Franqui v. Florida

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

APRIL 22, 2011

JOHN LEY

No. 09-12626 CLERK

________________________

D. C. Docket No. 07-22384-CV-KMM

LEONARDO FRANQUI,

Petitioner-Appellant,

versus

STATE OF FLORIDA,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(April 22, 2011)

Before EDMONDSON, HULL and WILSON, Circuit Judges.

EDMONDSON, Circuit Judge:

After his habeas petition, 28 U.S.C. § 2254, was denied, on its merits, by the

District Court, Petitioner filed a motion for relief from the District Court’s

judgment pursuant to Federal Rule of Civil Procedure 60(b).

Briefly stated, the basis for this motion was Petitioner’s assertion that,

despite his court-appointed lawyer’s repeatedly promising to do so, the lawyer

failed to raise a specific federal habeas claim which Petitioner believed to be

particularly strong. (Other claims were raised.) Petitioner’s motion further

asserted that his lawyer did not inform him of this omission even after Petitioner’s

habeas petition was filed. Petitioner says he did not learn that the pertinent claim

was left out until he received a copy of the federal habeas petition after the District

Court had already denied the petition. The District Court considered and denied --

on its merits -- Petitioner’s Rule 60(b) motion; we vacate and remand with

instructions to dismiss the motion for lack of subject-matter jurisdiction.

BACKGROUND

With the assistance of his court-appointed counsel (M.B.), Petitioner -- a

Florida state prisoner -- filed a petition for a writ of habeas corpus in federal court,

raising several claims. The District Court denied the petition on the merits.

Following this decision, Petitioner, by his counsel, filed a series of motions with

2

the District Court. Petitioner then filed a pro se motion for relief from the

judgment pursuant to Rule 60(b).1

In the Rule 60(b) motion, Petitioner alleged that he had repeatedly instructed

his court-appointed habeas lawyer, M.B., to challenge the lawfulness of the

admission at Petitioner’s trial of a co-defendant’s confession; the habeas challenge

was to be grounded on Bruton v. United States, 88 S. Ct. 1620 (1968). Petitioner

further alleged that M.B. had promised to include this Bruton claim in Petitioner’s

federal habeas petition. But no such claim was included in the habeas petition that

M.B. filed with the District Court. Petitioner says he remained unaware of the

omission because M.B. sent him only the verification page of his habeas petition:

Petitioner was required to sign this page. Petitioner says that he, trusting in his

lawyer, signed and returned this one page without ever seeing the actual petition.

Petitioner further alleges that M.B. did not alert him to the omission, even

when Petitioner mentioned the Bruton issue during a telephone conversation with

1

Rule 60(b) reads this way:

On motion and just terms, the court may relieve a party or its legal representative from a

final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud

(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an

opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or

discharged; it is based on an earlier judgment that has been reversed or vacated; or applying

it prospectively is no longer equitable; or (6) any other reason that justifies relief. FED . R.

CIV . P. 60(b).

3

M.B. after the State submitted its 256-page response to the filed habeas petition.

According to Petitioner, he did not learn that M.B. had left out the Bruton claim

until after his habeas petition had been denied. Petitioner’s 60(b) motion

characterized M.B.’s acts as “misrepresentations rising to the level of gross

attorney negligence and/or outright abandonment of [Petitioner’s] most viable

constitutional claim,” entitling Petitioner to relief from the District Court’s

judgment.2

The District Court considered and denied -- on its merits -- the Rule 60(b)

motion; this appeal followed.

