from the United States District Court for the Northern
District of Texas
SMITH, OWEN, and GRAVES, Circuit Judges.
E. SMITH, Circuit Judge.
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 court abused its
discretion in denying his motion, we deny a COA. Moreover,
because Crutsinger does not establish that the circumstances
justify the exercise of our equitable discretion, we deny the
motion for a stay.
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,
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).
jurisdictional prerequisite, a habeas petitioner must obtain
a COA before we may consider his appeal. 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 discretion in declining to reopen
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 decisional law after entry of
judgment does not constitute extraordinary circumstances and
is not alone grounds for relief from a final
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,  constitute extraordinary 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
support of this, Crutsinger cites the dissent from our recent
decisionand 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.
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)
funding. He posits that the risk this case will undermine
public confidence in the judicial process also supports his
claim of extraordinary circumstances.
Crutsinger stresses that "Gonzalez did not
announce any rule that a change in law cannot constitute an
extraordinary circumstance warranting relief from the
judgment." In Gonzalez, 545 U.S. at 536, the
Court 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).
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
interpretation" of a federal statute. We reiterated this
sentiment in both of our recent Crutsinger
decisions. 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."
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 published decision in In re
Johnson, Nos. 19-20552, 19-70013, 2019 WL 3814384, 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 representtation,
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 ...