”
Gonzalez, 545 U.S. at 535 (internal quotation marks and citation omitted).
This is a strict standard, so extraordinary circumstances are rarely present in
the habeas context. Id. Mere changes in decisional law, without more, do not
constitute extraordinary circumstances. See id. at 536–37. “It is hardly extra-
ordinary that subsequently, after petitioner’s case was no longer pending, this
Court arrived at a different interpretation” of a federal statute. Id. at 536.
Importantly, the Court maintained, “not every interpretation of the federal
statutes setting forth the requirements for habeas provides cause for reopening
cases long since final.” Id. Moreover, “if, as in Gonzalez, a change in law that
entirely precluded merits review is not sufficient to warrant Rule 60(b)(6)
relief,” then (as is the case here) a change in law that did not preclude merits
review does not merit such relief. Crutsinger IV, 930 F.3d at 707 (internal
quotation marks omitted).

       Circuit precedent also squarely forecloses Crutsinger’s claim. 8 We noted
as much in both of our recent decisions. Crutsinger IV, 930 F.3d at 707;



      8  E.g., Johnson, 2019 WL 3814384, at *3; Raby, 907 F.3d at 884; Haynes, 733 F. App’x
at 768–70; Diaz, 731 F.3d at 375–76; Adams, 679 F.3d at 319–20; Hernandez, 630 F.3d at 430;
Bailey, 894 F.2d at 160.
                                            7
     Case: 19-70012       Document: 00515092419         Page: 8     Date Filed: 08/26/2019


                                       No. 19-70012

Crutsinger III, 929 F.3d at 266. This overwhelming precedent is effectively
dispositive of the matter. 9

       Crutsinger attempts to evade this precedent by claiming that the
changes in decisional law, coupled with seven additional factors, constitute
extraordinary circumstances. The district court, however, rejected this theory,
engaging in an exhaustive review of the seven factors presented by Crutsinger.
Crutsinger V, 2019 WL 3749530, at *2–6. The court’s analysis is both helpful
and, more importantly, correct.

       Citing both Supreme Court and circuit precedent, the district court con-
cluded that the capital habeas nature of this case does not make its circum-
stances extraordinary. Id. at *2. The court also noted that, despite Crutsin-
ger’s claims, the denial of funding was not structural error, making his circum-
stances all the more ordinary. See id. at *3.

       The district court engaged in an extensive review of the record to dem-
onstrate that Crutsinger’s representation at trial was not egregious and that
he was not precluded from receiving a merits-based review of his federal
habeas claims, including his claim of ineffective assistance of counsel (“IAC”).
Id. at *3–6; see also Crutsinger v. Thaler (Crutsinger I), No. 4:07-CV-703-Y,
2012 WL 369927, at *4–13 (N.D. Tex. Feb. 6, 2012). As the court rightly em-
phasized, Crutsinger’s “assertions that the denial of funding precluded a true
merits review and that trial counsel’s representation was egregious, border on
frivolous.” Crutsinger V, 2019 WL 3749530, at *3. Neither of these factors
supports his claim that extraordinary circumstances justify reopening.

       The district court concluded that Ayestas’s abrogation of Crutsinger v.
Stephens (Crutsinger II), 576 F. App’x 422 (5th Cir. 2014), cert. denied,


       9 Moreover, here, as was true in Johnson, Crutsinger fails to offer “any authority that
[§] 3599 has ever provided relief pursuant to Rule 60(b).” 2019 WL 3814384, at *4.
                                              8
     Case: 19-70012         Document: 00515092419         Page: 9    Date Filed: 08/26/2019


                                         No. 19-70012

135 S. Ct. 1401 (2015), did not support a finding of extraordinary circum-
stances because Ayestas “emphasize[d] that there was no error in this case
before Trevino.” Crutsinger V, 2019 WL 3749530, at *6. Lastly, the court
concluded, even “[a]ssuming Crutsinger has exhibited due diligence, he fails to
provide authority that diligence plus a change in law are sufficient in death-
penalty cases to reopen a judgment under Rule 60(b)(6).” 10

       Ultimately, the changes in decisional law, even when viewed in conjunc-
tion with these additional factors, fail to establish extraordinary circumstances
warranting relief from the judgment. Therefore, the district court did not
abuse its discretion in denying the Rule 60(b) motion. Because jurists of reason
would not debate this conclusion, particularly in light of Supreme Court and
Fifth Circuit precedent, Crutsinger is not entitled to a COA.

