Reply Brief — Robert Alan Fratta, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No. 22-94 (CAPITAL CASE)

EXECUTION DATE: JANUARY 10, 2023

IN THE

Supreme Court of the United States

————

ROBERT ALAN FRATTA,

Petitioner,

v.

BOBBY LUMPKIN, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

REPLY IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

————

JAMES R. RYTTING

819 Lovett Boulevard

Houston, Texas 77006

MAUREEN FRANCO

Federal Public Defender

Western District of Texas

TIVON SCHARDL

Chief, Capital Habeas Unit

JOSHUA FREIMAN

Assistant Federal

Public Defender

919 Congress Avenue

Suite 950

Austin, Texas 78701

(737) 207-3007

Joshua_Freiman@fd.org

STANLEY J. PANIKOWSKI

Counsel of Record

DLA PIPER LLP (US)

401 B Street, Ste. 1700

San Diego, CA 92101

(619) 699-2643

stanley.panikowski@

us.dlapiper.com

ANDREA GUZMAN

DLA PIPER LLP (US)

200 S. Biscayne Blvd.

Ste. 2500

Miami, FL 33131

(305) 423-8525

andrea.guzman@

us.dlapiper.com

Counsel for Petitioner

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................

ii

INTRODUCTION ................................................

1

ARGUMENT ........................................................

1

I. The Fifth, Third, Ninth, and Eleventh

Circuits’ COA Requirement Conflicts

with the Fourth Circuit’s Approach and

This Court’s Precedent .............................

1

II. Fratta’s Rule 60(b) Motion Is Timely .......

6

III. The State’s Arguments About the

“Mixed” Nature of Fratta’s Rule 60(b)

Motion Underscore the Need for Review

on Fratta’s Second Question Presented ...

7

CONCLUSION ....................................................

9

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Ayestas v. Davis,

138 S. Ct. 1080 (2018) ...............................

2

Banister v. Davis,

140 S. Ct. 1698 (2020) ...............................

6

Buck v. Davis,

137 S. Ct. 759 (2017) ............................. 2, 3, 6, 8

Gonzalez v. Crosby,

545 U.S. 524 (2005) ..................................passim

Harbison v. Bell,

556 U.S. 180 (2009) ............................... 2, 3, 4, 5

Niz-Chavez v. Garland,

141 S. Ct. 1474 (2021) ...............................

6

Trevino v. Thaler,

569 U.S. 413 (2013) ...................................

7

United States v. McRae,

793 F.3d 392 (4th Cir. 2015) .....................

2, 4

Will v. Lumpkin,

978 F.3d 933 (5th Cir. 2020), cert.

denied, 142 S. Ct. 579 (2021) ....................

6

STATUTES

18 U.S.C. § 3599 ...........................................

2

28 U.S.C. § 2244(b) .......................................

3, 5

28 U.S.C. § 2253 ...........................................

3

28 U.S.C. § 2253(c) ....................................... 3, 4, 5

28 U.S.C. § 2253(c)(1)(A) ..............................

4, 5

iii

TABLE OF AUTHORITIES—Continued

RULES

Page(s)

Fed. R. Civ. P. 59(e) ......................................

6, 7

Fed. R. Civ. P. 60(b).....................................passim

Fed. R. Civ. P. 60(b)(6) .................................

2, 8

Fed. R. Civ. P. 60(c)(1) ..................................

6

OTHER AUTHORITIES

11 Wright & Miller, Federal Practice &

Procedure (3d ed. 2012) ............................

7

INTRODUCTION

The Petition poses a significant question of civil

procedure on which the circuits are split. Both

questions presented affect the fairness of federal

habeas proceedings. The State concedes the circuit

split but urges the Court to overlook it. The State’s

response fails to overcome the compelling reasons why

certiorari should be granted.

Immediate review is especially urgent because,

since the time the Petition was filed, the state trial

court has issued an order setting Fratta’s execution for

January 10, 2023.

ARGUMENT

I. The Fifth, Third, Ninth, and Eleventh

Circuits’ COA Requirement Conflicts with

the Fourth Circuit’s Approach and This

Court’s Precedent.

Fratta’s petition raises an important question of

civil procedure: Is a COA required to challenge the

denial of a Rule 60(b) motion to reopen habeas proceeding on jurisdictional grounds? The Fifth, Third,

Ninth, and Eleventh Circuits have answered in the

affirmative. The Fourth Circuit has held the opposite.

