Opposition Brief — Julius Omar Robinson, Petitioner v. United States

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No. 19-5535

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

JULIUS OMAR ROBINSON, PETITIONER

UNITED STATES OF AMERICA

(CAPITAL CASE)

_______________

ON PETITION FOR A WRIT 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

SCOTT A.C. MEISLER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

(CAPITAL CASE)

QUESTIONS PRESENTED

Whether the courts below correctly treated petitioner’s

motion invoking Federal Rule of Civil Procedure 60(b)(6) as a

second or successive collateral attack requiring authorization

under 28 U.S.C. 2255(h).

Whether,

petitioner’s

motion

was

proper

Rule

60(b)(6) motion, petitioner is entitled to relief on his claim

that

the

omission

from

federal

indictment

statutory

aggravating factors that rendered him eligible for the death

penalty is a structural error.

Whether,

petitioner’s

motion

was

proper

Rule

60(b)(6) motion, petitioner is entitled to relief on his claim

that the district court erred in denying his motion, filed more

than four years after his trial, for leave to interview jurors to

develop a claim that the jury was racially biased.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (N.D. Tex.):

United States v. Robinson, No. 00-cr-260 (June 5, 2002)

Robinson v. United States, No. 05-cv-756 (Nov. 7, 2008)

United States Court of Appeals (5th Cir.):

United States v. Robinson, No. 02-10717 (Apr. 14, 2004)

Robinson v. United States, No. 09-70020 (June 8, 2010)

United States v. Robinson, Nos. 18-10732, 18-70022 (Mar. 8,

2019)

United States Supreme Court

Robinson v. United States, No. 04-5930 (Nov. 29, 2004)

Robinson v. United States, No. 10-8146 (Oct. 3, 2011)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 19-5535

JULIUS OMAR ROBINSON, PETITIONER

UNITED STATES OF AMERICA

(CAPITAL CASE)

_______________

ON PETITION FOR A WRIT 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. 1-23) is

reported at 917 F.3d 856.

The opinion of the district court (Pet.

App. 23-33) is not reported in the Federal Supplement but is

available at 2018 WL 3046255.

A prior opinion of the court of

appeals is reported at 367 F.3d 278.

JURISDICTION

The judgment of the court of appeals was entered on March 8,

2019.

On August 9, 2019, Justice Alito extended the time within

which to file a petition for a writ of certiorari to and including

August 5, 2019, and the petition was filed on that date.

The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial, petitioner was convicted on one count

of engaging in a continuing criminal enterprise that included the

murder of three persons, in violation of 21 U.S.C. 848(e) (2000)

(Count 3); three counts of using and discharging a firearm during

and in relation to a drug trafficking crime, causing the death of

another person, in violation of 18 U.S.C. 924(j) (Counts 7, 11,

15); two counts of conspiracy to distribute drugs, in violation of

U.S.C.

841(b)(1)(B)

(1998)

and

U.S.C.

846

(Count

1),

841(b)(1)(A) (1998) and 21 U.S.C. 846 (Count 2); nine counts of

possessing a firearm in furtherance of, or using and brandishing

a firearm during and in relation to, a drug trafficking offense,

in violation of 18 U.S.C. 924(c)(1)(A)(i) and (C)(i) (Counts 4, 8,

17), 18 U.S.C. 924(c)(1)(A)(ii) (Counts 5, 9, 13), and 18 U.S.C.

924(c)(1)(C)(iii) (1998) (Counts 6, 10, 14); and one count of

possessing cocaine with the intent to distribute it, in the course

of which a person was murdered, in violation of 21 U.S.C. 841(a)(1)

and (b)(1)(A) (1998), and 21 U.S.C. 848(e) (2000) (Count 12). Pet.

App. 275.

Following a penalty hearing, the jury unanimously

recommended that petitioner be sentenced to death on Counts 3, 7,

and 11, and to life imprisonment on Counts 12 and 15.

See 00-cr-

260 D. Ct. Docs. 2454 (Nov. 7, 2008), 2473 (July 10, 2009).

district court sentenced petitioner accordingly.

The

Pet. App. 276-

277.

The court of appeals affirmed, 367 F.3d 278, and this Court

denied a petition for a writ of certiorari, 543 U.S. 1005 (2004).

In 2007, petitioner moved under 28 U.S.C. 2255 to vacate his

conviction and sentence.

2007).

00-cr-260 D. Ct. Doc. 2422 (July 2,

The district court denied relief, and declined to issue a

certificate of appealability (COA).

petitioner’s

application

for

The court of appeals denied

COA,

and

this

Court

denied

petition for a writ of certiorari, 565 U.S. 827 (2011).

In 2018, petitioner filed a motion for relief from judgment

under Federal Rule of Civil Procedure 60(b).

Pet. App. 34-62.

The district court found that the motion qualified as a second or

successive motion for relief under 28 U.S.C. 2255 and transferred

the motion to the court of appeals for consideration as a request

for authorization under 28 U.S.C. 2255(h) to file such a motion.

Pet. App. 24-33.

The court of appeals denied authorization and

dismissed petitioner’s appeal for lack of jurisdiction.

Id. at 1-

21.

From 1996 to 2000, petitioner was a wholesale drug dealer

operating in five States.

367 F.3d at 282.

During the course of

his drug enterprise, petitioner personally murdered at least two

people and was part of a conspiracy to murder a third.

Id. at

282-283.

On December 2, 1998, two of petitioner’s associates spotted

Johnny Lee Shelton at a Dallas night club.

367 F.3d at 282.

They

mistook Shelton for another man, whom petitioner believed was

responsible for a carjacking that had cost petitioner $30,000.

Ibid.

Petitioner arrived at the club as Shelton was leaving;

petitioner

and

his

associates

followed

Shelton

onto

local

highway.

As they approached Shelton’s car, petitioner yelled

“that’s him,” leaned out the window, and opened fire on Shelton

with an AK-47 assault rifle.

Ibid.

A large number of bullets

ricocheted off the road and adjoining concrete walls.

289 n.17.

Id. at 282,

Shelton was struck in the stomach and later died.

Id.

at 282.

In May 1999, petitioner purchased a brick of what he thought

was cocaine but was actually a block of wood covered in sheetrock.