                                               III.
                                               A.
       As discussed in Crutsinger IV, 930 F.3d at 706, “a stay of execution is an
equitable remedy. It is not available as a matter of right, and equity must be
sensitive to the [s]tate’s strong interest in enforcing its criminal judgments
without undue interference from the federal courts.” 11                  We evaluate four



       10 Id. The district court went a step further: Acknowledging the Crutsinger III dis-
sent’s concerns, 929 F.3d at 266–71 (Graves, J., dissenting), the court reviewed Crutsinger’s
§ 3599(f) request under Ayestas. Crutsinger V, 2019 WL 3749530, at *6–9.
        In Ayestas, 138 S. Ct. at 1094, the Court noted that “the ‘reasonably necessary’ test
requires an assessment of the likely utility of the services requested, and § 3599(f) cannot be
read to guarantee that an applicant will have enough money to turn over every stone.”
Therefore, the district court stressed, proper application of the test required it to consider:
(1) “the potential merit of the claim that Crutsinger wants to pursue,” Crutsinger V, 2019 WL
3749530, at *7; (2) “the likelihood that the services will generate useful and admissible evi-
dence,” id.; and (3) “the prospect that Crutsinger will be able to clear any procedural hurdles
standing in the way,” id. Finding that Crutsinger failed to meet that standard, the court
denied funding. Id. at *9.
       11   Hill v. McDonough, 547 U.S. 573, 584 (2006); see also Sepulvado v. Jindal, 729 F.3d
                                                9
    Case: 19-70012          Document: 00515092419    Page: 10     Date Filed: 08/26/2019


                                      No. 19-70012

factors. 12 First, “whether the stay applicant has made a strong showing that
he is likely to succeed on the merits.” Charles, 612 F. App’x at 218 n.7 (citation
omitted). Second, “whether the applicant will be irreparably injured absent a
stay.” Id. (citation omitted). Third, “whether issuance of the stay will substan-
tially injure the other parties interested in the proceeding.” Id. (citation omit-
ted). And fourth, “the public interest.” Id. (citation omitted).

       “The first two factors of the traditional standard are the most critical. It
is not enough that the chance of success on the merits be better than negligi-
ble.” Nken, 556 U.S. at 434 (internal quotation marks and citation omitted).
“Once an applicant satisfies the first two factors, the traditional stay inquiry
calls for assessing the harm to the opposing party and weighing the public
interest.” Id. at 435. “These factors merge when the [state] is the opposing
party.” Id. “[C]ourts must be mindful that the [state’s] role as the respondent
in every . . . proceeding does not make the public interest in each individual
one negligible.” Id.

                                           B.
       Crutsinger asserts that we should grant a stay because he was forced “to
file a habeas corpus application . . . without the provision of high-quality repre-
sentation guaranteed to him by 18 U.S.C. § 3599.” Citing Lonchar v. Thomas,
517 U.S. 314 (1996), Crutsinger avers that he cannot “be executed until the
merits of his initial habeas corpus application have been meaningfully adjudi-
cated.” He notes that Barefoot v. Estelle, 463 U.S. 880 (1983), mandates “mean-
ingful appellate review for any issue” on which we grant a COA.




413, 420 (5th Cir. 2013).
       12Murphy v. Collier, 919 F.3d 913, 915 (5th Cir. 2019) (per curiam); Charles v.
Stephens, 612 F. App’x 214, 218 n.7 (5th Cir. 2015) (per curiam); see also Nken v. Holder,
556 U.S. 418, 425–26 (2009).
                                           10
    Case: 19-70012      Document: 00515092419        Page: 11    Date Filed: 08/26/2019


                                    No. 19-70012

      As he did in his initial motion for a stay of execution, Crutsinger IV,
930 F.3d at 708, Crutsinger contends that he “may not be executed until he
has been afforded the representation in federal collateral proceedings that he
is due under . . . § 3599.” Without an “appropriate post-conviction investiga-
tion,” he “remains exposed to the substantial risk that meritorious habeas
corpus claims will never be heard.”