The State readily acknowledges the split. BIO 1. But

it wrongly argues that this split is too “stale” and too

“narrow” to warrant the Court’s intervention. BIO 11.

The Fifth Circuit’s decision itself undermines the

State’s position. Moreover, this Court has repeatedly

acknowledged the need for guidance on the COA

requirement for appeals of Rule 60(b) motions. The

State’s own efforts to dispute the minority position on

the merits also underscore why review is appropriate.

2

The State’s charge of staleness fails. The Fifth

Circuit only recently took a position on the question

presented. And even then, the court refused to alter its

precedent in light of Harbison v. Bell, 556 U.S. 180

(2009), which drove the Fourth Circuit’s divergent

position in McRae. The Third Circuit reviewed its

position only in 2021.

This split is also ripe for resolution without waiting

to see if any other court of appeals joins the Fourth

Circuit. The question often recurs, even on this Court’s

docket. This Court has twice noted the unresolved

scope of the COA requirement on review of habeas

Rule 60(b) cases. Buck v. Davis, 137 S. Ct. 759, 772 n.*

(2017) (assuming without deciding that COA was

required to appeal denial of Rule 60(b) motion and

noting circuit split); Gonzalez v. Crosby, 545 U.S. 524,

535, and n.7 (2005) (same). The Court also recently

noted a similar jurisdictional issue in an appeal from

a collateral motion in habeas proceedings. See Ayestas

v. Davis, 138 S. Ct. 1080, 1089 n.1 (2018) (noting

that question whether “a denial of a [18 U.S.C.] § 3599

request for funding would fit within the COA framework” after Harbison was unresolved). The split subjects habeas petitioners—capital and non-capital

alike—to disparate treatment simply because they

reside in a particular circuit. Nothing will be gained

from allowing this divide to persist.

Further, even if the State were right that courts of

appeals are only infrequently called upon to decide

whether to apply the COA standard to Rule 60(b)

dismissals, that would not undermine the importance

of getting the answer right in precisely those cases.

A motion under Rule 60(b)(6) may be rarely invoked;

but when it is sought, it plays a critical role in

relieving habeas petitioners from “extraordinary” ineq-

3

uitable judgments. Buck, 137 S. Ct. at 772. Whether a

court of appeals should add a jurisdictional hurdle

that finds no support in AEDPA’s text to a habeas petitioner’s request for extraordinary relief is therefore of

paramount importance.

In addition, the State’s misguided attack on the

merits of the Fourth Circuit’s position, see BIO 9-11,

bolsters, rather than diminishes, the need for review.

The State’s position disregards this Court’s holding in

Harbison v. Bell, which provided the authoritative

construction of 28 U.S.C. § 2253(c). Harbison clarified

that Section 2253 governs only “final orders that

dispose of the merits of a habeas corpus proceeding—

a proceeding challenging the lawfulness of the petitioner’s detention.” 556 U.S. at 183. Orders denying

Rule 60(b) motions do not “dispose of the merits of a

habeas corpus proceeding,” and Rule 60(b) motions

cannot “challeng[e] the lawfulness of the petitioner’s

detention.” But instead of addressing § 2253(c)’s text,

the State argues that different language in a different

AEDPA provision, § 2244(b), somehow expands the

meaning of § 2253(c) and undercuts Harbison’s holding.

BIO 10. This is not a plausible textual argument.

In Gonzalez, this Court considered whether Rule

60(b) motions in a habeas proceeding were subject to

the requirements that apply to successive habeas

petitions. 545 U.S. at 526. The Court held that “true”

Rule 60(b) motions that challenge “some defect in that

federal habeas proceeding,” as opposed to the merits,

should not be subject to the requirements of successive

habeas petitions. Id. at 531-33.

Four years later, in Harbison, the Court analyzed

whether a petitioner appealing the denial of a motion

for federally appointed counsel is required to obtain a

4

COA. 556 U.S. at 183. The Court held that a COA was

not required because the lower court’s order did not

constitute a final order that disposed of the merits of

the habeas proceeding. Id. The Court explained that

§ 2253(c) governs “final orders that dispose of the

merits of a habeas corpus proceeding—a proceeding

challenging the lawfulness of the petitioner’s detention,” and a denial of a motion to enlarge the authority

of counsel is not such an order. Id.

The Fourth Circuit’s decision in United States v.