DISCUSSION

At the outset, we must decide whether Petitioner’s motion for relief from the

District Court’s judgment was a true Rule 60(b) motion or was instead, as the State

2

For background, see Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1170-71 (9th Cir. 2002)

(concluding that the defendant was entitled to 60(b) relief where his lawyer’s gross negligence

led to a default judgment against the defendant and the lawyer had repeatedly misrepresented to

the defendant that the case was proceeding smoothly); Ervin v. Wilkinson, 701 F.2d 59, 61-62

(7th Cir. 1983) (remanding for consideration of civil-rights plaintiff’s 60(b) motion alleging, in

part, that the plaintiff’s own lawyer had made affirmative misrepresentations to the plaintiff that

led the plaintiff to dismiss voluntarily his action); L.P. Steuart, Inc. v. Matthews, 329 F.2d 234,

235 (D.C. Cir. 1964) (concluding, where a lawyer made repeated affirmative misrepresentations

to his client that the case was proceeding smoothly when the case had in fact been dismissed for

failure to prosecute, that Rule 60(b)(6) “is broad enough to permit relief when . . . [a lawyer]

grossly . . . neglect[s] a diligent client’s case and mislead[s] the client”).

4

asserts, a second or successive habeas petition that should have been dismissed for

lack of jurisdiction (because Petitioner did not comply with the requirements for

such petitions).

In resolving this issue, we must ensure that Rule 60(b) is not used to

circumvent the restrictions governing federal habeas corpus proceedings set forth

by statute: the Antiterrorism and Effective Death Penalty Act (“AEDPA”). While

Rule 60(b) permits a party to seek relief from a judgment on certain limited

grounds, it cannot be used by habeas petitioners to raise new claims for habeas

relief: this use would circumvent the AEDPA requirement that a petitioner obtain

the approval of the appropriate court of appeals before filing a second or

successive habeas petition. Gonzalez v. Crosby, 125 S. Ct. 2641, 2647-48 (2005);

see also 28 U.S.C. § 2244(b)(3)(A).

The Supreme Court’s decision and opinion in Gonzalez are instructive on

this issue. The Supreme Court said that a habeas petitioner filing a 60(b) motion

should be held to the standards of section 2244(b) if his motion contains a “claim”

as the term is used in that section -- that is, “an asserted federal basis for relief from

a state court’s judgment of conviction.” Gonzalez, 125 S. Ct. at 2647.

Raising such a claim in a Rule 60(b) motion is an improper attempt to avoid

AEDPA’s second-or-successive restrictions and is not permitted. See 28 U.S.C.

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§ 2244(b)(2) (requiring a new claim presented in a second or successive habeas

petition to be dismissed unless it relies on either a “new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court,” or a new

factual predicate that “could not have been discovered previously” and that would

establish the petitioner’s innocence by clear and convincing evidence). But a Rule

60(b) motion can be appropriate where a petitioner “does not assert, or reassert,

claims of error in [his] state conviction.” Gonzalez, 125 S. Ct. at 2651. For

example, a 60(b) motion can properly be used just to “assert[] that a previous

ruling which precluded a merits determination was in error,” id. at 2648 n.4, or just

to attack “some defect in the integrity of the federal habeas proceedings,” id. at

2648.

When, as is the case here, a federal habeas court has already reached and

resolved the merits of a habeas petitioner’s earlier asserted claims, we look at a

60(b) motion challenging that decision with particular skepticism.

As Gonzalez tells us, “[i]f neither the motion itself nor the federal judgment

from which it seeks relief substantively addresses federal grounds for setting aside

the movant’s state conviction, allowing the motion to proceed as denominated

creates no inconsistency with the habeas statute or rules.” Id. at 2648 (emphasis

added). But if the federal judgment that is the subject of the 60(b) motion does

6

substantively address the federal grounds that were presented for granting habeas

relief, then treating a later motion as properly filed under 60(b) might create an

inconsistency with AEDPA.

This clash arises because a motion challenging a federal court’s decision that

denied, on the merits, habeas relief is often “effectively indistinguishable” from an

assertion that the petitioner actually is entitled to habeas relief: the very definition

of a habeas claim. Id. at 2648. But a 60(b) motion just attacking a true “defect in

the integrity” of the habeas proceedings would not be problematic, because such an

attack does not itself raise a claim for habeas relief.

