United States v. Vialva, 18-70007

• Decision Date: 14 September 2018
• Docket Number: Consolidated With No. 18-70008,No. 18-70007,18-70007
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Christopher Andre VIALVA, Defendant - Appellant United States of America, Plaintiff - Appellee v. Brandon Bernard, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

904 F.3d 356

UNITED STATES of America, Plaintiff - Appellee

v.Christopher Andre VIALVA, Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Brandon Bernard, Defendant - Appellant

No. 18-70007

Consolidated With No. 18-70008

United States Court of Appeals, Fifth Circuit.

September 14, 2018

Joseph H. Gay, Jr., Assistant U.S. Attorney, Michael Robert Hardy, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff - Appellee.

Susan M. Otto, Michael W. Lieberman, Assistant Federal Public Defender, Federal Public Defender's Office for the Western District of Oklahoma, Oklahoma City, OK, Jared Tyler, Tyler Law Firm, P.L.L.C., Houston, TX, for Defendant - Appellant CHRISTOPHER ANDRE VIALVA.

Robert Charles Owen, Esq., Northwestern University, School of Law, Chicago, IL, John Robert Carpenter, Esq., Assistant Federal Public Defender, Federal Public Defender's Office Western District of Washington, Tacoma, WA, for Defendant - Appellant BRANDON BERNARD.

Before HIGGINBOTHAM, JONES, and DENNIS^* , Circuit Judges.

PER CURIAM:

Brandon Bernard and Christopher Andre Vialva were convicted of capital murder under federal law and sentenced to death. Both men moved for relief from judgment under Federal Rule of Civil Procedure 60(b)(6), seeking to reopen their initial habeas proceedings under 28 U.S.C. § 2255. The district court concluded that these motions constituted second-or-successive Section 2255 petitions and so dismissed them for lack of jurisdiction. Bernard and Vialva now seek certificates of appealability ("COAs") pursuant to 28 U.S.C. § 2253(c)(2). For the reasons set forth below, we DENY the COA applications.

BACKGROUND

In 1999, Bernard, Vialva, and other gang members planned a carjacking and robbery in Killeen, Texas. See United States v. Bernard , 299 F.3d 467 (5th Cir. 2002) (denying claims on direct appeal); United States v. Bernard , 762 F.3d 467 (5th Cir. 2014) (denying COA applications for Section 2255 claims). Their plan culminated in the murders of Todd and Stacie Bagley on federal government property. Vialva shot both victims in the head. Bernard then set fire to the Bagleys’ car to destroy evidence. The gunshot killed Todd Bagley, and Stacie died from smoke inhalation. A jury found Bernard and Vialva guilty on multiple capital counts. The jury subsequently found that aggravating factors outweighed mitigating factors for each defendant. They were sentenced to death under 18 U.S.C. § 3591 et seq . This court affirmed their sentences on direct appeal. 299 F.3d at 489, cert. denied , 539 U.S. 928, 123 S. Ct. 2572, 156 L.Ed.2d 607 (2003).

Bernard and Vialva filed habeas petitions challenging their convictions and sentences pursuant to Section 2255. After careful review, the district court denied Bernard and Vialva an evidentiary hearing and rejected their claims, declining to certify any questions for appellate review. Bernard and Vialva then sought COAs from this court. This court denied their COA applications, holding that "reasonable jurists could not disagree with the district court’s disposition of any of Bernard’s and Vialva’s claims on the voluminous record presented." 762 F.3d at 483.

In October 2017, Vialva moved in district court for relief from judgment under Federal Rule of Criminal Procedure 60(b)(6). His motion requested that the district court’s denial of his initial Section 2255 motion be vacated because purported defects in the integrity of those proceedings precluded meaningful collateral review. A month later, Bernard filed a substantially similar motion.

The motions both allege that Judge Walter Smith, the district court judge who oversaw their trials and initial habeas petitions, was unfit to conduct proceedings because of "impairments."¹ The motions also assert numerous errors committed by Judge Smith during their trial and initial habeas proceedings. And the motions contend that this court misapplied the standard of review in denying Bernard’s and Vialva’s COA applications when they sought to appeal Judge Smith’s denial of their habeas petitions.