McRae, 793 F.3d 392 (4th Cir. 2015), represents the

only faithful application of both Harbison and Gonzalez.

Id. at 399 (“Gonzalez mandates that we treat true

Rule 60(b) motions differently from successive habeas

petitions, and Harbison holds that only final orders

with a sufficient nexus to the merits of a habeas

petition trigger the COA requirement.”). The Fourth

Circuit’s holding relied on Harbison’s explanation that

§ 2253(c)(1)(A) “governs final orders that dispose of the

merits of a habeas corpus proceeding—a proceeding

challenging the lawfulness of the petitioner’s

detention.” Id. at 398-99. Ultimately, the court held

that a COA is not required to appeal a Rule 60(b)

motion that does not challenge the merits of the

habeas corpus proceeding and rather attacks a procedural issue in the habeas proceeding. Id. at 400

(“A jurisdictional dismissal of a collateral attack on a

habeas proceeding is so far removed from the merits of

the underlying habeas petition that it cannot be said

to be a ‘final order[ ] . . . dispos[ing] of the merits of a

habeas corpus proceeding . . . challenging the lawfulness

of the petitioner’s detention.’”).

The State incorrectly argues that Harbison does not

support the Fourth Circuit’s rule (and thus does not

support Fratta’s Petition) because the Court was

5

reviewing an order denying appointment of federal

counsel, not a Rule 60(b) motion. BIO 9. Harbison

itself expressly recognizes the important differences

between an order that disposes of the merits of a

habeas corpus proceeding (and is thus subject to

§2253(c)(1)(A)’s requirements) and one that does not.

556 U.S. at 183. Harbison therefore encompasses the

type of motion at issue here.

The State’s challenge to the Fourth Circuit’s reliance

on Gonzalez’s interpretation of section 2244(b), which

is not the governing statute here, also fails. BIO 9-10.

These provisions are consistent with each other in the

way that is relevant here: the requirements of section

2253(c) and 2244(b) apply to Rule 60(b) motions that

challenge the merits of the underlying habeas petition.

See, e.g., Gonzalez, 545 U.S. at 532 (holding that the

requirements of section 2244(b) apply to Rule 60(b)

motions challenging “the substance of the federal

court’s resolution of a claim on the merits”); Harbison,

556 U.S. at 183 (recognizing that section 2253(c)(1)(A)

“governs final orders that dispose of the merits of a

habeas corpus proceeding—a proceeding challenging

the lawfulness of the petitioner’s detention”). Gonzalez

is therefore instructive alongside Harbison.

Lastly, the State wrongly argues that exempting

dismissed Rule 60(b) motions from the COA requirement is inconsistent with the “structure” of AEDPA.

BIO 10. The State fundamentally misunderstands

what is at the heart of Fratta’s appeal: Fratta’s appeal

concerns the district court’s improper conclusion that

his motion was a successive application in disguise. So

it is completely inapposite to compare his case to the

rules for second-or-successive applications. In contrast

to vague arguments about non-existent structural concerns, the proper task is to apply Section 2253(c) as it

6

is written. See Niz-Chavez v. Garland, 141 S. Ct. 1474,

1480 (2021). That is all that the Petition calls for here.

II. Fratta’s Rule 60(b) Motion Is Timely.

The State’s argument that Fratta’s Rule 60(b) motion

is untimely is also unavailing. BIO 12. The State

abandoned that objection in its briefing in the Fifth

Circuit. See generally Resp. in Opp. to COA Appl.,

No. 21-70001 (5th Cir. Sept. 1, 2021). And even if it

had not abandoned that argument, the argument is

wrong. Fratta’s motion is expressly premised on two

preconditions: (1) Banister v. Davis, 140 S. Ct. 1698

(2020), change in law affecting the availability of Rule

59(e) motions to habeas petitioners in the Fifth Circuit

and (2) changes in law affecting the adequacy of the

state court’s “hybrid representation” procedural bar.

Fratta was required to raise both changes to attack the

judgment in his case, because the judgment contained

both a procedural-default ruling and an alternate

statement of the court’s view of the merits of the

defaulted claims. Under Fifth Circuit precedent, if

Fratta had only attacked the procedural-default

ruling, his motion would have failed. See Will v.

