Will v. Lumpkin

• Decision Date: 22 October 2020
• Docket Number: No. 18-70030,18-70030
• Citation: 978 F.3d 933
• Parties: Robert Gene WILL, II, Petitioner—Appellant, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

978 F.3d 933

Robert Gene WILL, II, Petitioner—Appellant,

v.Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee.

No. 18-70030

United States Court of Appeals, Fifth Circuit.

FILED October 22, 2020

Samy Kamal Khalil, Esq., Gerger Khalil Hennessy & McFarlane, Chad Flores, Esq., Beck Redden, L.L.P., Houston, TX, Jason Charles Ewart, Karen Christine Hogan Otto, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, for Petitioner-Appellant.

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Jennifer Wren Morris, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent-Appellee.

Before Owen, Chief Judge, and Willett and Ho, Circuit Judges.

ON PETITION FOR REHEARING

Don R. Willett, Circuit Judge:

The petition for panel rehearing is GRANTED. We withdraw our prior opinion, Will v. Lumpkin , 970 F.3d 566 (5th Cir. 2020), and substitute the following.

Robert Gene Will II was sentenced to death by a Texas jury for the murder of Harris County Sheriff's Deputy Barrett Hill. After his failed direct appeal and state habeas petitions, Will pursued federal habeas relief. His claims for ineffective assistance of counsel and inherent trial prejudice were denied—the former as procedurally defaulted and the latter on the merits. Will attempted to contest the procedural-default holding through a Rule 60(b) motion, but the district court concluded that it lacked jurisdiction because the motion constituted a successive habeas petition. We agree that Will's Rule 60(b) motion was a successive habeas petition, and we affirm the district court. We also affirm the denial of Will's inherent-prejudice claim, as Will fails to overcome the arduous standard of review in the Anti-Terrorism and Effective Death Penalty Act.

I

Will was found guilty of capital murder in Texas state court and sentenced to death.¹ Will appealed directly to the Texas Court of Criminal Appeals, arguing that the presence of uniformed officers in the courtroom impermissibly prejudiced the jury, but the court disagreed.² Will then filed a state habeas petition with the same court on the same grounds. The CCA reached the same conclusion and denied relief.³

Will then filed a federal habeas petition, maintaining his argument about impermissible trial prejudice and adding an argument based on ineffective assistance of trial counsel (and one based on actual innocence claim, not pursued in this appeal).⁴ The district court stayed Will's federal proceedings so he could exhaust the new claims in state court. Will filed a second state habeas petition raising the new claims, which the CCA denied on procedural grounds.

Back in federal court, the district court denied Will's petition because (1) the IATC claim was procedurally defaulted and failed on its merits regardless, and (2) the state court did not err in denying the trial-prejudice claim on the merits.⁵

Will filed a Rule 59 motion for a new trial and to alter the district court's judgment; this motion was denied. Will then filed a Rule 60(b) motion for relief from the district court's judgment. The motion focused on the ineffective assistance of both his trial counsel and state habeas counsel, urging that the latter should excuse the procedural default of his claim about the former. The district court found, however, that Will's Rule 60(b) motion challenging the procedural-default ruling necessarily implied a challenge to the merits ruling, meaning that the motion was a successive habeas petition. Accordingly, the court denied it for lack of jurisdiction.⁶ Will appealed this denial to us.⁷

But, before we could rule, the Supreme Court decided Martinez v. Ryan , holding that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial."⁸ So we remanded Will's appeal to the district court for (1) reconsideration of the Rule 60(b) motion dismissal in light of this new precedent, and (2) clarification on whether a certificate of appealability should issue on Will's claims.

The district court again denied Will's Rule 60(b) motion, reasoning that, regardless of Martinez , it "is a successive habeas petition which the [c]ourt has no jurisdiction to consider under [AEDPA]."⁹ But it also granted Will a COA on two issues: his dismissed Rule 60(b) motion and his denied trial-prejudice claim.¹⁰ Will pursues these claims now, arguing that (1) the Rule 60(b) motion is not an impermissible successive habeas petition because it only attacked the "integrity of the [underlying] federal habeas proceeding," and (2) he should be granted habeas relief from the adverse trial-prejudice ruling because the CCA misapplied clearly established federal law or its holding was based on unreasonable factual determinations.

