Petition for Writ of Certiorari — Charles D. Raby, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefFeb 28, 2019

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CAPITAL CASE

No. __________

In the

Supreme Court of the United States

–––––––––––––––––––––

CHARLES D. RABY,

PETITIONER,

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

RESPONDENT.

–––––––––––––––––––––

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

–––––––––––––––––––––

PETITION FOR A WRIT OF CERTIORARI

–––––––––––––––––––––

KEVIN D. MOHR

TRACEY M. ROBERTSON

KING & SPALDING LLP

1100 Louisiana, Suite 4000

Houston, TX 77002

Telephone: (713) 751-3200

kmohr@kslaw.com

trobertson@kslaw.com

SARAH M. FRAZIER

Counsel of Record

BERG & ANDROPHY

3704 Travis Street

Houston, TX 77002

Telephone: (713) 529-5622

SFrazier@bafirm.com

Counsel for Petitioner Charles D. Raby

February 28, 2019

CAPITAL CASE

QUESTIONS PRESENTED

In Coleman v. Thompson, 501 U.S. 722 (1991), this Court held that a

federal habeas petitioner who has procedurally defaulted a claim by failing to raise

it in state court may not excuse that default by pointing to negligence of

postconviction counsel. In Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler,

569 U.S. 413 (2013), this Court carved out an important exception to that rule,

allowing petitioners to raise an ineffective-assistance-of-trial-counsel (IATC) claim

for the first time in federal court if that claim was defaulted through ineffective

assistance of postconviction counsel in state court.

After Martinez and Trevino were decided, some petitioners—including some on

death row—filed motions under Federal Rule of Civil Procedure 60(b)(6), asking the

courts to reopen judgments premised on the new “cause” exception to default. There

is an acknowledged disagreement in the circuits regarding the rule for deciding

those motions. Four circuits have held that such motions must be rejected,

adopting a per se rule against granting Rule 60(b)(6) motions premised on Martinez.

By contrast, three circuits hold that Rule 60(b)(6) motions premised on Martinez

may be granted in appropriate circumstances.

The questions presented are:

Must a court categorically deny a Rule 60(b)(6) motion

premised on the change in decisional law produced by Martinez?

If the Court declines to grant plenary review, should the Court

summarily reverse the Fifth Circuit’s denial of a Certificate of

Appealability to allow for full briefing and argument on the

proper treatment of Raby’s Rule 60(b)(6) motion premised on

Martinez?

PARTIES TO THE PROCEEDING

All parties to this proceeding are listed in the caption of the petition. Petitioner

is Charles D. Raby. Respondent is Lorie Davis, Director of the Texas Department of

Criminal Justice, Correctional Institutions Division.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING .............................................................................. ii

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS............................................. 2

INTRODUCTION .......................................................................................................... 3

STATEMENT OF THE CASE ....................................................................................... 6

Raby’s Trial ............................................................................................... 6

First State Habeas Application ............................................................... 8

Federal Habeas Application ................................................................... 11

Further Proceedings ............................................................................... 12

REASONS FOR GRANTING THE PETITION .......................................................... 13

II.

There Is An Acknowledged, Entrenched, And Untenable Circuit Split

On The Precise Question Presented. ................................................................ 14

The Circuits Are Divided ....................................................................... 15

This Circuit Split Is Entrenched, Persistent, And Unlikely To

Benefit From Further Percolation. ........................................................ 21

The Issue Warrants This Court’s Attention .......................................... 22

This Case Is An Ideal Vehicle To Resolve The Circuit Split. .......................... 24

Martinez Represented A Remarkable Change In The Law. ................. 25

The Fifth Circuit’s COA Denial Presents A Clean Record. .................. 26

Raby’s IATC Claims Have Obvious Merit. ............................................ 29

iii

Raby Has Diligently Pursued His IATC Claim..................................... 31

Capital Cases Are By Nature Compelling Vehicles For Resolution

Of Circuit Conflicts................................................................................. 32

III.

Categorical Rejection Of Rule 60(b)(6) Motions Premised On A Change

In Decisional Law Is Irreconcilable With The Purposes Of Rule 60(b)(6)

And Other Binding Precedent. ......................................................................... 32

IV.

The Court Should At Least Summarily Reverse The Denial Of Raby’s

COA. .................................................................................................................. 35

CONCLUSION............................................................................................................. 37

APPENDIX

Appendix A

United States District Court for the Southern District of Texas,

Memorandum and Order Granting Summary Judgment and Denying Writ of

Habeas Corpus and COA (November 27, 2002)

Appendix B

United States District Court for the Southern District of Texas,

Order Denying Petitioner’s Motion for Reconsideration (December 30, 2002)

Appendix C

United States Court of Appeals for the Fifth Circuit,

Denial of Certificate of Appealability (October 20, 2003)

Appendix D

United States Supreme Court,

Order Denying Petition for Writ of Certiorari (July 1, 2004))

Appendix E

United States District Court for the Southern District of Texas,

Order Denying Motion for Relief from Judgment under Rule 60(b)(6)

(April 5, 2018)

Appendix F

United States Court of Appeals for the Fifth Circuit,

Order Denying Certificate of Appealability under Rule 60(b)(6)

(October 31, 2018))

Appendix G

Chronological list of Rule 60(b) cases in which petitioners invoked

Martinez v. Ryan, 566 U.S. 1 (2012)

Appendix H

COA rulings since 2011 in the Fourth, Fifth, and Eleventh Circuits

TABLE OF AUTHORITIES

CASES

Abdur-Rahman v. Carpenter,

805 F.3d 710 (6th Cir. 2015) .................................................................................... 17

Adams v. Thaler,

679 F.3d 312 (5th Cir. 2012) .................................................................. 13, 15, 16, 22

Arthur v. Thomas,

739 F.3d 611 (11th Cir. 2014) ............................................................................ 16, 22

Artuz v. Bennett,

531 U.S. 4 (2000) ...................................................................................................... 33

Balentine v. Thaler,

133 S. Ct. 2763 (2013) .............................................................................................. 34

Barnett v. Roper,

941 F. Supp. 2d 1099 (E.D. Mo. 2013) ..................................................................... 24

Buck v. Davis,

137 S. Ct. 759 (2017) ........................................................................................ passim

Burger v. Kemp,

483 U.S. 776 (1987) ............................................................................................ 23, 32

Clark v. Davis,

850 F.3d 770 (5th Cir. 2017),

cert. denied, 138 S. Ct. 358 (2017) ........................................................................... 28

Coleman v. Thompson,

501 U.S. 722 (1991) .................................................................................................. 3

Cox v. Horn,

757 F.3d 113 (3d Cir. 2014).............................................................................. passim

Ex parte Medina,

361 S.W.3d 633 (Tex. Crim. App. 2011) .................................................................. 10

Ex parte Soffar,

143 S.W.3d 804 (Tex. Crim. App. 2004) .................................................................. 12

Franklin v. Hightower,

215 F.3d 1196 (11th Cir. 2000) ................................................................................ 37

Gonzalez v. Crosby,

545 U.S. 524 (2005) .......................................................................................... passim

Hall v. Stephens,

579 F. App’x 282 (5th Cir. 2014) .............................................................................. 16

Hamilton v. Sec’y,

793 F.3d 1261 (11th Cir. 2015) .............................................................. 15, 17, 21, 22

Haynes v. Thaler,

133 S. Ct. 2764 (2013) ........................................................................................ 34, 35

Haynes v. Thaler,

133 S. Ct. 639 (2012) ................................................................................................ 34

In re Paredes,

587 F. App’x 805 (5th Cir. 2014) ........................................................................ 16, 22

Jones v. Lebo,

No. 16–6439, 2017 WL 4317144 (6th Cir. Mar. 22, 2017) ...................................... 18

Jones v. Ryan,

733 F.3d 825 (9th Cir. 2013) .................................................................................... 21

Klapprott v. United States,

335 U.S. 601 (1949) ........................................................................................ 5, 14, 33

Kramer v. United States,

797 F.3d 493 (7th Cir. 2015) .................................................................................... 36

Lambright v. Stewart,

220 F.3d 1022 (9th Cir. 2000) .................................................................................. 37

Lambrix v. Sec’y,

851 F.3d 1158 (11th Cir. 2017) ................................................................................ 17

Lopez v. Ryan,

678 F.3d 1131 (9th Cir. 2012) ...................................................................... 21, 25, 26

Lozada v. Deeds,

498 U.S. 430 (1991) .................................................................................................. 36

Martinez v. Ryan,

566 U.S. 1 (2012) .............................................................................................. passim

McGuire v. Warden,

738 F.3d 741 (6th Cir. 2013) .................................................................................... 17

Miller v. Mays,

879 F.3d 691 (6th Cir. 2018) .................................................................................... 18

Miller–El v. Cockrell,

537 U.S. 322 (2003) ...................................................................................... 11, 27, 28

Moses v. Joyner,

815 F.3d 163 (4th Cir. 2016) .................................................................................... 18

Phelps v. Alameida,

569 F.3d 1120 (9th Cir. 2009) .................................................................................. 31

vii

Porter v. McCollum,

558 U.S. 30 (2009) .................................................................................................... 36

