Balentine v. Lumpkin ( 2021 )

Case: 18-70035 Document: 00515962872 Page: 1 Date Filed: 08/03/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
August 3, 2021
No. 18-70035 Lyle W. Cayce
Clerk
John Lezell Balentine,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:03-CV-39
Before Owen, Chief Judge, and Elrod and Duncan, Circuit Judges.
Per Curiam:*
John Balentine was convicted and sentenced to death for killing three
teenagers while they slept. In the district court, Balentine filed a Rule 60(b)
motion to reopen the 2008 final judgment that denied him federal habeas
relief under 28 U.S.C. § 2254. The district court determined that Balentine’s
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-70035 Document: 00515962872 Page: 2 Date Filed: 08/03/2021
No. 18-70035
case did not present extraordinary circumstances that warrant relief under
Rule 60(b) and that the exception to a procedural bar under Martinez v. Ryan,
566 U.S. 1 (2012) did not apply to Balentine’s claim. We AFFIRM the
district court’s judgment.
I.
In 1998, John Balentine walked to the Amarillo home he used to share
with his ex-girlfriend, and, once inside, shot and killed three teenagers. Two
of them, he did not recognize. The other was Balentine’s ex-girlfriend’s
brother, who had allegedly previously threatened to assault or kill Balentine
over Balentine’s treatment of his sister. 1 Balentine shot each victim in the
head while they were asleep. Balentine, who was then thirty, was convicted
of capital murder and sentenced to death the following year. State v.
Balentine, No. 39,532-D, 1999 WL 34866401, (320th Dist. Ct., Potter Cnty.,
Tex. Apr. 21, 1999).
No mitigation evidence concerning Balentine’s background,
childhood, or family was presented at trial, and no witnesses were called by
the defense at the punishment phase. The Texas Court of Criminal Appeals
affirmed Balentine’s conviction and sentence on direct appeal. Balentine v.
1
Balentine states in his brief that “prior to the murders, Balentine, a black man,
had been involved in a dispute with one of the victims, all of whom were white, who had
threatened to kill him and went with others looking for him on more than one occasion. The
dispute grew ugly, with one resorting to racial epithets and taunts. The victim went as far
as to leave a note referencing the KKK attached to the front door of where [Balentine] was
staying as a warning to [Balentine].” The record bears out some but not all of these
statements. For instance, the victim described in Balentine’s brief, who was the brother of
Balentine’s ex-girlfriend, was white and there was testimony he made a threat in which he
referred to Balentine, who is black, using a racial slur. According to Balentine’s brief,
Balentine may also have believed that the brother left a threatening sign referencing the Ku
Klux Klan on his door. However, trial testimony revealed that a different relative of
Balentine’s ex-girlfriend made the sign and the brother had no role in it. Balentine does not
argue on appeal that there was error regarding this evidence.
2
Case: 18-70035 Document: 00515962872 Page: 3 Date Filed: 08/03/2021
No. 18-70035
State, 71 S.W.3d 763, 774 (Tex. Crim. App. 2002). Balentine did not petition
the Supreme Court for certiorari. Instead, he filed a state habeas application
in which he raised twenty-one grounds for relief, including that he was denied
the effective assistance of counsel because his attorney failed to adequately
investigate and present mitigation evidence. Balentine’s application was
denied. Ex parte Balentine, No. WR–54,071–01 (Tex. Crim. App. Dec. 4,
2002) (not designated for publication).
Balentine filed an amended federal petition for writ of habeas corpus
in 2004. He argued that his Eighth and Fourteenth Amendment rights to
individualized sentencing under the Lockett doctrine, see Lockett v. Ohio, 438
U.S. 586 (1978), 2 were violated because his trial counsel failed to present any
mitigating and risk-assessment evidence at trial. 3 In support, Balentine relied
upon arguments and evidence, such as affidavits from family members and
experts, that were not presented to the state court. As such, the State argued
that his claim was unexhausted and procedurally barred, and the federal
district court heard oral argument on that point.
The district court concluded that Balentine’s mitigation claim was
unexhausted and did not constitute cause to excuse the default of the
2
Lockett held unconstitutional an Ohio death penalty statute that did not permit
the type of individualized consideration of mitigating factors—such as a defendant’s
character and record—that the Court deemed required by the Eighth and Fourteenth
Amendments. Lockett, 438 U.S. at 606.
3
The district court ultimately construed this Lockett claim as one asserting a
violation of Balentine’s Sixth Amendment right to effective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 698 (1984), because the Eighth and Fourteenth
Amendments do not govern claims of ineffective assistance of counsel. See Balentine v.
Quarterman, No. 2:03-CV-39, 2008 WL 862992, at *18 (N.D. Tex. Mar. 31, 2008).
Although Balentine, in his original state habeas proceeding, claimed that he was denied the
effective assistance of counsel under the Sixth Amendment because of his trial counsel’s
failure to call any mitigation witnesses, he did not rely upon that ground in his later federal
habeas petition.
