Opposition Brief — Brandon Bernard, Petitioner v. United States
Supreme Court briefDec 6, 2019
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Nos. 18-1222 and 18-6992
In the Supreme Court of the United States
CHRISTOPHER ANDRE VIALVA, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
BRANDON BERNARD, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
JOSHUA K. HANDELL
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
CAPITAL CASES
QUESTION PRESENTED
Whether the court of appeals correctly determined
that petitioners’ challenge to the denial of their motions
under Federal Rule of Civil Procedure 60(b) to reopen
judgments denying relief on collateral attacks under
28 U.S.C. 2255, which the district court dismissed as
uncertified successive Section 2255 motions under
28 U.S.C. 2255(h), did not warrant a certificate of appealability.
(I)
ADDITIONAL RELATED PROCEEDINGS
United States District Court (W.D. Tex.):
United States v. Vialva et al., No. 6:99-cr-70 (June
16, 2000) (judgments of conviction)
United States v. Vialva et al., No. 6:99-cr-70 (Mar.
26, 2001) (judgment of conviction for codefendant
Tony Sparks following guilty plea)
United States v. Vialva et al., No. 6:99-cr-70 (Sept.
28, 2012) (judgment denying Section 2255 relief )
Bernard v. United States, No. 6:04-cv-164 (judgment
and order filed in No. 6:99-cr-70 on Sept. 28, 2012
and Dec. 20, 2017)
Vialva v. United States, No. 6:04-cv-163 (judgment
and order filed in No. 6:99-cr-70 on Sept. 28, 2012
and Dec. 21, 2017)
United States v. Vialva et al., No. 6:99-cr-70 (Dec. 20
and 21, 2017) (orders denying Rule 60(b) motions)
United States v. Vialva et al., No. 6:99-cr-70 (Mar.
19, 2018) (amended judgment of conviction of
Tony Sparks following resentencing)
United States Court of Appeals (5th Cir.):
United States v. Sparks, No. 01-50405 (Dec. 14, 2001)
(direct appeal of codefendant Tony Sparks)
United States v. Bernard et al., No. 00-50523 (July
19, 2002) (direct appeal)
United States v. Bernard et al., Nos. 13-70013,
13-70016 (Aug. 11, 2014) (proceedings regarding
denial of Section 2255 relief )
(II)
III
United States v. Vialva et al., Nos. 18-70007, 18-70008
(Sept. 14, 2018) (proceedings regarding denial of
Rule 60(b) motions)
United States v. Sparks, No. 18-50225 (Oct. 24, 2019)
(direct appeal of codefendant Tony Sparks following resentencing)
Supreme Court of the United States:
Vialva v. United States, No. 02-8448 (June 16, 2003)
Bernard v. United States, No. 02-8492 (June 16, 2003)
Bernard v. United States, No. 14-8071 (Jan. 19, 2016)
Vialva v. United States, No. 14-8112 (Feb. 29, 2016)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Statement ...................................................................................... 2
Argument..................................................................................... 18
Conclusion ................................................................................... 33
TABLE OF AUTHORITIES
Cases:
Buck v. Davis, 137 S. Ct. 759 (2017) ........................ 17, 25, 31
Butler v. Stephens, 600 Fed. Appx. 246
(5th Cir. 2015) ...................................................................... 26
Clark v. Stephens, 627 Fed. Appx. 305
(5th Cir, 2015) ...................................................................... 26
Eldridge v. Stephens, 608 Fed. Appx. 289
(5th Cir. 2015) ...................................................................... 26
Fassbender v. Correct Care Solutions, LLC,
890 F.3d 875 (10th Cir. 2018) ............................................. 29
Gonzalez v. Crosby, 545 U.S. 524 (2005)..................... passim
Gonzalez v. Thaler, 565 U.S. 134 (2012) .......................... 6, 31
Hogan v. Carter, 85 F.3d 1113 (4th Cir.),
cert. denied, 519 U.S. 974 (1996) ....................................... 29
Miller-El v. Cockrell, 537 U.S. 322 (2003) ........................ 31
Pickard, In re, 681 F.3d 1201 (10th Cir. 2012) ................... 27
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ........ 32
Roberson v. Stephens, 614 Fed. Appx. 124
(5th Cir. 2015) ...................................................................... 26
Sharrieff v. Cathel, 574 F.3d 225 (3d Cir. 2009),
cert. denied, 558 U.S. 1120 (2010) ..................................... 29
Slack v. McDaniel, 529 U.S. 473 (2000) .......................... 6, 31
(V)
VI
Cases—Continued:
Page
Sun Life Assurance Co. of Can. v. Jackson,
877 F.3d 698 (6th Cir. 2017), cert. denied,
138 S. Ct. 2624 (2018) ......................................................... 29
United States v. Winestock, 340 F.3d 200
(4th Cir.), cert. denied, 540 U.S. 995 (2003) ..................... 28
Williams v. Chatman, 510 F.3d 1290 (11th Cir. 2007) ...... 28
Zakrzewski v. McDonough, 490 F.3d 1264
(11th Cir. 2007) .................................................................... 28
Statutes and rules:
18 U.S.C. 2 ................................................................................ 2
18 U.S.C. 1111(b) ..................................................................... 2
18 U.S.C. 1117 .......................................................................... 2
18 U.S.C. 2119 .......................................................................... 2
18 U.S.C. 3005 .......................................................................... 5
28 U.S.C. 2244(b) ............................................................. 19, 28
28 U.S.C. 2244(b)(3)(C) ......................................................... 15
28 U.S.C. 2253 .......................................................................... 6
28 U.S.C. 2253(c)(1)(B) ............................................................ 6
28 U.S.C. 2253(c)(2) ........................................................... 6, 31
28 U.S.C. 2255 ............................................................... passim
28 U.S.C. 2255(h) .......................................................... passim
Fed. R. Civ. P.:
Rule 59(e) ......................................................................... 29
Rule 60(b) ................................................................ passim
Rule 60(b)(1)-(5)................................................................. 8
Rule 60(b)(6) ............................................................ 3, 8, 32
Rule 60(c)(1) ....................................................................... 8
Rule 12:
Rules Governing Section 2254 Cases ............................ 19
Rules Governing Section 2255 Proceedings ................. 19
In the Supreme Court of the United States
No. 18-1222
CHRISTOPHER ANDRE VIALVA, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
No. 18-6992
BRANDON BERNARD, PETITIONER
v.
UNITED STATES OF AMERICA
(CAPITAL CASE)
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-14a)
is reported at 904 F.3d 356. 1 The order of the district
court (Pet. App. 15a-22a) is unreported. Prior opinions
of the court of appeals are reported at 299 F.3d 467 and
762 F.3d 467.
Citations to the petition appendix in this brief are to the petition
appendix in No. 18-1222.
1
(1)
2
JURISDICTION
The judgment of the court of appeals was entered on
September 14, 2018. A petition for rehearing was denied on November 19, 2018 (Pet. App. 23a-24a). The petition for a writ of certiorari in No. 18-6992 was filed on
December 7, 2018. On February 6, 2019, Justice Alito
extended the time within which to file a petition for a
writ of certiorari to and including March 19, 2019, and
the petition in No. 18-1222 was filed on that date. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
Following a jury trial in the United States District
Court for the Western District of Texas, petitioners
were convicted of carjacking resulting in death, in violation of 18 U.S.C. 2119 and 2 (Count 1); conspiracy to
commit murder, in violation of 18 U.S.C. 1117 (Count 2);
and the first-degree murders of Todd Bagley (Count 3)
and Stacie Bagley (Count 4) in the special maritime and
territorial jurisdiction of the United States, in violation
of 18 U.S.C. 1111(b) and 2. United States v. Bernard,
299 F.3d 467, 473 (5th Cir. 2002), cert. denied, 539 U.S.
928 (2003). After a bifurcated penalty-phase hearing,
the jury unanimously recommended that petitioner Vialva be sentenced to death on all three capital counts
(Counts 1, 3, and 4) and that petitioner Bernard be sentenced to death on Count 4 (for Stacie Bagley’s murder).