Raby v. Davis,

907 F.3d 880 (5th Cir. 2018) .................................................................... 1, 13, 16, 22

Raby v. Dretke,

78 F. App’x 324 (5th Cir. 2003) ............................................................................ 1, 11

Raby v. State,

No. AP–76,970, 2015 WL 1874540 (Tex. Crim. App. Apr. 22, 2015)...................... 12

Ramirez v. United States,

799 F.3d 845 (7th Cir. 2015) .................................................................. 14, 20, 22, 26

Ramirez v. United States,

No. 11-CV-719-JPG, 2016 WL 1058965 (S.D. Ill. Mar. 17, 2016) .......................... 20

Slack v. McDaniel,

529 U.S. 473 (2000) .................................................................................................. 37

Styers v. Ryan,

632 F. App’x 329 (9th Cir. 2015) .............................................................................. 21

Trevino v. Thaler,

569 U.S. 413 (2013) .................................................................................................... 4

United States v. Doe,

810 F.3d 132 (3d Cir. 2015)...................................................................................... 36

United States v. Gomez-Sotelo,

18 F. App’x 690 (10th Cir. 2001) .............................................................................. 36

Zagorski v. Mays,

907 F.3d 901 (6th Cir. 2018) .............................................................................. 18, 22

STATUTES

28 U.S.C. § 1254 ............................................................................................................. 2

28 U.S.C. § 2254 ............................................................................................... 12, 27, 28

TEX. CODE CRIM. PROC. art. 37.071 § 2 (West 2013) ..................................................... 7

RULES

Fed. R. Civ. P. 60(b)(1)–(5) .......................................................................................... 14

Fed. R. Civ. P. 60(b)(6) ......................................................................................... passim

viii

LEGISLATIVE MATERIAL

The Adequacy of Representation in Capital Cases:

Hearing Before the Subcomm. on the Constitution of the S. Comm.

on the Judiciary, 110th Cong. 110-11 (2008) .......................................................... 10

OTHER AUTHORITIES

7 J. Lucas & J. Moore,

Moore’s Federal Practice (2d ed. 1982) .................................................................... 33

Richard A. Leo,

False Confessions: Causes, Consequences, and Implications.

J. Am. Acad. Psychiatry Law 37:332–43 (2009),

available at: http://jaapl.org/content/jaapl/37/3/332.full.pdf .................................... 6

Task Force Report, State Bar of Texas’s Task Force on Habeas Counsel

Training & Qualifications (Apr. 27, 2007) .............................................................. 10

Wright and Miller, Fed. Prac. & Proc. Civ. (3d ed.) ................................................... 33

PETITION FOR A WRIT OF CERTIORARI

Charles Raby respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The unpublished November 27, 2002 Memorandum and Order of the United

States District Court for the Southern District of Texas denying Raby’s Petition for

Writ of Habeas Corpus (Raby v. Cockrell, 4:02-cv-0349, Dkt. 20 (S.D. Tex. Nov. 27,

2002)) is reproduced at Appendix A (“Pet. App. A”), and the same court’s unpublished

denial of reconsideration (Raby v. Cockrell, 4:02-cv-0349, Dkt. 23 (S.D. Tex. Dec. 30,

2002)) is reproduced at Appendix B. The October 15, 2003 opinion of the United

States Court of Appeals for the Fifth Circuit affirming the denial of Raby’s Petition

for Writ of Habeas Corpus (Raby v. Dretke, 78 F. App’x 324 (5th Cir. 2003)) is

reproduced at Appendix C, and this Court’s 2004 denial of certiorari (Raby v. Dretke,

542 U.S. 905 (2004)) is reproduced at Appendix D. The unpublished April 6, 2018

Order of the United States District Court for the Southern District of Texas denying

Raby’s motion for relief from judgment pursuant to Federal Rule of Civil Procedure

60(b)(6) (Raby v. Davis, H-02-349, Dkt. 44 (S.D. Tex. Apr. 6, 2018)) is reproduced in

Appendix E. The October 31, 2018 opinion of the United States Court of Appeals for

the Fifth Circuit denying a COA (Raby v. Davis, 907 F.3d 880 (5th Cir. 2018)) is

reproduced in Appendix F.

JURISDICTION

The United States Court of Appeals for the Fifth Circuit entered judgment on

October 31, 2018. Pet. App. F. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves a state criminal defendant’s constitutional rights under the

Sixth, Eighth, and Fourteenth Amendments.

The Sixth Amendment provides in relevant part:

“In all criminal prosecutions, the accused shall enjoy the right to . . .

have the assistance of counsel for his defense.”

The Eighth Amendment provides in relevant part:

“Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.”

The Fourteenth Amendment provides in relevant part:

“[N]or shall any State . . . deny to any person within its jurisdiction the

equal protection of the laws.”

This case involves the application of 28 U.S.C. § 2253(c), which states:

“(1) Unless a circuit justice or judge issues a certificate of appealability,

an appeal may not be taken to the court of appeals from

(A) the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State

court;

...

(2) A certificate of appealability may issue under paragraph (1) only if

the applicant has made a substantial showing of the denial of a

constitutional right.”

This case also involves the application of Federal Rule of Civil Procedure 60(b),

which states in relevant part:

“(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On

motion and just terms, the court may relieve a party or its legal

representative from a final judgment, order, or proceeding for the

following reasons:

...

(6) any other reason that justifies relief.”

INTRODUCTION

Under Coleman v. Thompson, 501 U.S. 722 (1991), ineffective assistance

on the part of a prisoner’s postconviction attorney could never qualify as cause to

excuse a procedural default. For example, if a capital petitioner’s counsel performed

no investigation whatsoever at the sentencing stage, and his state habeas counsel

failed to raise an ineffective assistance of trial counsel (IATC) claim in state court,

that claim could never be raised in federal court, no matter how meritorious.

Recognizing such situations could suffice to provide cause to excuse a

procedural default, this Court carved out an exception to Coleman in Martinez v.

Ryan, 566 U.S. 1 (2012). In Martinez, this Court held that having no counsel or

ineffective counsel at the initial postconviction proceeding could excuse procedural

default of substantial IATC claims. In acknowledging that “the right to the effective

assistance of counsel at trial is a bedrock principle in our justice system,” the Court

recognized that Martinez and similarly situated petitioners would o t h e r w i s e never

receive the opportunity to have their IATC claims decided on the merits. Martinez,

566 U.S. at 12. Martinez initially covered those jurisdictions that require IATC

claims to be raised in initial collateral review proceedings; Trevino v. Thaler later

made clear that the holding in Martinez extends to states such as Texas that make

it “virtually impossible” for IATC claims to be presented on direct review. 569 U.S.

413, 417 (2013).

By the time Martinez and Trevino were decided, many capital petitioners

found themselves in Charles Raby’s position—with serious IATC claims that had

never been heard because they were defaulted by absent or ineffective state habeas

counsel and thus foreclosed by Coleman. Like Raby, these capital petitioners filed

motions under Federal Rule of Civil Procedure 60(b)(6) seeking to reopen their

habeas judgments citing Martinez and other equitable considerations.

This litigation led to an acknowledged conflict among the federal courts of

appeals as to whether petitioners can ever win a Rule 60(b)(6) motion premised on

Martinez’s change in law, or whether every such petition must necessarily be

denied. Four circuits (the Fourth, Fifth, Sixth, and Eleventh) have effectively

held that no petitioner like Raby can ever prevail; three circuits (the Third,

Seventh, and Ninth) have correctly held that Rule 60(b)(6) motions premised on

Martinez—like every other Rule 60(b)(6) motion—may sometimes be granted, when

the equities of extraordinary cases so require.

In Buck v. Davis, this Court held that the Fifth Circuit erred in denying Buck

the COA that was required to pursue an appeal of the denial of his Rule 60(b)(6)

motion, which he based in part on Martinez and Trevino. 137 S. Ct. 759, 780 (2017).

In so holding, the Court effectively rejected the Fifth Circuit and District Court

rulings on the COA that those cases were mere changes in decisional law that do not

qualify as extraordinary circumstances under Rule 60(b)(6):

Buck cannot obtain relief unless he is entitled to the benefit of this

rule—that is, unless Martinez and Trevino, not Coleman, would govern

his case were it reopened. If they would not, his claim would remain

unreviewable, and Rule 60(b)(6) relief would be inappropriate.

See id. (citations omitted). The rejection was central to the outcome in Buck.

This Court should take this opportunity to clarify that Rule 60(b)(6) empowers

courts to “vacate judgments whenever such action is appropriate to accomplish

justice.” Klapprott v. United States, 335 U.S. 601, 615 (1949). Because Martinez’s

holding was grounded in “bedrock principle[s]” of justice (Martinez, 566 U.S. at 12),

the change in law it produced should unquestionably be an avenue for petitioners to

at least seek Rule 60(b)(6) relief—and for courts to grant it if—and only if—the casespecific equities counsel in favor of that result. Indeed, Martinez held that someone

twice denied effective assistance of counsel must be able to excuse a procedural

default “to ensure that proper consideration was given to a substantial claim.” Id.

at 14. The Fifth Circuit’s categorical denial of Rule 60(b)(6) motions that are based

in part on Martinez deprives petitioners of that opportunity.