367 F.3d at 282.

The next day, petitioner and an associate went

to the home of Juan Reyes, whose only connection to the fraudulent

drug transaction was that he was the brother-in-law of the seller.

Ibid.

Petitioner and his associate opened fire with automatic

weapons on Reyes and his two companions, Isaac Rodriguez and

Nicholas Marques.

Id. at 282-283.

Reyes fell to the ground, and

petitioner and his associate then shot him at least nine times

from

distance

less

than

five

feet,

killing

him.

Ibid.

Rodriguez attempted to flee and was shot in the back and leg.

Ibid.

Petitioner and his associate also fired at Marques as he

drove away, riddling his car with bullets.

Ibid.

The drug conspiracy also led to the murder of a third person,

Rudolfo Resendez, at the hands of two of petitioner’s associates.

367 F.3d at 283.

Petitioner was indicted on and found guilty by a jury of

the counts described above.

See p. 2, supra.

death on three of those counts.

He was sentenced to

His conviction and sentence were

affirmed on direct review.

The penalty phase of petitioner’s trial was conducted

pursuant to the Federal Death Penalty Act of 1994 (FDPA), 18 U.S.C.

3591 et seq.

With respect to the Shelton and Reyes murders, the

jurors unanimously found beyond a reasonable doubt that petitioner

acted

intentionally

(18

U.S.C.

3591(a)(2))

and

that

several

statutory aggravating factors existed, including that petitioner

knowingly created a grave risk of death to persons in addition to

the victim (18 U.S.C. 3592(c)(5)); committed the murders after

substantial planning and premeditation (18 U.S.C. 3592(c)(9));

murdered Reyes in an especially heinous, cruel, or depraved manner

in that the murder involved torture or serious physical abuse (18

U.S.C. 3592(c)(6)); and attempted to kill others as part of the

episode involving the murder of Reyes (18 U.S.C. 3592(c)(16)).

See 00-cr-260 D. Ct. Doc. 2432-2, at 2-3, 10-11, 26-27, 33-34.

The jury also found, unanimously and beyond a reasonable doubt,

that petitioner presented a future danger to the lives and safety

of others.

Id. at 4, 12, 28, 35.

Weighing those aggravating factors against mitigating factors

that petitioner raised during the sentencing phase (see 18 U.S.C.

3593(e)), the jury unanimously determined that, as to Counts 3, 7,

and 11, the aggravating factors “sufficiently outweigh[ed]” the

mitigating factors to warrant a sentence of death.

Ct. Doc. 2432-2, at 9, 17, 32, 39.

00-cr-260 D.

The jury recommended a sentence

of death on those counts, and the district court imposed such a

sentence under 18 U.S.C. 3594.

On direct appeal, petitioner argued in pertinent part

that, in light of this Court’s decision in Ring v. Arizona, 536

U.S. 584 (2002), his death sentence was constitutionally invalid

because the indictment did not allege the statutory aggravating

factors that rendered him eligible for a sentence of death.

The

government acknowledged that the indictment should have alleged

the aggravating factors submitted to the jury, but argued that the

error was harmless. The court of appeals agreed and affirmed

petitioner’s conviction and sentence.

The

court

appeals

explained

367 F.3d at 283-289.

that

“the

absence

indictment on the aggravating factors used to justify a death

sentence is not structural error and is susceptible to harmless

error review.”

367 F.3d at 286.

The court observed that this

Court in Neder v. United States, 527 U.S. 1, 8 (1999), had not

included the failure of the grand jury to find a sentence-enhancing

fact

among

errors.”

the

limited

class

cases

involving

367 F.3d at 285 (citation omitted).

“structural

The court of appeals

also noted the “difficult[y]” of distinguishing the error that

Neder found to be subject to harmless-error review -- failure to

instruct the jury on an element of the crime -- from the failure

to allege a statutory aggravating factor in the indictment.

Id.

at 286.

And the court additionally observed that petitioner’s

claim that the error in his case was structural was difficult to

reconcile with this Court’s holding in United States v. Cotton,

535 U.S. 625 (2002), that the omission of a sentence-enhancing

fact from the indictment in that case did not “seriously affect

the fairness, integrity, or public reputation of the judicial

proceedings.”

367 F.3d at 286.

The court of appeals explained

that “it is difficult to accept that the same error simultaneously

could be the sort of ‘structural error’ discussed in Neder” and

one that does not fundamentally affect the fairness of proceedings.

Ibid. (citation omitted).

The court of appeals then determined that the error was

harmless on the facts of this case.

The court explained that the

death penalty notice filed by the government pursuant to 18 U.S.C.

3593(a)

gave

petitioner

adequate

pretrial

notice

all

the

aggravating factors relied on by the petit jury in recommending a

death sentence.

367 F.3d at 287.

The court observed that

petitioner was not harmed by the absence of a determination by the

grand jury that any aggravating factor was supported by probable

cause

because,

“[i]n

addition

the

petit

jury’s

unanimous

findings,” the evidence supporting the existence of probable cause

was “overwhelming.”

Id. at 289.

Accordingly, the court found

that “beyond a reasonable doubt, the failure to charge those

factors in an indictment did not contribute to [petitioner’s]

conviction or death sentence.”

Ibid.

This Court denied a petition for a writ of certiorari

seeking review of the harmless-error determination. 543 U.S. 1005.

In 2006, petitioner moved under 28 U.S.C. 2255(a) to

vacate his sentence, principally asserting that (1) he received

ineffective assistance of counsel at trial and on direct appeal

and (2) that his conviction violated the Equal Protection Clause

on the theory, inter alia, that the prosecution struck jurors based

on race in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

00-cr-260 D. Ct. Doc. 2279 (Nov. 29, 2005).

While the Section

2255 motion was pending in the district court, petitioner filed

two motions that are relevant here.

First,

petitioner

moved

for

permission

district court’s local rules to interview jurors.

368; see N.D. Tex. Local Crim. R. 24.1.

under

the

Pet. App. 359-

Petitioner acknowledged

that courts in the Fifth Circuit “[o]rdinarily” do not permit posttrial

access

jurors

without

“‘a

showing

illegal

prejudicial intrusion into the jury process,’” and that he could

not “make the requisite showing at th[at] time.”

Pet. App. 360

(quoting United States v. Riley, 544 F.2d 237, 242 (5th Cir. 1976),

cert. denied, 430 U.S. 932 (1977)).