3
Case: 18-70035 Document: 00515962872 Page: 4 Date Filed: 08/03/2021
No. 18-70035
exhaustion requirement. Balentine v. Quarterman, No. 2:03-CV-39, 2008
WL 862992, at *20 (N.D. Tex. Mar. 31, 2008). 4 The district court then
denied Balentine a certificate of appealability on this issue. Balentine v.
Quarterman, No. 2:03-CV-39, 2008 WL 2246456, at *3 (N.D. Tex. May 30,
2008) (concluding that trial counsel’s failure to investigate and present
mitigation evidence “does not allow the federal court to avoid the exhaustion
requirement or excuse the procedural bar”) (citing Coleman v. Thompson, 501
U.S. 722, 752 (1991) and Martinez v. Johnson, 255 F.3d 229, 240–41 (5th Cir.
2001)). This court subsequently denied Balentine a certificate of
appealability on this issue for the same reason. Balentine v. Quarterman, 324
F. App’x 304, 306 (5th Cir.), cert. denied, 558 U.S. 971 (2009).
In 2009, the state court set Balentine’s execution for September 30,
2009. State v. Balentine, No. 39,532-D (320th Dist. Ct., Potter Cnty., Tex.
June 22, 2009). Balentine then filed a motion for stay of execution along with
a second (or first subsequent) habeas application in state court, again raising
his ineffective-assistance-of-counsel claim but this time supported by exhibits
developed during the federal habeas proceedings. Ex parte Balentine, Nos.
WR-54071-01, WR-54071-02, 2009 WL 3042425, at *1 (Tex. Crim. App.
4
The court did note that even if it were to credit Balentine’s Eighth and Fourteenth
Amendment claims as alleging the same legal theory as his prior Sixth Amendment claim
(the one that he chose not to rely upon in his federal habeas proceeding), Balentine would
still not satisfy the exhaustion requirement. Balentine, 2008 WL 862992, at *20. That is
because the additional evidence Balentine introduced at the federal proceeding was never
presented to the state court or referenced in the one-page argument for relief contained in
his state petition—the two claims presented were thus fundamentally different. Id.; see
Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005) (explaining that dismissal for failure to
exhaust is not required “when evidence presented for the first time in a habeas proceeding
supplements, but does not fundamentally alter, the claim presented to the state courts”
(quoting Anderson v. Johnson, 338 F.3d 382, 386–87 (5th Cir. 2003)); Graham v. Johnson,
94 F.3d 958, 968 (5th Cir. 1996) (“[A] habeas petitioner fails to exhaust state remedies
when he presents material additional evidentiary support to the federal court that was not
presented to the state court.”).
4
Case: 18-70035 Document: 00515962872 Page: 5 Date Filed: 08/03/2021
No. 18-70035
Sept. 22, 2009) (not designated for publication). The Court of Criminal
Appeals dismissed Balentine’s application under Article 11.071 § 5 of the
Texas Code of Criminal Procedure and denied his motion for stay of his
execution. Id.
Balentine then filed his first Rule 60(b) motion (along with another
motion for stay of execution) in federal district court, contending that the
Court of Criminal Appeals ruling undermined the conclusion that his
ineffective-assistance-of-counsel claim was procedurally barred. Balentine v.
Thaler, No. 2:03-CV-39, 2009 WL 10673148, at *1 (N.D. Tex. Sept. 28,
2009). The district court denied relief, holding that the Court of Criminal
Appeals ruling was based on independent and adequate state-law grounds,
did not consider or rule on the merits, and did not open the claim to federal
habeas review. Id. at *3. The district court did, however, grant Balentine’s
application for a certificate of appealability. Balentine v. Thaler, No. 2:03-CV-
39, 2009 WL 10710124, at *1 (N.D. Tex. Sept. 28, 2009). The Fifth Circuit
originally disagreed and granted Balentine’s stay of execution (denied by the
district court) and reversed the denial of Rule 60(b) relief. Balentine v.
Thaler, 609 F.3d 729, 738 (5th Cir.) (determining that prior Fifth Circuit
precedent compelled it “to construe the . . . Court of Criminal Appeals ruling
as one on federal grounds, because it was not clearly based on an adequate
state ground independent of the merits”), withdrawn, 626 F.3d 842 (5th Cir.
2010).
This court then substituted a new opinion that affirmed the district
court’s denial of Balentine’s Rule 60(b) motion and held that the Court of
Criminal Appeals denial of Balentine’s subsequent application was based
upon independent and adequate state procedural grounds. See Balentine v.
Thaler, 626 F.3d 842, 857 (5th Cir. 2010). A petition for rehearing en banc
was denied, Balentine v. Thaler, 629 F.3d 470 (5th Cir. 2010), as was a petition
for writ of certiorari, Balentine v. Thaler, 564 U.S. 1006 (2011).
