REVISED AUGUST 22, 2012
       IN THE UNITED STATES COURT OF APPEALS
                                                          United States Court of Appeals
                                                                   Fifth Circuit
                     FOR THE FIFTH CIRCUIT                      FILED
                           _____________________            August 21, 2012

                               No. 12-70023                  Lyle W. Cayce
                           _____________________                  Clerk

JOHN LEZELL BALENTINE,

           Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

           Respondent - Appellee

                        __________________________

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

Before STEWART, OWEN and SOUTHWICK, Circuit Judges.

PER CURIAM:

     The court having been polled and a majority of the judges who are in
regular active service and not disqualified not having voted in favor (FED.R.
App. P. and 5TH Cir. R. 35), the Rehearing En Banc is DENIED.
     Voting for en banc rehearing were: Judge James L. Dennis,
Judge Leslie H. Southwick, Judge James E. Graves, and Judge Stephen A.
Higginson. Voting against en banc rehearing were: Chief Judge Edith H.
Jones, Judge Carolyn D. King; Judge E. Grady Jolly, Judge W. Eugene Davis,
Judge Jerry E. Smith, Judge Carl E. Stewart, Judge Edith B. Clement,
Judge Edward C. Prado, Judge Priscilla R. Owen, Judge Jennifer W. Elrod,
Judge Catharina Haynes.
     Upon the filing of this order, the clerk shall issue the mandate
forthwith. See FED. R. App. P. 41(b).
ENTERED FOR THE COURT:


 /s/ LESLIE H. SOUTHWICK
UNITED STATES CIRCUIT JUDGE
DENNIS, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting from
the denial of rehearing en banc:
      The issue of Martinez v. Ryan’s applicability to capital habeas
petitioners in Texas presents an issue of exceptional importance that would
benefit from further consideration via rehearing en banc. First, the state has
virtually mandated that claims of ineffective assistance of trial counsel must
be presented in a state habeas proceeding. Second, requiring these claims to
be presented on direct appeal would engender conflicts of interest and clash
with the structure the state of Texas has erected for capital appeals.


                               BACKGROUND
                                          I.
      In December 2003, Balentine petitioned for a writ of habeas corpus
under 28 U.S.C. § 2254, arguing that his counsel appointed at trial failed to
investigate and develop “mitigation and risk assessment evidence at all.”
Balentine v. Thaler, 

, 844, 848 (5th Cir. 2010). Although failure
to make either a reasonable investigation or a reasonable decision that
investigation was unnecessary has been held to be ineffective assistance of
counsel, Wiggins v. Smith, 

, 521 (2003), the panel held that
Balentine failed to present his claim in his initial state habeas application
and thus the claim was procedurally barred, 

.
      On July 12, 2012, Balentine filed a Rule 60(b)(6) motion in the district
court seeking to vacate that court’s final judgment of March 31, 2008 in light
of Martinez v. Ryan, 

(2012). The district court denied relief in
reliance on Ibarra v. Thaler, No. 11-70031, No. 11-70031, 

(5th Cir. June 28, 2012). A panel of this court affirmed the district court’s
denial of relief also in reliance on Ibarra. Balentine v. Thaler, No. 12-70023,
Slip Op. at 6 (5th Cir. Aug. 17, 2012).


                                          3
                                           II.
         In Martinez, the Supreme Court recognized a new basis to excuse a
state prisoner who has brought federal habeas ineffective trial counsel claims
from being held procedurally barred for failing to present those claims in
state court. 

. Thus, the Court held:
         Where, under state law, claims of ineffective assistance of trial
         counsel must be raised in an initial-review collateral proceeding,
         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, there was no counsel or
         counsel in that proceeding was ineffective.

Martinez Court explained that, often, an “initial-review
collateral proceeding [is] a prisoner’s ‘one and only appeal’ as to an
ineffective-assistance claim, and this may justify an exception to the
constitutional rule that there is no right to counsel in collateral proceedings.”

omitted) (quoting Coleman v. Thompson, 

,
755 (1991)).1
                                          III.
         Because Texas does not prohibit the bringing of ineffective-assistance
claims on direct appeal from a conviction as did Arizona in Martinez, a panel
of this court in Ibarra held that Martinez did not create an equitable
exception for relief from convictions in Texas state courts. 

,
at *4.
         Judge Graves dissented on this point. 

J., concurring
in part and dissenting in part).         He reasoned that the Ibarra majority’s
decision depends on interpreting “initial-review collateral proceedings” to
mean state-mandated initial-review collateral proceedings. 