Potential inconsistency with AEDPA looms even where, as here, a Rule

60(b) motion does not itself raise new claims for habeas relief, but rather seeks

permission to do so in further proceedings. Gonzalez tells us that, even though

such a motion may not directly assert errors in the petitioner’s underlying

conviction, it still must be treated as a second or successive habeas petition:

Using Rule 60(b) to present new claims for relief from a state court’s judgment

of conviction--even claims couched in the language of a true Rule

60(b) motion--circumvents AEDPA’s requirement that a new claim be

dismissed unless it relies on either a new rule of constitutional law or newly

discovered facts. Id. at 2647 (emphasis added).

Petitioner’s 60(b) motion is careful to characterize its attack as targeting the

omission in the habeas proceeding of his Bruton claim, rather than challenging

7

Petitioner’s state conviction on the merits. But in guarding the respective roles of

both AEDPA and Rule 60(b), we cannot ignore the basic objective of this motion:

it advances an additional claim for habeas relief. The real problem the motion aims

at is Petitioner’s continued confinement, and the objective it seeks is an additional

shot at release by asserting a new claim to be considered on its merits. In deciding

this appeal we, however, consider more than these things.

Petitioner does contend that specific defects existed in the habeas

proceedings: his lawyer’s omission of the Bruton claim after repeatedly promising

it would be included and the lawyer’s not advising him of this omission, even

when Petitioner mentioned the Bruton claim in a conversation after the State

submitted its response to the habeas petition.3 Petitioner argues that his present

motion attacked only M.B.’s misconduct and did not assert claims of error in his

state conviction; in his view, this approach rendered his motion a proper 60(b)

3

This case is materially different from Zakrzewski v. McDonough, 490 F.3d 1264 (11th Cir.

2007) (“Zakrzewski I”). Zakrzewski is not an omission-by-counsel case. In Zakrzewski, we

recognized that a habeas corpus petitioner’s challenge to the authority of a specific lawyer to

represent the petitioner at all in federal court stated a valid basis for a 60(b) motion seeking relief

from judgment in a section 2254 proceeding: Zakrzewski contended that the lawyer who

purported to represent him was totally unauthorized to do so because the pertinent lawyer’s

ostensible authority had been gained, at the start, by fraud on Zakrzewski and, later, by fraud on

the district court. See id. at 1266; Zakrzewski v. McNeil, 573 F.3d 1210, 1211 (11th Cir. 2009)

(“Zakrzewski II”) (summarizing the contents of the pertinent 60(b) motion). But in the present

case, no claim has been made that the lawyer, M.B., was entirely without authority to represent

Petitioner in the section 2254 proceeding in the District Court. M.B. did, in law and in fact,

represent Petitioner, although Petitioner contends that M.B.--by leaving out the Bruton claim--

performed carelessly and not as Petitioner instructed and that M.B. did not disclose to Petitioner

the omission of the Bruton claim. This case is an omission-by-counsel case.

8

motion.

But Gonzalez does not allow us to take so broad a view of what constitutes a

defect in the integrity of federal habeas proceedings. Where the federal habeas

court has already denied the habeas petition on the merits, “an attack based on

. . . habeas counsel’s omissions ordinarily does not go to the integrity of the

proceedings, but in effect asks for a second chance to have the merits determined

favorably.” Gonzalez, 125 S. Ct. at 2648 n.5 (internal citation omitted).

We do not consider Petitioner’s allegations to be out of the ordinary. While

Petitioner, in his Memorandum of Law, conclusionally characterized the omission

of his Bruton claim as “egregious and/or extraordinary misconduct and

misrepresentations,” and as a “fraud upon the court,” he has not alleged that the

actual omission of the Bruton claim was, in fact, intentional on M.B.’s part.

Petitioner, in his 60(b) motion’s Statement of Facts, asserts that M.B.

promised to include the Bruton claim and ultimately failed to do so, but Petitioner

never alleges M.B. actually intended to omit the claim at the time that M.B.

promised to include it or intentionally omitted the claim at the time that it was left

out.4 An omission alone does not amount to a defect in the integrity of the

4

In reading the 60(b) motion, we are sensitive to the motion’s having been done by the movant

pro se. Nevertheless, we are unwilling to infer fraud from factual allegations that are consistent

with M.B.’s simply not taking proper professional care. We see insufficient particularity,

although conclusory remarks about fraud and misrepresentations do appear in the motion’s

9

proceedings. See, e.g., Harris v. United States, 367 F.3d 74, 82 (2d Cir. 2004)

(Rule 60(b) motion alleging that federal habeas counsel had been ineffective for

omitting a Sixth Amendment claim “failed in its attack on the integrity of the

habeas proceeding”) (cited in Gonzalez, 125 S. Ct. at 2647, as an example of a

60(b) motion that improperly sought to circumvent AEDPA).