5
Case: 18-70035 Document: 00515962872 Page: 6 Date Filed: 08/03/2021
No. 18-70035
The state court set another execution date for June 15, 2011. On June
13, Balentine moved to stay his impending execution and filed a third state
habeas application (second subsequent application), which again presented
his claim that trial counsel failed to conduct an adequate investigation in his
initial state habeas application. The Court of Criminal Appeals denied his
request for a stay and dismissed his application. Ex parte Balentine, No. WR-
54,071-03, 2011 WL 13213991, at *1 (Tex. Crim. App. June 14, 2011) (not
designated for publication). Balentine filed a petition for writ of certiorari,
along with a motion for stay of execution. The Supreme Court granted the
motion for stay, Balentine v. Texas, 564 U.S. 1014 (2011), which expired on
the denial of certiorari, Balentine v. Texas, 566 U.S. 904 (2012).
The state court then set another execution date for August 22, 2012.
On July 12, 2012, Balentine filed another Rule 60(b) motion in the federal
district court, claiming that Martinez v. Ryan, 566 U.S. 1 (2012), 5 excused the
procedural default of his ineffective-assistance claim. The district court
denied Balentine’s motion but granted a certificate of appealability. Balentine
v. Thaler, No. 2:03-CV-39, 2012 WL 3263908, at *1 (N.D. Tex. Aug. 10,
2012) (“[B]inding circuit precedent has determined that the exception
created in Martinez does not apply to this case.”). The Fifth Circuit affirmed
the district court. Balentine v. Thaler, No. 12-70023, slip op. at 6 (5th Cir.
Aug. 17, 2012) (unpublished), supplemented, 692 F.3d 357 (5th Cir. 2012).
Balentine’s motion for rehearing en banc was denied. Balentine v. Thaler, 692
F.3d 357 (5th Cir. 2012). The Supreme Court, however, granted Balentine’s
certiorari petition, vacated the judgment, and remanded the case to this court
5
The Court in Martinez stated that it was qualifying Coleman v. Thompson, 501 U.S.
722 (1991) by “recognizing a narrow exception: Inadequate assistance of counsel at initial-
review collateral proceedings may establish cause for a prisoner’s procedural default of a
claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9.
6
Case: 18-70035 Document: 00515962872 Page: 7 Date Filed: 08/03/2021
No. 18-70035
for further consideration in light of Trevino v. Thaler, 569 U.S. 413 (2013). 6
Balentine v. Thaler, 569 U.S. 1014 (2013). This court in turn remanded the
case to the district court to “conduct further proceedings consistent with the
Supreme Court’s ruling in Trevino.” Balentine v. Stephens, 553 F. App’x 424,
425 (5th Cir. 2014).
Following the Fifth Circuit’s remand with instructions, the district
court held an evidentiary hearing “for the purpose of examining the
exception to procedural bar,” which necessarily included the presentation of
evidence relating to the merits of Balentine’s underlying ineffective-
assistance claim. Balentine v. Stephens, No. 2:03-CV-39, 2016 WL 1322435,
at *4 (N.D. Tex. Apr. 1, 2016). Following the hearing, the magistrate judge
recommended that Rule 60(b) relief be denied because “Balentine’s claim
has no merit and does not come within the Martinez exception to procedural
bar.” Balentine v. Davis, No. 2:03-CV-39, 2017 WL 9470540, at *16 (N.D.
Tex. Sept. 29, 2017). The district court adopted the magistrate judge’s
recommendation and denied Balentine a COA. Balentine v. Davis, No. 2:03-
CV-39, 2018 WL 2298987, at *1 (N.D. Tex. May 21, 2018).
Balentine moved for a COA from this court to appeal the district
court’s denial of his Rule 60(b) motion. Based on the limited, threshold
inquiry appropriate at the COA stage, this panel granted Balentine’s motion
for a COA, and the appeal is before us now.
6
Trevino applied Martinez’s narrow exception to situations in which a state’s
procedural framework (like that found in Texas) “makes it highly unlikely in a typical case
that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance
of trial counsel on direct appeal.” Trevino, 569 U.S. at 429.
7
Case: 18-70035 Document: 00515962872 Page: 8 Date Filed: 08/03/2021
No. 18-70035
II.
Federal Rule of Civil Procedure 60(b)(6) is a general, catch-all
provision that authorizes a district court to equitably relieve a party from a
final judgment, order, or proceeding for specific, enumerated reasons or for
“any other reason that justifies relief.” Although described as a “grand
reservoir of equitable power to do justice,” Rocha v. Thaler, 619 F.3d 387, 400
(5th Cir. 2010) (quotation omitted), the Fifth Circuit has “narrowly
circumscribed its availability.” Balentine v. Thaler, 626 F.3d at 846 (quoting
Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th Cir. 1995)). “Only if
extraordinary circumstances are present” will Rule 60(b)(6) relief be
granted. Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990).
Such “extraordinary circumstances,” however, “will rarely occur in the
habeas context.” Gonzales v. Crosby, 545 U.S. 524, 535 (2005). 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.”
Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (quoting Bailey, 894 F.2d
at 160). This court reviews the denial of a Rule 60(b) motion under an abuse
of discretion standard. See Rocha, 619 F.3d at 400.