Petitioner argued, however,

that the court should exercise its discretion to permit juror

interviews “given the importance of the constitutional right” to

an impartial jury and the capital nature of his case.

The district court denied petitioner’s motion.

369-372.

Ibid.

Pet. App.

The court observed that petitioner had not “state[d]

that he has any reason to suspect that his jury was actually

partial.”

Id. at 369.

And it found that under the circumstances,

petitioner’s “request appear[ed] to be nothing more than a fishing

expedition,”

id.

370,

and

granting

would

allow

him

unnecessarily to “‘ransack[] the jurors in search of some ground

* * * for a new trial,’” id. at 371 (quoting Riley, 544 F.2d at

242).

In 2007, petitioner moved to amend his Section 2255

motion to add a claim renewing his contention that the omission of

statutory aggravating factors from his indictment was a structural

error that required reversal of his death sentences.

392-394.

Pet. App.

Petitioner acknowledged that this “ground” for relief

did not “relate back” to his original Section 2255 motion under

this Court’s decision in Mayle v. Felix, 545 U.S. 644 (2005), but

he argued that leave to amend should be granted because decisions

of this Court “issued after the original habeas motion was filed

cast serious doubt on the viability of the” court of appeals’

decision on his direct appeal.

Pet. App. 392-393.

The district court denied the motion in relevant part.

App. 396-400.

Pet.

The court noted at the outset the principle that a

habeas “petitioner may not raise an issue in his motion to vacate

that has already been decided adversely to him on direct appeal,”

and observed that petitioner sought to avoid that rule by invoking

two decisions that had been released after his direct appeal:

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), and United

States v. Resendiz-Ponce, 549 U.S. 102 (2007).

Pet. App. 397.

The court explained that neither decision afforded petitioner a

basis

for

relief.

The

court

observed

that

the

decision

Gonzalez-Lopez had addressed structural error but did not involve

“any type of indictment error” and that, although the Court in

Resendiz-Ponce had granted review to consider whether the omission

of an element of a criminal offense from an indictment can be

harmless, the Court ultimately resolved the case on other grounds.

Id. at 398.

The court further explained that the decisions would

not support petitioner’s collateral attack even if they “were on

point,” because neither decision would be retroactively applicable

to cases on collateral review.

Id. at 398-399 (citing Schriro v.

Summerlin, 542 U.S. 348, 355 (2004)).

The district court later denied petitioner’s Section

2255 motion.

00-cr-260 D. Ct. Doc. 2454.

The court also denied

petitioner’s request for a COA, which did not raise either the

juror-interview issue or the defective-indictment claim as grounds

for appellate review.

00-cr-260 D. Ct. Doc. 2473.

The court of

appeals likewise denied a COA, and this Court denied a petition

for a writ of certiorari, 565 U.S. 827.

In 2018, petitioner filed a motion for relief from

judgment under Federal Rule of Civil Procedure 60(b)(6).

App. 49-51.

decision

Pet.

Petitioner argued in relevant part that this Court’s

Pena-Rodriguez

Colorado,

137

Ct.

855

(2017),

supported his earlier request for permission to interview jurors

and

that

two

other

decisions

this

Court

constituted

intervening change in the law governing “structural error” that

warranted revisiting the denial of his motion to amend his Section

2255 motion. 1

The district court determined that petitioner’s Rule 60(b)

motion constituted a second or successive motion under Section

2255 and transferred the motion to the court of appeals for

consideration as a request for authorization under 28 U.S.C.

2255(h) to file such a motion.

Pet. App. 24-33.

The court

explained that, under Gonzalez v. Crosby, 545 U.S. 524 (2005),

“[d]istrict

courts

have

jurisdiction

consider

Rule

60(b)

motions in

* * * habeas proceedings so long as the motion attacks

not the substance of the court’s resolution of the claim on the

merits,

but

proceedings.”

some

defect

Pet. App. 26.

the

integrity

the

habeas

The court determined, however, that

the juror-interview and structural-error arguments in petitioner’s

motion fell outside the bounds of a proper Rule 60(b) motion

because, “[al]though couched in terms of procedural error,” those

arguments

“are,

conviction.”

bottom,

Id. at 32.

attempting

“the

merits-based

challenges

his

Because the court understood petitioner

type

end-run

around

the

successive

Petitioner also argued that the district court and court

of appeals had applied an erroneously demanding standard in denying

him a COA following the denial of his Section 2255 motion. Pet.

App. 44-49.

Both courts below concluded that this argument

constituted a successive claim, id. at 9-11, 27-28, and petitioner

does not challenge that conclusion in this Court.

[Section 2255] petition rules that Gonzalez prohibits,” the court

transferred the motion to the court of appeals to consider whether

to authorize the filing under Section 2255(h).

Ibid.

The court of appeals agreed with the district court that

petitioner’s Rule 60(b) motion should be treated as a second or

successive Section 2255 motion, denied authorization under Section

2255(h),

and

jurisdiction.

dismissed

petitioner’s

appeal

for

lack

Pet. App. 2-21.

The court of appeals first addressed petitioner’s argument

concerning the denial of leave to interview jurors.

14.

Pet. App. 12-

The court observed that the argument was best understood as

a request “‘to re-open the proceedings for the purpose of adding’”

a new “claim related to jury impartiality,” which made it “‘the

definition of a successive claim.’”

Id. at A13 (quoting In re

Edwards, 865 F.3d 197, 204-205 (5th Cir.) (per curiam), cert.

denied, 137 S. Ct. 909 (2017)).

The court reasoned in the

alternative that, even if petitioner’s “impartial-jury claim did

not constitute a second or successive habeas petition, [the court]

would undoubtedly conclude that he fails to show” the kind of

“‘extraordinary circumstances’” needed “‘to justify the reopening

of the final judgment under Rule 60(b)(6).’”

Id. at 14 n.18

(brackets and citation omitted).

The court of appeals next determined that, while petitioner

framed his renewed claim of structural error in the indictment in

procedural terms, that claim was also a “merits-based” challenge

properly treated as successive.

Pet. App. 15-18.