II

As to Will's first argument, we review de novo "[t]he district court's determination that a purported Rule 60(b) motion constitutes a successive § 2254 habeas petition."¹¹

As to Will's second argument, our review of the CCA's trial-prejudice decision is narrow: we only consider whether the decision was "contrary to, or an unreasonable application of, clearly established Federal law" or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."¹²

III

A

Will proceeds under our statutorily prescribed and exactingly applied habeas framework. Normally, "Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under" extraordinary circumstances.¹³ But in the habeas context, Will's Rule 60(b) motion runs headlong into AEDPA's restriction on successive habeas applications. Why? Because we—the federal judiciary—are concerned that petitioners will use Rule 60(b) motions to subvert the statutory framework and get an impermissible second look at their denied habeas claims.¹⁴ So, we must ask, was Will's Rule 60(b) motion actually an impermissible successive habeas petition in disguise? The answer: yes, if his Rule 60(b) motion contains one or more previously presented habeas claims.¹⁵

A habeas claim "is an asserted federal basis for relief from a state court's judgment of conviction."¹⁶ "In most cases, determining whether a Rule 60(b) motion advances one or more ‘claims’ will be relatively simple": the motion advances a claim "if it attacks the federal court's previous resolution of a claim on the merits ."¹⁷ But, as we said in Gilkers , "there are two circumstances in which a district court may properly consider a Rule 60(b) motion in a § 2254 proceeding: (1) the motion attacks a ‘defect in the integrity of the federal habeas proceeding’ or (2) the motion attacks a procedural ruling that precluded a merits determination."¹⁸ "If the purported Rule 60(b) motion satisfies one of these circumstances," the motion does not present a habeas claim, and "the district court may then properly consider [it] under Rule 60(b)."¹⁹

This means that we must assess two of the district court's orders: the order denying Will's Rule 60(b) motion challenging the denial of habeas relief, plus the denial of habeas relief itself.²⁰

Will's Rule 60(b) motion attempted to request relief only on the grounds that the district court had erroneously concluded that his IATC claim was procedurally defaulted (procedural default being a proper 60(b) topic, such a request might dodge § 2244's jurisdictional bar on second or successive habeas petitions). But the district court ascertained that a review of the procedural-default conclusion in this case would be fruitless without a review of the order's other conclusion—that, alternatively, the IATC claim failed on the merits. And a review of the merits would constitute a second or successive habeas petition, beyond the purview of Rule 60(b), and beyond the district court's jurisdiction under § 2244.²¹ The district court therefore denied Will's motion as "a successive habeas petition which the [c]ourt has no jurisdiction to consider under AEDPA."²²

On appeal, Will's briefing predominantly tracks the first circumstance Gilkers discussed, Gonzalez ’s "defect in integrity" prong. Because of the erroneous procedural-default ruling, he argues, the court only briefly addressed the merits of Will's IATC claim instead of giving it full substantive treatment. Thus, Will argues, his Rule 60(b) motion's "attack on the district court's decisionmaking process was procedural," not merits based, [and] his [ ] motion is [therefore] not a successive petition." The State disagrees: Will's motion impermissibly attacked "the federal court's previous resolution of a claim on the merits" no matter how you frame it.

Will's "defect in integrity" argument is unavailing: The merits analysis was four pages long and analytically robust.²³

The closer question is the second circumstance Gilkers discussed, whether Will's motion attacks a procedural ruling that precluded a merits determination.²⁴ Here, the district court disposed of Will's IATC claim on procedural-default grounds, a procedural ruling; but it also reasoned, in the alternative, that Will's IATC claim failed on the merits.²⁵

The crux of our inquiry is simple—is a merits analysis in the alternative a merits determination ? If so, the district court's procedural disposition did not preclude a merits determination and, in turn, Will's Rule 60(b) motion presents a habeas claim. Because we hold that a full merits analysis in the alternative is a merits determination, the court's procedural disposition did not "preclude[ ] a merits determination."²⁶ Therefore, Will's Rule 60(b) motion—attacking a procedural ruling paired with a merits determination in the alternative—is a successive habeas petition that we lack jurisdiction to consider.

Consider Gonzalez . In that seminal case, Justice Scalia reasoned that a motion only presents a habeas claim if, among other...