Petitioner does allege that M.B. did not disclose the omission to Petitioner,

even in their conversation after the habeas petition and the State’s 256-page

response were filed and before the District Court issued its decision denying

Petitioner habeas relief.5 But given Petitioner’s own conduct, this allegation does

not strengthen Petitioner’s argument in this case for relief based on a defect in the

integrity of the proceedings. Petitioner would have known that the Bruton claim

had been omitted if Petitioner had actually read the petition before signing its

verification; in providing his signature, Petitioner declared to the District Court

“under penalty of perjury that the foregoing is true and correct.” This sworn

statement was made without Petitioner’s insisting on first seeing the petition’s

contents. See Gonzalez, 125 S. Ct. at 2648 n.5 (noting that an attack based upon

Memorandum of Law section.

5

Petitioner, in setting out the facts to the District Court, never asserted that M.B. actually knew

that the Bruton claim had been, in fact, left out of the 29-page (plus attachments) habeas petition

that M.B. filed. And this case is not one in which, after a petition was filed, counsel

affirmatively represented that something was in the petition which was actually not in it.

10

“the movant’s own conduct” does not ordinarily challenge the integrity of the

proceedings).

Petitioner misled the District Court, giving it the impression that Petitioner

knew (or at least had seen) what was in the habeas petition. It is a serious problem

for a court to have worked on a habeas petition and decided its merit, only to have

a petitioner later come in and say, “Wait, there’s more.” Petitioner was supposed

to look at the petition before it was presented to the District Court; and by swearing

to the petition’s truth, he represented to the District Court that he had looked at it.6

Petitioner does not allege that he misunderstood the verification or that he

was in any way kept from seeing and reading the verification to which he

knowingly swore. Nor does he even allege that a need for extraordinary urgency

existed for his quickly signing and returning the verifying signature page to ensure

that the habeas petition was timely filed. And although Petitioner in his 60(b)

motion alleges that he made repeated requests for M.B. to furnish Petitioner with a

full copy of his habeas petition, he does not allege that he had made requests before

6

Petitioner was required by law to verify the petition “under penalty of perjury.” FED . R.

GOVERNING HABEAS P. 2(c)(5). The Supreme Court has held that a party represented by counsel

and required to verify a filed document can be sanctioned for failing to conduct the inquiry

required by Federal Rule of Civil Procedure 11. Bus. Guides, Inc. v. Chromatic Commc’ns

Enters., Inc., 111 S. Ct. 922, 929 (1991). See also United States v. Boyle, 105 S. Ct. 687, 693

(1985) (a taxpayer’s reliance on his lawyer’s advice will not avoid penalty for late filing of a tax

return). In a similar way, Petitioner, although he had legal counsel, must take direct, personal

responsibility for verifying a filed document that he never read.

11

he signed the petition’s verifying signature page. Nor did Petitioner notify the

District Court, before the Court ruled on the merits of the habeas petition, that

Petitioner had not read the petition and, therefore, that it might be -- as far as

Petitioner knew -- false or misleading (or incomplete).7 Petitioner’s own conduct

misled the District Court and contributed, in a fundamental way, to the claim-

omission of which he now complains.8

So, Petitioner has pointed out no defect in the integrity of the federal habeas

proceedings that would render his Rule 60(b) motion permissible.9 In his habeas

petition, Petitioner presented several claims to the District Court. After he did so

and after the District Court denied -- on the merits -- every claim that Petitioner

7

About ten months passed from the time the petition was filed until it was ruled on by the

District Court.

