On October 1, 2015, the Fifth Circuit (per curiam - Stewart, Higginbotham, Owen) issued an unpublished opinion granting Texas death row inmate Troy Clark a COA from the district court’s denial of Clark’s Rule 60(b)(6) motion. The issues are whether the district court abused its discretion in denying the motion for being untimely and for failing to present extraordinary circumstances. Clark v. Stephens, ___ Fed.Appx. ___, 2015 WL 5730638 (5th Cir. Oct. 1, 2015).
At trial, Clark’s attorney failed to investigate or present any mitigation. Although a claim of IAC at sentencing was raised by initial state post-conviction counsel, that attorney spent only five hours investigating the claim and supported it with a single affidavit. The claim was denied. Clark was represented by the same post-conviction attorney in federal habeas proceedings. The additional supporting evidence that was developed during the federal proceedings was not considered by the federal courts pursuant to Cullen v. Pinholster and Clark was denied federal habeas relief. Following the Supreme Court’s decision in Trevino v. Thaler, Clark was appointed new state counsel who filed a successor petition in state court again raising IAC at sentencing. The claim was denied as an abuse of the writ. After obtaining new federal habeas counsel, Clark then sought to reopen the federal proceedings under Rule 60(b)(6) in order to present his substantially stronger, and therefore “new,” sentencing phase IAC claim. Cause to excuse the procedural default of the claim was the alleged ineffectiveness of his original state post-conviction attorney. The district court denied the motion as untimely and meritless and declined to issue a COA.
The panel granted Clark a COA, concluding “that reasonable jurists could debate whether Clark’s federal habeas proceeding was defective, either because the counsel the federal district court appointed to represent Clark labored under a conflict of interest, or because [original counsel’s] failure to argue his own ineffectiveness as state habeas counsel is sufficient to satisfy Rule 60(b) even though it is an ‘omission.’ We further conclude that reasonable jurists could debate whether Clark is likely to succeed in introducing new evidence if his Rule 60(b) motion is granted.” As for timeliness, the panel also found the issue debatable. While the Rule 60(b) motion was filed almost sixteen months after Trevino was decided, Clark pointed out, inter alia, that his successor state habeas petition was pending for three of those months and his state appointed counsel was limited by statute from representing Clark in federal court.