The court again

reasoned in the alternative that, even if petitioner’s motion did

not qualify as second or successive, his reliance on “changes in

decisional

law”

did

not

present

the

kind

“extraordinary

circumstance” that would support reopening an earlier decision

under Rule 60(b)(6).

Having

Id. at 17 n.22.

determined

that

petitioner’s

motion

was

correctly

treated as successive, the court of appeals considered whether to

authorize petitioner’s juror-interview claim under the criteria in

Section 2255(h) and declined to do so.

Pet. App. 17-20.

The court

found it “exceedingly doubtful” that Pena-Rodriguez announced a

substantive rule of law “that applies retroactively to cases on

collateral review,” but declined to decide that issue because

petitioner had not otherwise made the “prima facie showing of

possible merit necessary

* * *

to warrant certification of his

second or successive habeas motion.”

Id. at 20.

The court

stressed in particular that, in the 17 years since his trial,

petitioner

had

“proffered

misconduct or bias.”

absolutely

evidence

juror

Id. at 20-21.

ARGUMENT

Petitioner contends (Pet. 24-30) that the courts below erred

in treating his Rule 60(b) motion as a successive collateral attack

requiring authorization by the court of appeals under 28 U.S.C.

2255(h). Petitioner further contends (Pet. 3-4, 15-23) that review

is warranted based on recent decisions of this Court that, in his

view, show he was entitled to interview the jurors from his trial

to pursue a claim of racial bias and that omission of statutory

aggravating factors from his indictment was a structural error.

Those contentions lack merit.

The court of appeals correctly

determined that petitioner’s Rule 60(b) motion challenged merits

rulings of the district court during the course of his first

Section 2255 motion and was therefore a successive motion requiring

certification under 28 U.S.C. 2255(h).

That determination does

not conflict with any decision of this Court or another court of

appeals.

And

even

that

threshold

procedural

ruling

were

incorrect, review is unwarranted because neither of petitioner’s

arguments would support relief under Rule 60(b)(6).

The petition

for a writ of certiorari should be denied.

The court of appeals correctly determined (Pet. App. 6-

17) that the district court lacked jurisdiction over petitioner’s

Rule 60(b) motion because it is a second or successive motion that

does not satisfy 28 U.S.C. 2255(h)’s requirements for successive

collateral attacks. 2

Petitioner does not suggest that the petition be held

pending the Court’s decision in Banister v. Davis, cert. granted,

No. 18-6943 (argued Dec. 4, 2019), and any such suggestion would

lack merit. Banister concerns the circumstances in which a motion

under Federal Rule of Civil Procedure 59(e) –- which is filed

during the pendency of a prisoner’s initial habeas corpus

proceedings -- can be treated as a second or successive petition.

And the claims asserted here are unlike those at issue in Banister.

Accordingly, no reasonable probability exists that the Court’s

decision in Banister would affect the proper disposition of

petitioner’s motion here.

Once a federal defendant’s conviction becomes final on

appeal, he may file a Section 2255 motion to “move the court which

imposed the sentence to vacate, set aside or correct the sentence.”

28 U.S.C. 2255(a).

The motion must “specify all the grounds for

relief available to the moving party.” Rules Governing Section

2255 Proceedings for the United States District Courts 2(b)(1).

Under provisions enacted as part of the Antiterrorism and

Effective

Death

Penalty

Act

1996

(AEDPA),

any

“second

successive motion” for relief under Section 2255 must be certified

by a panel of the court of appeals.

18 U.S.C. 2255(h).

The court

must certify that the motion raises a claim involving “(1) newly

discovered evidence that, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found

the

movant

guilty

the

offense;

(2)

new

rule

constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable.”

district

successive

court

lacks

motion

jurisdiction

absent

such

Ibid.

second

See

Burton

consider

certification.

Stewart, 549 U.S. 147, 153 (2007) (per curiam) (finding similar

authorization

requirement

for

second

successive

collateral

attacks on state conviction to be jurisdictional); see also, e.g.,

United States v. Patton, 309 F.3d 1093, 1094 (8th Cir. 2002) (per

curiam).

“[T]he

* * *

denial of an authorization by a court of

appeals to file a second or successive” motion is not subject to

further review.

28 U.S.C. 2244(b)(3)(E).

Accordingly,

unsuccessful

where

Section

2255

defendant

motion,

has

the

already

district

filed

court

cannot

consider any subsequent motion for Section 2255 relief on new

claims or through relitigation of the merits of the previously

rejected claims without precertification by the court of appeals.

See Gonzalez v. Crosby, 545 U.S. 524, 529-530 (2005). 3

That is

true even where the federal prisoner frames his request to the

district court as a motion under Rule 60(b) for relief from the

court’s earlier judgment denying Section 2255 relief, rather than

as a new, freestanding Section 2255 motion.

See ibid.

Court

that

has

explained,

Rule

60(b)

motion

As this

attacks

the

“substance of the federal court’s resolution of a claim on the

merits” and “asks for a second chance to have the merits determined

favorably”

second

successive

purposes of AEDPA’s relitigation bar.

request

for

relief

for

545 U.S. at 532 & n.5.

Precertification is therefore required for any Rule 60(b) motion

that asserts a new ground for relief or “asserts that a previous

In Gonzalez, the Court “consider[ed] only the extent to

which Rule 60(b) applies to habeas proceedings under 28 U.S.C.

§ 2254, which governs federal habeas relief for prisoners

convicted in state court.” 545 U.S. at 529 n.3. The courts of

appeals, however, have concluded that Gonzalez’s reasoning applies

equally to a federal prisoner’s motion for collateral relief under

Section 2255, see Gilbert v. United States, 640 F.3d 1293, 1323

(11th Cir. 2011) (en banc) (collecting cases), cert. denied, 565

U.S. 1116 (2012), and petitioner does not dispute that Gonzalez

applies in Section 2255 cases.

ruling regarding one of those grounds was in error.”

Id. at 532

n.4.

By contrast, a Rule 60(b) motion is not treated as a second

or successive habeas motion if it attacks “not the substance of

the federal court’s resolution of a claim on the merits” but “some

defect

the

integrity

Gonzalez, 545 U.S. at 532.

the

federal

habeas

proceedings.”

A Rule 60(b) motion attacks a defect

in the integrity of the proceedings if it asserts error in a

“ruling which precluded a merits determination,” such as the denial

of a habeas motion based on a “procedural default” or a “statuteof-limitations bar.”