Ibid. The district court imposed the recommended capital sentences and terms of life imprisonment for the remaining counts. Ibid. The court of appeals affirmed,
id. at 489, and this Court denied certiorari, 539 U.S. 928.
Petitioners moved to vacate their sentences under
28 U.S.C. 2255. In 2012, the district court denied those
3
motions and declined to issue certificates of appealability (COAs). 9/28/2012 Order (D. Ct. Doc. (Doc.) 449).
The court of appeals denied applications for COAs, and
this Court denied certiorari. United States v. Bernard,
762 F.3d 467, 470 (5th Cir. 2014), cert. denied, 136 S. Ct.
892, and 136 S. Ct. 1155 (2016).
In late 2017, petitioners moved under Federal Rule
of Civil Procedure 60(b)(6) for relief from the district
court’s 2012 judgment denying their Section 2255 motions. Pet. App. 3a, 16a. The district court dismissed
the Rule 60(b) motions for lack of jurisdiction as uncertified successive Section 2255 motions and declined to
issue COAs. Id. at 15a-22a. The court of appeals denied
applications for COAs. Id. at 1a-14a.
1. In June 1999, petitioners and other members of a
street gang in Killeen, Texas, carjacked and murdered
Todd and Stacie Bagley. 299 F.3d at 471-473. Petitioner Vialva and two other gang members initially developed a plan to abduct and rob a motorist at gunpoint,
use the victim’s bank card to make ATM withdrawals,
and abandon the victim in a remote area locked inside
his own car trunk. Id. at 471. Petitioner Bernard and a
fifth gang member subsequently joined the plot. Ibid.
Bernard drove Vialva and the others from one store
parking lot to another searching for a victim. 299 F.3d
at 471. After some time, Bernard and another gang
member temporarily departed. Id. at 472 & n.2. Vialva
and the two remaining gang members then located suitable victims, Todd and Stacie Bagley, who were youth
ministers visiting from Iowa and who had just attended
Sunday services. Id. at 471-472. While Todd used a pay
phone and his wife, Stacie, waited in their car, two of the
group approached Todd and asked for a ride. Id. at 472.
Todd agreed, and the three gang members entered the
4
backseat of the Bagleys’ car. Ibid. After giving Todd
directions, Vialva pulled Bernard’s .40-caliber Glock on
Todd, a compatriot pulled a smaller pistol on Stacie, and
Vialva stated that “the plans have changed.” Ibid. The
trio then robbed the Bagleys, forced the Bagleys into
the trunk of their car, and drove around in the car attempting to empty the Bagleys’ bank accounts from
multiple ATMs. Ibid.
While locked in the trunk, the Bagleys spoke to Vialva’s coconspirators through the car’s rear panel, discussing their faith and explaining that God’s blessings
were available to anyone. 299 F.3d at 472. One of the
coconspirators then told Vialva that he no longer wanted
to proceed with the crime, but Vialva “insisted on killing
the Bagleys and burning their car to eliminate the witnesses” and any incriminating fingerprints. Ibid. Vialva drove to his home, where he retrieved a ski mask
and clothing. Ibid. The Bagleys pleaded with Vialva’s
compatriots for their lives. Ibid.
After Bernard and the fifth gang member rejoined
the group, “Vialva repeated that he had to kill the Bagleys because they had seen his face.” 299 F.3d at 472.
Bernard and another conspirator then set off to purchase fuel to burn the Bagleys’ car. Ibid. At some point,
the gang member who had expressed his desire to discontinue the crime departed. Id. at 472 n.3.
Vialva, Bernard, and the two others remaining then
drove the Bagleys’ car (with the Bagleys still in the
trunk) and Bernard’s car to a remote location in a recreation area within the Fort Hood military reservation.
299 F.3d at 472-473. Bernard and another conspirator
poured lighter fluid on the interior of the Bagleys’ car,
while the Bagleys sang and prayed in the trunk. Id.
at 472. Stacie then stated that “Jesus loves you” and
5
“Jesus, take care of us.” Ibid. Vialva cursed in reply,
put on his mask, ordered the trunk opened, and shot the
Bagleys with Bernard’s handgun. Id. at 472-473. Vialva
killed Todd instantly with a head shot, but his shot to
the side of Stacie’s face merely knocked her unconscious. Ibid. Bernard then set fire to the car, killing
Stacie, who died of smoke inhalation. Id. at 473.
The gang’s escape was foiled when Bernard’s car slid
off the road into a muddy ditch, where they were found
and later arrested by law-enforcement officers responding to the fire. 299 F.3d at 473. A federal jury found
petitioners guilty of carjacking, murder conspiracy, and
the Bagleys’ murders. Ibid. The district court imposed
capital sentences as recommended by the jury. Ibid. The
court of appeals affirmed, id. at 489, and this Court denied
certiorari, 539 U.S. 928 (Nos. 02-8448 and 02-8492).
2. In 2004, each petitioner moved to vacate his sentence under 28 U.S.C. 2255. Vialva Mot. to Vacate Sentence (Vialva 2255 Mot.) (Doc. 372); Bernard Mot. to Vacate Sentence (Bernard 2255 Mot.) (Doc. 377). Petitioners’ lengthy 175- and 155-page motions raised multiple
claims, see ibid., for which petitioners submitted over
1400 pages of exhibits. See 1 & 2 Vialva 2255 Mot. App.
(394 and 510 pages) (Docs. 373, 374); Bernard 2255 Mot.,
Exs. 1-29 (548 pages).
a. In 2012, the district court denied petitioners’ Section 2255 motions. 9/28/2012 Order (Doc. 449). The
court’s 63-page written order addressed and rejected
each of the Section 2255 claims. Id. at 13-63.
The district court first determined that several Section 2255 claims were procedurally barred, 9/28/2012
Order 13-15, and, in any event, lacked merit, id. at 14-15;
see id. at 15-26, 32-40. Those claims included petitioners’ contention that the court had violated 18 U.S.C.
6
3005 by failing to consult the Federal Public Defender
before appointing counsel. 9/28/2012 Order 14; see id. at
15-16. They also included Vialva’s ineffective-assistanceof-counsel (IAC) claim based on his counsel’s prior application for a position at the U.S. Attorney’s Office
(which was rejected) and ongoing interest in such a job
(which he eventually received after the trial had concluded and his representation of Vialva had ended),
matters which were fully disclosed and addressed in a
pretrial hearing in which Vialva expressly waived any
conflict. Id. at 14; see id. at 32-35. The court also rejected petitioners’ other Section 2255 claims and explained why each lacked merit. Id. at 28-32, 40-62 (IAC
claims); id. at 62 (cumulative error).
Section 2253 requires that a federal prisoner obtain
a COA in order to appeal a “final order in a proceeding under [S]ection 2255.” 28 U.S.C. 2253(c)(1)(B). A COA may
issue “only if ” the prisoner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2). “Where a district court has rejected the constitutional claims on the merits,” the prisoner must
“demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). If the court has denied Section 2255 relief on
“procedural grounds,” the prisoner must show “both” that
(1) “ ‘jurists of reason would find it debatable whether
the district court was correct in its procedural ruling’ ”
and (2) “ ‘jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right.’ ” Gonzalez v. Thaler, 565 U.S. 134, 140141 (2012) (quoting Slack, 529 U.S. at 484). The district
court declined to issue COAs. 9/28/2012 Order 63.