This case provides an ideal vehicle to address the question of whether a Rule

60(b)(6) motion premised on Martinez may ever be granted because (1) the Fifth

Circuit’s denial of Raby’s request for a COA presents a clean record on which to

address the conflict among the courts of appeal; (2) Raby’s IATC claim has merit,

given it is based on his trial counsel’s decision to use the same future-dangerousness

expert who this Court deemed to have given incompetent testimony in Buck and the

failure to adequately investigate basic, but crucial, mitigation evidence; and (3) Raby

has never been permitted to develop the merits of his IATC claim despite having

diligently pursued it since 2002.

STATEMENT OF THE CASE

This case presents a specific and recurring question upon which the courts of

appeals are in open conflict: whether a Rule 60(b)(6) motion premised on Martinez as

an intervening decision of law must be categorically denied or may sometimes be

granted on the equities presented.

Raby’s Trial

On October 15, 1992, Edna Franklin was found dead in her home by one of her

two adult grandsons, both of whom lived with her. Pet. App. A at 2. The assailant

had stabbed Mrs. Franklin with a knife that was never found. Raby v. Davis, No.

4:02-cv-00349 (S.D. Tex. Nov. 13, 2017), ECF No. 37-4, p. 149 (Trial Tr.). Raby was

a sometime friend of Mrs. Franklin’s two grandsons and was seen in the same

neighborhood on the day of the crime, but no physical evidence tied Raby to the crime.

Pet. App. A at 3. Police obtained a custodial statement under circumstances that

included holding Raby’s girlfriend and her infant son at the station.1 A Harris County,

Raby testified at a hearing on a motion to suppress the custodial statement that, upon his arrest, he

feared his girlfriend would be charged in relation to his short-lived avoidance of his warrant, and

further that he was denied access to her until he signed the statement. Raby v. Davis, No. 4:02-cv00349 (S.D. Tex. Nov. 13, 2017), ECF No. 37-4, p. 97 (Trial Tr.). Along with that evidence of coercion,

Raby’s confession has all the hallmarks of a “persuaded false confession,” which occurs when police

interrogation tactics cause an innocent suspect to doubt his memory, persuading him that he likely

committed the crime, despite having no memory of committing it, especially where substance abuse

gives rise to less confidence in memory. See Richard A. Leo, False Confessions: Causes, Consequences,

and Implications. J. Am. Acad. Psychiatry Law 37:332–43 (2009), available at:

http://jaapl.org/content/jaapl/37/3/332.full.pdf.

Texas jury convicted Raby of capital murder and sentenced him to death on June 17,

1994.

Raby’s sentencing (like the rest of his trial), was marred by trial counsel’s

errors, including the failure to conduct an adequate investigation and a fundamental

misunderstanding of the law and facts. On the issue of future dangerousness, Raby’s

trial counsel presented the testimony of Dr. Walter Quijano, a psychologist whose

views on “future dangerousness”2 had helped the State persuade jurors to impose the

death penalty in numerous capital trials. Raby v. Davis, 4:02-cv-00349 (S.D. Tex.

Aug. 4, 2017), ECF No. 31-21, p. 24 (Trial Tr.). Dr. Quijano was engaged one week

before he testified and produced an expert report only after he had given his

testimony. Id. ECF No. 31-21, p. 25. Testifying for the defense, Dr. Quijano opined

that only death could keep society safe from Raby and improperly labeled Raby as a

psychopath, a sociopath, and antisocial. Id. ECF No. 31-21, pp. 37–39, 41.

Trial counsel either used inexcusably bad judgment in calling Dr. Quijano as

an expert witness despite knowing of his prejudicial views or failed to learn his

opinions before his testimony. Either amounted to constitutionally deficient

performance, and Raby was unquestionably prejudiced. The prosecution seized on

the testimony of Dr. Quijano and exaggerated the risk of Raby’s future dangerousness

in closing arguments. This Court has since discredited Dr. Quijano’s opinions and

methods in Buck, 137 S. Ct. at 775–78.

“Future dangerousness” is one of the “special issues” that a Texas jury must find to exist—

unanimously and beyond a reasonable doubt—before a defendant may be sentenced to death. See TEX.

CODE CRIM. PROC. art. 37.071 § 2 (West 2013).

Trial counsel also failed to perform a thorough medical, educational, family,

and social history for Raby, despite having a clear obligation to do so. Raby v.

Cockrell, 4:02-cv-00349 (S.D. Tex. Jan. 30, 2002), ECF No. 4, pp. 40–70 (Pet. for Writ

of Habeas Corpus); Raby v. Davis, 4:02-cv-00349 (S.D. Tex. Aug. 4, 2017), ECF No.

31-27, pp. 2–8 (trial counsel timesheets); 31-28–31-42 (affidavits of Raby’s family and

friends)). The jury in the punishment phase thus heard few of the available witnesses

who saw firsthand the profound abuse and neglect suffered by Raby during his

childhood.

The failure to adequately investigate basic, but crucial, mitigation

evidence in a death penalty case cannot be waved off as strategy.

First State Habeas Application

Raby needed his initial state habeas petition to challenge his trial counsel’s

constitutionally deficient performance, but counsel appointed to represent Raby in

his initial state habeas proceedings did no investigation and filed an application

containing no ineffective assistance or other extra-record claims. Raby v. Cockrell,

4:02-cv-00349 (S.D. Tex. July 10, 2002), ECF No. 16, pp. 6–24 (Resp. to Mot. Summ.

J.); Raby v. Davis, 4:02-cv-00349 (S.D. Tex. Aug. 4, 2017), ECF No. 31, pp. 63–69 (Rule

60(b) Mot.); 31-54, pp. 2–12 (billing records). The thirty-one claims for relief in Raby’s

July 16, 1998 initial state habeas application could be reduced to five basic issues,

none of which was directly cognizable in state habeas proceedings because they

should have been raised on direct appeal or were not yet ripe. In the absence of a

cognizable, extra-record claim, the state district court predictably entered findings

and conclusions recommending rejection of Raby’s initial state habeas application.

Ex parte Raby, No. 9407130-A (248th Dist. Ct., Harris County, Tex., Nov. 14, 2000).

The Texas Court of Criminal Appeals subsequently adopted the trial court’s

recommendation. Ex parte Raby, No. 48131-01 (Tex. Crim. App. Jan. 31, 2001).

Raby attempted in vain to obtain competent representation in his initial state

habeas proceedings.

First, Raby directed his counsel toward numerous issues

regarding the ineffective assistance of counsel claims. Raby v. Davis, 4:02-cv-00349

(S.D. Tex. Aug. 4, 2017), ECF No. 31-56 (Feb. 20, 1998 Letter); Raby v. Cockrell, 4:02cv-00349 (S.D. Tex. July 10, 2002), ECF No. 16, pp. 8–9, 13–15 (Resp. Mot. Summ.

J.); Raby v. Davis, 4:02-cv-00349 (S.D. Tex. Aug. 4, 2017), ECF No. 31-62 (Nov. 23,

1999 Letter). When these efforts failed, Raby notified the state district court and the

district attorney of the failure of his initial state habeas counsel to respond to Raby’s

numerous pleas to investigate specific potential claims related to Raby’s trial and

sentencing.

Raby requested that the district court appoint new counsel with

adequate time to investigate those claims and stressed that, if no action was taken,

his initial state habeas counsel’s failures would prevent him from obtaining any

review of his claims in federal court. Raby v. Davis, 4:02-cv-00349 (S.D. Tex. Aug. 4,

2017), ECF No. 31-64 (Apr. 5, 2000 Letter); Raby v. Davis, 4:02-cv-00349 (S.D. Tex.

Aug. 4, 2017), ECF No. 31-65 (Aug. 18, 2000 Letter); Raby v. Davis, 4:02-cv-00349

(S.D. Tex. Aug. 4, 2017), ECF No. 31-66 (Sept. 13, 2000 Letter). When those efforts

failed, Raby attempted to drop his appeal and be assigned an execution date for the

sole purpose of obtaining an appearance in court to voice his objections to counsel’s

representation. Raby v. Davis, 4:02-cv-00349 (S.D. Tex. Aug. 4, 2017), ECF No. 31-

67–31-70) (Letters from Raby dated Oct. 22, 2000; Nov. 4, 2000; Dec. 15, 2000; Dec.

20, 2000).