Federal review of a procedurally barred claim is permitted when the
petitioner is able to “demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law.” 7 Hughes v. Quarterman,
530 F.3d 336, 341 (5th Cir. 2008) (quoting Coleman, 501 U.S. at 750). The
7
In addition, review on the merits is permitted if the petitioner can “demonstrate
that failure to consider the claim[] will result in a fundamental miscarriage of justice.”
Hughes, 530 F.3d at 341 (quoting Coleman, 501 U.S. at 735). This exception is limited to
cases in which the petitioner can show that a constitutional violation has probably resulted
in the conviction of one who is actually innocent. Dretke v. Haley, 541 U.S. 386, 393 (2004).
Balentine does not argue that he is actually innocent. We therefore do not address this
exception to procedural default.
8
Case: 18-70035 Document: 00515962872 Page: 9 Date Filed: 08/03/2021
No. 18-70035
Supreme Court expanded this cause exception in Martinez v. Ryan, 566 U.S.
1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013). See Adams, 679 F.3d at
319 (“The Supreme Court’s later decision in 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.”).
Where, as in Texas, the state procedural framework makes it highly
unlikely that a defendant will have a meaningful opportunity to raise on direct
appeal a claim of ineffective assistance of trial counsel, a “procedural default
will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding . . .
counsel in that proceeding was ineffective.” Trevino, 569 U.S. at 429
(quoting Martinez, 566 U.S. at 17). “Therefore, to succeed in establishing
cause, the petitioner must show (1) that his claim of ineffective assistance of
counsel at trial is substantial—i.e., has some merit 8—and (2) that habeas
counsel was ineffective in failing to present those claims in his first state
habeas proceeding.” Garza v. Stephens, 738 F.3d 669, 676 (5th Cir. 2013)
(citing Martinez, 566 U.S. at 14); see also Buck v. Davis, 137 S. Ct. 759, 779–
80 (2017) (“[A] claim of ineffective assistance of trial counsel defaulted in a
Texas postconviction proceeding may be reviewed in federal court if state
habeas counsel was constitutionally ineffective in failing to raise it, and the
8
Balentine argues that “[i]n granting [a] [certificate of appealability], this Court
necessarily found that the [ineffective-assistance-of-counsel] claim was a substantial claim,
in that it had some merit.” However, as our decision granting Balentine’s certificate of
appealability made clear, this panel conducted a limited, threshold inquiry at that stage, and
the panel is not bound by any observations on the merits in the opinion granting a certificate
of appealability. Balentine v. Davis, No. 18-70035 (5th Cir. Feb. 26, 2020). See also Trevino,
861 F.3d at 548.
9
Case: 18-70035 Document: 00515962872 Page: 10 Date Filed: 08/03/2021
No. 18-70035
claim has ‘some merit.’” (quoting Martinez, 566 U.S. at 14)). To establish
ineffective assistance of counsel, a petitioner must show that counsel’s
performance was deficient and that he was prejudiced by the deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
III.
Balentine appeals the denial of his motion to reopen the final judgment
under Federal Rule of Civil Procedure 60(b), arguing that the exception to a
procedural bar in Martinez in combination with the merits of his ineffective
assistance of counsel claim and his diligence in pursuing his claim warranted
60(b) relief. The district court denied Balentine’s Rule 60(b)(6) motion,
ruling that his ineffective assistance of counsel claim has no merit and thus
does not come within the Martinez exception to procedural bar. We affirm
on this reasoning. 9
A.
The district court concluded that Balentine’s ineffective-assistance
claim lacked merit because Balentine’s attorney testified that Balentine
9
We treat Balentine’s claim as unexhausted. The State makes an alternative
argument that Balentine’s claim is not new but rather one he already presented in the Texas
Court of Criminal Appeals, in which case 28 U.S.C. § 2254(d)(1) would bar the
consideration of new evidence. However, we do not find it necessary to reach this
argument. In addition, we do not reach the State’s argument that 28 U.S.C. § 2254(e)(2)
would bar this court’s consideration of the evidence presented at the federal evidentiary
hearing if Balentine had overcome the default of his ineffective assistance claim. As
discussed by the parties’ 28(j) briefs, the effect of Section 2254(e)(2) is an issue in two
cases in which the Supreme Court has recently granted certiorari, Jones v. Shinn, 943 F.3d
1211 (9th Cir. 2019) and Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019). See Shinn v.
Ramirez, No. 20-1009, 2021 WL 1951793 (May 17, 2021) (granting certiorari in both cases).
Because we do not reach this Section 2254(e)(2) issue in this case, we do not need to wait
for Supreme Court’s ruling in these cases. We affirm on the district court’s reasoning:
Balentine has not shown his ineffective assistance claim is substantial, and he cannot
overcome the procedural default.
