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August 22, 2012

Condemned Texas killer gets last-minute reprieve from SCOTUS

As reported in this AP article, the "U.S. Supreme Court again halted the scheduled execution of a Texas inmate convicted of a triple murder less than an hour before he could have been taken to the death chamber Wednesday." Here is more:

Justices decided to stop the punishment of John Balentine, condemned for fatally shooting three teenage housemates in Amarillo in 1998. Balentine also came within an hour of receiving the lethal injection a year ago and the high court took the same action on an appeal that ultimately was rejected. In 2009, he won a reprieve a day before his death date.

The high court said in a one-paragraph ruling Wednesday that it was giving the reprieve so it could consider Balentine's petition for a review. Attorneys said the appeal would be discussed by the court at a conference late next month. If the request for review is rejected, the reprieve would end and prosecutors again could ask for a judge in Amarillo to set another execution date.

August 22, 2012 at 11:16 PM | Permalink


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Balentine's original habeas petition was denied by the Supreme Court in October of 2009. Three years later, after the Supreme Court denied a rehearing in the case, the Supreme Court sees fit to stay based on a Rule 60 denial. Utter garbage. This is clearly contrary to AEDPA.
The Supreme Court, once again, has conclusively shown that it is unable to follow its own rules about stays and executions. Neither the victims' families nor the state of Texas should be suffering this indignity. The Supreme Court embarrassed itself today. It has shown itself to be governed by caprice, rather than the rule of law, and it doesn't even have the decency to explain why it granted the stay. Surely, the family members of the victims of this horrible triple-murder deserve at least that, but the arrogant Justices cannot even give them that.
What's worse is that the Court passes on so many injustices because it doesn't have the time--yet it will intervene in a case like this, where the defendant is clearly guilty and where the defendant has had his full habeas review. Obviously, some priorities are seriously out of kilter.
The federal courts as a whole and the Supreme Court in particular have shown themselves to be utterly irresponsible when it comes to capital punishment. It is high time that Congress removed federal habeas power over state death sentences.

Posted by: federalist | Aug 22, 2012 11:31:11 PM

Whether Mr. Balentine has had "full habeas review" is actually one of the questions the Court will consider. The petition for cert was based on Martinez v. Ryan.

Posted by: John | Aug 23, 2012 12:18:31 AM

Didn't the Fifth Circuit hold that Texas state law is immune from Martinez? This will be interesting.

Posted by: SashokJD | Aug 23, 2012 12:37:38 AM

John, he has--it was denied in 2009. That's a full round.

Posted by: federalist | Aug 23, 2012 1:35:45 AM


Except he claims, and it appears that the SCOTUS agreed, that he was denied the right to argue IAC in his federal habeus review that the Martinez decison allows (whether you agree with that decision is a separate issue). The refusal to hear the argument was done because the court said it was procedurally barred, which is in direct contrevention of what Martinez says.

The issue is whether the Texas capital punishment procedures are subject to Martinez. The stay was issued so the Court can determine that.

So as of right now he is arguing, and there is enough merit to the argument to ensure the Court can take a good look at it, that he hasn't been afforded a full habeas hearing because he was improperly barred from raising his IAC claim.

Posted by: Matt | Aug 23, 2012 10:00:40 AM

Matt --

Assuming arguendo everything you say, what this case illustrates is that procedure has simply overwhelmed substantive justice -- something no sane system should tolerate. What the killer (undisputed that he is such) wants to argue about is whether he had the opportunity to argue about something else years ago, the something else having zip to do with whether he did it and is legally responsible for doing it.

The IAC maze has become a shell game in which each successive bunch of defense lawyers argues that the prior group of defense lawyers was ineffective. This can go on forever (which is of course the whole point).

Manufactured procedural questions on an infinite loop might be good for murderers -- it's certainly good for this one -- but it is not good for a legal system that has even minimal respect for itself.

Time to get going.

Posted by: Bill Otis | Aug 23, 2012 11:08:34 AM

Matt is right. Petitioner's argument is legally sound, and of the 7 Martinez votes, I am sure there are 7 that will agree that the Ibarra rule (which exempts Texas from Martinez), is nonsense. The Ibarra rule is the Fifth Circuit's half-baked attempt to get around Martinez, and is more transparent than the Ninth's attempts to get around 2254(d).

It's noteworthy that Bill Otis's response is to invoke lofty principles about finality and substantive justice, which I take to be an admission that the Fifth Circuit's end-around is pretty indefensible.

I am predicting granting cert, hearing arguments, and a 7-2 decision in favor of Balentine, regarding the Ibarra TX rule. I am also predicting at least 5 votes of prophylactic dicta, construing Martinez to apply to all states that prefer IAC claims be brought on collateral review-- that is, all 50 states.

Other predictions?

Posted by: SashokJD | Aug 23, 2012 11:45:17 AM


To the extent that I disagree with Martinez, I obviously agree with you.