Initial state habeas counsel’s representation of Raby was consistent with the

generally ineffective state habeas representation of Texas defendants during that

period. Widely acknowledged problems included: assigned lawyers “farming out”

their cases to other lawyers; cases being assigned to lawyers with disciplinary

problems; assigned lawyers admitting to being unqualified, inexperienced or

overburdened; assigned lawyers filing perfunctory petitions raising no cognizable

issues; assigned lawyers failing to investigate and present evidence outside the trial

record; assigned lawyers being accountable to no one for their performance; poor

compensation for assigned lawyers; and lack of judicial oversight. The Adequacy of

Representation in Capital Cases: Hearing Before the Subcomm. on the Constitution of

the S. Comm. on the Judiciary, 110th Cong. 110-11 (2008) (quoting Task Force

Report, State Bar of Texas’s Task Force on Habeas Counsel Training & Qualifications

at 5–6 (Apr. 27, 2007). Raby was emblematic of an era in which exceptionally poor

habeas representation was commonplace. See e.g. Ex parte Medina, 361 S.W.3d 633,

647 (Tex. Crim. App. 2011) (Keasler and Hervey, JJ., dissenting) (“Over the past

thirteen years that I have been on this Court, I have reviewed numerous 11.071

applications. Some of them have been just as poorly pled as this application. Yet, in

those cases, we denied relief, despite the appalling deficiencies . . . . The applicants

in those cases were victims of deficient and inadequate lawyering that was a result

of ignorance . . . .”).

Federal Habeas Application

In his initial federal habeas petition, Raby’s current counsel presented—for the

first time—claims of ineffective assistance based on the handling of Dr. Quijano’s

testimony and the failure to investigate and present the jury with critical mitigation

evidence.

These claims were rejected by the federal district court. Raby v. Cockrell, No.

H-02-0349 (S.D. Tx. Nov. 27, 2002). Citing Coleman, the district court declined to

reach the merits of the claims, finding that Raby was procedurally defaulted from

raising his punishment-phase IATC claims for the first time in federal court, even if

those claims had only been defaulted through ineffective assistance of state postconviction counsel. This ruling was affirmed by the Fifth Circuit.3 Raby v. Dretke, 78

F. App’x 324 (5th Cir. 2003). In Buck, this Court specifically faulted the Fifth Circuit

for engaging in the same sort of impermissible merits determination at the COA

stage:

But the question for the Fifth Circuit was not whether Buck had “shown

extraordinary circumstances” . . . . Those are ultimate merits

determinations the panel should not have reached. We reiterate what

we have said before: A “court of appeals should limit its examination [at

the COA stage] to a threshold inquiry into the underlying merit of [the]

claims,” and ask “only if the District Court’s decision was debatable.”

Buck, 137 S. Ct. at 774 (citing Miller–El v. Cockrell, 537 U.S. 322, 336–37 (2003)).

The Fifth Circuit purported to make an alternative ruling on the merits of the IATC claim. Id. This

was improper because the district court never reached the merits and the court was without

jurisdiction to reach the merits in a COA proceeding.

Further Proceedings

Raby moved in state court on November 19, 2002 for post-conviction DNA

testing. Almost three years later, the Texas Court of Criminal Appeals granted the

request for testing as to several different items. Upon testing the victim’s left-hand

fingernails, a partial DNA profile incontrovertibly excluded Raby as the source of the

scraped cells. The state district court also heard evidence on the state’s concealment

at trial that it had found foreign blood under the fingernails of the other hand. On

December 19, 2012, the state district court held that the DNA results were not

probative of innocence. State v. Raby, No. 9407130, Court Amended Findings at 1,

13 (248th Dist. Ct., Harris Cty., Tex., Jan. 11, 2013). This ruling was affirmed by the

Texas Court of Criminal Appeals. Raby v. State, No. AP–76,970, 2015 WL 1874540,

at *8–9 (Tex. Crim. App. Apr. 22, 2015) (not designated for publication).

On June 16, 2016, Raby filed a second state habeas application that the Texas

Court of Criminal Appeals rejected without analysis on May 17, 2017.4 Ex parte Raby,

No. WR-48,131-02 (Tex. Crim. App. May 17, 2017).

Martinez and Trevino issued during the DNA proceedings in state court. After

the conclusion of the state proceedings,5 Raby filed a Rule 60(b)(6) motion requesting

that the federal district court examine his procedurally defaulted punishment-phase

IATC claims in the wake of Martinez, Trevino, and Buck.

The district court

These claims are currently the basis of a motion for an order authorizing the filing and consideration

of a successive federal habeas petition in the Fifth Circuit pursuant to 28 U.S.C. § 2254.

Raby could not challenge his conviction or sentence in federal court while his state litigation was

pending because of Texas’s “two-forum rule,” a state court abstention doctrine which precludes state

habeas review when a petitioner is challenging the same judgment in federal court. See Ex parte

Soffar, 143 S.W.3d 804, 805–06 (Tex. Crim. App. 2004).

summarily rejected the motion pursuant to Adams v. Thaler, 679 F.3d 312 (5th Cir.

2012), in which the Fifth Circuit held that the change in law brought about by

Martinez could not constitute an “extraordinary circumstance.” The district court

further held that Buck was inapplicable because the extraordinary circumstance

there was “the insertion of race as a factor in the sentencing decision.” Raby v. Davis,

4:02-cv-00349, Dkt. 44 (Apr. 5, 2018).

The Fifth Circuit denied a COA, finding:

A “change in decisional law after entry of judgment does not constitute

[extraordinary] circumstances and is not alone grounds for relief from a

final judgment.” Hence, the district court correctly determined that the

change in decisional law effected by Martinez and Trevino, without

more, did not amount to an extraordinary circumstance.

Raby v. Davis, 907 F.3d 880, 884 (5th Cir. 2018) (citing Adams, 679 F.3d at 319), Pet.

App. F. It further agreed with the district court that Buck only applies where race is

a factor in sentencing. Id. at 884–85. The Fifth Circuit reiterated its holding in 2003

that Raby’s IATC claims lack merit.6 Id.

REASONS FOR GRANTING THE PETITION

The Fifth Circuit stands with the Fourth, Sixth, and Eleventh Circuits in

holding that Rule 60(b)(6) motions premised on Martinez’s intervening change in law

must be denied. This categorical rule is incorrect and runs counter to the approach

adopted by the Third, Seventh, and Ninth Circuits, which hold that Rule 60(b)(6)

petitioners relying on Martinez must at least be afforded the possibility of relief.

As previously identified, this determination was improper. See supra note 3.

Given the importance of this issue both to capital habeas petitioners and the states,

the Court should use this case to resolve the persistent division.

There Is An Acknowledged, Entrenched, And Untenable Circuit Split

On The Precise Question Presented

Rule 60(b) allows courts to grant relief from a final judgment for five

enumerated reasons (see Fed. R. Civ. P. 60(b)(1)–(5)), as well as for “any other reason

that justifies relief” (id. 60(b)(6)). The latter form of relief, as this Court clarified in

Gonzalez v. Crosby, 545 U.S. 524 (2005), is reserved for “extraordinary

circumstances.” Id. at 536. At the same time, this Court has also made clear that

Rule 60(b)(6) must be at least available in every case to “accomplish justice” where

such extraordinary case-specific circumstances are present. Klapprott, 335 U.S. at

615. Accordingly, important, intervening changes in decisional law (like Martinez)

should form a basis for Rule 60(b)(6) relief in conjunction with critical, case-specific

equities. The circuit conflict here results from the fact that three circuits have

recognized this fundamental tenet of Rule 60 jurisprudence, and four have rejected

it—holding, incorrectly, that no Rule 60(b)(6) motion premised on Martinez can ever

be granted.

This conflict is widely acknowledged. The Seventh Circuit, for example, has

stated that it “agree[s] with the Third Circuit’s approach in Cox, in which it rejected

the absolute position that the Fifth Circuit’s Adams decision may have reflected, to

the effect that intervening changes in the law never can support relief under Rule

60(b)(6).” Ramirez v. United States, 799 F.3d 845, 850 (7th Cir. 2015) (emphasis in

original). The Eleventh Circuit has likewise recognized that “[t]he Third Circuit has

disagreed” with its rule in these cases, while the Third Circuit has expressly said that

the Fifth Circuit’s rule “does not square with [its] approach.” Hamilton v. Sec’y, 793

F.3d 1261, 1266 (11th Cir. 2015); Cox v. Horn, 757 F.3d 113, 121–22 (3d Cir. 2014).

The conflict is clear and well-established.

The Circuits Are Divided

Four circuits have incorrectly held that a Rule 60(b)(6) motion premised on

Martinez as an intervening decision of law must be automatically denied. These

courts hold that, under Gonzalez, Martinez’s change in decisional law is insufficient

to reopen a judgment even if other equitable considerations relevant to particular

cases strongly recommend relief. Thus, in these circuits, Rule 60(b)(6) petitioners

relying on Martinez can simply never prevail.

The Fifth Circuit was the first to adopt this mistaken categorical approach. In

Adams v. Thaler, 679 F.3d 312 (5th Cir. 2012), a death-row petitioner filed a Rule

60(b)(6) motion, arguing that Martinez’s change, combined with the capital nature of

his case and the merits of his underlying IATC claims, constituted “extraordinary

circumstances” justifying reopening of an adverse judgment. Id. at 319. The Fifth

Circuit held that the district court abused its discretion in granting even a stay of

execution pending the resolution of the motion, stating that “[a] change in decisional

law after entry of judgment does not constitute exceptional circumstances.” Id.

