Raby v. Davis

907 F.3d 880
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 31, 2018
DocketNo. 18-70018
StatusPublished
Cited by13 cases

This text of 907 F.3d 880 (Raby v. Davis) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raby v. Davis, 907 F.3d 880 (5th Cir. 2018).

Opinion

JERRY E. SMITH, Circuit Judge:

*883Charles Raby, a death row inmate, seeks a certificate of appealability ("COA") to challenge the denial of his Federal Rule of Civil Procedure 60(b)(6) motion. Finding no extraordinary circumstances warranting Rule 60(b)(6) relief, we decline the request.

I.

In 1994, Raby was convicted and sentenced to death for capital murder. The Texas Court of Criminal Appeals upheld his conviction on direct appeal and denied his application for state habeas corpus relief. Raby filed a federal habeas petition, claiming, inter alia , that his attorney rendered ineffective assistance of counsel ("IAC") at the punishment phase by failing to present mitigating evidence and by calling the notorious state expert Walter Quijano, who prejudicially labeled Raby "a psychopath." The district court denied the petition, given Raby's failure to exhaust state remedies. This court rejected Raby's request for a COA because his claims were both procedurally foreclosed and without merit. Raby v. Dretke , 78 F. App'x 324, 328 (5th Cir. 2003).

After exhausting further attempts at state habeas review, Raby filed a Rule 60(b)(6) motion for relief from judgment. The district court denied the motion, holding that there were no extraordinary circumstances justifying relief. Raby now seeks a COA to challenge that ruling.1

II.

"Before an appeal may be entertained," a habeas petitioner "must first seek and obtain a COA" as a "jurisdictional prerequisite." Miller-El v. Cockrell , 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To receive a COA, a petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He satisfies that standard by "demonstrat[ing] that his application involves issues that are debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are suitable enough to deserve encouragement to proceed further." Hernandez v. Johnson , 213 F.3d 243, 248 (5th Cir. 2000) (citation omitted). The court limits its examination at the COA stage "to a threshold inquiry into the underlying merit of [the] claims."2

Raby contends that the district court erroneously denied his Rule 60(b)(6) motion to reopen its judgment as to whether his IAC claims had been procedurally foreclosed. We have jurisdiction to consider that ruling because the motion "attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings."3 Because we review a Rule 60(b)(6) ruling for abuse of discretion, "the COA question is ... whether a reasonable jurist could conclude that the *884District Court abused its discretion in declining to reopen the judgment." Buck , 137 S.Ct. at 777. Though a court may reopen judgment for "any other reason that justifies relief," FED. R. CIV. P. 60(b)(6), it will do so only on a showing of "extraordinary circumstances," which "rarely occur in the habeas context." Gonzalez , 545 U.S. at 535, 125 S.Ct. 2641. Raby claims his circumstances are extraordinary for two reasons-neither of which is convincing.

A.

Raby asserts that he is entitled to Rule 60(b)(6) relief as a result of an intervening change in decisional law since the district court's previous ruling. In 2002, the district court determined that Raby's IAC claims were procedurally foreclosed under Coleman v. Thompson , 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), because he had failed to raise them in the state habeas proceedings. But the Court has since recognized a "narrow exception" to Coleman . Diaz v. Stephens , 731 F.3d 370, 375 (5th Cir. 2013) (citation omitted). As established in Martinez v. Ryan , 566 U.S. 1, 14, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler , 569 U.S. 413, 428, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), "a claim of ineffective assistance of trial counsel defaulted in a Texas post-conviction proceeding may be reviewed in federal court if state habeas counsel was constitutionally ineffective in failing to raise it, and the claim has 'some merit.' " Buck , 137 S.Ct. at 779-80 (citations omitted). Raby maintains that the exception applies here and that such a "significant change" in decisional law constitutes an "extraordinary circumstance" under Rule 60(b)(6).

Even if Raby's claims were not procedurally defaulted under Martinez and Trevino , he is ineligible for Rule 60(b)(6) relief. 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."4 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.

B.

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Cite This Page — Counsel Stack

Bluebook (online)
907 F.3d 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raby-v-davis-ca5-2018.