7
b. In 2014, the court of appeals likewise denied petitioners’ requests for COAs. 762 F.3d 467.
The court of appeals first addressed the COA standard. 762 F.3d at 471. The court recognized that Section
2253’s requirement of a “ ‘substantial showing of the denial of a constitutional right’ ” is met by “ ‘demonstrating
that jurists of reason could disagree with the district
court’s resolution of [the prisoner’s] constitutional
claims.’ ” Ibid. (citations omitted). The court also recognized that a “ ‘claim can be debatable even though
every jurist of reason might agree, after the COA has
been granted and the case has received full consideration, that [the prisoner] will not prevail.’ ” Ibid. (citation
omitted). The court thus emphasized that its “examination is limited to a ‘threshold inquiry’ ” under which the
court could not properly deny a COA “merely because
it believes that the [prisoner] ultimately will not prevail
on the merits.” Ibid. (citation omitted).
Applying those principles, the court of appeals determined that petitioners had failed to make any substantial showing of a violation of any constitutional right.
762 F.3d at 471-483. The court’s discussion of petitioners’ separate Section 2255 contentions emphasized in
precise terminology its determination that “[r]easonable
jurists could not debate” each relevant “disposition,”
“holding,” or “conclusion,” id. at 472, 474, 476 (twice),
477, 478 (twice), 479 (twice), 480, 481, 482 (thrice), or
employed an equivalent linguistic variant expressing
the same determination. See id. at 473, 483 (“[r]easonable jurists could not disagree”); id. at 473 (“insufficient
* * * to suggest that reasonable jurists could disagree”);
id. at 475 (“not debatable among reasonable jurists”).
8
The court of appeals also found that a COA was
unwarranted with respect to the district court’s discretionary “procedural decisions” denying an evidentiary
“hearing and further discovery.” 762 F.3d at 483. Given
the “voluminous record presented” and the court of appeals’ earlier assessment of the Section 2255 claims, the
court determined that “reasonable jurists could not disagree” with the decision to resolve those claims without
an evidentiary hearing or discovery. Ibid.
c. This Court again denied certiorari. 136 S. Ct. 892
and 136 S. Ct. 1155 (2016) (Nos. 14-8071 and 14-8112).
3. a. In 2017, each petitioner filed a motion under
Federal Rule of Civil Procedure 60(b)(6) seeking relief
from the district court’s 2012 judgment denying their
Section 2255 motions. Vialva Mot. for Relief from Judgment (Vialva 60(b) Mot.) (Doc. 553); Bernard Mot. for
Relief from Judgment (Bernard 60(b) Mot.) (Doc. 569).
Rule 60(b)(6) provides that a court “may” reopen its
judgment if the movant timely shows “any * * * reason
that justifies relief ” other than those listed in Rule
60(b)(1)-(5). Fed. R. Civ. P. 60(b)(6) and (c)(1); see Gonzalez v. Crosby, 545 U.S. 524, 529, 535 (2005). Under that
provision, the movant must “show ‘extraordinary circumstances’ justifying the reopening.” Gonzalez, 545 U.S.
at 535 (citation omitted).
Bernard asserted “two sets of extraordinary circumstances.” Bernard 60(b) Mot. 4, 12-13. First, Bernard
argued that Judge Smith was “unfit when he presided
over [petitioners’] habeas case” and, as a result, “improperly denied him collateral review” in 2012. Id. at 1-2;
see id. at 3, 12-13. Bernard observed that Judge Smith
had been reprimanded for sexually harassing a court
clerk in 1998 and had later failed to follow proper procedures by recusing himself or disclosing a conflict of
9
interest in cases involving the attorney who was personally representing him. Id. at 5-6. Bernard also noted
“allegations” that Judge Smith “appeared to have been
drinking alcohol during the court day” “on the day of
[the 1998] assault” and had a “reputation for drinking
and for having a temper.” Id. at 6. Bernard then alleged
that the judge’s “indifference and hostility” to proper
procedure were “reflected in [his] dismissive treatment
of Bernard’s case,” id. at 7, and attempted to substantiate those allegation by rearguing at length many of the
Section 2255 claims previously denied in 2012, id. at 7-10,
15-17, 19-30. Second, Bernard argued that the Fifth
Circuit had “misappl[ied] the COA standard” in declining to grant him a COA to appeal his Section 2255 judgment and thereby “denied [him] a fair opportunity to
seek appellate review.” Id. at 11, 13; see id. at 10-13, 30.
Vialva’s Rule 60(b) motion similarly sought relief
from the Section 2255 judgment on the theory that he
had been denied due process, asserting that (1) the district court denied his Section 2255 motion without “plenary examination,” Vialva 60(b) Mot. 2-3; and (2) the
Fifth Circuit denied “appropriate review” by using an
“erroneous construction of the [COA] standard,” id. at
3; see id. at 6-10, 12 (COA arguments). Vialva argued
that it was “evident” that Judge Smith “suffer[ed] from
impaired judgment” and that his “impairments * * *
persisted until his [2016] retirement,” such that the judge
had been “in no position to evaluate his own actions” in
conducting Section 2255 review. Id. at 18-19. Like Bernard, Vialva reargued his various Section 2255 claims to
support his assertion of the judge’s impairment. Id. at
13-18; see id. at 11 n.39, 17 n.56 (citing 125 pages of prior
legal arguments filed as appendices, see p. 10 n.2, infra).
10
b. Petitioners collectively attached over 700 pages of
materials to their Rule 60(b) motions, the vast majority
of which had been previously filed with their original
Section 2255 motions and which were now resubmitted
to support assertions that Judge Smith had erred in deciding the merits of the rejected Section 2255 claims. 2
Petitioners submitted only 24 pages of nonduplicative
materials—one partial transcript, two articles, and four
judicial decisions or orders—about their new allegation
about Judge Smith’s purported impairment in 2012.
See Vialva 60(b) Mot. App. 45 (Doc. 553-46); Bernard
60(b) Mot., Exs. B-D (Docs. 569-2 to 569-4).
In particular, petitioners filed six pages from the
transcript of the March 2014 deposition of the deputy
clerk whom Judge Smith had sexually harassed in 1998.
Bernard 60(b) Mot., Ex. D. 3 That deposition was taken
during a Texas bar disciplinary proceeding against attorney Ty Clevenger, id. at 1, that had been triggered
by Judge Smith’s $25,000 monetary sanction against
Clevenger for filing a frivolous case, Bernard 60(b)
Mot., Ex. C, at 2. Clevenger later filed a September
2014 misconduct complaint against the judge based on
the 1998 incident of workplace harassment, which initiated judicial misconduct proceedings. Vialva 60(b) Mot.
For instance, Vialva attached 125 pages of legal arguments from
his Section 2255 motion addressing multiple Section 2255 claims,
Vialva 60(b) Mot. Apps. 1-5, 43, and over 500 pages of exhibits he
previously filed to support those claims, id. Apps. 6-40, 42. Cf. Vialva 2255 Mot. 3-41, 60-144 (original arguments); 1 & 2 Vialva 2255
Mot. App. (original exhibits).
3
The full 35-page transcript is available, with redactions, on the
Fifth Circuit’s website. Compl. of Judicial Misconduct, Attach. 1
(5th Cir. Sept. 11, 2014), http://www.ca5.uscourts.gov/docs/defaultsource/default-document-library/redacted-version-of-complaint-ofjudicial-misconduct-against-u-s-district-judge-walter-s-smith-jr.pdf.