Relying on Gonzalez, the Fifth Circuit explained that this per se rule applies

with full force in the habeas context and therefore to Martinez’s jurisprudential shift:

“Martinez, which creates a narrow exception to Coleman’s holding regarding cause to

excuse procedural default, does not constitute an ‘extraordinary circumstance’ under

Supreme Court and our precedent to warrant Rule 60(b)(6) relief.” Id. at 320 (citing

Gonzalez, 545 U.S. at 536). The Fifth Circuit thus refused to balance the equities,

reasoning that, because the petitioner premised his motion on Martinez’s change in

law, it was “without merit” regardless of any other equitable considerations. Id.

Since Adams, the Fifth Circuit has repeatedly reaffirmed its categorical

approach to Rule 60(b)(6) motions premised on Martinez. See, e.g., Raby, 907 F.3d at

884 (“the district court correctly determined that the change in decisional law effected

by Martinez and Trevino, without more, did not amount to an extraordinary

circumstance”); In re Paredes, 587 F. App’x 805, 825 (5th Cir. 2014); Hall v. Stephens,

579 F. App’x 282, 283 (5th Cir. 2014). As in Adams and subsequent cases, in Raby’s

case the Fifth Circuit did not consider any of the petitioner’s individual equities.

Based on this categorical bar, the Fifth Circuit denied a COA and denied Raby the

opportunity to brief these questions.

The Eleventh Circuit has also adopted this erroneous categorical approach. In

Arthur v. Thomas, 739 F.3d 611 (11th Cir. 2014), it interpreted Gonzalez to hold that

“a change in decisional law is insufficient to create the ‘extraordinary circumstance’

necessary to invoke Rule 60(b)(6).” Id. at 631 (citing Gonzalez, 545 U.S. at 535–38).

As a result, it found that Martinez categorically could not form the basis for Rule

60(b)(6) relief. Id. It thus refused to account for “other factors beyond [the] change

in decisional law,” such as the petitioner’s death sentence and the fact that no court

had considered his IATC claims on the merits. Id. at 633.

The Eleventh Circuit has followed Arthur since, and—like the Fifth Circuit—

now denies a COA to any petitioner whose Rule 60(b)(6) motion is in any way rooted

in Martinez. For example, in Hamilton v. Sec’y, 793 F.3d 1261 (11th Cir. 2015), it

denied a COA to a death-row petitioner who filed a Rule 60(b)(6) motion premised on

Martinez, explaining that “Arthur is controlling on us and ends any debate among

reasonable jurists about the correctness of the district court’s decision” that the

petitioner’s motion must be categorically denied. Id. at 1266; see also Lambrix v.

Sec’y, 851 F.3d 1158, 1171 (11th Cir. 2017) and Griffin v. Sec’y, 787 F.3d 1086, 1087

(11th Cir. 2015) (both holding that the possibility of granting petitioner’s Rule

60(b)(6) motion premised on Martinez was foreclosed by the court’s decision in

Arthur).

The Sixth Circuit aligned with the Fifth and Eleventh Circuits. In AbdurRahman v. Carpenter, 805 F.3d 710 (6th Cir. 2015), the court denied a Rule 60(b)(6)

motion premised on Martinez without considering any equities, holding that Martinez

“was a change in decisional law and does not constitute an extraordinary

circumstance meriting Rule 60(b)(6) relief.” Id. at 714. In dissent, Chief Judge Cole

criticized the majority’s categorical approach, explaining that “[t]he decision to grant

Rule 60(b)(6) relief” should remain “a case-by-case inquiry that requires the trial court

to intensively balance numerous factors, including the competing policies of the

finality of judgments and the incessant command of the court’s conscience that justice

be done in light of all the facts.” Id. at 718 (Cole, C.J., dissenting) (quoting McGuire

v. Warden, 738 F.3d 741, 750 (6th Cir. 2013) (emphasis in original)). The Sixth

Circuit continues to follow Abdur-Rahman. See Zagorski v. Mays, 907 F.3d 901, 904–

05 (6th Cir. 2018), Miller v. Mays, 879 F.3d 691, 698–99 (6th Cir. 2018), and Jones v.

Lebo, No. 16–6439, 2017 WL 4317144, at *2 (6th Cir. Mar. 22, 2017).

The Fourth Circuit belongs to the per se denial camp as well, having rejected a

Martinez-based Rule 60(b)(6) motion on the ground that “a change in decisional law

subsequent to a final judgment provides no basis for relief under Rule 60(b)(6).”

Moses v. Joyner, 815 F.3d 163, 168 (4th Cir. 2016) (citation omitted).

In contrast, the Third, Seventh, and Ninth Circuits correctly recognize that

Martinez’s change can be the basis for Rule 60(b)(6) relief, and that some such

motions might prevail. These courts have all held that a court reviewing a Rule

60(b)(6) motion premised on Martinez must conduct a holistic review of the equities,

including the significance of Martinez’s change in law. Under this approach—and

unlike in the other three circuits—Rule 60(b)(6) petitioners at least have a chance of

getting Martinez relief.

The Third Circuit’s decision in Cox v. Horn, 757 F.3d 113 (3d Cir. 2014),

embodies this well-reasoned view. There, the district court had adopted the Fifth

Circuit’s reasoning in Adams, holding that a Rule 60(b)(6) motion premised on

Martinez categorically fails. See id. at 120. The Third Circuit vacated the district

court’s decision, making clear that the Fifth Circuit’s ruling in Adams “does not

square with our approach to Rule 60(b)(6).” Id. at 121. As it explained: “[W]e have

not embraced any categorical rule that a change in decisional law is never an

adequate basis for Rule 60(b)(6) relief. Rather, we have consistently articulated a

more qualified position: that intervening changes in the law rarely justify relief from

final judgments under 60(b)(6).” Id.

The Third Circuit explicitly parted ways with the Fifth Circuit’s refusal “to

consider the full set of facts and circumstances attendant to the Rule 60(b)(6) motion

under review.”

Id. at 122.

It emphasized the need for “a flexible, multifactor

approach to Rule 60(b)(6) motions, including those built upon a post-judgment change

in the law,” and thus took issue with the Fifth Circuit’s choice to “end[] its analysis

after determining that Martinez’s change in the law was an insufficient basis for

60(b)(6) relief” without considering “whether the capital nature of the petitioner’s

case or any other factor might . . . provide a reason . . . for granting 60(b)(6) relief.”

Id.

The Third Circuit also distanced itself from the Eleventh. It explained that,

“the Eleventh Circuit extract[ed] too broad a principle from Gonzalez” because

“Gonzalez did not say that a new interpretation of the federal habeas statutes—much

less, the equitable principles invoked to aid their enforcement—is always insufficient

to sustain a Rule 60(b)(6) motion.” Id. at 123 (emphasis in original).

After noting its disagreement with these other circuits, the Third Circuit set

forth its view that a “case-dependent analysis, fully in line with Rule 60(b)(6)’s

equitable moorings, retains vitality post-Gonzalez” and that it would be improper to

“adopt a per se rule that a change in decisional law, even in the habeas context, is

inadequate, either standing alone or in tandem with other factors, to invoke relief

from a final judgment under 60(b)(6).” Id. at 124. Accordingly, the Third Circuit

remanded for a holistic analysis balancing the “jurisprudential change rendered by

Martinez” (which it described as “remarkable” and “important”), “the merits of [the]

petitioner’s underlying ineffective assistance of counsel claim,” the “movant’s

diligence in pursuing review of his ineffective assistance claims,” and the “special

consideration” of a capital sentence. Id. at 124–26.

The Seventh Circuit followed the Third Circuit’s approach. In Ramirez v.

United States, 799 F.3d 845 (7th Cir. 2015), that court noted that it “agree[d] with

the Third Circuit’s approach in Cox, in which it rejected the absolute position that

the Fifth Circuit’s Adams decision may have reflected, to the effect that intervening

changes in the law never can support relief under Rule 60(b)(6).” Id at 850 (emphasis

in original). And it stressed that “Rule 60(b)(6) is fundamentally equitable in nature”

and therefore “requires the court to examine all of the circumstances.” Id. at 851.

Thus, the court held that a Rule 60(b)(6) motion premised on Martinez must be

considered in light of the overall equities, including the significance of Martinez, “the

diligence of the petitioner,” “whether alternative remedies were available but

bypassed,” and “whether the underlying claim is one on which relief could be

granted.” Id. Considering those factors in the case before it, the Seventh Circuit

ordered the district court to grant Rule 60(b)(6) relief. Id. at 856. The district court

subsequently granted habeas relief. See Ramirez v. United States, No. 11-CV-719JPG, 2016 WL 1058965 (S.D. Ill. Mar. 17, 2016).

The Ninth Circuit also conducts a holistic, equitable review of Rule 60(b)(6)

motions premised on Martinez. For example, in Lopez v. Ryan, 678 F.3d 1131 (9th

Cir. 2012), that court evaluated such a motion by balancing “the nature of the

intervening change in the law,” “the petitioner’s exercise of diligence in pursuing the

issue during the federal habeas proceedings,” “delay between the finality of the

judgment and the motion for Rule 60(b)(6) relief,” the “degree of connection” between

the petitioner’s claim and the intervening change in law, and concerns about comity

and finality. Id. at 1135–37. In considering the “nature” of Martinez’s intervening

change of law, the court posited that Martinez “constitutes a remarkable—if

‘limited’—development in the Court’s equitable jurisprudence.” Id. at 1136 (quoting

Martinez, 566 U.S. at 14–15). The Ninth Circuit has since continued to conduct the

required equitable balancing. See, e.g., Jones v. Ryan, 733 F.3d 825, 839 (9th Cir.