8

Given that Petitioner's own misconduct lies at the heart of the omission of his Bruton claim

from the habeas petition, today's result could hang on Petitioner's conduct alone.

9

See, e.g., Ward v. Norris, 577 F.3d 925, 932 (8th Cir. 2009) (“Although an assertion of

ineffective assistance of habeas counsel may be characterized as a defect in the integrity of the

habeas proceeding, it ultimately seeks to assert or reassert substantive claims with the assistance

of new counsel.”); Post v. Bradshaw, 422 F.3d 419, 424-25 (6th Cir. 2005) (concluding that a

habeas petitioner’s Rule 60(b) motion that purported to raise a defect in the integrity of the

federal habeas proceedings -- based on earlier-habeas counsel’s inexcusable neglect -- was

actually a second or successive habeas petition, because the motion sought to “tak[e] steps that

lead inexorably to a merits-based attack on the prior dismissal of his habeas petition”). We

recall that a petitioner in a federal habeas proceeding has no constitutional right to the effective

assistance of counsel. See, e.g., Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007) (citation

omitted). By the way, Petitioner in his 60(b) motion did not contend that he was abandoned by

his habeas counsel, M.B. M.B. did litigate several habeas claims to judgment and (by motions)

beyond.

12

had raised, AEDPA barred him from raising additional claims without first

obtaining this Court’s approval. Petitioner’s motion for relief from the District

Court’s judgment, while couched in the terms of a 60(b) motion, was, in effect, an

attempt at getting a second opportunity at habeas relief without complying with

AEDPA’s requirements.

Petitioner’s motion “is, if not in substance a habeas corpus application, at

least similar enough that failing to subject it to the same requirements would be

inconsistent with the statute.” Id. at 2647 (internal quotation marks and citation

omitted).10

CONCLUSION

The District Court treated Petitioner’s motion as properly filed under Rule

60(b), considered its substance, and concluded--on the motion’s merits--that

10

Today’s decision does not create a “categorical rule” against permitting a habeas petitioner to

seek 60(b) relief after his previous habeas petition has been denied on the merits. As we have

acknowledged, a 60(b) motion still could be properly filed--even after an on-the-merits denial of

habeas relief--if the 60(b) motion attacks “some defect in the integrity of the federal habeas

proceedings.” Gonzalez, 125 S. Ct. at 2648. We write about and decide today only the case

before us, considering its set of facts: considering what facts are present and what facts are

absent. Some future habeas petitioner might allege, in a 60(b) motion, different facts that would

constitute a defect in the integrity of the federal habeas proceedings: a possibility we leave

entirely open. See, e.g., Zakrzewski I, 490 F.3d at 1267-68 (habeas petitioner’s use of Rule

60(b) allowed).

13

Petitioner was not entitled to relief under that Rule: that the Bruton issue would

not justify federal habeas relief.11 Given the Supreme Court’s teachings in the

Gonzalez opinion, this generous approach was an error: Petitioner did not qualify

to seek Rule 60(b) relief.

Because we conclude that Petitioner’s motion raised a new habeas claim

without first securing this Court’s permission to file a second or successive habeas

petition, the District Court lacked subject-matter jurisdiction even to consider

Petitioner’s claim. Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007)

(citing Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)). We

therefore vacate the District Court’s judgment and remand with instructions to

dismiss Petitioner’s motion for lack of subject-matter jurisdiction.

VACATED AND REMANDED WITH INSTRUCTIONS.

11

We decide nothing today about the merits of Petitioner’s Bruton claim.

14

WILSON, Circuit Judge, dissenting:

This case involves unquestionably improper conduct and an inexcusable

omission on the part of a death-row inmate’s habeas counsel. A claim that is based

on “habeas counsel’s omissions, ordinarily does not go to the integrity of the

proceedings . . . .” Gonzalez v. Crosby, 125 S. Ct. 2641, 2648 n. 5 (2005)

(emphasis added) (citation omitted). This case is not “ordinary” and I would hold

that since Franqui’s habeas counsel’s omission and misrepresentations offend the

integrity of the proceedings, his Rule 60(b) motion is not second or successive.1 I

would vacate the district court’s judgment and remand for an evidentiary hearing

and ruling on the merits of Franqui’s Rule 60(b) motion (without consideration of

the underlying merits of Franqui’s Bruton claim).