Court included no such qualification in announcing the exception.

         1
       The Court determined that Martinez was “not the case, however, to resolve
whether that exception exists as a constitutional matter.” 

      Judge Graves argued that in Texas, although “not a state where you
must raise [ineffective assistance of counsel] claims in collateral proceedings,”
collateral proceedings “[are] the preferred and encouraged method” for raising
such claims. 

“[t]here clearly are instances where a collateral
proceeding will be the ‘first occasion’ to legitimately raise a claim of
ineffective assistance of trial counsel in Texas.” 

en banc reconsideration of Ibarra’s denial of the exception
announced in Martinez to capital habeas petitioners from Texas is warranted.
      First, in my view, collateral proceedings that provide the first occasion
to adjudicate a Strickland claim are initial-review collateral proceedings
within the meaning of Martinez. In Texas, an Article 11.071 proceeding is the
first realistic opportunity a prisoner has to raise a claim of ineffective
assistance of trial counsel.    In part, this is because capitally sentenced
prisoners are virtually required to first raise a claim of ineffective assistance
of trial counsel during collateral proceedings. See Mata v. State, 

, 430 n.14 (Tex. Crim. App. 2007) (“As a general rule, one should not raise
an issue of ineffective assistance of counsel on direct appeal.” (internal
quotation marks omitted)); see also Mitchell v. State, 

, 643 (Tex.
Crim. App. 2002) (noting that habeas corpus “is the appropriate vehicle [in
Texas] to investigate ineffective-assistance claims”); Robinson v. State, 

, 810 (Tex. Crim. App. 2000) (observing that “a post-conviction
writ proceeding, rather than a motion for new trial, is the preferred method
for gathering the facts necessary to substantiate” a Strickland claim).
Furthermore, the vast majority of ineffective assistance of counsel claims may
not be reviewed on direct appeal because the alleged deficiencies are not
typically “firmly founded in the [appellate] record.” See Thompson v. State, 9


                                        

, 814 (Tex. Crim. App. 1999). Thus, collateral proceedings present
the first opportunity to raise these claims. Only “in the rare case where the
record on direct appeal is sufficient to prove that counsel’s performance was
deficient[] [should] an appellate court . . . address the claim in the first
instance.”   

n.7 (emphasis added); see also

(“Rarely will a reviewing court be provided the
opportunity to make its determination on direct appeal with a record capable
of providing a fair evaluation of the merits of the claim involving such a
serious allegation.”).   That a few petitioners may be able to raise an
ineffective assistance of trial counsel claim on direct appeal does not assist
the great majority of petitioners who, effectively, are barred from presenting
extra-record claims of ineffective assistance until the commencement of the
state habeas proceeding.
      Requiring claims of ineffective assistance of counsel to be raised via a
motion for a new trial by the counsel who allegedly performed deficiently will
create grave conflicts of interest, further underscoring Ibarra’s incorrect
denial of Martinez’s holding to Texas capital habeas petitioners. For example,
Texas law prohibits courts from appointing an attorney who has previously
been determined to have rendered ineffective assistance in a capital case to
act as lead counsel in any capital proceeding absent a finding by a separate
committee. TEX. CODE. CRIM. PROC. §§ 11.071(2)(d), 26.052(d). Under such
circumstances, there is little incentive for counsel who has allegedly
performed below the standard required by Strickland to zealously argue the
client’s best defense. See Maples v. Thomas, 

, 925 n.8 (2012)
(noting that when a law firm representing a death row inmate missed a
crucial filing deadline, “a significant conflict of interest arose” because “the
firm’s interest in avoiding damage to its own reputation was at odds with [the
inmate’s] strongest argument—i.e., that his attorneys had abandoned him,


                                       6
therefore he had cause to be relieved from the default”).2 Moreover, the trial
record is typically not available before the filing of a motion for a new trial is
due or even during the pendency of such a motion.                       Thus, the first
opportunity to present an IAC claim with the aid of an attorney with access to
the record is during the state collateral proceeding.                Finally, requiring
ineffective assistance of counsel claims to be raised on direct appeal seems to
be in tension with Texas case law, such as Holden v. State, which suggests
that a state trial court abuses its discretion by failing to hold a hearing on an
ineffectiveness claim predicated on matters not determinable from the record.