2013); Styers v. Ryan, 632 F. App’x 329, 331 (9th Cir. 2015).

This Circuit Split Is Entrenched, Persistent, And Unlikely To

Benefit From Further Percolation

The circuit conflict will not be resolved without this Court’s intervention.

Even though they are aware of other circuits’ contrary decisions, the courts of

appeals have persisted in their conflicting interpretations. For example, in Hamilton,

the Eleventh Circuit observed that “[t]he Third Circuit has disagreed with [our]

Arthur[] holding” but expressly held itself “bound by our Circuit precedent, not by

Third Circuit precedent.” 793 F.3d at 1266. And in Cox, the Third Circuit recognized

that the Fifth Circuit’s decision in Adams “does not square with our approach to Rule

60(b)(6)” but nonetheless stayed true to its broader rule. 757 F.3d at 121.

The conflict is entrenched. Not only have the courts acknowledged and rejected

the contrary holdings of their sister circuits, but the Fifth, Sixth, and Eleventh

Circuits have begun denying COAs in Rule 60(b)(6) cases raising Martinez/Trevino

claims, such as in this case, holding that their precedents on this point are not even

subject to reasonable debate. No consensus on this issue will emerge going forward.

See, e.g., In re Paredes, 587 F. App’x at 825; Hamilton, 793 F.3d at 1266. These

denials evince a fixed and binding per se rule against granting Rule 60(b)(6) motions

premised on Martinez. No further information will emerge even if this Court gives

time for additional percolation. Indeed, even this Court’s decision in Buck has not

moved the courts that have embraced a categorical rule. See, e.g., Raby, 907 F.3d at

884; Zagorski, 907 F.3d at 906–07.

Only this Court can resolve this conflict, as it is grounded in a broader

disagreement about the meaning of Gonzalez. On the one hand, the Fourth, Fifth,

Sixth, and Eleventh Circuits incorrectly read Gonzalez to establish the principle that

changes in decisional law are categorically unable to establish “extraordinary

circumstances” in a Rule 60(b)(6) inquiry. See, e.g., Arthur, 739 F.3d at 631 (citing

Gonzalez, 545 U.S. at 535–38); Adams, 679 F.3d at 319 (similar).

On the other hand, the Third, Seventh, and Ninth Circuits correctly read

Gonzalez as reaching a very different conclusion—namely, that a change in decisional

law is an important factor in a Rule 60(b)(6) analysis, and one that can call for relief

in the presence of other equitable considerations. See, e.g., Cox, 757 F.3d at 123;

Ramirez, 799 F.3d at 850.

The Issue Warrants This Court’s Attention

This conflict among the courts of appeals implicates issues of vital importance

to both capital habeas petitioners and the states. Many capital habeas petitioners

who have invoked Martinez must do so in a Rule 60(b)(6) posture because their initial

habeas petitions were already denied when Martinez issued. Indeed, at least sixtyfive capital petitioners have filed Rule 60(b)(6) motions premised on Martinez’s

intervening change of law. Pet. App. G.

Because first federal habeas review has already expired for so many

individuals on death row, Martinez and Trevino would be largely nullified in the

capital context if they could not be invoked in Rule 60(b)(6) motions. For example,

every substantial claim of capital-sentencing-phase IATC deemed defaulted under

Coleman is categorically excluded from the Martinez cause standard unless it is at

least

possible

raise

through

Rule

60(b)(6).

Consequently,

Martinez’s

pronouncement that every prisoner deserves an opportunity to present an IATC claim

will ring hollow in many cases in which it should apply most forcefully.

Capital petitioners, moreover, should have the best chance to actually obtain

Rule 60(b)(6) relief premised on Martinez.

That is because a capital sentence

represents a critical equitable factor that militates in favor of reopening a judgment.

As this Court has explained, the “duty to search for constitutional error with

painstaking care is never more exacting than it is in a capital case.” Burger v. Kemp,

483 U.S. 776, 785 (1987). Accordingly, those circuits that (correctly) recognize the

need to conduct a holistic, equitable review of Rule 60(b)(6) motions deem a capital

sentence a “special” equitable consideration. See, e.g., Cox, 757 F.3d at 126. To be

sure, these courts recognize that Rule 60(b)(6) motions—even in capital cases—will

“rarely” be granted. Id. at 121. But Martinez stands for the principle that individuals

with substantial IATC claims should at least be afforded the opportunity to have

these claims heard—an opportunity the Fourth, Fifth, Sixth, and Eleventh Circuits

currently deny.

This opportunity matters. At least one district court applying the correct

approach has granted a Rule 60(b)(6) motion urged by a capital habeas petitioner.

That court relied upon the capital nature of the petitioner’s case, the fact that he had

“diligently pursued the underlying substantive claim of [IATC],” and the “underlying

strength” of that claim, which featured “powerful testimony that was never

presented.” Barnett v. Roper, 941 F. Supp. 2d 1099, 1116–21 (E.D. Mo. 2013). After

this Rule 60(b)(6) motion was granted, Barnett received an evidentiary hearing and

was ultimately granted habeas relief—vacating his death sentence. Order Granting

Habeas Relief, Barnett, 4:03-cv-00614-ERW (E.D. MO. Aug. 15, 2015). Had Barnett’s

case arisen in one of the four circuits that per se reject Rule 60(b) motions based in

part on Martinez, his death sentence would remain or he may have been executed.

Thus, while such grants will be rare given Gonzalez’s “extraordinary circumstances”

standard, it is vital that petitioners have the chance to reopen their habeas petitions

where such circumstances exist.

Given the life-or-death importance of this issue to capital petitioners and the

states, this conflict among the courts of appeals calls for immediate review.

II.

This Case Is An Ideal Vehicle To Resolve The Circuit Split

This case provides an ideal vehicle to address the question of whether a Rule

60(b)(6) motion premised on Martinez may ever be granted. First, an insurmountable

obstacle preventing Raby’s IATC claims from being reopened, so that they can be

decided on the merits for the first time, is the Fifth Circuit’s position that a Rule

60(b)(6) motion premised on Martinez must be categorically denied.

Second, Raby’s IATC claim has merit.

His trial counsel chose the same

charlatan future-dangerousness expert that this Court condemned in granting relief

in Buck v. Davis, a case that presented in the same Rule 60(b)(6) posture as here.

Raby’s trial counsel called an expert witness who applied inflammatory and

unscientific factors in opining that Raby was a psychopath. His trial counsel also

failed to adequately investigate basic, but crucial, mitigation evidence.

Lastly, this is a capital case in which Raby has diligently pursued the same

IATC claim since 2002 but has never been allowed to develop it on the merits. His

case presents the right opportunity to address the circuit conflict on the availability

of relief under Martinez to capital habeas petitioners.

Martinez Represented A Remarkable Change In The Law

Martinez represented a “remarkable” change in the law. Lopez, 678 F.3d at

1136. Raby’s case illustrates as much. Under Coleman, however, the negligence of

post-conviction counsel in failing to raise the claim in the initial state habeas

application categorically excluded the federal courts from considering this claim on

the merits.

Martinez then “modif[ied] th[is] unqualified statement in Coleman,” by

establishing that “[i]nadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural default” of an IATC claim.

Martinez, 566 U.S. at 9. In dissent, Justice Scalia recognized Martinez’s importance,

proclaiming that the holding represented “a repudiation of the longstanding principle

governing procedural default, which Coleman and other cases consistently applied.”

Id. at 23 (Scalia, J., dissenting). And the courts of appeals that apply a broad

equitable approach under Rule 60(b)(6) have made similar acknowledgments,

characterizing Martinez as a “remarkable” change (Lopez, 678 F.3d at 1136); as an

“important” change that “altered Coleman’s well-settled application” (Cox, 757 F.3d

at 124); and as a “significant[] change[] [in the Court’s] approach to claims of

ineffective assistance of counsel at initial-review collateral proceedings.” (Ramirez,

799 F.3d at 848). After Martinez, this Court’s precedent clearly would have allowed

Raby to at least attempt to establish cause for the procedural default by showing that

postconviction counsel was ineffective in failing to raise this important claim.

The Fifth Circuit’s COA Denial Presents A Clean Record

The Fifth Circuit denied Raby’s request for a COA based on its categorical rule

disallowing review of Martinez claims asserted in a motion under Rule 60(b)(6). The

court’s opinion was a mere six pages long and began with its rejection of Raby’s

Martinez argument under Adams v. Thaler, stating that “the change in decisional

law effected by Martinez and Trevino, without more, did not amount to an

extraordinary circumstance.” Pet. App. F at 4. Yet Raby did not argue that the

change in law should be considered on its own; he argued specifically that it was just

one of several equitable considerations that collectively establish extraordinary

circumstances.7 Appl. for Certificate of Appealability at 32–33 and Resp. in Opp’n at

9, Raby v. Davis, 18-70018 (5th Cir. July 2, 2018).