Id. at 532 n.4.

The courts below correctly determined that petitioner’s

Rule 60(b) motion qualified as a second or successive Section 2255

motion under Gonzalez.

Pet. App. 11-18, 25-32.

motion raised two arguments relevant here:

The Rule 60(b)

(1) that the district

court erred in denying petitioner leave to amend his Section 2255

motion

reassert

claim

that

the

omission

statutory

aggravating factors from the indictment was structural error, and

(2) that the court erred in denying his motion to interview jurors

to investigate potential juror bias or misconduct.

Id. at 49-59.

Petitioner contends that the first of those arguments raised

challenge

the

district

court’s

“procedural”

ruling

petitioner’s motion for leave to amend and thus did not qualify as

a “successive” claim subject to Section 2255(h)’s restrictions.

Pet. 16 n.4, 24.

As the court of appeals observed, however, the

district court “denied amendment in a merits-based decision.” Pet.

App. 17.

The district court not only noted at the outset the

“[e]stablished” rule that a habeas “petitioner may not raise an

issue in his motion to vacate that has already been decided

adversely to him on direct appeal,” Id. at 397; see Reed v. Farley,

512 U.S. 339, 358 (1994) (Scalia, J., concurring in part and

concurring in the judgment), but also considered the substance of

petitioner’s claim.

It determined that the two recent decisions

of this Court he cited “were [not] on point” and that, even if

they were, neither decision would afford a ground for relief

because they did not apply “retroactively” to cases on collateral

review.

Pet. App. at 398-399; see id. at 5 n.3.

If denial of

leave to amend on that ground were deemed “procedural,” it would

have the anomalous effect of putting prisoners in a better position

to file Rule 60(b) motions on claims that they omitted from their

original collateral attack.

The courts below correctly declined

to endorse such an approach by treating petitioner’s reliance on

additional authority in support of the same claim as subject to

the restrictions in Section 2255(h).

See Gonzalez, 545 U.S. at

531-532.

Petitioner does not develop in the body of his petition –and accordingly has relinquished –- any argument that the courts

below erred in treating his separate juror-interview claim as a

successive claim that also required authorization under Section

2255(h).

Any such argument would lack merit in any event.

As the

court of appeals explained, petitioner sought reopening of the

Section 2255 proceedings so that he could interview jurors in

support of a challenge to the impartiality of his jury that he

never raised on direct appeal or in his amended Section 2255

motion.

Pet.

App.

12-13.

But

Rule

60(b)

does

not

permit

petitioner to “circumvent” the requirement in Section 2255 “that

a new claim be dismissed unless it relies on either a new rule of

constitutional law or newly discovered facts.”

at 531; see 28 U.S.C. 2255(h).

Gonzalez, 545 U.S.

Petitioner has identified no new

retroactive rule, 28 U.S.C. 2255(h)(2), nor any “newly discovered

evidence,” 28 U.S.C. 2255(h)(1) -– let alone evidence suggesting

factual innocence, see ibid. -- that would support his claim.

Allowing speculative claims like petitioner’s to justify reopening

a collateral attack would contradict the statutory scheme and open

the door to successive claims in many cases.

Because

the

courts

below

correctly

treated

both

petitioner’s arguments as successive claims subject to Section

2255(h)’s

strictures,

and

because

petitioner

did

not

obtain

precertification to pursue those claims, Section 2255(h) precludes

further review.

See also 28 U.S.C. 2244(b)(3)(E) (providing that

court of appeals’ denial of precertification is not subject to

certiorari review).

Petitioner’s

contention

that

the

omission

from

indictment of “an element of an offense or an aggravating factor

rendering the defendant eligible for a death verdict amounts to

structural error warranting reversal,” Pet. 18 (emphasis omitted),

is accordingly not properly before the Court.

In any event, this

Court denied review of that same question on petitioner’s direct

appeal, see 543 U.S. 1005; the Rule 60(b) posture of this case

makes it an unsuitable vehicle for addressing the question; the

claim lacks merit; and no circuit conflict exists that would

warrant further review.

initial

matter,

this

Court

could

reach

the

structural-error question presented in the petition only if it

first reversed the court of appeals’ jurisdictional determination

and then also concluded that petitioner satisfied the criteria for

relief from judgment under Rule 60(b).

S. Ct. 773, 779 (2017).

Cf. Buck v. Davis, 137

But as the court of appeals determined in

the alternative (Pet. App. 17 n.22), and as the government argued

in the district court (id. at 86-88), petitioner (even if his

motion were jurisdictionally proper) cannot satisfy the Rule 60(b)

criteria that govern at the post-conviction stage.

Arguing that decisions of this Court that postdate his direct

appeal support relief from judgment, petitioner’s motion invoked

the catchall provision in Rule 60(b)(6) for “any other reason that

justifies relief.”

97.

Fed. R. Civ. P. 60(b)(6); see Pet. App. 94-

In Gonzalez, however, this Court explained that its “cases

have required a movant seeking relief under Rule 60(b)(6) to show

‘extraordinary

circumstances’”

justify

reopening

final

judgment and that “[s]uch circumstances will rarely occur in the

habeas context.”

545 U.S. at 535 (citation omitted).

Indeed, Gonzalez itself emphasized that one of the Court’s

decisions

construing

the

federal

habeas

statutes

did

not

constitute an extraordinary circumstance, even if that decision

showed

that

the

dismissing

the

prisoner’s habeas petition on statute-of-limitations grounds.

545

U.S. at 536-537.

district

court

had

erred

And while petitioner contends (Pet. 27) that

courts of appeals since Gonzalez “have kept open the possibility

that a change in law

* * *

can constitute an extraordinary

circumstance,” he identifies no court that would deem his claim

here to warrant relief under Rule 60(b).

See Moses v. Joyner, 815

F.3d 163, 169 (4th Cir. 2016) (noting the “admirable consistency”

of the law on this issue since Gonzalez, and explaining that even

decisions such as those cited by petitioner “are peppered with

cautionary language, underscoring that” a change in decisional law

“‘without more, does not entitle a habeas petitioner to Rule

60(b)(6) relief’”) (quoting Cox v. Horn, 757 F.3d 113, 124 (3d

Cir. 2014), cert. denied, 575 U.S. 929 (2015)), cert. denied,

137 S. Ct. 1202 (2017).

Even if a change in decisional law alone could constitute an

extraordinary circumstance under Gonzalez, the three decisions

cited by petitioner would not rise to that level, because none

altered the criteria that the court of appeals considered during

petitioner’s direct appeal in determining whether the indictment

error was structural.