10
Case: 18-70035 Document: 00515962872 Page: 11 Date Filed: 08/03/2021
No. 18-70035
himself instructed his attorneys not to present mitigation evidence. Balentine,
2017 WL 9470540, at *7. As our precedent establishes, “[i]f a defendant
instructs his attorney not to present mitigation evidence, the failure to
present this evidence does not give rise to a Strickland claim.” Shore v. Davis,
845 F.3d 627, 633 (5th Cir. 2017).
Balentine disputes the “nature and context” of his instruction and
whether that instruction was “knowing and informed.” However, the
evidence presented at the evidentiary hearing forecloses his arguments and
supports the district court’s ruling.
1. Nature and Context of Instruction
At the evidentiary hearing ordered by the district court, one of
Balentine’s trial attorneys, Paul Herrmann, testified that his “punishment”
strategy entailed making the case as difficult as possible for the State so as to
secure an offer for a life sentence. That “was the best-case scenario.”
Herrmann testified that this strategy was discussed with Balentine from the
beginning and that Balentine never expressed any discomfort or opposition
to the plan.
The plan worked: the defense succeeded in getting an offer from the
State to drop the death penalty to a life sentence in exchange for a guilty plea.
But Balentine rejected it. One of his trial attorneys, Randall Sherrod, testified
about the conversation he had with Balentine after the latter refused the offer:
And [Balentine] told me, he said, “With my background and
the fact that I killed three Aryan Nation kids, they’re going to
try to stick a shiv in me every day.” And he basically told me
that he would rather be on death row where he wouldn’t have
to worry about that, and he said something to the effect of,
“Who in the hell wants to spend their life until they’re fifty or
sixty years old in the penitentiary?” And he said, “I want the
death penalty.”
11
Case: 18-70035 Document: 00515962872 Page: 12 Date Filed: 08/03/2021
No. 18-70035
And then I walked up and talked to [co-counsel, who]
said, “Well, did he change his mind?” And I said, “No, but he
convinced me, if I were in his shoes, that’s the same thing I
would do.”
That attorney further testified that during the same conversation, Balentine
instructed him not to call any punishment witnesses. And when the attorney
approached the subject of mitigation with Balentine at the conclusion of the
State’s case on punishment—to see if he had changed his mind about putting
on punishment witnesses—Balentine informed his counsel that he did not
want to put on any more witnesses. The district court thus found that
although defense counsel had trial witnesses available to testify at the
punishment stage, Balentine told them not to call any punishment witnesses
because he did not want a life sentence. Balentine, 2017 WL 9470540, at *7.
As a result, his complaint against trial counsel for failing to present mitigation
witnesses at the punishment stage of his trial was foreclosed. Id. at *12.
Balentine argued in the district court and argues here on appeal that
the testimony of Balentine’s attorney concerning the nature and context of
the instruction should not be believed because the attorney: (1) argued for a
life sentence to the jury during closing argument—despite Balentine’s
supposed instruction not to call mitigation witnesses; (2) failed to make a
record at trial of Balentine’s instruction; (3) did not inform any other lawyer
or investigator who could corroborate the instruction; and (4) made no notes
concerning the waiver in his file.
Balentine contends that his instruction was motivated not by a
preference for seeking the death penalty but by his acquiescence to the
fatalistic judgment of his counsel that the punishment witnesses they had
available would not be enough to obtain a life sentence. He argues that he
turned down the State’s offer of life because he thought he had a chance for
acquittal and that his later instruction not to present mitigation witnesses, if
12
Case: 18-70035 Document: 00515962872 Page: 13 Date Filed: 08/03/2021
No. 18-70035
such an instruction was given in the first place, was not due to his preference
for death but was instead a result of his counsel’s pessimism and lack of
preparation with respect to mitigation witnesses.
However, the evidence presented at the evidentiary hearing supports
the district court’s findings. First, Balentine’s attorney testified as to the
reason why he argued for a life sentence during closing argument: he was a
death penalty opponent and saw a difference between presenting witnesses
against his client’s instructions and making an argument of his own without
consulting his client. Second, binding circuit authority holds that the district
court is not prevented from considering a defendant’s instructions to his
counsel just because the defendant’s instructions were not reflected on the
record. See Shore, 845 F.3d at 632. Third, the district court found that the
attorney to whom Balentine shared his preference for the death penalty
immediately reported that explanation to his co-counsel, and the investigator
working on the case similarly testified that Balentine had instructed counsel
not to call available witnesses at the punishment stage. Balentine, 2017 WL
9470540, at *8–9. Fourth, the district court concluded that the lack of notes
“does not prove that no such instructions were given. The evidence before
this Court supports the fact that such instructions were made and followed.
Balentine has not shown the absence of notes disproves [his attorney’s]
testimony.” Id. at *9 (citations omitted).
Finally, in response to Balentine’s alternate explanation for why he
rejected the guilty plea and instructed his counsel not to present mitigation
witnesses, the district court determined that his “currently asserted
reasoning for not calling punishment witnesses is in conflict with his trial
decision to reject an offer of life imprisonment.” Id. at *11. The district court
dismissed Balentine’s argument that he thought he had a chance of acquittal,
given there was no evidence that he did have such a belief. Id. Once the
defense was unsuccessful in challenging Balentine’s confession, he
13
Case: 18-70035 Document: 00515962872 Page: 14 Date Filed: 08/03/2021
No. 18-70035
effectively faced two outcomes: life in prison or the death penalty. Id. The
district court found credible Balentine’s trial counsel’s testimony that
Balentine expressed a preference of death row to a sentence of life in prison
in the general population. Id. at *8.