By failing to “give full consideration to the substantial evidence” of extraordinariness presented by

Raby, the Fifth Circuit repeated an error in its COA analysis that this Court previously corrected. See

The additional considerations presented by Raby included trial counsel’s

presentation of the methodologically unreliable expert testimony of Dr. Quijano

grossly exaggerating the risk that Raby would commit future acts of violence, and the

State’s exploitation of that testimony in its arguments to the jury, which the Fifth

Circuit also rejected as not independently constituting extraordinary circumstances.

Pet. App. F at 5. The Fifth Circuit noted Raby’s allegation that his own lawyers hired

an expert on future dangerousness who labeled him a psychopath.8 Pet. App. F at 4.

This was, indeed, one of the factors Raby named as supporting the extraordinary

nature of his circumstances. But the court refused to consider it except to decide

whether this allegation fit through the pinhole path that it considered was opened by

Buck v. Davis. The only exception to the categorical rule that a Martinez claim is not

cognizable through Rule 60(b)(6), according to the Fifth Circuit panel below, is “racial

discrimination” or similar “pernicious injury” that impacts “communities at large.”

Pet. App. F. at 5.

The court also dismissed, again as independently insufficient to establish

extraordinary circumstances, the fact that Raby had been diligent in bringing his

Miller-El, 537 U.S. at 341. In Buck, the petitioner demonstrated that in the Fifth Circuit, in the period

2011 to 2015, a COA was denied on all claims in capital § 2254 cases by either the district court or the

court of appeals 59% of the time. During that same period, a COA was denied on all claims by either

the district court or the court of appeals in only 6.25% of such cases in the Eleventh Circuit and 0% of

such cases in the Fourth Circuit. Even since this Court in Buck urged correction (Buck, 137 S. Ct. at

773–75), the trend has continued. See Appendix H (noting approximate denial rates in the Fifth

Circuit (60.2%), Eleventh Circuit (9.5%), and Fourth Circuit (0%).

Dr. Quijano also labeled Mr. Raby a sociopath, antisocial, and likely, because of borderline personality

disorder, to do violence to those who show him kindness. He did not mention at all the positive factor

Raby possessed whose absence he was quick to use against Buck as supposedly predicting violence:

white skin. Raby v. Davis, 4:02-cv-00349 (S.D. Tex. Aug. 4, 2017), ECF No. 31-26 (Quijano

Psychological Eval.).

IATC claim. Pet. App. F at 6 (“[P]ersistence alone does not warrant relief from

judgment.”).

Lastly, the court opined that finality is paramount here because it had

previously “found [Raby’s] claims to lack merit,” despite the procedural bar. Pet. App.

F at 6. Of course, the 2003 Fifth Circuit panel did not have jurisdiction to reach

beyond default to dismiss the merits of the claims, as emphasized by this Court in

Buck:

We reiterate what we have said before: A “court of appeals should limit

its examination [at the COA state] to a threshold inquiry into the

underlying merits of [the] claims,” and ask “only if the District Court’s

decision was debatable.”

Buck, 137 S. Ct. at 774 (citing Miller-El, 537 U.S. at 327, 348). Moreover, the earlier

panel’s “finding” was not based on a hearing or record and amounted to little more

than the comment that “[a]n unresponsive, insensitive lawyer does not excuse a

procedural default under § 2254(b)(1)(B)(ii).” Pet. App. C at 4. The 2018 Fifth Circuit

panel therefore improperly relied on an extra-jurisdictional finding made without a

hearing or record. There has been no proper, full merits review of Raby’s IATC

claims.

No impediment exists to squarely addressing the circuit split issue. Indeed,

the Fifth Circuit has already determined that Martinez applies in Texas after

Trevino. Clark v. Davis, 850 F.3d 770, 781 (5th Cir. 2017), cert. denied, 138 S. Ct. 358

(2017). The Fifth Circuit’s order denying Raby a COA did not dispute that Martinez

applies to Raby’s case. Pet. App. F at 4.

The denial of Raby’s COA request thus presents a clean record for resolving

the acknowledged conflict among the courts of appeals on the issue of whether a Rule

60(b)(6) motion premised on Martinez may ever be granted.

Raby’s IATC Claims Have Obvious Merit

Raby’s IATC claims have obvious merit, although they do not fit through the

pinhole-sized exception (racial discrimination) that the Fifth Circuit acknowledged

based on Buck. Nevertheless, Raby’s claim regarding trial counsel’s presentation of

testimony from Dr. Quijano is analogous to that in Buck in key respects. In both

cases, trial counsel called an expert witness who opined to some probability that the

petitioner would be a continuing danger to society based on various factors. Such an

opinion from a well-credentialed psychologist with experience in evaluating capital

petitioners unquestionably carried weight with the jury. It was ineffective assistance

for any defense lawyer to call such an expert. Indeed, Dr. Quijano’s testimony here

was more obviously prejudicial than that in Buck, because Dr. Quijano testified that

only a death sentence could render society safe from Raby. Raby v. Davis, 4:02-cv00349 (S.D. Tex. Aug. 4, 2017), ECF No. 31-21, pp. 37–39 (Trial Tr.).

Here, Dr. Quijano characterized Raby as a psychopath and a sociopath, in

addition to possessing other inflammatory, even conflicting personality disorders,

which he said were raised in test results merely based on some findings suggesting

possible anti-social personality disorder. Id. ECF No. 31-21, pp. 37–38 (Trial Tr.).

Dr. Quijano met once with Raby for ninety minutes, only four days prior to his

testimony. Id. ECF No. 31-21, p. 42 (Trial Tr.). He did not produce a report until

months after the trial had ended. Id. ECF No. 31-24, p. 6 (Cunningham Aff. ¶ 20).

Trial counsel either permitted Dr. Quijano to testify knowing that Dr. Quijano

held such inflammatory, methodologically unsound opinions, or trial counsel was

unprepared to an extent that he did not know what Dr. Quijano might say. Indeed,

there is every indication that trial counsel did not adequately prepare for the futuredangerousness question, and, therefore, conceivably, did not know Dr. Quijano’s

opinions or that he in fact was a longtime expert for the State on future

dangerousness.

Furthermore, as this Court acknowledged in Buck, Dr. Quijano’s role as a

defense expert made him all the more prejudicial: “When damaging evidence is

introduced by a defendant’s own lawyer, it is in the nature of an admission against

interest, more likely to be taken at face value.” Buck, 137 S. Ct. at 766, 776–77. The

severe prejudice caused by Dr. Quijano’s testimony was then compounded by trial

counsel’s failure to object or attempt to limit the testimony, and the State’s

unsurprising decision to emphasize in closing arguments that Raby’s own expert

deemed him a continuing threat to society and a sociopath. Raby v. Davis, 4:02-cv00349 (S.D. Tex. Aug. 4, 2017), ECF No. 31-23, pp. 7–9 (Trial Tr.). The damage that

Dr. Quijano’s testimony inflicted at the sentencing phase of Raby’s trial is beyond

serious debate.

There is no discernible strategic advantage in trial counsel’s reliance on Dr.

Quijano, his failure to understand the significant flaws and obviously prejudicial

nature of Dr. Quijano’s testimony before advancing it, or his failure to contain the

damage that Dr. Quijano caused Raby. No competent defense attorney would have

allowed this to happen. In effect, Dr. Quijano acted as a powerful, albeit scientifically

unreliable, expert for the State.

Trial counsel further conducted no significant assessment of Raby’s medical,

educational, family, and social history as part of a competent mitigation case. The

forms that trial counsel submitted for reimbursement show no time or expenses

attributed to out-of-court investigation. Id. ECF No. 31-27, pp. 2–8 (trial counsel

timesheets). Going into the sentencing phase, trial counsel therefore knew virtually

nothing about Raby’s background or what his available family and friends could offer

in terms of critical mitigation evidence. A reasonably competent attorney would have

realized that further investigation of available sources was necessary to make

informed choices about presentation of the mitigation case.

Raby Has Diligently Pursued His IATC Claim

Raby first notified the state district court of the potential default of his IATC

claims in 1999, after his initial state habeas counsel refused to file extra-record

claims. He first raised the Martinez argument in his 2002 federal habeas petition

(Raby v. Cockrell, 4:02-cv-00349 (S.D. Tex. Jan. 30, 2002), ECF No. 4, pp. 30–70 (Pet.

for Writ Habeas Corpus)), though Coleman rendered that argument futile. PostMartinez and Buck, Raby has diligently pursued his efforts to reopen his petition. As

in Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009), where the Ninth Circuit granted

a Rule 60(b)(6) motion premised on an intervening decision of law, here, Raby has

“pressed all possible avenues of relief” at “every stage of this case.” Id. at 1137. While

the Fifth Circuit dismissed Raby’s diligence, noting that “persistence alone does not

warrant relief from judgment” Pet. App. F at 6, this misses the point. Rule 60(b)(6)

must be available in every case “to accomplish justice” where the totality of the

extraordinary case-specific circumstances warrants such relief.