I.

Franqui’s allegations are taken as true for the purposes of this appeal. See

Zabrzewski v. McDonough, 490 F.3d at 1265. During his post-conviction

proceedings, (1) Franqui repeatedly emphasized to his habeas counsel (M.B.) the

strength and importance of his Bruton claim; (2) M.B. agreed that Franqui’s

Bruton claim was viable and that she would include it in the federal habeas

1

“If Petitioner’s 60(b) motion is not really a second or successive habeas petition, the district

court has jurisdiction to consider the merits of the motion.” Zabrzewski v. McDonough, 490

F.3d 1264, 1265 (11th Cir. 2007) (per curiam).

15

petition; (3) M.B. assured Franqui’s direct-appeal counsel that she would raise the

Bruton issue in the federal petition after he expressed to Franqui and M.B. that the

claim had a significant chance of succeeding in federal court; (4) Franqui mailed

M.B. at least sixteen letters referencing the Bruton issue, and M.B. wrote at least

seven letters doing the same; (5) Franqui and M.B. exchanged, by mail, recent

cases discussing Bruton; and (6) Franqui and M.B. focused on Bruton in several

phone calls. Moreover, after the State filed a lengthy response to the federal

habeas petition, Franqui remarked that it must have had difficulties countering his

Bruton claim, at which point M.B. said nothing. Far from alleging that the

omission was the result of mere negligence, these allegations depict attorney

dishonesty, incompetence, and disregard for the clearly expressed wishes of one’s

client.2

The egregious nature of M.B.’s omission is further highlighted by an

2

The majority denies Franqui’s claim, in part, based on the fact that “he has not alleged that the

actual omission of the Bruton claim was, in fact, intentional on M.B.’s part.” Specifically,

Franqui’s pro se Rule 60(b) motion “never alleges M.B. actually intended to omit the claim.”

First, and most importantly, gross negligence should be sufficient to warrant relief. The majority

imposes this heightened burden on Franqui without legal support for doing so. Under the

majority’s rubric, anything short of an intentional omission, such as a grossly negligent one, is

“ordinary” and thus is not cognizable after Gonzalez. Requiring proof of M.B.’s subjective intent

is an incredible burden.

Courts recognize, whether it be in the context of torts or criminal law, that in some

contexts an ordinarily negligent act can only be explained by something more. If a capital

defendant’s attorney’s omission falls into the that category, Rule 60(b) relief is appropriate.

Furthermore, the majority creates unrealistic expectations for a pleading that must be filed pro se

specifically because of appointed counsel’s failures.

16

undisputed fact. On direct appeal, the Florida Supreme Court concluded that there

was, indeed, a Bruton error. See Franqui v. State, 699 So. 2d 1332 (Fla. 1997) (per

curiam). The Court ruled that the error was harmless as to Franqui’s guilt, but

remanded the case for re-sentencing. Id. at 1336. Two justices, however,

concluded that the error necessitated a new trial. Id. (Anstead, J., concurring).

These favorable opinions on direct appeal explain Franqui’s insistence on arguing

the Bruton claim and further support its inclusion in the federal petition.

II.

The majority repeatedly states that the district court denied Franqui’s Rule

60(b) motion on the merits. See, e.g., Majority Op. at 2 (“The District Court

considered and denied -- on its merits -- Petitioner’s Rule 60(b) motion . . . .”). I

disagree with that characterization. The majority, incorrectly in my view, conveys

that the district court “considered [the] substance” of Franqui’s Rule 60(b) motion

and determined it lacked merit. Majority Op. at 13. It did not. Instead, the district

court concluded that the underlying Bruton claim, which was not and could not

have been briefed, lacked merit.