The district court noted that Balentine was not necessarily expressing
a desire to be immediately executed but rather comparing the anticipated
quality of life he would have in prison with a life sentence versus a death
sentence. Id. at *11 n.5. That is, the court viewed Balentine’s choice as a
preference for solitary confinement on death row—where he would wait for
however long it would take for his state and federal appeals to conclude—
over the general population, where he believed he would be in constant fear
of reprisals from white supremacist prison gangs into his old age. Id. The
court concluded that “[t]his does not necessarily appear to be an
unreasonable choice under the circumstances presented.” Id.In short, the district court found that Balentine instructed counsel to
not call the available punishment witnesses because he did not want a life
sentence. The district court’s finding aligns with Balentine’s trial counsel’s
testimony that Balentine stated he wanted the death penalty and the evidence
that Balentine instructed counsel not to present mitigation witnesses after
having been found guilty. We hold that the district court’s finding that
Balentine preferred a death sentence over a sentence of life in prison was not
clearly erroneous. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400–
01 (1990) (noting that even “[w]here there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous”
(quoting Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985))).
As the district court held, this finding forecloses Balentine’s
complaint against his trial counsel for failing to present mitigation witnesses
at the punishment stage of his trial, Shore, 845 F.3d at 633, or failing to
14
Case: 18-70035 Document: 00515962872 Page: 15 Date Filed: 08/03/2021
No. 18-70035
adequately investigate mitigation evidence. Schriro v. Landrigan, 550 U.S.
465, 475–76 (2007). If a defendant instructs his attorney not to present
mitigation evidence, the failure to present this evidence does not give rise to
a Strickland claim. See Shore, 845 F.3d at 633 (“A defendant cannot raise
a Strickland claim based on counsel’s compliance with his instructions.”);
United States v. Masat, 896 F.2d 88, 92 (5th Cir. 1990) (“[A defendant
cannot] avoid conviction on the ground that his lawyer did exactly what he
asked him to do.”); Autry v. McKaskle, 727 F.2d 358, 361 (5th Cir. 1984) (“By
no measure can [a defendant] block his lawyer’s efforts and later claim the
resulting performance was constitutionally deficient.”).
2. Knowing and Informed Instruction
Balentine also challenges his instruction to counsel not to present
mitigation evidence on the ground that any instruction must be knowing and
informed. He contends that he was not informed of the evidence that would
have been available but for counsel’s deficient investigation.
The district court concluded that this argument was foreclosed by our
decision in Shore. Balentine, 2017 WL 9470540, at *10. In Shore, this court
rejected an inmate’s argument that his waiver of the right to present
mitigation evidence was invalid because he could not have knowingly waived
that right when he was not aware of the evidence available. 845 F.3d at 632.
The court explained that the imposition of an informed and knowing
requirement would impermissibly create and apply a new rule of
constitutional law to upset a state conviction on collateral review in violation
of Teague v. Lane, 489 U.S. 288 (1989), abrogated in part by Edwards v.
Vannoy, 141 S. Ct. 1547 (2021). See Balentine, 2017 WL 9470540, at *10. As
in Shore, Balentine’s argument depends on a proposed rule of constitutional
law requiring that waiver of the right to present mitigation evidence be
“knowing and informed.”
15
Case: 18-70035 Document: 00515962872 Page: 16 Date Filed: 08/03/2021
No. 18-70035
The district court noted further that Shore’s holding relied upon and
was supported by the Supreme Court’s decision in Schriro v. Landrigan,
which, in considering an ineffective-assistance claim like Balentine’s, held
that it has “never imposed an ‘informed and knowing’ requirement upon a
defendant’s decision not to introduce evidence” in mitigation of a death
sentence. Id. (quoting Schriro, 550 U.S. at 479). We agree with the district
court that Shore applies to Balentine’s case and forecloses his argument about
whether his instruction was knowing and informed.
While Balentine argues that his waiver was not “informed and
knowing” because he did not know what mitigation evidence might be
available, this contention is simply not supported by the evidence. As the
district court found, Balentine’s reasoning was based on his expectations of
quality of life in prison for a life sentence versus a death sentence, not on what
he perceived as his likelihood of receiving a life sentence. To the extent that
additional mitigation evidence would have made it more likely that he would
receive a life sentence rather than a death sentence, this was irrelevant to the
reasoning he expressed to his counsel. He said that he wanted a death
sentence.
B.
In the alternative, the district court held that even if our precedent did
not foreclose Balentine’s argument on appeal, Balentine did not show that
his ineffective assistance of trial counsel claim had merit. 10 Balentine, 2017
10
The district court concluded that “Balentine’s rejection of a life sentence and
his instructions to not call any punishment witnesses eliminates the necessity to address
trial counsel’s effectiveness in the investigation and presentation of mitigating evidence.”