, 763 (Tex. Crim. App. 2006).
       In Martinez, the Court indicated that the purpose of the exception was
to “protect prisoners with a potentially legitimate claim of ineffective
assistance of trial 

. I believe that the panel
opinion in Ibarra conflicts with the Supreme Court’s opinion in Martinez.
Further, this issue is one of exceptional importance. Therefore, in my view,
en banc reconsideration is warranted. I respectfully dissent.




       2
        The Texas Rules of Professional Conduct prevent trial counsel from raising a
Strickland claim against themselves when they would be required to be called as a witness.
See TEX. DISC. R. PROF. CONDUCT. 1.15(a)(1).

                                             7
HIGGINSON, Circuit Judge, joined by SOUTHWICK, Circuit Judge,
dissenting from the denial of rehearing en banc:


       The question presented is whether Texas permits defendants to raise
claims of ineffective assistance of trial counsel in new trial motions and then
on direct appeal. In written argument to us, the Attorney General of Texas
answers that it allows such claims, and specifically that “[d]efendants may
use the motion for new trial to develop non-record facts to support a claim on
direct appeal. Tex. R. App. P. 21.2. A trial court is authorized to hold a live
hearing on the issue and abuses its discretion for failing to do so if a
defendant presents a motion that raises matters that may not be determined
from the record. Tex. R. App. P. 21.7; Holden v. State, 

(Tex.
Crim. App. 2006).”
       If Texas law makes it an abuse of discretion to fail to hold a live hearing
on an ineffective assistance of trial counsel claim when such a claim is
presented in a new trial motion, Texas, unlike Arizona, clearly does not
“require[] a prisoner to raise an ineffective-assistance-of-trial-counsel claim in
a collateral proceeding,” as contemplated by the Supreme Court in Martinez
v. Ryan, 

(2012).
       However, I dissent from denial of en banc rehearing in this matter
because that statement of Texas law is not well-settled, indeed it is
contradicted by the single authority given to us by the Attorney General.1 Of
more concern, this statement of Texas law appears to be inconsistent with
time constraints which do and must govern new trial motions. Tex. R. App.
P. Art. 21.4, 21.6; cf. Robinson v. State, 

, 810 (Tex. Crim. App.



       1
        Holden v. State, 

, 763 (Tex. Crim. App. 2006) (“[A] trial court may rule
based on sworn pleadings and affidavits without oral testimony; live testimony is not required.”
(emphasis added)).

                                                8
2000) (“The time requirements for filing and presenting a motion for new trial
would have made it virtually impossible for appellate counsel to adequately
present an ineffective assistance claim to the trial court.” (citations omitted)).
      Finally, as applied to Balentine, this statement of Texas law is in even
sharper tension with Texas provisions and caselaw applicable to capital
defendants where highest finality imperatives favor speedy resolution of all
direct appeal issues, unencumbered by vague, unsubstantiated, attorney-
conflict causing, and not infrequently non-meritorious ineffectiveness claims.
See Tex. Code Crim. P. 11.071; see also Mata v. State, 

, 430
n.14 (Tex. Crim. App. 2007) (“As a general rule, one should not raise an issue
of ineffective assistance of counsel on direct appeal.”); 

(holding that “a post-conviction writ proceeding, rather than a motion for
new trial, is the preferred method for gathering the facts necessary to
substantiate” a Strickland claim); Ex parte Torres, 

, 475 (Tex.
Crim. App. 1997) (“In most ineffective assistance claims, a writ of habeas
corpus is necessary to adequately evaluate such claims.”).
      It may be that Texas would constrain trial judges to explore in “live
hearings” ineffective assistance claims presented in new trial motions, for
capital and non-capital defendants, based on the general applicability of Tex.
R. App. P. 21.2, but this effort to distinguish Martinez deserves en banc
scrutiny because it upends the finality priority of AEDPA and the criminal
process generally.    As a threshold question before we purport to define,
expand or contract the narrow exception to Coleman v. Thompson, 

(1991), set forth in Martinez, see 

n.1 (Scalia,
J., dissenting), we should resolve with certainty Texas’s exact system for
raising ineffectiveness claims in capital cases. This court has yet to entertain
any oral argument at all, or examine in full Rule 28 briefing, whether and
how Martinez would apply or affect Texas’s sovereign complexity of new trial,


                                        9
direct appeal and post-conviction ineffectiveness procedures.
      For the foregoing reasons, full court rehearing of these consequential
matters, implicating a recent Supreme Court decision, would be beneficial.
Therefore, I DISSENT from denial of en banc rehearing.




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