Brief in Recess: September 4

Wednesday night, the Supreme Court denied a Texas death row inmate’s petition for a stay of execution. There were no noted dissents, but Justice Sotomayor did write a two-page opinion respecting the Court’s decision. Sotomayor shed light on a possible discrepancy between the Court’s decision in Gonzalez v. Crosby in 2005 and subsequent practices by some of the nation’s federal appeals courts. Here’s a quick brief of the case and Justice Sotomayor’s opinion.


In 2003, Billy Jack Crutsinger was convicted of murdering an 89-year-old woman and her 71-year-old daughter, and was sentenced to death.  After failed attempts at state post-conviction relief, Crutsinger sought relief in federal court. First, Crutsinger filed in the district court a Rule 60(b)(6) motion under the Federal Rules of Civil Procedure. Rule 60(b)(6) states—in the context of capital cases—that a court may grant a defendant reprieve from his execution for “any . . . reason that justifies relief.” Sounds pretty sweeping, doesn’t it? Well, the Supreme Court in Gonzalez v. Crosby (2005) qualified Rule 60(b)(6)’s scope, holding that a defendant seeking to prevail on a Rule 60(b)(6) motion must “show ‘extraordinary circumstances’ justifying the reopening of a final judgment” (quoting Ackermann v. United States (1950)).

The district court concluded that Crutsinger had not met such a heavy burden and therefore dismissed his motion. The Fifth Circuit Court of Appeals did not grant Crutsinger a certificate of appealability. Crutsinger then went to the Supreme Court and filed petitions for a writ of certiorari and a stay of execution. He claimed that the state courts assigned him incompetent counsel during the state collateral proceedings, which would violate his due process rights under the Sixth and Fourteenth Amendments.

But Wednesday night, in a brief order, the Supreme Court denied his petitions, and Crutsinger was executed by lethal injection shortly thereafter. There were no noted dissents.

Justice Sotomayor penned a two-page opinion respecting the denial of certiorari. She first agreed that Crutsinger had not made the necessary showings to grant relief on his incompetent counsel claim. But she pointed out that the practices of some of the nation’s appeals courts may butt heads with the Court’s holding in Gonzalez.

As I said above, the Gonzalez Court held that a defendant seeking relief under Rule 60(b)(6) must show “‘extraordinary circumstances’ justifying the reopening of a final judgment.” What qualifies as “extraordinary circumstances,” you may ask? One thing is a substantive change in the law governing the defendant’s conviction, even if that is the only thing that changed. In the words of the Gonzalez Court, “[a] change in the interpretation of a substantive statute may have consequences for cases that have already reached final judgment, particularly in the criminal context” (emphasis in original).

Sotomayor says that “[s]everal” federal appeals courts recognize that such a change in controlling law, even alone, may warrant Rule 60(b)(6) relief, and she cites decisions from the Third and Seventh Circuits. But other appeals courts have taken the polar opposite stance. Last year, the Fifth Circuit reaffirmed a 2012 holding in which it stated, “[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.” Sotomayor also points to decisions from the Fourth and Sixth Circuits that mirror the Fifth Circuit’s stance.

In an appropriate case, Sotomayor said this issue “could warrant the Court’s review.” But Crutsinger’s case is not the appropriate vehicle; the lower courts dismissed his Rule 60(b)(6) petition based on the merits of his petition specifically, not on the Fifth Circuit’s categorical rule against granting Rule 60(b)(6) relief after a substantive change in decisional law. Therefore, Sotomayor agrees with the Court’s order.

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