As explained above, the court of appeals

reasoned that (1) the indictment’s failure to include statutory

aggravating factors required to render petitioner eligible for the

death penalty was analogous to the omission of an element of the

crime in petit jury instructions, which this Court held to be

susceptible to harmless-error analysis in Neder v. United States,

527 U.S. 1 (1999); and (2) this Court’s determination in United

States v. Cotton, 535 U.S. 625 (2002), that the omission of a

sentence-enhancing element from an indictment “did not seriously

affect the fairness, integrity, or public reputation of judicial

proceedings,” see id. at 632-633, “suggests strongly that such a

defect is not the sort of structural error that necessarily escapes

harmless error review,” 367 F.3d at 278, 285-286.

Nothing in decisions cited by petitioner calls that analysis

into question.

The decision in Weaver v. Massachusetts, 137

S. Ct. 1899 (2017), addressed whether an error that the Court had

already classified as “structural” when raised on direct appeal

-– the closure of a courtroom in violation of the Sixth Amendment’s

public-trial

right

-–

required

showing

prejudice

when

presented as part of a claim of ineffective assistance of counsel

on collateral review.

Id. at 1905, 1907.

Petitioner relies not

Weaver’s actual holding -- that a prisoner in that circumstance is

required to show prejudice, see id. at 1911 -– but instead on the

Court’s description of the “three broad rationales” for holding

that

certain

violations

are

“not

amenable

to”

harmless-error

analysis.

Id. at 1908.

under

three

the

None of the examples that the Court listed

“categories”

structural

errors,

however,

included the defective-indictment claim that petitioner raises.

Ibid.

Further, the Court repeatedly cited with approval its prior

discussion of structural error in Neder, 527 U.S. at 8, on which

the court of appeals relied in considering the amenability of the

indictment error here to harmlessness analysis.

Weaver, 137

S. Ct. at 1910-1912. 4

The decisions in Williams v. Pennsylvania, 136 S. Ct. 1899

(2016), and McCoy v. Louisiana, 138 S. Ct. 1500 (2018), also do

not demonstrate a change in decisional law that could support

relief under Rule 60(b)(6).

See Pet. 9-10, 24, 26.

Williams

involved the longstanding rule that participation of a biased judge

is an error that cannot be assessed for prejudice because it

affects the “whole adjudicatory framework.”

136 S. Ct. at 1910;

see Neder, 517 U.S. at 8 (citing Tumey v. Ohio, 273 U.S. 510

(1927)).

The

only

question

for

the

Court

was

whether

that

established rule governed the failure of a judge on a multi-member

appellate court to recuse, where that “jurist’s vote was not

Petitioner

emphasizes

(Pet.

11-12,

20-21)

the

distinction drawn in Weaver between claims of structural error

preserved and raised on direct review and those presented on

collateral review. See 137 S. Ct. at 1910-1911. That analysis

does not aid petitioner, however, because it does not speak to

whether an indictment error is appropriately classified as

structural in the first place -- which is the distinct question

that the court of appeals decided in his direct appeal and the

district court reaffirmed in the Section 2255 proceedings.

decisive.”

Williams, 136 S. Ct. at 1909.

And in McCoy, the Court

simply applied its prior precedents holding that “[v]iolation of

defendant’s

Sixth

Amendment-secured

autonomy

ranks

[structural] error” to a lawyer’s concession of his client’s guilt

at the guilt phase of a capital trial.

138 S. Ct. at 1511 (citing,

inter alia, McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984)).

McCoy’s holding -- rooted in the Court’s dual conclusions that

such an error “blocks the defendant’s right to make the fundamental

choices

about

his

own

defense”

and

has

“effects”

that

are

“immeasurable,” ibid. -– does not in any way undermine the denial

of petitioner’s motion to amend his Section 2255 motion, much less

constitute an extraordinary circumstance justifying relief under

Rule 60(b)(6).

Even if petitioner’s claim were properly before this

Court, that claim would not warrant review because it lacks merit.

The omission from an indictment of a sentence-enhancing fact bears

no relation to the limited category of pervasive and fundamental

errors that are so intrinsically harmful to the framework of a

trial that this Court has deemed them structural.

This Court has

observed that “if the defendant had counsel and was tried by any

impartial adjudicator, there is a strong presumption that any other

errors

that

analysis.”

may

have

occurred

are

subject

harmless-error

Rose v. Clark, 478 U.S. 570, 579 (1986).

For example,

as discussed above, this Court held in Neder that the failure to

submit an offense element to the petit jury does not constitute

structural error.

527 U.S. at 8-15.

And in Washington v.

Recuenco, 548 U.S. 212, 220-222 (2006), this Court reached the

same determination with respect to a sentence-enhancing fact not

submitted to the jury.

The type of omission here is an even weaker

candidate for structural error than the omissions in those cases,

given this Court’s recognition that errors at the charging stage

may

rendered

prosecution.

harmless

subsequent

developments

the

See United States v. Mechanik, 475 U.S. 66, 70-72

(1986).

Petitioner asserts that plenary review of his defective-

indictment claim is nevertheless warranted because that claim

implicates a circuit conflict on “whether an indictment that omits

an element of an offense or an aggravating factor rendering the

defendant eligible for a death verdict amounts to structural error

warranting reversal.”

Pet. 18 (emphasis omitted).

As petitioner

observes (ibid.), this Court in 2006 granted a writ of certiorari

in United States v. Resendiz-Ponce, 549 U.S. 102 (2007), to decide

“whether the omission of an element of a criminal offense from a

federal indictment can constitute harmless error,” but this Court

ultimately did not reach the issue, finding that the indictment

was not defective in that case.

Id. at 103-104. In light of

subsequent

developments,

however,

conflict

exists

the

question presented in the petition.

Many courts of appeals have recognized that an indictment’s

failure to allege an element of an offense, even when the defendant

makes a timely objection, is subject to harmless-error review.