Balentine, 2017 WL 9470540, at *12. However, it addressed the substance of Balentine’s
ineffective assistance of trial counsel claim as an alternative holding. We affirm on both the
district court’s main and alternative holdings.
16
Case: 18-70035 Document: 00515962872 Page: 17 Date Filed: 08/03/2021
No. 18-70035
WL 9470540, at *12. Balentine’s ineffective assistance of trial counsel claim
is based on his assertion that trial counsel failed to conduct an adequate
investigation into mitigating evidence. Ultimately, the district court held that
Balentine’s claim failed to satisfy either prong of the Strickland standard
necessary to show substantiality. Id. at *16.
First, the district court found that an adequate mitigation
investigation had been conducted, referencing the various investigatory steps
taken by the trial investigator, Kathy Garrison. Specifically, the court noted:
Investigator Garrison testified she met with Balentine,
established a good relationship, and received helpful
information about his background, family history, names and
ages of family members, what his mother did for a living, family
doctor, medical history, employment history, criminal history,
alcohol and marijuana use, and contact information. Balentine
also told her about the threats that were made against him by
the victims and the victims[’] friends. She obtained
authorizations and ordered prison records, medical records,
educational records, hospital records, mental health records
and employment records. She called doctors, schools,
hospitals, former employers and family members. She looked
for a mental health expert to perform an evaluation of Balentine
and get an MRI but could not obtain anyone. She located
mitigation witnesses, served subpoenas and gathered the
witnesses for trial. She spoke with Balentine’s mother, who
refused to come to Amarillo for the trial. She also attempted to
contact other family members but some hid from her and
others could not be located.
Id. at *14 (citations omitted).
The district court determined this evidence “was what is generally
considered to be mitigation evidence.” Id. at *15. The district court
concluded that “[w]hile Balentine has shown additional investigation and
mitigation evidence could have been obtained, his argument comes down to
17
Case: 18-70035 Document: 00515962872 Page: 18 Date Filed: 08/03/2021
No. 18-70035
a matter of degrees” and that his argument “relies upon precisely the sort of
judicial second-guessing that Strickland was intended to avoid.” Id. at *16.
We agree with the district court that, even assuming arguendo that the
additional evidence developed by federal habeas counsel could have
improved the available case for a life sentence, this is not enough to establish
a claim of ineffective assistance of counsel. Id. All of Balentine’s
arguments—that trial counsel did not begin the investigation soon enough,
that they did not try hard enough to gather records or get his mother to
testify, that they did not find enough witnesses—come down to a matter of
degrees. As we have noted before, “[w]e must be particularly wary of
arguments that essentially come down to a matter of degrees. Did counsel
investigate enough? Did counsel present enough mitigating evidence?
Those questions are even less susceptible to judicial second-guessing.”
Carty v. Thaler, 583 F.3d 244, 258 (5th Cir. 2009) (quoting Dowthitt v.
Johnson, 230 F.3d 733, 743 (5th Cir. 2000)). Strickland requires that
“[j]udicial scrutiny of counsel’s performance must be highly deferential.”
466 U.S. at 689.
Moreover, the district court noted that the major difference between
the evidence gathered by Investigator Garrison, and subsequent investigation
at the evidentiary hearing was the testimony of expert witnesses and mental
health experts. The district court determined that this evidence was
“double-edged”—that is, the experts’ testimony regarding Balentine’s
deficiencies could have hurt Balentine as much as it would have helped him.
Balentine, 2017 WL 9470540, at *13. Even if such testimony could have
persuaded the jury that his mental health was an adequate basis to mitigate
his triple homicide, the same evidence could have also caused the jury to
determine that Balentine was a significant threat of future dangerousness.
Id.; see Clark v. Thaler, 673 F.3d 410, 423 (5th Cir. 2012) (stating that
mitigation evidence is “double-edged” when it “might permit an inference
18
Case: 18-70035 Document: 00515962872 Page: 19 Date Filed: 08/03/2021
No. 18-70035
that [the defendant] is not as morally culpable for his behavior, it also might
suggest [that the defendant], as a product of his environment, is likely to
continue to be dangerous in the future” (quoting Ladd v. Cockrell, 311 F.3d
349, 360 (5th Cir. 2002))); see also Tex. Code Crim. Proc. Ann. art. 37.071
§ 2(b)(1) (permitting a jury to impose the death penalty only if it finds
unanimously and beyond a reasonable doubt “a probability that the
defendant would commit criminal acts of violence that would constitute a
continuing threat to society”).
The district court determined that the double-edged nature of the
evidence that emerged from the subsequent investigation supported its
conclusion that Balentine could not show the requisite prejudice under
Strickland. Balentine, 2017 WL 9470540, at *15. The district court’s ruling
accords with our precedent. As we said in Clark, “it is uncertain whether
reasonable counsel would have used the evidence had it been available; in any
event, it is unlikely to have had a significant mitigating effect had counsel
presented it.” 673 F. 3d at 423 (quoting Ladd, 311 F.3d at 360).