Still, to say this has nothing to do with substantive law because he did it and is responsible is ignoring the, or saying there is no, substantive rights regarding arguments for leniency in sentencing. While this stay, and the question the Supreme Court, would answer is procedural it is regarding the raising of substantive issues regarding punishment. At SCOTUSblog they have a post on this that explains what the "sentencing attorney" didn't argue and what his "collateral review" attorney did not press in an IAC claim. It is mitigating factors regarding to background, namely a violent home life as a child; slow emotional development; and an untreated head injury.

So ultimately there is a substantive question in terms of what punishment is deserved. No question he is responsible and deserves punishment, but the amount is a substantive issue.

Now with that said I've always hated the "bad childhood" defense as a mitigator. I don't care. Plenty of people have poor childhoods and grow up fine. And unless it effected you to the extent that you are essentially insane in that you don't know right from wrong or can't control it, then it is hardly a mitigating factor. As to the other claims without seeing medical evidence to the extent I can't pass judgement on their validity, but I'm inclined to think they are dubious at best.

So while I ultimately don't see the substantive claims as meriting a lesser sentence, I still recognize that at least as the law is concerned he has the right to assert them. So this isn't a case of procedure overwhelming substantive justice in so far as "justice" is not just punishment but a "just" punishment that punishes no more and no less than what is deserved. That requires an adequate hearing on evidence that bears on what is deserved, the denial of which poses questions of substantive justice.

Posted by: Matt | Aug 23, 2012 12:00:52 PM

Guys, what do you mean that he didn't have a chance to argue Martinez during habeas? He was, of course, free to make the same substantive arguments that Martinez did in the habeas petition has was denied three years ago. A change in law, particularly after state review is over does not generally absolve a party of the necessity of making the argument, and if he did, and the court rejected it, well, too bad. SCOTUS denied rehearing.

This is plainly violative of the spirit, if not the actual intent, of AEDPA. Balentine seeks the ability to relitigate a settled habeas judgment. And there are rules for the issuances of stays. As noted in the caselaw, absent innocence issues, a state's interest in enforcing its judgment are paramount after the condemned has had his habeas petition denied. The Court ignored its own pronouncements in issuing this stay.

Posted by: federalist | Aug 23, 2012 12:50:32 PM

fEDERALIST, you write that "The federal courts as a whole and the Supreme Court in particular have shown themselves to be utterly irresponsible when it comes to capital punishment. It is high time that Congress removed federal habeas power over state death sentences."

It's unfortunate that you engage is such hyperbole--this approach substantially detracts from the force of your arguments. Every judge you disagree with is a hack, or a "democratic hack" or a "wuss." This Supreme Court is said to be the conservative in a hundred years. Yet you call the Court "irresponsible" and suggest that federal habeas be tossed out altogether. Talk about throwing the baby out with the bath water.

Posted by: I voted for Bush and McCain | Aug 23, 2012 1:25:43 PM

Well, Mr. voted for Bush & McCain, would you mind explaining a few things---first, what do YOU call it when SCOTUS violates its own pronouncements? (No one seems to dispute that on the merits.) The bottom line is that the Court has repeatedly set forth the standard for stays of execution, and here, the standard is clearly not met. This man's habeas case was final three years ago, and there is zero concern about innocence. And this is not an isolated case either. (The Cleve Foster stays and the Daniel Cook stays were also abusive.) Apparently, the standard is that they feel like it. Well, guess what, I feel like it is simply the exercise of power. And when we're in that realm, they're like politicians and can expect the harshest criticism.

With its stay here, the Supreme Court has yet again demonstrated either its unwillingness or inability to deal with last minute stay motions. (Is that a remotely controversial thing to say?)

Texas should have simply shut down the fax machine and stopped answering phone calls and executed him. That would have been less lawless than the Court's stay. (Anyone want to take that on?)

Posted by: federalist | Aug 23, 2012 2:19:49 PM

SashokJD --

"It's noteworthy that Bill Otis's response is to invoke lofty principles about finality and substantive justice, which I take to be an admission that the Fifth Circuit's end-around is pretty indefensible."

You can "take" anything you want, and I'm sure you do.

The reason I decline to play in the procedural thicket is not that the prosecution can't win there (as federalist shows). It's that the thicket itself needs to be cast into exile. As I said, and you don't even attempt to rebut, the IAC maze has become a shell game in which each successive bunch of defense lawyers argues that the prior group of defense lawyers was ineffective. This can go on forever (which is of course the whole point).

As was said in the most memorable line from the movie "War Games," the only way to win this game is not to play. You may turn up your nose at substantive justice in favor of an infinite loop of "let's-blame-the-last-batch-of-lawyers," but the majority doesn't, and won't.