See, e.g., United States v. Dentler, 492 F.3d 306, 310-312 (5th

Cir. 2007); United States v. Cor-Bon Custom Bullet Co., 287 F.3d

576, 580-581 (6th Cir.), cert. denied, 537 U.S. 880 (2002); United

States v. Prentiss, 256 F.3d 971, 981-985 (10th Cir. 2001) (en

banc) (per curiam), overruled in part on other grounds by Cotton,

supra; United States v. Corporan-Cuevas, 244 F.3d 199, 202 (1st

Cir.), cert. denied, 534 U.S. 880 (2001).

Although the Third and

Ninth Circuits had previously concluded that omissions of (nonsentencing)

offense

elements

constitute

structural

error,

see

United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999); United

States v. Spinner, 180 F.3d 514, 515-516 (3d Cir. 1999), more

recent decisions from those courts issued after Resendiz-Ponce

cast doubt on the extent of any current division of authority.

Specifically, in 2007, the Ninth Circuit refused to extend

Du Bo to indictment errors in the “sentencing context.”

United

States v. Salazar-Lopez, 506 F.3d 748, 750, 752-755 (2007), cert.

denied, 553 U.S. 1074 (2008).

It also observed that Du Bo’s

rationale “ha[d] been overruled by” this Court’s decision in

Cotton, supra.

506 F.3d at 754 n.5.

And in 2016, the Third

Circuit overruled Spinner, explaining that the rationale of that

decision was “inconsistent with the Supreme Court’s treatment of

defective indictments and jury instructions in Cotton and Neder.”

United States v. Stevenson, 832 F.3d 412, 427 n.11 (2016), cert.

denied, 137 S. Ct. 674 (2017).

But even if a meaningful division of authority continued to

exist, it would not extend to the circumstances presented here.

The courts of appeals uniformly agree that harmless-error review

does

apply

omissions

sentencing-enhancing

factors

from

indictments, including in capital cases under the FDPA. See, e.g.,

United States v. Confredo, 528 F.3d 143, 155-156 (2d Cir. 2008)

(enhancement under 18 U.S.C. 3147), cert. denied, 556 U.S. 1144

(2009); Salazar-Lopez, 506 F.3d at 750, 753 (9th Cir.); United

States v. Brown, 441 F.3d 1330, 1367-1368 n.16 (11th Cir. 2006)

(FDPA sentencing factor), cert. denied, 549 U.S. 1182 (2007);

United States v. Cordoba-Murgas, 422 F.3d 65, 69, 72 (2d Cir. 2005)

(drug-quantity enhancement); United States v. Allen, 406 F.3d 940,

945, 949 (8th Cir. 2005) (FDPA element), cert. denied, 549 U.S.

1095 (2006); 367 F.3d at 285-286 & n.7 (5th Cir.) (same, in

petitioner’s direct appeal); United States v. Trennell, 290 F.3d

881, 889-890 (7th Cir.) (drug quantity), cert. denied, 537 U.S.

1014 (2002).

This Court has denied petitions for writs of certiorari in at

least three capital cases presenting the same question of whether

the omission of statutory factors for death-eligibility under the

FDPA from an indictment can be harmless error.

See Davis v. United

States, 562 U.S. 1290 (2011) (No. 10-7564); Battle v. United

States, 549 U.S. 1343 (2007) (No. 06-8356); Allen v. United States,

549 U.S. 1095 (2006) (No. 05-6764). The Court has similarly denied

petitions for writs of certiorari in several non-capital cases

raising the issue.

See, e.g., Lee v. United States, 137 S. Ct.

2212 (2017) (No. 16-7317); Barton v. United States, 135 S. Ct. 753

(2014) (No. 14-5354); Gomez v. United States, 571 U.S. 1096 (2013)

(No. 13-5625); Lucatero-Campos v. United States, 552 U.S. 1145

(2008) (No. 07-6575).

The same result is warranted here.

Petitioner contends that review is also warranted “to

establish that barring criminal defendants from access to their

trial jurors, particularly in death penalty cases, contradicts”

the Court’s decision in Pena-Rodriguez v. Colorado, 137 S. Ct. 855

(2017).

Pet. 15 (emphasis omitted).

Petitioner identifies no

decision holding that Pena-Rodriguez overrides local rules on

juror contacts like the one the district court applied here, Pet.

App. 370, and the successive-collateral review and Rule 60(b)

context of this case makes it an unsuitable vehicle for addressing

petitioner’s contention in any event.

As an initial matter, and as is true of petitioner’s

defective-indictment claim, this Court could reach petitioner’s

contention under Pena-Rodriguez only if it disagreed with both the

lower

courts’

appeals’

jurisdictional

alternative

determination

that

and

the

petitioner

court

did

not

demonstrate “extraordinary circumstances” warranting relief under

Rule

60(b)(6).

petitioner’s

sole

Pet.

App.

n.18

(citation

argument

support

omitted).

But

extraordinary-

circumstances showing is this Court’s decision in Pena-Rodriguez.

And as explained above, pp. 20-21, supra, intervening decisions of

this

Court

not

inherently

qualify

“extraordinary

circumstances” that warrant reopening a district court’s decision

rejecting

collateral

attack

conviction

sentence.

Gonzalez, 545 U.S. at 536-537.

Even assuming that a change in decisional law regarding

post-conviction procedures could in some scenario amount to an

extraordinary circumstance, see pp. 20-21, supra, this Court’s

decision in Pena-Rodriguez would not satisfy that standard here,

for two reasons.

First, petitioner could not benefit from Pena-Rodriguez in

any reopened Section 2255 proceedings because that decision does

not apply retroactively to cases on collateral review.

See Pet.

App. 20 (finding it “exceedingly doubtful” that Pena-Rodriguez

“announced a new substantive rule that applies retroactively to

cases

announced

collateral

narrow

review”).

exception

The

Court

the

general

Pena-Rodriguez

rule

precluding

impeachment of a jury’s verdict, “hold[ing] that where a juror

makes a clear statement that indicates he or she relied on racial

stereotypes or animus to convict a criminal defendant, the Sixth

Amendment requires that the no-impeachment rule give way in order

to permit the trial court to consider the evidence of the juror’s

statement and any resulting denial of the jury trial guarantee.”