Finally, we determine that the aggravating evidence in Balentine’s
case makes it “virtually impossible to establish prejudice.” Ladd, 311 F.3d at
360. “[I]n assessing prejudice, [courts] reweigh the evidence in aggravation
against the totality of available mitigating evidence.” Wiggins v. Smith, 539
U.S. 510, 534 (2003); accord Clark, 673 F.3d at 424.
In this case, Balentine murdered three teenagers as they slept—only
one of whom he knew. The jury heard evidence that spoke to the “cold-
blooded nature of the triple homicide,” Balentine, 2017 WL 9470540, at *14,
and to Balentine’s criminal history.
At trial, the jury heard the tape-recording of Balentine’s confession to
the murders of the three teenage boys, including the calm and calculated way
that he prepared for the crime. First, he walked five or six miles to the house
19
Case: 18-70035 Document: 00515962872 Page: 20 Date Filed: 08/03/2021
No. 18-70035
where the boys slept. After entering the house, he got himself a drink from
the kitchen. He realized that his gun was jammed and left the house to test it
by shooting it in the alley. Then, he returned and shot all three boys in the
head as they slept. At sentencing, the State also pointed to statements in his
confession as demonstrating that he felt no remorse for his actions.
At sentencing, the State also presented evidence of Balentine’s earlier
criminal behavior, going back to when he was a teenager. In 1985, he was
adjudicated delinquent by a juvenile court for having burglarized a high
school JROTC building and stolen rifles and uniforms. In 1986, he was
arrested at a Wal-Mart after attempting to steal a large quantity of firearms
and sentenced to five years’ imprisonment. In 1989, after being released from
prison, he was convicted of robbery, stealing money and cigarettes from a
victim whom he struck in the head with a bottle.
Then, several years later, Balentine kidnapped and assaulted a woman
who worked at the same nursing home where he had briefly worked in
maintenance. The victim herself provided testimony at sentencing and
described the November night in 1996 that began when she heard a loud
crashing noise in her home. A window in her back bedroom had been busted
out. She tried to call the police, but her phone lines had been cut. She
grabbed a baseball bat and tried to make it to her car parked outside. As she
was putting her key in the door, a man ran towards her. He grabbed her by
the throat and told her, by name, to stop screaming or he would cut her. After
a struggle, he got her inside her vehicle. Balentine drove away with her
inside, and she was only able to escape when he stopped at a convenience
store approximately 45 minutes away from where she lived.
In view of this overwhelming aggravating evidence, there is no
“reasonable probability” that, had the jury heard the mitigation evidence, “it
would not have imposed the death penalty.” Clark, 673 F.3d at 424; see also
20
Case: 18-70035 Document: 00515962872 Page: 21 Date Filed: 08/03/2021
No. 18-70035
Smith v. Davis, 927 F.3d 313, 338–39 (5th Cir. 2019) (concluding that
petitioner failed to show prejudice because his “weak evidence of mental
illness” paled in comparison to the State’s “strong evidence of future
dangerousness” and thus his new evidence did not create a “‘reasonable
probability that at least one juror would have struck a different balance’
among mitigating and aggravating factors that would have resulted in a
sentence of life instead of death” (quoting Wiggins, 539 U.S. at 537)), cert.
denied, 140 S. Ct. 1299 (Mar. 9, 2020).
For all of these reasons, and especially in view of the aggravating
evidence, we determine that the district court’s determination that Balentine
did not demonstrate prejudice under Strickland was proper. We affirm the
district court’s alternative holding that even if Balentine’s claim were not
foreclosed by his decision to reject the plea offer of a life sentence and instruct
counsel to not call any punishment witnesses because he preferred the death
penalty, his claim would still fail to satisfy both prongs of the Strickland test.
Thus, there is no merit to Balentine’s ineffective assistance of trial counsel
claim. 11
IV.
For the foregoing reasons, we conclude that Balentine’s claim is
unexhausted and therefore procedurally defaulted, and that Balentine cannot
rely on the Martinez exception to overcome the procedural default of that
11
Because the district court concluded that Balentine’s claim of ineffective
assistance of trial counsel has no merit, the court also concluded that his state habeas
counsel could not have been ineffective in failing to present it. See Garza, 738 F.3d at 676
(holding that “habeas counsel was not ineffective in failing to raise the claim at the first
state proceeding” because “there was no merit to [the petitioner’s] claim”). We agree
with the district court. Because Balentine’s ineffective assistance of trial counsel claim has
no merit, his state habeas counsel was not ineffective in failing to present it.
21
Case: 18-70035 Document: 00515962872 Page: 22 Date Filed: 08/03/2021
No. 18-70035
claim because his ineffective-assistance-of-counsel claim is meritless. We
AFFIRM the district court’s denial of Balentine’s Rule 60(b) motion.
22