The district court denied the Rule 60(b) motion because “[e]ven if Franqui’s

counsel’s failure to raise his Bruton claim constitutes some form of mistake,

inadvertence, or excusable neglect cognizable under Rule 60(b), his Bruton claim

17

is without merit.” I firmly believe, however, that consideration of the underlying

Bruton claim must be inappropriate when assessing the merits of a Rule 60(b)

motion in this context.

To require a petitioner filing a Rule 60(b) motion to show that the omitted

claim has merit places him between Scylla and Charybdis. The petitioner must

either (1) argue the merits of the omitted claim, and have his motion dismissed

because Rule 60(b) motions “cannot be used by habeas petitioners to raise new

claims for habeas relief,” Majority Op. at 5; or (2) avoid discussion of the

underlying issue, and have his motion dismissed because the court believes the

underlying claim lacks merit—without having heard any arguments on it. This is

markedly different from an ordinary civil case, in which both parties may present

the merits of the underlying claim. In the present context, this requirement

eliminates Rule 60(b) relief for habeas petitioners whose counsel have omitted a

claim in bad faith. Accordingly, I would conclude that, in a post-Gonzalez regime,

district courts cannot consider the merits of the omitted claim in determining

whether Rule 60(b) relief is appropriate.

III.

The majority contends that “[t]oday’s decision does not create a

‘categorical rule’ against permitting a habeas petitioner to seek 60(b) relief after his

18

previous habeas petition has been denied on the merits.” Majority Op. at 13, n.9.

It may be true that the majority does not foreclose the possibility that a petitioner

can ever file a proper Rule 60(b) motion after his or her original petition has been

denied on the merits. It does, however, create another categorical rule: habeas

petitioners cannot seek Rule 60(b) relief for habeas counsel’s omissions.

The egregious nature of the misconduct alleged in this circumstance makes it

so. Assuming the truth of Franqui’s allegations, M.B.’s omission is

incomprehensible. While I agree that, ordinarily, “[a]n omission alone does not

amount to a defect in the integrity of the proceedings,” Majority Op. at 10, I

disagree that in that this case involves an “omission alone.” M.B.’s omission

occurred after she received sixteen letters and sent seven letters discussing the

Bruton claim. M.B.’s omission occurred after she assured previous counsel that

she would raise the claim in the federal petition. M.B.’s omission occurred after

Franqui mailed her recent cases on Bruton and its progeny, and she did the same.

And M.B.’s omission occurred after the Florida Supreme Court granted partial

relief on the claim. If Franqui’s allegations are proven true, negligence could

hardly explain this error. Instead, M.B.’s omission is “grossly negligent to be

sure . . . .” Thomas v. McNeil, No. 3:03-cv-00237 (M.D. Fla. Feb. 10, 2009)

(concluding that M.B., in other federal habeas cases, engaged in behavior that

19

“set[] her conduct above mere professional negligence, and [rose] to the level of

bad faith.”).

Even ignoring the facts discussed above, the majority realizes it must

explain away M.B.’s deliberate failure to inform Franqui that the claim had been

omitted because that action would provide clear evidence that M.B.’s mental state

was sufficiently culpable under any standard.3 It is uncontested that Franqui

signed a document given to him by his lawyer indicating that he had read the

habeas petition. In isolation, however, that fact does not defeat his claim that the

integrity of the proceedings were corrupted in this case.4 Franqui continually

expressed his desire to include the Bruton claim and relied on his counsel to do just

3

The majority makes an incredible distinction on this point. It explains its decision to excuse

M.B.’s post-omission concealment by pointing out that she did not “affirmatively represent[]

that something was in the petition which was actually not in it.” Majority Op. at 10 n.5. Instead,

she heard Franqui say that the state must be having a difficult time countering the Bruton claim

and she simply let the conversation proceed. I part company with my colleagues in adopting this

logic. M.B. adopted the premise of Franqui’s statement, i.e., the Bruton claim was there to

counter. The law recognizes that silence can be construed as a constructive admission where one

would be expected to speak and does not. See Fed. R. Evid. 801 n.(d)(2)(B) (“Under established

principles an admission may be made by adopting or acquiescing in the statement of another.”).