In support of their Rule 60(b) motions, Bernard and Vialva both attached the Judicial Council’s Order from Judge Smith’s misconduct proceeding. Bernard attached several other related documents, including the order effecting Judge Smith’s suspension from new case assignments, an excerpt of the deposition of the court employee who alleged misconduct against Judge Smith,² and a 2017 article from the Texas Lawyer that details the misconduct proceedings and Judge Smith’s decision to retire. Bernard also attached an amicus brief by the Federal Capital Habeas Project supporting Bernard’s petition for a writ of certiorari and arguing that this court erred in denying his COA application.

The district court construed Bernard’s and Vialva’s Rule 60(b) motions as successive motions under Section 2255 and dismissed them for lack of jurisdiction. The court then concluded that no COAs should issue. Both petitioners timely applied to this court for COAs.

STANDARD OF REVIEW

We review de novo whether the district court properly construed the purported Rule 60(b) filings as subsequent habeas petitions under Section 2255. In re Coleman , 768 F.3d 367, 371 (5th Cir. 2014). However, this court may not consider an appeal from the district court’s denial of relief unless Bernard and Vialva "first obtain a COA from a circuit justice or judge." Buck v.Davis , ––– U.S. ––––, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017) (citing 28 U.S.C. § 2253(c)(1) ). "A COA may issue ‘only if the applicant has made a substantial showing of the denial of a constitutional right.’ " Id. (quoting 28 U.S.C. § 2253(c)(2) ). Unless an applicant secures a COA, this court "may not rule on the merits of his case." Id . (citing Miller–El v. Cockrell , 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) ).

The COA inquiry itself is "limited" and "not coextensive with a merits analysis." 137 S.Ct. at 773-74. "At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’ " Id . at 773 (quoting Miller–El , 537 U.S. at 327, 123 S.Ct. at 1034 ). In other words, this court must make only "an initial determination whether a claim is reasonably debatable." Id . at 774. And this "initial determination" must be made without "full consideration of the factual or legal bases adduced in support of the claims." Id . at 773 (quoting Miller–El , 537 U.S. at 336, 123 S.Ct. 1029 ). "Finally, any doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner." Pippin v. Dretke , 434 F.3d 782, 787 (5th Cir. 2005).

DISCUSSION

Given the limited standard of review, the question here is whether reasonable jurists could disagree with the district court’s determination that Bernard’s and Vialva’s Rule 60(b) motions were successive habeas petitions under Section 2255. We conclude that the issue is not reasonably debatable.

Congress has specified that individuals may file successive Section 2255 motions only under limited circumstances. See 28 U.S.C. § 2255(h)(1)-(2) (requiring that a successive motion point to either "newly discovered evidence" establishing the movant’s innocence or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable"). A federal district court lacks jurisdiction to entertain a successive motion unless the circuit court first certifies that the filing satisfies these requirements. See id .

To avoid the statutory limits on successive habeas petitions, individuals may seek to style their successive filings as motions for relief from judgement under Rule 60(b). This rule allows a court to reopen proceedings for obvious errors, newly discovered evidence, fraud, or "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(1)-(6). In Gonzalez v. Crosby , however, the Supreme Court stated that Rule 60(b) motions cannot "impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar." 545 U.S. 524, 532, 125 S.Ct. 2641, 2648, 162 L.Ed.2d 480 (2005).³ Gonzalez provides guidance for determining when a Rule 60(b) motion is subject to the requirements for successive petitions. See id . at 532-36, 125 S.Ct. at 2648-50.

Specifically, Gonzalez states that courts must construe a Rule 60(b) motion as a successive habeas petition if it "seeks to add a new ground for relief" or "attacks the federal court’s previous resolution of a claim on the merits." 545 U.S. at 532, 125 S.Ct. at 2648. If a motion challenges "not the substance of the federal court’s resolution of a claim on the merits but some defect in the integrity of the federal habeas proceedings," then a Rule 60(b) motion is appropriate. Id.

Applying Gonzalez , we have held that claims of procedural defect must be "narrowly construed" when considering whether motions are subject to the limits on successive habeas petitions. See In re Coleman , 768 F.3d at 371. Claims properly brought under Rule 60(b) include assertions of "[f]raud on the habeas court" or challenges to procedural rulings that "precluded a merits determination"—for instance, the denial of habeas relief "for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar." 545 U.S. at 532 n.5, 125 S.Ct. at 2648. Accordingly, a district court has jurisdiction to consider a motion that shows "a non-merits-based defect in the district court’s earlier decision on the federal habeas petition." Balentine v. Thaler , 626 F.3d 842, 847 (5th Cir. 2010). But motions that "in effect ask for a second chance to have the merits determined favorably" must be construed as...