Lumpkin, 978 F.3d 933, 938-40 (5th Cir. 2020), cert.

denied, 142 S. Ct. 579 (2021). Because Fratta was

required to meet both preconditions to make his

motion, the motion was not available before Banister

was decided in June 2020. Fratta properly brought his

motion in October 2020, which is a “reasonable time”

after Banister, as Rule 60(c)(1) requires. See Gonzalez,

545 U.S. at 527 (noting motion was filed “almost nine

months” after Supreme Court decision); Buck, 137 S.

Ct. at 771 (noting that Buck’s motion was filed in early

2014, at least seven months after the Supreme Court’s

7

May 28, 2013 decision in Trevino v. Thaler, 569 U.S.

413 (2013)).

III. The State’s Arguments About the “Mixed”

Nature of Fratta’s Rule 60(b) Motion

Underscore the Need for Review on

Fratta’s Second Question Presented.

The State next incorrectly contends that Fratta’s

motion for relief from the judgment is a poor vehicle

for the COA question because the motion is “mixed”—

that is, according to the State, it contains “both

permissible and impermissible” arguments attacking

the habeas judgment. BIO 14. In other words, the

State tries to make Fratta’s second question presented

a reason not to grant his first. The better solution is to

grant both.

Fratta attacks not only the procedural-default ruling,

but also the procedural defect that prevented him from

correcting the district court’s alternate merits analysis

using Rule 59(e). Whether that “mixed” attack makes

Fratta’s motion a successive application in disguise is

squarely posed by Fratta’s second question presented.

But the State assumes what remains to be proven

and so begs the question: If a petitioner attacks a

defect in the integrity of the proceedings that led to an

alternate merits ruling—here, the denial of the opportunity to move for alteration of the judgment under

Rule 59(e)—should that attack be classified as a

proper subject for a Rule 60(b) motion under Gonzalez?

The Fifth Circuit concluded that petitioners may

not properly attack a “defect in the integrity of

the proceedings” using Rule 60(b) unless the defect

“prevented the petitioner from presenting his claims.”

Pet. App. 7a. By that logic, Fratta’s attack on the

alternate merits analysis would be impermissible

8

because he had not been “prevented” from presenting

his claims. But contrary to the State’s view (see BIO

17-18), this rule finds no support in Gonzalez. There

are numerous situations in which a merits determination is infected by defects, ranging from denials of

process to fraud on the court. On its face, the Fifth

Circuit’s rule would not even allow a petitioner to present

a Rule 60(b) motion to cure any of these patent defects.

The State’s other arguments about the second

question presented are also unpersuasive. Fratta did

not “reargue” the merits of his defaulted claims. BIO

15-16. He simply demonstrated what Buck said he had

to: that he has a “good” claim if the case were

reopened. Buck, 137 S. Ct. at 780 (existence of “‘a good

claim or defense’ is a precondition of Rule 60(b)(6)

relief” (quoting 11 Wright & Miller, Federal Practice &

Procedure § 2857 (3d ed. 2012))).

Contrary to the State’s view, the fact that the Fifth

Circuit discussed the merits of the underlying

defaulted claims should not dissuade this Court from

intervening. BIO 18. The State’s position merely

illustrates the problem with requiring a COA to appeal

Rule 60(b) dismissals. The Fifth Circuit addressed the

merits of claims Fratta did not “raise” in his motion to

satisfy a COA standard that should not apply to his

appeal. The State now presents that ruling as a reason

for this court not to correct the Fifth Circuit’s underlying error on an important question of civil procedure.

This backwards logic should not thwart the resolution

of this question now.

9

CONCLUSION

For these reasons, Fratta’s Petition for Certiorari

should be granted.

Respectfully submitted,

JAMES R. RYTTING

819 Lovett Boulevard

Houston, Texas 77006

MAUREEN FRANCO

Federal Public Defender

Western District of Texas

TIVON SCHARDL

Chief, Capital Habeas Unit

JOSHUA FREIMAN

Assistant Federal

Public Defender

919 Congress Avenue

Suite 950

Austin, Texas 78701

(737) 207-3007

Joshua_Freiman@fd.org

STANLEY J. PANIKOWSKI

Counsel of Record

DLA PIPER LLP (US)

401 B Street, Ste. 1700

San Diego, CA 92101

(619) 699-2643

stanley.panikowski@

us.dlapiper.com

ANDREA GUZMAN

DLA PIPER LLP (US)

200 S. Biscayne Blvd.

Ste. 2500

Miami, FL 33131

(305) 423-8525

andrea.guzman@

us.dlapiper.com

Counsel for Petitioner

October 18, 2022