2
11
App. 45, at 1, 8. In 2016, Clevenger entered an appearance as cocounsel for petitioners’ codefendant, 3/14/2016
Notice of Appearance (Doc. 498), which promptly led
Judge Smith to recuse himself from this case. 3/24/2016
Order (Doc. 501).
In the transcript, the clerk states that she had been
a deputy clerk from 1994 to 1998 and had first met
Judge Smith “[a]round 1998” in the courthouse hallway.
Bernard 60(b) Mot., Ex. D, at 2-3. She testified that the
judge had a “pretty strong smell” of “mouthwash or liquor” on his breath and said to her, “ ‘Come see me sometime.’ ” Id. at 3. The clerk told her supervisor after the
incident that she had “smell[ed] liquor on his breath”
and had thought the judge “might have been intoxicated.” Id. at 4.
One article filed by petitioners, which appears to
quote from the same transcript, states that later on the
same day “in 1998,” Judge Smith called the deputy clerk
to his chambers, where, the clerk stated, he “put his
arms around [her],” “kissed her,” and told her, “ ‘Let me
make love to you.’ ” Bernard 60(b) Mot., Ex. C, at 2. The
clerk’s excerpted deposition adds that the judge took
her hand, stating, “ ‘Just come stay with me in here for
a while.’ ” Id. Ex. D, at 5. The clerk declined. Ibid. The
deposition transcript reflects that Clevenger asked the
clerk whether the judge had “a reputation for having a
temper” and “for drinking,” to which she responded,
“Yes,” without any further elaboration. Ibid.
The deputy clerk further testified that she had spoken to the district clerk “about the situation.” Bernard
60(b) Mot., Ex. D, at 4. She also stated that, about
two weeks after the 1998 incident, Judge Smith’s law
clerk called and told her that she needed to provide
“ ‘some kind of closure,’ ” or “ ‘do something about’ ” the
12
situation, because the judge had “ ‘been in the hospital,’ ”
“ ‘can’t come into work,’ ” and “ ‘you know, [was] falling
apart.’ ” Id. at 6. The law clerk then told the deputy
clerk that the judge was “ ‘having to cancel court things’ ”
and was “ ‘not functioning,’ ” before reiterating, “ ‘You’ve
got to do something about this.’ ” Ibid. Petitioners submitted no further evidence about Judge Smith’s purported incapacity other than that evidence about the
1998 incident.
The second article filed by petitioners addressed two
additional matters relating to the judicial misconduct
proceedings initiated by Clevenger’s September 2014
complaint against Judge Smith. First, the article recounts that attorney Greg White, who represented
Judge Smith in the misconduct proceedings, understood
that the judge’s permanent law clerk was supposed to
disclose the attorney-client relationship between them
by calling counsel in White’s cases before Judge Smith.
Vialva 60(b) Mot. App. 45, at 10. That informal procedure apparently broke down in at least one instance.
White stated that an opposing counsel, who was
unhappy with Judge Smith’s rulings in a case, asked
about White’s relationship with the judge. Ibid. After
White told him that he was representing the judge, opposing counsel “immediately filed a [recusal] motion,”
which Judge Smith granted. Ibid.
Second, the article recounts that White, in representing Judge Smith in the misconduct proceedings,
had been under the (mis)impression that Judge Smith
believed the deputy clerk whom he harassed “might have
acted in a way to suggest her willingness to participate in
a personal relationship—that she was the aggressor”—
and that White then had during the proceedings conveyed that impression “as Judge Smith’s ‘memory.’ ”
13
Vialva 60(b) Mot. App. 45, at 10. The “memory,” however, originated from one of the judge’s friends during
the judge’s divorce, when apparent “ ‘threats’ ” had been
made to “ ‘make [the deputy clerk’s] complaint a public
matter.’ ” Ibid. That friend suggested that they might
respond to “the threatened publicity” by identifying the
possibility that “the woman [had] approached the judge
romantically” to gain “favorable treatment for her husband, who was part of a group considering litigation in
Smith’s court.” Ibid. That suggestion, White explains,
“stuck with [the judge],” who then “suggested it” to
White. Ibid. But “a more careful examination” later
revealed that the woman would not have approached
Judge Smith for that purpose because the suit involving
her husband was not filed until long after the incident
in the judge’s chambers. Id. at 11. White later acknowledged to an investigator in the misconduct inquiry that
he had misstated the matter in a filing and wished to
correct it. Ibid.
As petitioners’ Rule 60(b) submissions noted, in December 2015, the Fifth Circuit Judicial Council issued
an order of reprimand to Judge Smith, based on its finding that “in 1998 Judge Smith made inappropriate and
unwanted physical and non-physical sexual advances toward a court employee” and failed to “understand the
gravity of such inappropriate behavior and the serious
effect that it has on the operations of the courts.” Vialva
60(b) Mot. App. 45, at 1-2 (order). The Council also reprimanded Judge Smith for allowing “false factual assertions to be made in response to the [misconduct] complaint” and being “late[]” in his admissions. Id. at 2. For
those actions, the Council suspended the assignment of
new cases to Judge Smith for one year and directed him
to complete sensitivity training, but it determined that
14
Judge Smith’s actions did “not warrant a recommendation for impeachment.” Ibid.; cf. Bernard 60(b) Mot.,
Ex. B (order assigning new cases).
The Judicial Council also separately determined that
Judge Smith did “not follow appropriate procedures regarding recusal from cases” in which White “was representing parties in his court” and that “the informal procedure used by Judge Smith resulted in at least one
party in a case before him not being informed that opposing counsel was also representing Judge Smith.” Vialva 60(b) Mot. App. 45, at 3 & n.1. The Council directed
Judge Smith to recuse himself from any case in which
White had entered an appearance (and any future case
involving an attorney who represents the judge); and to
follow formal procedures, “rather than attempting by
informal means,” to obtain waivers of other potential
conflicts of interest. Id. at 3.
Petitioners’ Rule 60(b) submissions also noted that
in July 2016, on Clevenger’s petition for review, a
United States Judicial Conference committee determined that it was unable to complete its review because
it lacked findings on all relevant matters. Vialva 60(b)
Mot. App. 45, at 4-5 (committee decision). The committee noted that Clevenger believed the 1998 incident was
not an isolated one, and that Clevenger had submitted
“ ‘the names of witnesses to other alleged incidents
wherein Judge Smith sexually harassed women in the
courthouse,’ ” “rais[ing] the question whether there was
a pattern and practice of such behavior.” Id. at 6-7. Because the Fifth Circuit Judicial Council had not made
findings on those “additional allegations,” the committee remanded the matter for additional investigation
and findings. Id. at 7. But when Judge Smith retired in
September 2016, the Fifth Circuit determined that his
15
retirement rendered unnecessary further action on the
misconduct complaint. Id. at 13.
c. The district court (Yeakel, J.) dismissed petitioners’ Rule 60(b) motions for lack of jurisdiction as uncertified “successive Section 2255 motions.” Pet. App.