                                           C.
      Despite his familiarity with our standard for a stay of execution, see
Crutsinger IV, 930 F.3d at 706–09, Crutsinger does not even attempt to engage
with the four equitable factors. In any event, it is moot: As was the case in
Crutsinger IV, 930 F.3d at 706−07, he fails to establish a likelihood of success
on the merits. That failure “is, effectively, dispositive of the motion for stay.”
Id. at 707.

      Moreover, the arguments raised by Crutsinger, which essentially echo
those he raised in Crutsinger IV, do not support granting a stay. Lonchar and
Barefoot stand for the unremarkable proposition that a petitioner may not be
executed before a court has reviewed the merits of his habeas petition. Lon-
char, 517 U.S. at 319–20. Crutsinger received such a review more than seven
years ago. Crutsinger I, 2012 WL 369927, at *4–13; see also Crutsinger II,
576 F. App’x at 425–31. As part of that review, he was given a full and fair
opportunity to litigate the merits of his habeas petition. Crutsinger V, 2019
WL 3749530, at *3–6. Any claim to contrary is baseless. Id. at *3. Moreover,
Crutsinger’s continued insistence that he is entitled to § 3599(f) funding is
false. Such funding is discretionary. 13

      Crutsinger’s reliance on McFarland v. Scott, 512 U.S. 849, 858 (1994),


      13 Ayestas, 138 S. Ct. at 1094 (“Congress has made it clear, however, that district
courts have broad discretion in assessing requests for funding.”).
                                           11
    Case: 19-70012        Document: 00515092419          Page: 12     Date Filed: 08/26/2019


                                       No. 19-70012

and Battaglia v. Stephens, 824 F.3d 470, 475 (5th Cir. 2016), is similarly
misplaced. Those cases provide only that (1) a capital defendant must “have
sufficient time to request the appointment of counsel and file a formal habeas
petition prior to his scheduled execution,” McFarland, 512 U.S. at 858, and
(2) newly appointed counsel, if chosen for a defendant who effectively lacked
habeas counsel, must be given time to develop a habeas claim for the appoint-
ment to be meaningful, Battaglia, 824 F.3d at 475–76. “Crutsinger, however,
has been well-represented by his counsel for approximately eleven years,” and
he would not, as in McFarland or Battaglia, “be deprived of meaningful counsel
absent a stay.” Crutsinger IV, 930 F.3d at 708. Lastly, “[e]ven if Crutsinger
could establish a likelihood of success on the merits—which he cannot—the
other [equitable] factors weigh in favor of the state.” Id. at 709.

       We take seriously “a [s]tate’s strong interest in the timely enforcement
of valid judgments of its courts.” 14 “Equity must be sensitive to the [s]tate’s
strong interest in enforcing its criminal judgments without undue interference
from the federal courts.” Crutsinger IV, 930 F.3d at 709 (citation omitted).
Crutsinger’s motion for a stay of execution is therefore denied.

       In summary, the motion for a COA and the motion for stay of execution
are DENIED.




       14Murphy v. Collier, 139 S. Ct. 1475, 1481 (2019) (Alito, J., dissenting); see also In re
Blodgett, 502 U.S. 236, 239 (1992) (per curiam).
                                              12
   Case: 19-70012     Document: 00515092419     Page: 13   Date Filed: 08/26/2019


                                 No. 19-70012

JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      I would grant the Certificate of Appealability and the motion for stay
essentially for reasons I have previously stated. See Crutsinger v. Davis, 929
F.3d 259, 266 (5th Cir. 2019); see also Crutsinger v. Davis, 930 F.3d 705 (5th
Cir. 2019). Thus, I respectfully dissent.




                                       13