Capital Cases Are By Nature

Resolution Of Circuit Conflicts

Compelling

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For

The capital nature of Raby’s case is a compelling equitable factor that weighs

in favor of reopening his petition. Indeed, this Court has recognized that the “duty to

search for constitutional error with painstaking care is never more exacting than it

is in a capital case.” Burger, 483 U.S. at 785. This is especially so given that Raby’s

principal claim is for ineffective assistance of trial counsel at his capital sentencing.

III.

Categorical Rejection Of Rule 60(b)(6) Motions Premised On A Change

In Decisional Law Is Irreconcilable With The Purposes Of Rule

60(b)(6) And Other Binding Precedent

Given the plain circuit split on the question presented—and the importance of

that split to the disposition of numerous capital cases—the merits are not particularly

relevant to the decision whether to grant certiorari. But to the extent the merits are

relevant, the categorical position of the Fourth, Fifth, Sixth, and Eleventh Circuits

against Rule 60(b)(6) motions premised on Martinez is irreconcilable with the

purposes of Rule 60(b)(6) and this Court’s binding precedents.

Rule 60(b)(6) “permits reopening [a final judgment] when the movant shows

‘any . . . reason justifying relief from the operation of the judgment’ other than the

more specific circumstances set out in Rule 60(b)(1)–(5).” Gonzalez, 545 U.S. at 529.

Rule 60(b)(6) was thus intended to be a broad, catchall provision for achieving justice

in extraordinary cases; a holistic, equitable inquiry is essential to accomplishing that

objective. See Wright and Miller, Other Reasons Justifying Relief, 11 Fed. Prac. &

Proc. Civ. § 2864 (3d ed.) (Rule 60(b)(6) “gives the courts ample power to vacate

judgments whenever that action is appropriate to accomplish justice.”); 7 J. Lucas &

J. Moore, Moore’s Federal Practice ¶ 60.27[2] at 375 (2d ed. 1982) (Rule 60(b)(6) is a

“grand reservoir of equitable power to do justice in a particular case”). This Court

has explained that the language of subsection 60(b)(6), “[i]n simple English . . . vests

power in courts adequate to enable them to vacate judgments whenever such action

is appropriate to accomplish justice.” Klapprott, 335 U.S. at 615. A categorical rule

foreclosing certain petitioners from Rule 60(b)(6) relief, even in extraordinary

equitable circumstances, is inconsistent with these established principles.

This Court’s own opinion in Gonzalez confirms the point. Correctly read,

Gonzalez shows that equitable considerations are always relevant—and, while some

changes in decisional law may be insufficient on their own to require Rule 60(b)(6)

relief, it remains necessary for the court to evaluate the specific equities to determine

whether relief is appropriate. See Gonzalez, 545 U.S. at 536–38. Thus, while this

Court determined in Gonzalez that its new interpretation of AEDPA’s statute of

limitations in Artuz v. Bennett, 531 U.S. 4 (2000), was not itself an “extraordinary

circumstance,” it nonetheless went on to examine other equitable considerations,

such as the petitioner’s diligence, to determine whether reopening the case was

warranted. Id. at 537. Gonzalez therefore did not create a per se rule that a change in

decisional law is never an extraordinary circumstance warranting Rule 60(b)(6) relief

for habeas petitioners. If anything, it rejects precisely the per se approach that the

Fourth, Fifth, Sixth, and Eleventh Circuits have read into it. See, e.g., Gonzalez, 545

U.S. at 534 (“Rule 60(b) has an unquestionably valid role to play in habeas cases.”).

Moreover, Martinez and Trevino themselves suggest that they are an

appropriate basis for the courts to at least consider granting Rule 60(b)(6) relief. As

explained above, Martinez and Trevino (and even their dissents) expressly recognize

the critical importance of their change in Coleman’s rule. See supra p. 25. Indeed,

the whole point of that change was to prevent meritorious IATC claims from being

defaulted simply because there was never an adequate attorney to develop them. As

this case shows, cutting off all Rule 60(b)(6) claims rooted in Martinez and Trevino

brings about essentially the result that those cases sought to avoid.

This is confirmed by this Court’s own actions in the wake of Martinez and Buck.

Taking Martinez’s invitation at its word, two Texas petitioners sought Rule 60(b)(6)

relief, which the Fifth Circuit denied. After Trevino clarified that Martinez applied in

Texas, this Court apparently rejected Texas’s argument that Rule 60(b)(6) relief is

categorically unavailable when premised on Martinez—granting certiorari, vacating,

and remanding those cases for further consideration. Haynes v. Thaler, 133 S. Ct.

2764 (2013) (mem.); Balentine v. Thaler, 133 S. Ct. 2763 (2013) (mem.). Indeed, it

even stayed one petitioner’s execution to allow him to raise a Martinez claim on

remand. Haynes v. Thaler, 133 S. Ct. 639 (2012).

A proper application of Rule 60(b)(6) in motions premised on Martinez would

not be overly burdensome or broad. This Court need recognize only that an exception

to finality remains available for extraordinary cases—and only those cases. Courts

can readily determine when such extraordinary circumstances are absent (for

example, where the underlying claims are weak, the sentence is less severe, or the

petitioner failed timely to invoke Martinez after it became available). Moreover,

many habeas petitioners cannot invoke Martinez at all: their IATC claim may not

have been defaulted in state habeas; they may lack a substantial IATC claim; they

may be unable to show IAC in state collateral review; or there may be an alternative

merits disposition in their first federal habeas petition. Trevino, 133 S. Ct. at 1918;

Martinez, 566 U.S. at 13–14, 16–17. But, where the equities weigh strongly in

petitioner’s favor, it flies in the face of Rule 60(b)(6) to cut off the equitable inquiry

before it has even begun.

IV.

The Court Should At Least Summarily Reverse The Denial Of

Raby’s COA

Fully nine “reasonable jurists” on three unanimous panels of the Third,

Seventh, and Ninth Circuits have determined that a holistic, equitable inquiry is

necessary in Rule 60(b)(6) motions premised on Martinez, yet the Fifth Circuit denied

a COA here—in effect concluding that jurists cannot reasonably debate the equities

of such a Rule 60(b)(6) motion and foreclosing any case-specific consideration of the

equities.

Given the acknowledged conflict among the courts of appeals on the

question of whether a Rule 60(b)(6) motion premised on Martinez as an intervening

decision of law must be categorically denied, this Court should grant plenary review.

Short of that, the Court should summarily reverse the denial of Raby’s request for a

COA to allow for full briefing and argument on the proper treatment of Raby’s

Martinez-based Rule 60(b)(6) motion. Cf. Buck, 137 S. Ct. at 780.

A holistic, equitable inquiry into Raby’s case-specific circumstances would

confirm the strength of his IATC claim. Raby’s trial counsel failed to perform even

the most basic investigation of Raby’s background to identify available, compelling

mitigating evidence and elicited expert opinions from Dr. Quijano—a doctor of clinical

psychology—that established the State’s case for future dangerousness. In Porter v.

McCollum, this Court recognized that a failure “to conduct a thorough investigation

of the defendant’s background” constitutes ineffective assistance of counsel in

violation of the Sixth Amendment. 558 U.S. 30, 39 (2009). Likewise, in Buck, this

Court likened Dr. Quijano’s testimony that the defendant’s race was an immutable

characteristic that carried with it increased probability of future violence to a toxin

that “can be deadly in small doses.” 137 S. Ct. at 777. Dr. Quijano’s factually

insupportable and methodologically unsound testimony that Raby was a sociopath

was pernicious for all the same reasons that this Court found persuasive in Buck—

the testimony came from a well-credentialed defense expert experienced in

evaluating capital cases.

Moreover, this Court has held that a court should permit briefing and conduct

plenary review when a circuit split exists. See Lozada v. Deeds, 498 U.S. 430 (1991)

(per curiam) (regarding certificates of probable cause). Several courts of appeals have

similarly concluded that, in the presence of a circuit conflict, a COA should be

granted. See, e.g., United States v. Doe, 810 F.3d 132, 147 (3d Cir. 2015); Kramer v.

United States, 797 F.3d 493, 502 (7th Cir. 2015); United States v. Gomez-Sotelo, 18 F.

App’x 690, 692 (10th Cir. 2001); Lambright v. Stewart, 220 F.3d 1022, 1027–28 (9th

Cir. 2000); Franklin v. Hightower, 215 F.3d 1196, 1200 (11th Cir. 2000). There is thus

no question that the district court and Fifth Circuit both erred in finding that

reasonable jurists could not debate whether “the petition should have been resolved

in a different manner.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable

jurists among the courts of appeals are engaged in an ongoing debate on precisely

this subject.

Because reasonable jurists could debate the district court’s ruling, the Fifth

Circuit should not have denied a COA.

CONCLUSION

This Court should grant the Petition for a Writ of Certiorari or summarily

reverse the denial of Raby’s COA.

Respectfully submitted,

KEVIN D. MOHR

TRACEY M. ROBERTSON

KING & SPALDING LLP

1100 Louisiana, Suite 4000

Houston, TX 77002

(713) 751-3200

SARAH M. FRAZIER

Counsel of Record

BERG & ANDROPHY

3704 Travis Street

Houston, TX 77002

(713) 529-5622

Counsel for Petitioner Charles D. Raby

February 28, 2019

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.