21a-22a; see id. at 15a-22a. Under Section 2255(h), “[a]
second or successive [Section 2255] motion must be certified as provided in [S]ection 2244 by a panel of the appropriate court of appeals.” 28 U.S.C. 2255(h); see
28 U.S.C. 2244(b)(3)(C).
The district court explained that although petitioners framed their motions as “an attack on a procedural
defect in prior habeas proceedings”—i.e., “the denial of
‘meaningful review of potentially meritorious claims’ by
both the district court and Fifth Circuit”—petitioners’
arguments were “substantive rather than procedural,”
as reflected by their reargument of the “merits” of “numerous constitutional claims” from their Section 2255
motions. Pet. App. 20a-21a & n.3. The district court
accordingly determined that petitioners’ motions reflected “disagree[ment] with the result of the previous
proceedings” and ultimately constituted “successive
Section 2255 motions.” Id. at 21a. The court declined
to issue a COA, because “reasonable jurists could not
debate the denial or dismissal of [petitioners’] motions
on substantive or procedural grounds.” Id. at 22a.
4. The court of appeal likewise denied COAs. Pet.
App. 1a-14a. The court determined that “jurists of reason could not debate that the district court was correct
to construe the petitioners’ [Rule 60(b) motions] as successive motions under Section 2255.” Id. at 13a; see id.
at 5a-6a.
The court of appeals explained that it applies this
Court’s decision in Gonzalez v. Crosby, supra, about the
16
permissibility of Rule 60(b) motions in the context of
state habeas applications to the analogous context of
“successive Section 2255 motions” under 28 U.S.C.
2255(h). Pet. App. 6a-7a & n.3. And the court recognized that, under Gonzalez, “a Rule 60(b) motion is appropriate” if it “challenges ‘not the substance of the federal court’s [prior] resolution of a claim on the merits
but some defect in the integrity of the federal habeas
proceedings.’ ” Id. at 7a (quoting Gonzalez, 545 U.S. at
532). The court noted, however, that if a Rule 60(b) motion “ ‘attacks the federal court’s previous resolution of
a claim on the merits,’ ” it is properly construed “as a
successive habeas petition.” Ibid. (quoting Gonzalez,
545 U.S. at 532).
The court of appeals thus agreed with petitioners
that “Rule 60(b) motions can legitimately ask a court to
reevaluate already-decided claims—as long as the motion credibly alleges a non-merits defect in the prior habeas proceedings.” Pet. App. 10a. But the court determined that “jurists of reason could not debate” that petitioners’ Rule 60(b) motions were properly deemed successive Section 2255 motions, because petitioners attempted to use “unrelated misconduct by Judge Smith”
that “cast no doubt on th[e] [Section 2255] proceedings’
integrity” to pave the way for “substantive ‘attacks [on]
the federal court’s previous resolution’ ” of their Section
2255 claims. Id. at 13a (citation omitted; last set of
brackets in original); see id. at 10a-13a.
With respect to petitioners’ “invocation of defective
procedure” to “attack the integrity of their prior habeas
proceedings” before Judge Smith, the court of appeals
reasoned that petitioners’ Rule 60(b) motions “rest[]
substantially on a merits-based challenge.” Pet. App.
10a. Petitioners’ evidence about Judge Smith, the court
17
stated, “does not credibly implicate the procedural integrity” of prior proceedings in their cases: “Evidence
that Judge Smith engaged in unrelated misconduct in
1998” or “neglected certain recusal requirements during the 2014 misconduct investigation” raises no “inference of defects in the habeas proceedings at issue here.”
Ibid. Petitioners thus “offer no evidence—beyond gross
speculation—that Judge Smith was, as [petitioners] repeatedly assert, ‘impaired’ or ‘unfit’ to oversee” their case.
Id. at 10a-11a.
The court of appeals stated that petitioners instead
“clearly [presented] merits-based attacks,” because
they “spent much of their Rule 60(b) motions rearguing
the merits of [their Section 2255] claims” in an effort to
“point to errors allegedly committed by Judge Smith”
and thereby “to link Judge Smith’s misconduct to their
own proceedings.” Pet. App. 9a, 11a. That effort “to
transform these previously unsuccessful merits-based
claims into a claim of procedural defect,” the court reasoned, was the “sort of ‘attack [on] the federal court’s
previous resolution of . . . claims[s] on the merits” that
Gonzalez rejects as a successive habeas petition. Id. at
12a (quoting Gonzalez, 545 U.S. at 532) (brackets in
original).
The court of appeals also found no basis for a COA
on petitioners’ claim that the court of appeals had “misapplied the COA standard” when in 2014 it declined to
issue a COA in their Section 2255 proceedings. Pet.
App. 12a-13a. The court addressed petitioners’ reliance
on Buck v. Davis, 137 S. Ct. 759 (2017), which reversed
“a different panel of [the Fifth Circuit]” for “failing to
limit its COA review” to “whether the district court’s
decision was ‘reasonably debatable.’ ” Pet. App. 12a (quoting Buck, 137 S. Ct. at 774). The court observed that
18
petitioners “fail to explain how the error present in
Buck was also present in this court’s application of the
COA standard in their proceedings.” Ibid. Moreover,
the court continued, petitioners’ contention was “ ‘fundamentally substantive’ ” because “[petitioners] merely
argue that the district court’s disposition of their Section 2255 motions was, in fact, debatable by jurists of
reason,” an argument that petitioners made in prior
proceedings and presented in their 2015 certiorari petitions, “which were denied by the Supreme Court.” Id.
at 12a-13a (citation omitted).
ARGUMENT
Petitioners contend (Vialva Pet. 6-11, 15-18; Bernard
Pet. 14-15, 18-28) that the court of appeals erred in
denying COAs to authorize appeals from the denial of
their Rule 60(b) motions, which sought to vacate the district court’s 2012 judgment denying Section 2255 relief.
Petitioners first argue (Vialva Pet. 6-15; Bernard Pet.
14-18) that the court applied an erroneous standard under Section 2255(h), which purportedly conflicts with
that used by other courts of appeals, for distinguishing
between a permissible Rule 60(b) motion and one that
constitutes a successive Section 2255 motion. Petitioners further argue (Vialva Pet. 15-18; Bernard Pet. 18-28)
that the decision below applied an incorrect COA standard. The court of appeals correctly denied petitioners’
applications for COAs, and its decision does not conflict
with any decision of this Court or any other court of appeals. Moreover, certiorari would in any event be unwarranted for the additional reason that petitioners have
failed to make the essential showing necessary for a
COA, namely, a substantial showing that they were denied a “constitutional right” in their Section 2255 proceedings. No further review is warranted.
19
1. The court of appeals correctly denied petitioners’
COA applications because jurists of reason would not
debate that petitioners’ Rule 60(b) motions constituted
successive Section 2255 motions. Pet. App. 6a-13a. Section 2255(h) prohibits a federal prisoner from filing a
“second or successive [Section 2255] motion,” unless the
motion is “certified as provided in [S]ection 2244 by a
panel of the appropriate court of appeals.” 28 U.S.C.
2255(h). Petitioners contend (Vialva Pet. 7-11; Bernard
Pet. 14-15) that the court of appeals’ application of Section 2255(h) is contrary to this Court’s decision in Gonzalez v. Crosby, 545 U.S. 524 (2005). Petitioners are
incorrect. Although the government has not disputed
that Gonzalez’s approach to Rule 60(b) motions in the
context of state habeas proceedings applies to the Section 2255(h) context in this case, the court of appeals’
decision is consistent with Gonzalez.
a. Rule 60(b) applies in proceedings under Section
2254 or Section 2255 only to the extent it is “not inconsistent with” governing statutes or rules. Rule 12, Rules
Governing Section 2254 Cases; Rule 12, Rules Governing Section 2255 Proceedings; see Gonzalez, 545 U.S. at
529. The statutory prohibitions against uncertified successive habeas corpus applications, 28 U.S.C. 2244(b),
and Section 2255 motions, 28 U.S.C. 2255(h), thus preclude a Rule 60(b) motion that constitutes—or is “similar enough” to—a habeas application or Section 2255
motion. See Gonzalez, 545 U.S. at 529, 531.