137 S. Ct. at 869.

That rule is procedural in nature, “because it

neither ‘decriminalizes a class of conduct nor prohibits the

imposition

capital

punishment

particular

class

persons.’”

Tharpe v. Warden, 898 F.3d 1342, 1345 (11th Cir. 2018)

(quoting Lambrix v. Singletary, 520 U.S. 518, 539 (1997)), cert.

denied, 139 S. Ct. 911 (2019).

And it does not qualify as “a

watershed rule of criminal procedure,” id. at 1346, a category of

rules that this Court has described as “extremely narrow” and

“‘unlikely’” to include new members, Schriro v. Summerlin, 542

U.S. 348, 352 (2004) (citation omitted).

See Tharpe v. Sellers,

138

curiam)

Ct.

dissenting).

545,

551-552

(2018)

(per

(Thomas,

J.,

Because Pena-Rodriguez would not apply to any claim

of juror partiality or bias petitioner raised in a reopened Section

2255 proceeding, that decision cannot constitute an extraordinary

circumstance justifying relief from judgment under Rule 60(b)(6).

Second, Pena-Rodriguez does not support the constitutional

exception to local “rules barring post-conviction interviews with

jurors”

(Pet.

18)

that

petitioner

seeks.

petitioner

acknowledges (Pet. 15), Pena-Rodriguez by its terms “deferred to

the lower courts to resolve whether and when a criminal defendant

may pursue evidence of a juror’s racial bias.”

The Court stated

that

and

“[t]he

practical

mechanics

acquiring

presenting”

evidence of racial animus “will no doubt be shaped and guided by

state rules of professional ethics and local court rules, both of

which often limit counsel’s post-trial contact with jurors.”

S. Ct. at 869.

137

And the Court expressed no concerns about the

lawfulness of such rules.

It explained that counsel may still

develop the required evidence when jurors “come forward of their

own accord,” as jurors had done in Pena-Rodriguez itself, and that

“limits on juror contact can be found in other jurisdictions that”

had previously “recognize[d] a racial-bias exception” to the noimpeachment rule, id. at 869-870, without suggesting any infirmity

in those limits.

The courts of appeals, in turn, have uniformly recognized

that Pena-Rodriguez created only a “narrow exception” to the

general no-impeachment rule, United States v. Baker, 899 F.3d 123,

133-134 (2d Cir.), cert. denied, 139 S. Ct. 577 (2018), and that

the decision is fully compatible with trial courts’ application of

local rules limiting post-trial access to jurors.

See United

States v. Birchette, 908 F.3d 50, 57-58 (4th Cir. 2018) (describing

the

exception

“narrow,”

and

affirming

district

court’s

application of a local rule requiring “good cause” to justify juror

interview), cert. denied, 140 S. Ct. 162 (2019); United States v.

Robinson, 872 F.3d 760, 764, 770 (6th Cir. 2017) (explaining that

Pena-Rodriguez

announced

exception

that

applies

“in

very

limited circumstances” and reaffirmed “the validity of

* * *

local

cert.

rules”

limiting

post-trial

contact

with

jurors),

denied, 139 S. Ct. 55, and 139 S. Ct. 56 (2018), and 139 S. Ct.

786 (2019); see also Young v. Davis, 860 F.3d 318, 333 (5th Cir.

2017) (explaining that the exception applies “narrowly”), cert.

denied, 138 S. Ct. 656 (2018).

Petitioner

here

has

brought

forth

evidence

all

suggesting juror bias that might entitle him to invoke the narrow

Pena-Rodriguez

[petitioner]

exception.

has

“Over

proffered

misconduct or bias.”

the

absolutely

past

seventeen

evidence

years,

juror

Pet. App. 20-21; id. at 29 (noting that, at

the time of his request for leave under the district court’s local

rules to interview jurors, petitioner “conceded he had no evidence

of a Sixth Amendment violation”).

And he identifies no decision

of any court of appeals adopting a contrary view or suggesting

that a defendant cannot be required to proffer at least “some

evidence that racial bias infected his jury’s deliberations” (Pet.

18) before his lawyers will be permitted to interview jurors years

after trial. He accordingly would not qualify for any relief under

Pena-Rodriguez.

Finally, even if Pena-Rodriguez applied retroactively

and supported an exception to local rules limiting juror contact,

petitioner

would

not

able

establish

extraordinary

circumstances under Rule 60(b) for an additional reason –- namely,

“his lack of diligence in pursuing” his juror-interview claim,

Gonzalez, 545 U.S. at 537.

In Gonzalez, this Court found an

intervening decision that (the Court assumed) rendered erroneous

the dismissal of a state prisoner’s federal habeas petition was

“all the less extraordinary,” for purposes of the “extraordinary

circumstances” requirement of Rule 60(b)(6), because the decision

issued at a time when Gonzalez “had abandoned any attempt to seek

review of the District Court’s decision on th[at] statute-oflimitations issue.”

Ibid.

The Court observed in particular that

Gonzalez had not raised the statute-of-limitations “issue in his

application for a COA,” nor sought to raise it in a petition for

rehearing in the court of appeals or in a petition for certiorari

in this Court.

Ibid.

And the Court explained that Gonzalez’s

“lack of diligence” confirmed that the decision on which he relied

was “not an extraordinary circumstance justifying relief from the

judgment in [his] case.”

Petitioner’s

relevant respects.

Ibid.

juror-interview

claim

here

analogous

After the district court denied petitioner’s

request for leave to interview jurors, he did not reassert that

request, or the associated claim of juror partiality, in his

Section 2255 proceedings.

And when the court ultimately denied

his Section 2255 motion, petitioner did not raise the denial of

his juror-interview request in his application for a COA in the

district court or the court of appeals, or in his petition for

certiorari asserting that the lower courts had erred in denying

him a COA. Cf. Slack v. McDaniel, 529 U.S. 473, 483 (2000) (setting

forth general principles for issuing a COA where a habeas petition

is denied on procedural grounds).

No less than in Gonzalez,

petitioner’s “lack of diligence in pursuing review of the” jurorinterview issue “confirms that” the Court’s subsequent decision in

Pena-Rodriguez “is not an extraordinary circumstance justifying

relief” under Rule 60(b).

See 545 U.S. at 537.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

SCOTT A.C. MEISLER

Attorney

JANUARY 2020

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