M.B.’s failure to correct indicated that Franqui’s Bruton claim was included in his petition, and

Franqui was justified in inferring the same. The majority’s conclusion—that such a sin by

silence is somehow less reprehensible than an affirmative misrepresentation—is one that I

cannot join.

4

In the abstract, I could conceive of a situation where the petitioner’s decision to sign the

habeas petition would be a sufficient ratification of counsel’s omission so as to justify denial of

relief. But, in light of the facts presented, that cannot be the proper basis for deciding this

appeal.

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that while he served his sentence.5 While Franqui erred by failing to read the entire

document, M.B.’s intentional submission of a document containing a material

misrepresentation further demonstrates her level of misconduct. She sent Franqui

only the signature page, thereby ensuring that he could not read the petition.

M.B.’s initial omission was exacerbated by her continued concealment of it and, in

this case, sufficiently detracted from the integrity of the proceedings to take this

case out of the realm of “ordinary” claim-omission cases. If such conduct is

ordinary, it is because the standards for practitioners of law have been

unacceptably lowered. Assuming the truth of his allegations, M.B.’s omission

resulted from either (1) something more than negligence or (2) a level of gee-golly,

aw-shucks lawyering that is completely unacceptable in capital cases. I would not

allow Franqui to be deprived of the right to file his desired habeas petition because

of our failure to expect competent representation in life-and-death cases.

If M.B.’s omission, after all of the alleged communication on the topic, does

5

The majority emphasizes that, although incarcerated, there was no urgency in Franqui signing

the habeas petition. Rather, he should have insisted on seeing the petition before signing it.

While I agree that he should have read the entire document before completing the mandatory

signature page, I view Franqui’s neglect in light of his situation. Nothing indicates he possessed

a familiarity with the particular deadlines in his case. Had he requested a copy of the complete

petition, and had he missed an AEDPA deadline while waiting for M.B. to produce it—no

outlandish scenario, given M.B.’s history and conduct—we would undoubtedly have affirmed a

district court’s dismissal of the petition. Franqui is not an ordinary civil litigant, see Majority

Op. at 11 n.6, but rather an incarcerated habeas petitioner that went to exceptional lengths to

ensure the inclusion of his Bruton claim.

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not allow for a proper Rule 60(b) motion, then none can. This conflicts with the

Supreme Court’s statement that a habeas counsel’s omission “ordinarily does not

go to the integrity of the proceedings . . . .” Gonzalez, 125 S. Ct. at 2648 n.5

(emphasis added). I disagree with the majority that “[i]t is a serious problem for a

court to have worked on a habeas petition and decided its merit, only to have a

petitioner later come in and say, ‘Wait, there’s more,”6 —that is, when the

petitioner continues, “because my lawyer lied to me.” The majority eviscerates

Rule 60(b) in this context, which the Supreme Court was unwilling to do in

Gonzalez.7 The Court acknowledged a small, but existent, group of cases that

would provide relief for extraordinary omissions by counsel.

IV.

The burden for a petitioner to demonstrate that his Rule 60(b) motion is not

a second or successive habeas petition is high. In my view, rightfully so. But a

high burden is not meant to eliminate the possibility that a habeas petitioner can

6

Majority Op. at 11.

7

Presumably, Justice Scalia, writing for the majority of the Supreme Court, meant what he

wrote. Therefore, while it is not ordinarily the case, there must be some situation in which

habeas counsel’s omissions would go to the integrity of the proceedings and allow a habeas

petitioner to seek relief from judgment based on Rule 60(b).

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obtain Rule 60(b) relief for an extraordinary omission by counsel. If Franqui’s

allegations surrounding M.B.’s omission do not rise to a level warranting relief, no

claim-omission case will. Franqui, despite exerting tremendous effort to ensure

inclusion of a claim, was never given the opportunity to present his most

persuasive federal constitutional claim in federal court as a result of bad-faith

actions by his own counsel. The majority’s position provides him with no

recourse. I cannot agree with such a result.

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