In Gonzalez, the Court addressed the circumstances
in which a Rule 60(b) motion constitutes a successive
“ ‘habeas corpus application’ as [28 U.S.C. 2244(b)] uses
that term.” Gonzalez, 545 U.S. at 530. The Court observed that Section 2244(b)’s text shows that a habeas
corpus application is a filing that contains “one or more
20
‘claims,’ ” i.e., one or more “federal bas[e]s for relief ”
from a judgment in a criminal case. Ibid. The Court
then reasoned that “[u]sing Rule 60(b) to present new
claims for relief ” would impermissibly circumvent Section 2244(b)’s prohibition against successive habeas applications, even if such “claims [are] couched in the language of a true Rule 60(b) motion.” Id. at 531. If “a
Rule 60(b) motion attacks, 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,” such as fraud on the court, the motion does not
present a prohibited “ ‘claim.’ ” Id. at 532 & n.5. But a
Rule 60(b) motion, for instance, will “bring a ‘claim’ ”
and thus constitute a successive habeas application “if
it attacks the federal court’s previous resolution of a
claim on the merits, since alleging that the court erred
in denying habeas relief on the merits is effectively
indistinguishable from alleging that the movant is,
under the substantive provisions of the statutes, entitled to habeas relief.” Id. at 532.
As the lower courts correctly recognized in this case,
petitioners’ Rule 60(b) motions sought to revisit the
merits. The motions’ nominal assertion of a defect in
the integrity of petitioners’ Section 2255 proceedings
was unsubstantiated; the motions instead relied on generalized allegations of impropriety that they tried to
connect to their case solely through an argument that
the district court had made reversible errors in its
adjudication of that case. In other words, petitioners
presented “claims couched in the language of a true
Rule 60(b) motion” but, as Gonzalez teaches, their motions constituted successive motions for collateral relief
because they sought to “revisit[]” the merits of the district court’s denial their Section 2255 claims as the
21
means for establishing a nominal procedural defect.
Gonzalez, 545 U.S. at 531, 534.
The court of appeals’ Section 2255(h) analysis properly focused on two feature of petitioners’ contentions
about Judge Smith. Pet. App. 10a-13a. First, “[a]lthough
[petitioners’ Rule 60(b) motions] purport[ed] to attack
the integrity of their prior habeas proceedings” by asserting that the judge was unfit in 2012 when he denied
their Section 2255 claims, petitioners failed to proffer
“[any] evidence—beyond gross speculation—that Judge
Smith was * * * ‘impaired’ or ‘unfit’ ” at the time. Id. at
10a; see id. at 13a. Second, petitioners then attempted
to “link” their limited evidence of prior “unrelated misconduct by Judge Smith” to their Section 2255 proceedings by presenting “merits-based attacks” on Judge
Smith’s 2012 decision. Id. at 11a, 13a. But because petitioners’ evidence “cast no doubt on [the Section 2255]
proceedings’ integrity” and because petitioners sought
to fill the gaps in that showing by renewing “substantive” attacks on the merits of the district court’s Section
2255 decision, jurists of reason would not debate that
their Rule 60(b) motions reflected successive Section
2255 motions. Id. at 13a.
b. Petitioners continue to assert that they proffered
“compelling evidence” that Judge Smith was “significantly impaired and unfit” to adjudicate their case. Vialva Pet. 9; see Bernard Pet. 3 (asserting that the judge
had a “severe drinking problem” rendering him “so
unfit” that he canceled court obligations). But the court
of appeals correctly determined that their evidence did
“not credibly implicate the procedural integrity” of the
proceedings “at issue here.” Pet. App. 10a. Petitioners’
evidentiary showing confirms that conclusion.
22
Petitioners’ 24 pages of evidence principally concern
Judge Smith’s sexual harassment of a deputy clerk in
1998. See pp. 10-15, supra. The government does not
condone that improper conduct. But petitioners’ evidence of that workplace harassment does not support
any inference that Judge Smith was unfit to adjudicate
the criminal-law questions in this case when he denied
petitioners’ Section 2255 motions 14 years later in 2012.
Petitioners focus (Vialva Pet. 5-6; Bernard Pet. 3, 8)
on the deposition of the deputy clerk who was harassed
in which she indicates that, when she first met Judge
Smith in 1998, the judge may have had alcohol on his
breath and had a reputation for drinking. See pp. 11-12,
supra (discussing testimony). But the deputy clerk testified that she left her position in the courthouse in 1998,
see p. 11, supra, and petitioners have offered no evidence to link her unelaborated testimony on the point
to Judge Smith’s rejection of their Section 2255 motions
14 years later in 2012.
Petitioners emphasize (Vialva Pet. 5; Bernard Pet. 3,
8, 19) that, about two weeks after the 1998 incident of
sexual harassment, Judge Smith’s law clerk called the
deputy clerk and told her that the judge was “ ‘not functioning’ ” and “ ‘falling apart,’ ” which petitioners interpret as reflecting a drinking problem so “severe” that
the judge had to “cancel[] court obligations” and “could
not even get himself to the courthouse.” But petitioners’ evidence does not support such speculation. The
evidence shows that the deputy clerk had reported the
judge’s wrongful harassment to her supervisor. Bernard Pet. 8; see p. 11, supra. That report of harassment
undoubtedly prompted attention internally within the
court. Thus, in the same conversation in which Judge
Smith’s law clerk told the deputy clerk that the judge
23
was “falling apart,” “not functioning,” had been hospitalized, and could not “come to work,” the law clerk implored her, specifically, to “do something about” the situation and provide “some kind of closure.” Pp. 11-12,
supra. If Judge Smith’s difficulties in 1998 were the
cause of some freestanding alcohol problem, it would
have made no sense for his law clerk to view action by
the deputy clerk—who had just met the judge two
weeks earlier on the day he harassed her, see pp. 11-12,
supra—as the solution to the difficulties that the judge
was then experiencing. The deputy clerk’s testimony
makes sense only if the judge’s problems related to her
workplace-harassment complaint. And those difficulties in 1998 in the wake of the clerk’s complaint do not
reasonably suggest that the judge would have continued
to have such problems 14 years later when he denied
petitioners’ Section 2255 motions in a comprehensive
63-page order. See pp. 5-6, supra.
The balance of petitioners’ evidence likewise fails to
raise any reasonable inference that Judge Smith was
unfit to adjudicate their Section 2255 motions. The evidence shows that, after Judge Smith retained White to
represent him in the misconduct proceedings, the judge
used an informal process to disclose his attorney-client
relationship with White. See pp. 12, 14, supra. Although
that process broke down at least once and the judge presumably should have recused in such matters before being requested to do so, see p. 14, supra, those issues
provide no basis to infer that the judge was significantly
impaired and unfit to resolve petitioners’ unrelated Section 2255 motions in 2012, two years before the judicial
misconduct complaint had been filed. Likewise, petitioners’ sweeping theory of judicial incapacity in 2012
finds no support in the judge’s failure to vet and promptly
24
correct a theory included in a filing made on his behalf
in the misconduct proceedings. See pp. 12-13, supra.
Tellingly, despite their assertion that Judge Smith
was seriously impaired from 1998 through his 2012 denial of their Section 2255 motions, petitioners never offered any evidence that the judge was actually impaired
in this case or any other of the numerous cases that he
adjudicated. Cf. Pet. App. 11a (noting that petitioners’
assertions “implicate every one of Judge Smith’s decisions” in the relevant timeframe). Petitioners did not
submit even one declaration (from their own counsel or
others in a position to observe the judge) indicating that
Judge Smith was inebriated or unable to discharge his
judicial duties in the context of any case. Instead, as
the court of appeals explained, petitioners offered nothing “beyond gross speculation.” Id. at 10a.