Posted by: Bill Otis | Aug 23, 2012 4:59:57 PM


I confess you do have a point -- I think abolitionists and foreign lawyers,etc., agree that there is something bizarre about the procedural maze. The common sense intuition is correct -- it should not take over a decade to robustly review a case. But there is a bit of an irony, I think, that the Burger-Rehnquist-AEDPA reforms have greatly contributed to the problem that you complain about. They claim to be advancing comity, finality, and federalism -- but in reality they are advancing only federalism/comity, but at the expense of finality. Requiring endless litigation (and 10% of the annual SCOTUS docket) about equitable tolling, COA's, procedural default, proper presentation of claims, proper adjudication of claims, etc. etc. etc. -- it's all ancillary matters invented by folks on "your side." They don't really help. And when the bite is too much, SCOTUS pushed back (e.g., Martinez) which further increases the procedural maze.

I am curious, would you support going back to three decades or so, when 70% of state death judgments were overturned, but the 30% that weren't were carried out within a half decade or so? Or is it better to fight for two decades on each case, so that the reversal rate will be only 20% or so?

(My numbers are obviously impercise, but not completely out of my ass . . . I think this is a very fair question).

Posted by: SashokJD | Aug 23, 2012 5:16:27 PM

It wasn't lawless or capricious. You might disagree with it but it was perfectly lawful. To obtain a stay, you've got to show a reasonable possibility that the Court will grant cert, a significant possibility of reversal, and a likelihood of irreparable harm. There's definitely a reasonable possibility of cert being granted and of reversal. The Ibarra rule is obviously debatable and 4 Fifth Circuit judges would have granted rehearing en banc in Balentine's case. And his execution is irreparable.

You seem to suggest that no stay should be granted because this is a 60(b) motion and the habeas decision is final. I don't understand that. Gonzalez v. Crosby says that a 60(b) motion isn't the equivalent of a successive habeas petition if it doesn't revisit the merits of the habeas claim. And there is a perfectly plausible argument that under Gonzalez v. Crosby this isn't a successive habeas petition because the district court never reached the merits of the IAC claim. The district court held it was procedurally defaulted and he's seeking reconsideration of that ruling, which is analogous to the statute of limitation issue in Gonzalez v. Crosby. Maybe you disagree with that too, fine. But that doesn't mean that people who disagree with you are capricious, not governed by the rule of law, etc. The stay can clearly be justified under the law.

Posted by: Commenter | Aug 23, 2012 5:20:50 PM

Matt --

"While this stay, and the question the Supreme Court, would answer is procedural it is regarding the raising of substantive issues regarding punishment."

The problem is that, by exactly this reasoning, EVERY procedural question can be linked back, in however attenuated a fashion, to a substantive question. Thus the system can be, and has been, tied down in increasingly abstruse procedural thickets, all on the theory that, somewhere down there, there's some "substantive justice" issue.

Enough. It's not that I'm engaging in some wooden insistence on finality, finality having gone by the boards many years ago. It's that I'm asking that we put an end to the infinite loop. There is simply no case in which the most recent batch of lawyers can't at least claim that the former batch of lawyers were idiots. If that is sufficient to get a stay -- after stay after stay after stay -- then procedure has indeed swallowed substance.

If I'm wrong in thinking this is an infinte loop, please tell me how. If I'm right, then it has to be rejected, lest abolitionists effectively end the DP without ever having to win their case on the merits with either the elected or judicial branches.

Posted by: Bill Otis | Aug 23, 2012 6:09:35 PM

Hmmmm, commenter, would be nice if SCOTUS explained the decision.

But your analysis is weak. First of all, the Ibarra rule doesnt even come into play (and I don't care that the Fifth Circuit relied on it--that's simply an alternative ground). Ibarra only comes into play if, assuming arguendo that this guy has a right to rip open a habeas judgment that is now three years old. And even then it only comes into play if the killer made the specific arguement (similar to Martinez) in his habeas petition (and all levels of his appeals from the adverse habeas decision)--or don't you think that capital litigants can waive arguments in habeas? And even on top of that, there's the state's interest, which is being abused here, and which you don't discuss.

And take a gander at this little passage in Gonzalez:

"Or a motion might contend that a subsequent change in substantive law is a "reason justifying relief," Fed. Rule Civ. Proc. 60(b)(6), from the previous denial of a claim. E. g., Dunlap v. Litscher, 301 F. 3d 873, 876 (CA7 2002). Virtually every Court of Appeals to consider the question has held that such a pleading, although labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly. E. g., Rodwell, supra, at 71-72; Dunlap, supra, at 876.

We think those holdings are correct."

Obviously, the Martinez decision is not a change in substantive law, but reopening judgments for changes of law is simply extraordinary, and I don't see any showing that this was a "defect in the integrity" of the habeas case. (It cannot be the law that subsequent changes in the law render a final judgment defective.)

Posted by: federalist | Aug 23, 2012 6:27:32 PM

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