In an effort to “link Judge Smith’s [unrelated] misconduct to their own proceedings,” petitioners’ motions
make “merits-based attacks” on Judge Smith’s 2012 decision denying their Section 2255 claims. Pet. App. 11a;
see pp. 9-10 & n.2, supra (discussing petitioners’ merits
arguments with hundreds of pages of supporting exhibits). As petitioners acknowledge, their Rule 60(b) motions “argued that the merits [of the district court’s Section 2255] disposition itself, along with [the aforementioned] facts about Judge Smith’s condition and behavior, evidenced a ‘procedural defect’ ” warranting relief
from the 2012 Section 2255 judgment. Bernard Pet. 15
(emphasis altered); see Vialva Pet. 10 (admitting “point[ing] to errors and procedural irregularities in how
Judge Smith administered [petitioners’] cases” as “further evidence that Judge Smith was impaired”). In the
context of this case, where petitioners identified only
“unrelated misconduct” by Judge Smith that “cast no
25
doubt on [their own Section 2255] proceedings’ integrity,” Pet. App. 13a, the court of appeals correctly concluded that reasonable jurists would not debate that petitioners’ attempt “to revisit the federal court’s denial
on the merits of [their Section 2255] claim[s]” using arguments nominally “couched in the language of a true
Rule 60(b) motion,” Gonzalez, 545 U.S. at 531, 534,
placed their motions squarely within Section 2255(h)’s
prohibition against successive Section 2255 motions.
c. The same is true of petitioners’ Rule 60(b) contention that the court of appeals applied the wrong COA
standard in 2014. See Pet. App. 12a-13a. As an initial
matter, petitioners fail to explain how such a claim of
error by the court of appeals is properly presented under Rule 60(b) to the district court, a subordinate tribunal bound by the court of appeals’ earlier mandate. In
any event, the court of appeals correctly determined
that petitioners’ appellate-error claim did not save their
Rule 60(b) motions from being successive Section 2255
motions.
Petitioners relied on Buck v. Davis, 137 S. Ct. 759
(2017), which reversed a different decision by a different panel of the same court of appeals for applying an
incorrect COA standard. Pet. App. 12a. But Buck concluded that the appellate panel in that case erred because it had expressly framed its determination in meritsbased terms and thus “reached [its] conclusion only after essentially deciding the case on the merits.” Buck,
137 S. Ct. at 773 (stating that the panel determined that
Buck failed to show “ ‘extraordinary circumstances that
would permit relief under [Rule] 60(b)(6),’ ” and that the
“balance of the [panel’s] opinion reflect[ed] the same approach”) (citation omitted). In this case, however, the
court of appeals’ 2014 decision not only articulated the
26
correct COA standard, it also repeatedly and consistently focused on the question whether reasonable jurists would debate the disposition of petitioners’ Section
2255 claims. See pp. 7-8, supra. Petitioners have never
“explain[ed] how the error present in Buck [i]s also present” here. Pet. App. 12a. 4
Petitioners instead argued that the “district court’s
disposition of their Section 2255 motions was, in fact,
debatable by jurists of reason.” Pet. App. 12a. But that
contention—which petitioners raised in their prior certiorari petitions that this Court denied in 2016—is a
simple assertion of appellate error that is “fundamentally substantive,” id. at 13a (citation omitted). Petitioners thus “plainly s[ought] ‘a second chance’ ” to relitigate their Section 2255 claims rather than identify a
defect in the integrity of their proceedings. Ibid. (citation omitted).
d. Vialva contends (Pet. 6-11) that the court of appeals incorrectly applied an “outcome-based rule”
under which a Rule 60(b) motion “presenting purely
procedural arguments” is deemed a successive Section
2255 motion “if its ultimate outcome might be to require
a court to re-examine previously[ ]dismissed claims,”
Vialva Pet. 7. That is incorrect. The court of appeals
itself emphasized that “Rule 60(b) motions can legitimately ask a court to reevaluate already-decided
claims” if they do so by “credibly alleg[ing] a non-merits
The Fifth Circuit has repeatedly granted COAs, including in at
least four capital cases in just the year immediately after its 2014
decision in this case. See Clark v. Stephens, 627 Fed. Appx. 305
(2015) (per curiam) (Rule 60(b) appeal); Butler v. Stephens, 600 Fed.
Appx. 246 (2015) (per curiam) (same); see also Roberson v. Stephens,
614 Fed. Appx. 124 (5th Cir. 2015) (per curiam); Eldridge v. Stephens, 608 Fed. Appx. 289 (5th Cir. 2015) (per curiam).
4
27
defect in the prior habeas proceedings.” Pet. App. 10a.
But the court explained that “the question before [it]”
was “whether [petitioners] have actually alleged procedural defects cognizable under Rule 60(b).” Ibid. The
court merely determined that they did not, because petitioners’ evidence did “not credibly implicate the procedural integrity” of the proceedings and, instead, their
“invocation of defective procedure rest[ed] substantially
on a merits-based challenge.” Ibid. That decision does
not suggest that a federal prisoner has “no remedy for
allegations of serious judicial misconduct.” Vialva Pet.
11. It merely determines that a prisoner cannot relitigate the merits of Section 2255 claims as a means of indirectly suggesting a procedural defect in his proceedings.
e. Petitioners contend (Vialva Pet. 12-15; Bernard
Pet. 15-18) that the Section 2255(h) decision of the court
of appeals conflicts with decisions in other courts of appeals. No such conflict exists.
The Tenth Circuit has observed that nothing is
“improper” about a Rule 60(b) motion whose “success
* * * would ultimately lead to a claim for relief under
[Section] 2255.” In re Pickard, 681 F.3d 1201, 1206
(2012). That is because a Rule 60(b) “movant is always
seeking in the end to obtain [Section] 2255 relief ” and
may properly do so by showing that “he did not get a
fair shot in the original [Section] 2255 proceeding because its integrity was marred by a flaw that must be
repaired in further proceedings.” Ibid. Although Vialva contends (Pet. 13) that Pickard “cannot be reconciled” with the decision of the court of appeals in this
case, the court of appeals here agreed with Pickard’s
relevant observation: “Rule 60(b) motions can legitimately ask a court to reevaluate already-decided claims.”
28
Pet. App. 10a. Beyond that, Pickard does not speak to
this case, because petitioners’ Rule 60(b) motions did
not merely seek ultimate relief from a Section 2255
judgment. They instead attempted to obtain that relief
by relitigating the merits of petitioners’ Section 2255
claims, asserting substantive errors as purported evidence of a nominally procedural defect.
The other decisions petitioners cite (Vialva Pet. 14;
Bernard Pet. 16-17) are equally inapposite. They
simply reflect that Section 2244(b) and Section 2255(h)
do not preclude legitimate Rule 60(b) motions based on
defects in the integrity of prior proceedings where such
motions do not themselves depend on relitigating the
merits of habeas/Section 2255 claims. See Williams v.
Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007) (per
curiam) (concluding that Rule 60(b) claim alleging a failure to “permit[] further briefing” on an issue, which was
“confined to a nonmerits aspect of the proceedings,”
was not a successive habeas application under Section
2244(b)); Zakrzewski v. McDonough, 490 F.3d 1264,
1266-1267 (11th Cir. 2007) (per curiam) (concluding that
Rule 60(b) motion alleging “fraudulent representations” by prisoner’s prior counsel constituting “fraud on
the court,” which did “not assert or reassert allegations
of error in [the prisoner’s] state convictions,” was not a
successive Section 2254 habeas application); United
States v. Winestock, 340 F.3d 200, 208 (4th Cir.) (determining that motion asserting claims “relate[d] to the validity of the underlying criminal judgment” was a successive Section 2255 motion), cert. denied, 540 U.S. 995
(2003). 5
Bernard discusses (Pet. 16-17) unpublished dispositions from
other courts of appeals involving Rule 60(b) motions alleging procedural defects. Those decisions are consistent with the disposition in
5
29
f. Finally, no reason exists to hold the petitions in
this case pending the disposition of Banister v. Davis,
No. 18-6943 (argued Dec. 4, 2019). Banister presents
the question whether, and under what circumstances, a
filing styled as a motion under Federal Rule of Civil
Procedure 59(e) may in fact be a second or successive
habeas application. The petitioner in that case does not
raise claims of the sort at issue here, and this Court’s
disposition of Banister will therefore have no bearing
on the resolution of this case.
2. Contrary to petitioners’ contentions, the court of
appeals correctly expressed and applied the COA standard in this case. Pet. App. 5a-6a, 13a. Petitioners do not
identify any error in the articulation of the COA standard in the decision below. Vialva Pet. 17-18; Bernard
Pet. 18-28. Vialva instead states (Pet. 17) that the court
“inverted the statutory order of operations” by “deciding the merits of [his Rule 60(b)] motion without having
first granting a COA.” Bernard contends (Pet. 21-27)
that because this Court has previously reversed the
same court of appeals for failing to apply the proper
COA standard, it should do so again here. Both contentions lack merit and warrant no further review.
First, the court of appeals correctly recognized that
“the only question” at the COA stage is “whether the
this case. But even if they were not, the unpublished dispositions
are not binding in future cases, even in the same court of appeals.
See Fassbender v. Correct Care Solutions, LLC, 890 F.3d 875, 889
(10th Cir. 2018); Sun Life Assurance Co. of Can. v. Jackson, 877 F.3d
698, 702 (6th Cir. 2017), cert. denied, 138 S. Ct. 2624 (2018); Sharrieff v. Cathel, 574 F.3d 225, 229 n.5 (3d Cir. 2009), cert. denied,
558 U.S. 1120 (2010); Hogan v. Carter, 85 F.3d 1113, 1118 (4th Cir.)
(en banc), cert. denied, 519 U.S. 974 (1996). They therefore do not
reflect a division of authority that might warrant certiorari.
30
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.’ ” Pet. App. 5a (citation omitted). The
court emphasized that its inquiry was “ ‘limited’ and ‘not
coextensive with a merits analysis,’ ” such that it could
“ ‘not rule on the merits of [petitioners’] case.’ ” Ibid.
(emphases added; citations omitted). “In other words,”
the court stated, it “must make only ‘an initial determination whether a claim is reasonably debatable.’ ” Id. at
6a (citation omitted). The court did exactly that: It
“conclude[d] that the issue [whether petitioners’ Rule
60(b) motions were successive Section 2255 motions] is
not reasonably debatable.” Ibid.
Vialva suggests that the court of appeals engaged in
a merits inquiry because it stated that petitioners
offered “no evidence” that Judge Smith was impaired
and thus did not “credibly implicate the procedural
integrity” of the proceedings. Vialva Pet. 17 (quoting
Pet. App. 10a). But the court’s description of petitioners’ evidence was not a merits ruling. The court merely
described the nature of petitioners’ evidence and the
failure of that evidence to raise any inference that
Judge Smith was impaired when he denied petitioners’
Section 2255 motions. See Pet. App. 10a (evidence
raised no “inference of defects in the habeas proceedings at issue here”). Because that evidence involved
“unrelated misconduct by Judge Smith” that “cast no
doubt on [their] proceedings’ integrity,” and because
petitioners then made “substantive” attacks on the
“ ‘merits’ ” of the 2012 denial of their Section 2255 claims
to “link” their assertions of judicial impairment to the
31
Section 2255 proceedings in their case, the court determined that “jurists of reason could not debate that the
district court was correct to construe the petitioners’ filings as successive motions under Section 2255.” Id. at
13a (citation omitted).
Second, the fact that this Court has reversed other
Fifth Circuit panels for applying an incorrect COA
standard in different cases fails to suggest any error in
this case. Bernard identifies (Pet. 21-27) three decisions of this Court that predate the appellate decision
in this case. Not only do those decisions not suggest any
error in the later decision here, but the most recent of
them (Buck v. Davis) the court of appeals expressly and
repeatedly considered, Pet. App. 5a, 12a. See also id.
at 5a-6a (following Miller-El v. Cockrell, 537 U.S. 322
(2003)).
3. Finally, even if petitioners had presented a question that might otherwise merit review, review would be
unwarranted because they have not attempted to make
the full showing necessary for a COA. A COA may issue
“only if ” the prisoner has made “a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-484
(2000) (explaining that the denial of a nonconstitutional
“federal” right is insufficient). And because the district
court denied relief on “procedural grounds,” petitioners
needed to show not only that “ ‘jurists of reason would
find it debatable whether the district court was correct
in its procedural ruling’ ” that their motions were successive Section 2255 motions, but also that “ ‘jurists of
reason would find it debatable whether [their motions]
state[d] a valid claim of the denial of a constitutional
right.’ ” Gonzalez v. Thaler, 565 U.S. 134, 140-141 (2012)
(quoting Slack, 529 U.S. at 484). Petitioners have
32
failed—in the court of appeals and this Court—to make
any substantial showing of the denial of a constitutional
right in their Section 2255 proceedings. That alone provides a sufficient reason to deny certiorari.
In the court of appeals, Bernard correctly recognized that, in addition showing that the “district court’s
procedural ruling” was debatable, he needed to make a
“ ‘substantial showing of the denial of a constitutional
right,’ ” which, in this case, he identified as a purported
denial of “the due process that should have attached to
his [Section] 2255 proceedings.” Bernard C.A. Br. 16
(citation omitted). But Bernard then focused only on
the district court’s purported procedural error in characterizing his Rule 60(b) motion a successive Section
2255 motion under Section 2255(h). Id. at 18-25. Like
Bernard, Vialva addressed only whether reasonable jurists would debate the district court’s procedural ruling
that petitioners’ Rule 60(b) motions were a successive
Section 2255 motions prohibited by Section 2255(h).
Vialva C.A. Br. 15; see id. at 8-15. Neither developed
any constitutional (presumably, due process) argument
to warrant a COA. And in this Court, petitioners again
focus on the district court’s procedural Section 2255(h)
ruling. See Vialva Pet. 6-11; Bernard Pet. 14-15.
Petitioners have argued that the district court erred
under Rule 60(b)(6), because “extraordinary circumstances” purportedly exist to warrant relief from the
Section 2255 judgment. See pp. 8-9, supra. But not
every error that might serve as the basis for relief under a rule of civil procedure is a violation of constitutional due process. Rule 60(b) simply embodies a district court’s “inherent and discretionary power * * * to
set aside a judgment whose enforcement would work
inequity.” Plaut v. Spendthrift Farm, Inc., 514 U.S.
33
211, 234 (1995). More would be required to identify a
due-process violation. Petitioners’ failure to develop
any argument on whether reasonable jurists would debate whether they were denied constitutional due process is thus a sufficient reason to conclude that petitioners failed to justify COAs.
CONCLUSION
The petitions for writs of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
JOSHUA K. HANDELL
Attorney
DECEMBER 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.